The Child’s Right to His Father and Mother: the Unconstitutionality of the New Marriage, Part I

In the marriage cases pending before the Supreme Court, the parties and amici defending the validity of California’s Proposition 8 and the Federal Defense of Marriage Act have argued that the Constitution permits the state and federal governments to reserve the status and privileges of marriage to “marriage,” as traditionally defined.  To my knowledge, no one in the cases has argued that the Constitution might prohibit the state and federal governments from abandoning this traditional definition.

There is good reason, however, to conclude that in one critical respect, the Constitution prohibits the redefinition of marriage.  On this Father’s Day, I will begin by sketching how the Due Process Clause, as strictly construed and originally understood, establishes a presumption in favor of the natural father and mother’s trusteeship over the child’s liberty.  In subsequent posts, I will explain how the old marriage has complemented this presumption, and how the new marriage unlawfully undermines it.

The Due Process Clause of the Fifth and Fourteenth Amendments prohibits the federal and state governments from “depriv[ing] any person of life, liberty, or property without due process of law.”  The Clause would seem implicated by governmental action restraining a child’s movements.  A child is undoubtedly a “person”; indeed, the word “person” has, at least since the Civil War, always encompassed all homo-sapiens (with the glaring exception of prenatal homo-sapiens).  Further, the word “liberty” in this provision has always meant primarily, if not exclusively, the bodily power of locomotion.

Less clear is whether (1) a child, given the degree to which he is subject to adult control, has any “liberty” of which he or she may be governmentally “deprived,” and (2) if so, to what extent there is any particular pre-deprivation “process” that is “due”.

But the answer to both questions is probably “yes.”  As to the first, the child surely has some “liberty,” for the child possesses the power of locomotion, much as the child can possess property.  To be sure, this liberty is subject to lawful parental control; adults may lawfully restrict and regulate the child’s locomotion, much as adults can lawfully regulate and restrict the child’s disposition of property.  Yet the child still retains some measure of liberty and property; the child’s rights are regulated but not destroyed.

As to the required process, the Due Process Clause mandates, first and foremost, that governmental authorities follow the procedures established by statutory law.  But as the Supreme Court unanimously clarified in 1856 (just a decade before the adoption of the Fourteenth Amendment), the governing procedural “law” includes the traditional, “settled usages and modes of proceeding existing in the statute and common law of England” and the preserved throughout the American colonies.[1]  The Clause, then, binds even the legislature to respect these customary procedures.

Some of these traditional “usages and modes of proceeding” are not specifically enumerated in the Constitution.  For instance, in criminal cases, due process mandates that defendants enjoy the presumption of innocence.[2]

A similar presumption has prevailed in the context of child-custody litigation: the presumption that the natural father and the natural mother are the appropriate trustees of the child’s liberty.  As Justice Story explained, the law respects paternal authority, not “on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education.”[3]   Story elaborated this presumption in his treatise on equity:

The [equity court] interferes with the ordinary rights of parents, as guardians by nature, or by nurture, in regard to the custody and care of their children. For, although in general parents are entrusted with the custody of the persons and the education of their children; yet this is done upon the natural presumption, that the children will be properly taken care of, and will be brought up with a due education in literature, and morals, and religion; and that they will be treated with kindness and affection. But whenever this presumption is removed; whenever (for example) it is found, that a father…acts in a manner injurious to the morals or interests of his children; in every such case, the Court of Chancery will interfere, and deprive him of the custody of his child.[4]

After the Civil War, state governments assumed greater authority over the custody of children, by, e.g., the establishment of compulsory school-attendance laws, boarding reform schools, etc.  In response, courts sometimes invalidated, as violative of due process, governmental actions depriving children of their parents’ custody without respecting this presumption.[5]

This presumption has prevailed not only vis-à-vis the government, but against any third party, even a third party with whom the parent entered a putative agreement to surrender custody.  As a leading treatise explained over a century ago,

[T]he courts, recognizing the sacred ties which bind parent and child together, do not favor agreements between parents and strangers whereby the parent attempts to surrender to another the custody and control over the child. And upon this principle it is always with reluctance that a court of competent jurisdiction will take an infant from the custody of its parents and award the custody to a stranger. It must be imperatively necessary for the best interests of the child, and neither the poverty of the parent nor the wealth of the contemplated custodian is sufficient to justify this harsh measure.[6]

In the twentieth century, the Supreme Court frequently affirmed this constitutional presumption.  In Meyer v. Nebraska, for instance, the Court vindicated parental educational rights with reference to the parent’s “natural duty to give his children education suitable to their station in life.”[7]  Thirty years ago, the Supreme Court likewise concluded that the “law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions,” for the law has long “recognized that natural bonds of affection lead parents to act in the best interests of their children.”[8]  Just a decade ago, the Court likewise upheld this presumption in Troxel v. Granville.[9]

Unfortunately in these cases, the Court has done violence to the Constitution’s text by defining the right at issue as parental “liberty” rather than the child’s actual liberty (locomotion), as held in trust to his or her natural parents.  In this way, these cases generally are tainted by association with the contra-textual idea of “substantive due process.”

Still, whether by traditional due process or by the judicially-created substantive due process, the Constitution’s Fifth and Fourteenth Amendments include a presumption that a child’s natural father and natural mother are the trustees of the child’s liberty.  The Constitution thus mandates a preference for natural-parental custody, control, and education.  In subsequent posts, I will explain how by discarding this presumption, the new marriage is not only unknown, but repugnant, to our Constitution.

