Document Type

Article

Publication Date

1988

Abstract

Asked to resolve a social issue, Americans today turn readily to rights and to the Constitution that is understood to embody them. Many "vice" issues have long been thought particularly apt for a rights analysis. A constitutional resolution of vice issues is therefore inevitably a possibility, and its wisdom is inevitably a question. In this essay, I want to address that question by investigating an area of the law that has been recently constitutionalized family law. Family law is an example worth studying because rights thinking has won a considerable prominence in it: The Constitution has been used to transform some major aspects of family law and to cast a shadow on many others. In addition, rights thinking of a more general kind-influenced by constitutional ideas, but not exclusively constitutional-has come to shape much thought, legal and lay, about both family law and family life. Family law has not only had illuminating experience with rights thinking and constitutionalization; its experience has been with the most relevant form of each. For if vice issues are constitutionalized, it probably will be through the doctrinal framework of fourteenth amendment "privacy" rights developed and applied in family law cases. I do not, however, intend (or perhaps need) to take on the entire sweep of problems privacy rights present; rather, I wish to examine the unexamined. As the lawyers among my readers will know, constitutional doctrine divides decisions about statutes challenged in terms of fundamental fourteenth amendment privacy rights into two parts: First, does the statute infringe some individual right? Second, is some state interest nevertheless powerful enough to justify the statute? Most writing about privacy rights is devoted to the pleasures of identifying, describing, and defending individual rights. The state-interest side of the constitutional formula is generally scanted. I wish to redress that balance by investigating the role of the state's interest in legislation that impinges on privacy rights. In doing so, I will hope to learn more about the desirability of using the fourteenth amendment to approach family law problems generally and "vice" issues specifically. This symposium on vice will attract laymen as well as lawyers. I hope that this essay will speak to both audiences. However, it has two sections. In the first-part II-I analyze in conventional legal terms some doctrinal aspects of the Court's treatment of state interests. Specifically, I examine the Court's travails in developing tests to use in state-interest analysis, in defining the terms of those tests, and in applying them. In the essay's second sectionparts III through V-I address rather more speculatively some broader aspects of a constitutionalized family law. Particularly, I ask whether states may define their interests in broader terms than the Court has so far contemplated and whether the Court's constricted state-interest analysis has had deleterious political and social consequences. Both sections of the essay, I believe, engage the question ofhow far family law and vice issues should be constitutionalized, but the first section-because it takes doctrine seriouslymay be of livelier interest to lawyers than to social scientists. Thus, I counsel the lay reader to consider turning directly to the second section, which begins at part III. I undertake this topic with some hesitation. First, it treats only one side of a two-sided problem: To analyze the state interests in a statute or in the abstract without assessing the personal rights they confront and without weighing the two claims against each other is to leave important issues unexplored and one's ultimate conclusions about rights analysis unformed. Second, the topic is complex, and even in the generous space I have been permitted, I can only sketch a rough chart of my argument, one devoid of the cross-currents, eddies, depths, and shoals which are already too blithely and too hazardously ignored in explorations of constitutional rights.


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