Consider an unspecified right, R, which is a fundamental right protected by the First, Fifth, Ninth and Fourteenth Amendments. Doe v. lrwin, 441 F. Supp. 1247, 1251 (D. Mich. 1977). Suppose that this right is regarded as far more precious than property rights, May v. Anderson, 345 U.S. 528, 533 (1953); and that the Supreme Court characterizes R as an essential right, Meyer v. Nebraska, 262 U.S. 390, 399 (1923), that protects a substantial interest that undeniably warrants deference, and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. 645 (1971). Imagine that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, Irwin, 441 F. Supp. at 1251; and that, because of this, [t]here must be some compelling justification for state interference with R. Irwin, 441 F. Supp. at 1249 These aspects of the nature of R stipulated, imagine further that our legal system actively functions to suspend or deny this right literally tens of thousands of times a year--that this is done openly and under color of state law. Suppose that the suspension, and sometimes even the denial, of R is done on the basis of little or no evidence of any state interest whatsoever. Imagine that, in these cases of suspension or denial, there is no demonstration, and often no allegation, that R has been, or is likely to be, abused or that the retention of R by the individual in question would be harmful to the legitimate interests of any other person. Suppose, further, that even the temporary suspension of this right shifted the burden of proof onto the former right-holder to demonstrate that the suspension should not become a permanent denial. If there were such a right and it were treated in such a cavalier way, what should our reaction be? Outrage? Indeed! But is there a right that can be substituted for R and make all of the above suppositions true? Absolutely. But it is neither the right to property (and not simply because it cannot be more precious than itself) nor the right to liberty. Though there are often legal threats to these rights, on the whole they receive significant protection from the courts. There is only one right that has the importance described above and receives so little protection. It is the right of custody of our children--a the cluster of rights labeled parental rights.
Posted on: Sun, 30 Mar 2014 18:57:09 +0000
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