There has been a lot of talk about about the the religious right wanted to President Bush to appoint justices in the mode of Justices Scalia and Thomas: "strict contructionalists" or "originalists." Justices who won't read unenumerated rights into the constitution or like Scalia says that regardless of whether such rights exist ths Courts have no power to enforce them.(1)
I understand why the religious right dislikes the outcome of substantive due process, privacy and unenumerated rights: sex, abortion, and gays. But in one area the right and particularly the religious right (and even more particularly in the world of home schooling) loves substantive due process and unenumerated rights: "Parental Rights"
This article from the Home School Legal Defense Association lays out the case law in favor of parental rights and concludes:
The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed fundamental. As a fundamental right, parental liberty is to be protected by the highest standard of review: the compelling interest test.
As can be seen from the cases described above, parental rights have reached their highest level of protection in over 75 years. The Court decisively confirmed these rights in the recent case of Troxel v. Granville, which should serve to maintain and protect parental rights for many years to come.
Troxel v. Granville the plurality (Justice O'Connor, joined by The Chief Justice, Justice Ginsburg, and Justice Breyer) based its decision on true 14th amendment substantive due process:
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).
The liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166.
Neither Scalia nor Thomas's judicial theories protect Parental Rights. Scalia dissents:
In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Thomas concurs but makes clear he would rule the other way if substantive due process had been challenged:
I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.
Parental rights are a fundamental liberty and so is privacy. If you have the right to control a child you have the right to control yourself.
Harriet Miers is said to be a Strict Constructionist. If the democratic senators are smart, they should ask good questions about her support of parents rights, home schooling then segue into liberty and substantive due process without ever mentioning privacy.
(1) I wonder if Scalia missed the whole "there is no right if there is no remedy" day in first year law school.