Constitutional Parental Rights: No “Substantive Due Process” Required 

Editors’ Note: This article is a development of ideas the author has set forth in his previous scholarship, including his recently published book, Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment (Bloomsbury 2026). 

The cause of parental rights achieved a major victory this past spring. In Mirabelli v. Bonta, the Supreme Court granted parents emergency relief against a state policy whereby school officials would identify a child as “transgender,” and then, without notice to his or her parents, begin calling the boy a girl (or the girl a boy). The Court found that this policy likely violated the parents’ constitutional right to direct the “upbringing and education” of their children.  

The decision signaled a victory not only for parental rights, but also for conservative jurisprudence more generally. Chief Justice John Roberts, setting aside his prior doubts, joined an opinion that reaffirmed the principal holding in Dobbs v. Jackson Women’s Health: that the “substantive” rights secured by the Fourteenth Amendment are limited to those “deeply rooted in [our] Nation’s history and tradition.” Now there are six justices who have set aside the evolutionary approach to the Amendment (which garnered five votes in Obergefell) and expressly endorsed the fundamentalist reading.   

But there is grave instability in the conservative position. As Justice Kagan noted in her dissent, the majority relied on a doctrine—“substantive due process”—that Justice Thomas and other conservative jurists have often questioned, if not rejected.   

Conservatives have good textualist and originalist reasons to shun “substantive due process.” Any “non-procedural due process” is a naked oxymoron. The Due Process Clause plainly indicates that the measure secures not substantive but only procedural justice. As I argue in my new book, when originally adopted, the provision secured a certain “process” that required a judicial process to determine whether there was good cause for a state’s deprivation of a person’s “life, liberty, or property.” Such causes included forfeiture, inability, or another’s superior title (to property). The Clause did not, however, govern the substantive law, civil or criminal, that defined such forfeiture, inability, or superior title.   

But conservatives need not abandon constitutional parental rights. The Fourteenth Amendment, as originally understood, not only recognized but also secured the right of the parent to the custody of his or her offspring. No legal fiction is required. 

This parental authority is presupposed by the first sentence of the amendment—the Citizenship Clause. That provision declares citizenship for all persons born in the United States and subject to its jurisdiction. Despite the recent discord, in Trump v. Barbara, as to the precise meaning of “subject to the jurisdiction,” all agreed or assumed that the child’s subjection, or immunity therefrom, is mediated through the parents. If the parents are exempt from such subjection by diplomatic or other immunity, that immunity is imputed to the child. Conversely, if the parents are truly subject to American jurisdiction, the child is thus truly subject as well.  

The child’s relationship to his parents is thus prior to his relationship to the polity. This primacy of parental authority was axiomatic not only for our Constitution, but for our entire legal system. Three decades before the amendment, future Justice Samuel Nelson found that “[a]ll the authorities concur on this point:”  

The father is the natural guardian of his infant children, and in the absence of good and sufficient reasons shown to the court, such as ill usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education.   

By 1866, when the amendment was drafted, the rule still prevailed. The Wisconsin Supreme Court explained that upon the father’s death, the child’s mother became the sole “natural guardian” of her child; therefore, there could be no “depriving the mother of the care and custody of the child” absent a showing of “good reason” or “just cause.” 

But the Fourteenth Amendment not only recognized, but also secured, the anterior right of the mother and father. The basis for this right cannot be found in the Privileges or Immunities Clause. That provision manifestly secures rights of citizenship, but parental authority is a right, like the right to life, that belongs to the human person. Accordingly, there is, to my knowledge, no evidence that anyone, before the twentieth century, identified parental rights as among the constitutional “privileges and immunities of citizens.” 

