The Constitution as Family Arbiter: A Moral in the Mess?

Abstract

Two interconnected social upheavals that occurred in the second half of the twentieth century underlie an intensifying legal debate about the conception of family. First, Western culture openly challenged a set of assumptions that supported a vision of family as hierarchical, holistic, and almost completely separate from the marketplace. Second, a group of social institutions (including schools, churches, and voluntary communal groups) that once anchored moral debate began to recede in significance. To these upheavals, American law has increasingly responded by eliding traditional legal responses to family issues and by seeking moral direction from constitutional principles. The second of these responses has been problematic, since constitutional jurisprudence, committed to autonomous individuality, is not well suited to resolving an important question central to the debate about family: the extent to which family relationships that involve children should value autonomous individuality. In attempting to answer this question, constitutional jurisprudence has produced significant social and legal confusion, as this Article shows through analysis of Troxel v. Granville, a 2000 Supreme Court decision that involved a challenge to a state nonparental visitation statute.