Laura Savarese, Michigan State University, has posted The Origins of Family Rights and Family Regulation: A Dual Legal History, which is forthcoming in the Stanford Law Review:
The history of the state’s intrusions on the rights of marginalized parents has become central to today’s critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates.--Dan Ernst
This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children’s return from orphan asylums and juvenile reformatories—the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state’s growing power to remove children from their parents, in the name of child welfare, from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents’ right to regain custody after they remedied the reasons for children’s removal—establishing the core legal principles that delimit the state’s power today.
Recapturing the story of resistance to the family regulation system, at its inception, offers insights for today’s efforts to transform or dismantle that system, and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today, as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents’ legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents and children’s interests, absent a more radical redistribution of public resources to meet families’ material needs.