[1] Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1856).

[2] See, e.g., Greene v. Briggs, 10 F. Cas. 1135, 1140 (C.C.D. R.I. 1852) (No. 5,764); Wynehamer v. the People, 13 N.Y. 378, 446 (1856) (Selden, J., concurring).

[3] United States v. Green, 26 F. Cas. 30, 32 (C.C D.R.I. 1824) (No. 15,256).

[4] 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America 574–75 § 1341 (1839)

[5] See, e.g., People ex rel. O’Connell v. Turner, 55 Ill. 280, 287–88 (Ill. 1870) (holding that to remove a child from his parent’s care and confine him to a reform school without a finding of criminal liability was a deprivation of liberty without due process of law).

[6] W.C. Rodgers, A Treatise on the Law of Domestic Relations 536 (1899)

[7] 262 U.S. 390, 400 (1923).

[8] Parham v. J.R., 442 U.S. 584, 602 (1979)

[9]  530 U.S. 57 (2000).

Reader Discussion

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on June 17, 2013 at 03:20:04 am

You seem to be endorsing a form of substantive due process here. Do you really think that such a thing was endorsed in the Murray's Lessee's case? Number one, Murray's Lessee was about procedure not substance. Number two, even as to procedure, it by no means follows from that case that nothing can be due process if it replaces settled usage both in England and in this country.

That said, you are entirely correct that a child has a right to a Mom and Dad whenever feasible, and the judiciary has no business undermining legislative attempts to secure that right of children.

By arguing for a form of substantive due process, you're arguing for something which is in neither the Fifth nor Fourteenth Amendments. In the name of tradition as a restraint on democracy, you're arguing for a doctrine that is rapidly destroying both tradition and democracy.

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on June 17, 2013 at 13:57:10 pm


I opposed so-called "substantive due process," maybe more than you. I don't think my interpretation of the Clause can be fairly called "substantive due process," but just a bad understanding of "due process of law."

The question is what are the required procedures the government must follow before depriving any person of life, locomotion, or property. I (tenatively) believe (1) that the procedures must include certain traditional Anglo-American "usages and modes of proceeding, (2) and that such usages and modes include a presumption of innocence in criminal cases and a presumption of natural parental trusteeship in child-custody cases.

Our disagreement, I believe, is on the first claim--that Murray's Lessee held that the Due Process Clause required conformity with such traditional procedures. We both have some authority for out interpretations of that case. The majority in Hurtado v. California (your position) and Harlan's dissent (my position).

Below is the fuller context of the quotation. To me it seems obvious that Harlan was right--that conformity with certain traditional procedures was an essential element of due process of law.

"That the warrant now in question is legal process is not denied. It was issued in conformity with an act of Congress. But is it "due process of law?" The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave Congress free to make any process "due process of law," by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. "

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David Upham
on June 17, 2013 at 14:52:59 pm

Thanks for the reply.

In the Hurtado case, Harlan's dissent agreed with the Court that old English procedures need not be included in "due process of law", and Harlan merely disagreed about whether prosecution by information amounted to "progess and improvement in the law of criminal procedure...." Thus, procedural due process was essentially a subjective rather than historical endeavor in Hurtado. Of course, Hurtado came after the 14th Amendment, whereas Murray's Lessee came before that amendment, and so Murray is much more important than Hurtado regarding the meaning of the 14th amendment. Murray's Lessee was ambiguous about the role of history in a procedural due process analysis; the Murray Court found that the challenged summary proceeding was consistent with history, and therefore the Murray Court never squarely confronted what (if anything) it would do about a procedure that conflicted with historical tradition. Maybe the Murray Court would have engaged in a subjective analysis, like the Court (and Harlan) did in Hurtado, or maybe the Murray Court would have deferred to Congress. No one knows for sure.
Basically, in England, "due process of law" meant process owed according to the law of the land, i.e. according to "common law, statute law, or custom" in the words of Lord Coke. Since the Civil War, judges in the United States have taken it upon themselves to (in essence) cross out the words "statute law", instead of deferring to legislatures (which was the original intent). In other words, as Michael McConnell cogently argued in a recent law review article, the due process clause was originally meant as a separation of powers rule, whereby the executive could not harm people without legal authority.
Anyway, even assuming that procedural due process was really intended to restrain legislatures, I doubt that a presumption of innocence is really procedural rather than substantive. Suppose SCOTUS decides next year that laws banning rape are "presumptively" unconstitutional. Would you say that such a decision would be procedural rather than substantive, since it merely involves a "presumption" rather than a direct command? Such shenanigans were perfectly anticipated by Blackstone: "Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament; for, if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself."
Having studied the history of due process in considerable depth, I could drone on and on. But for now I'll just say that I disagree with the implication of the title of your blog post that gay marriage is unconstitutional. By the same token, I don't believe that allowing gay "marriage" is required by the Constitution either.

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Andrew Hyman
on July 01, 2013 at 11:56:45 am

P.S. Regarding the presumption of innocence, I would ground it in the Eighth Amendment, given that it is cruel to punish innocent people.
The Court has held that death penalty cases require extra procedural protections, and I would think that a similar principle applies to non-capital cases. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..." A presumption of innocence is critical to preventing cruel and unusual punishment, IMHO, whether it's a death penalty case or not. Generally speaking, I am not a fan of so-called "prophylactic rules", but if the presumption of innocence is a prophylactic rule then maybe not all prophylactic rules are bad.

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Andrew Hyman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.