THE HUCK FINN SYNDROME IN HISTORY AND THEORY: THE ORIGINS OF FAMILY PRIVACY

Abstract

This article is concerned with understanding the historical and theoretical origins of the concepts of "parents' rights" and "family privacy." Neither is explicitly mentioned in the Constitution, but both concepts were among the earliest substantive due process rights recognized by the Supreme Court in the 1920s. Unlike other substantive due process rights that originated in the Lochner era, such as the right to contract or the right to an occupation, parental and family rights survived well past the New Deal era to the present day. But, as Barbara Bennett Woodhouse recognized seventeen years ago, the originating cases of Meyer and Pierce had darker sides to them than previously recognized. Since Woodhouse published her article, we have had more detailed studies of the Progressive Era, out of which emerged the laws struck down as interfering with parents' rights. More importantly, a heretofore-unpublished memoir of one of Justice McReynolds's law clerks has been made available. McReynolds authored both Meyer and Pierce, and thus the memoir serves as a unique insight into his views on family life and privacy rights. These new sources confirm Woodhouse's earlier findings that "parents' rights" and "family privacy" originated as reactionary and elitist doctrines. Following the historical examination above (and because the constitutional origins are so troubling), this article then examines family privacy from a theoretical perspective to understand whether such a concept can be squared with our liberal and democratic traditions. Specifically, the theories of Hobbes and Locke permit us to fully examine parent-state conflicts with one eye toward the consequences for democracy, and the other directed at the consequences for individual rights. This article ends with some thoughts about the future of the Supreme Court's unfortunate parents'-rights jurisprudence and how abandonment of it might better serve both democracy and liberty.