Rather, it is the Due Process Clause that secures, albeit partially, these rights. The person’s right to the custody of his or her bodily offspring was encompassed by the person’s “life, liberty, or property.” Just a few months after the ratification of the amendment, the Indiana Supreme Court declared that “to deprive the father of his right to the custody of his infant child,” without notice and a hearing, was to violate the father’s more general right to retain his “liberty and property” unless deprived of them by a judicial determination that “he has forfeited them by the standing laws of the community, and has had opportunity to answer such charges.” And just two years after the ratification of the Fourteenth Amendment, the Illinois Supreme Court held that the Due Process Clause invalidated a state law authorizing juvenile detention without any judicial finding of either the child’s criminal liability or the parent’s “gross misconduct or almost total unfitness”—a situation the court called “dire necessity.” The author of the decision, Anthony Thornton, had been a member of the Thirty-Ninth Congress that had proposed the amendment. The holding in that case—People ex rel. O’Connor v. Turner— became a leading authority. For fifteen years, the case was cited frequently, and though distinguished, was not challenged until 1886, with the publication of Christopher Tiedeman’s radical libertarian treatise. 

Constitutional parental rights are thus grounded in the original text and meaning of the Fourteenth Amendment. The parent cannot be deprived of the custody of his offspring absent a trial showing that he forfeited parental authority by abuse or neglect, or was incapable of caring for the child.  

At the same time, however, this constitutional right is limited in three important respects. First, the right is limited to the “parent” in the original sense of the term—the one whose body makes the child (parent derives from parere—to produce, bear). The most precise formula is the right of the parent to his or her offspring. The right does not extend to those caregiver-child relations that were once called quasi-parental, as in foster care, etc. 

Second, by its nature, parental authority is circumscribed by the equal natural rights of the child. The Fourteenth Amendment itself suggests this limitation. The Amendment presupposes 1) that the child, as a human person, must enjoy a certain foundational equality vis-à-vis his or her parents—an equality presupposed by the Equal Protection Clause (and the Declaration of Independence that inspired it); 2) that such equality consists, in part, of the rights of “life, liberty, and property,” and the right to the “protection” of the same; 3) that such equality must include the child’s right to become a parent; and 4) that the child who is an American citizen has certain fundamental “privileges,” including the right to travel, engage in commerce, and participate in the speech and general deliberative rights of the people.  

Consequently, parental authority cannot include a right to kill, maim, or sterilize one’s offspring, or otherwise impair the child’s health or fertility. Nor can an American child be denied the education, especially literacy, necessary to the enjoyment of the privileges of American citizenship.  Conservatives need not disavow state authority in these respects. 

Third, the right secures the parent only against state deprivation of custody—including temporary custody. Hence, Pierce v. Society of Sisters (1925) was rightly decided, and so too was Mirabelli. But the right does not forbid laws that do not involve the loss of custody—e.g., laws prohibiting certain private education outside the home. Hence, the ban on foreign-language instruction, at issue in Meyer v. Nebraska (1923), did not offend parental due process. For similar reasons, parental due process does not forbid public authorities, without force or fraud, from offering an overtly anti-religious curriculum—as was arguably true in the recent case Mahmoud v. Taylor.   

Nonetheless, other rights secured by the Fourteenth Amendment indicate that the Court reached the right result in both Meyer and Mahmoud. The criminal law at issue in Meyer probably violated that freedom of speech secured by the Privileges or Immunities Clause. And the curriculum in Mahmoud probably violated the equality likewise secured by the amendment. As I elaborate elsewhere, just as the amendment prohibits racial taxes, it prohibits a creedal tax imposed on the citizen because of his or her religious or political beliefs. This prohibition extends to indirect racial or creedal taxes, in the form of racial or creedal discrimination in public expenditures. Even if nominally open to all, a decidedly anti-religious curriculum, like a racial-supremacist curriculum, would be so offensive as to amount to a discriminatory constructive exclusion from the public schools.     

Finally, the Constitution’s protection for parental rights has broader implications. The child, by nature, has two parents. The security of this relationship suggests strongly the superiority of a certain domestic arrangement, where the mother and the father live together to care for their joint offspring. What Justice Kennedy feared in his dissent in the parental-rights case Troxel v. Granville is correct: constitutional parental rights reflect the “concept that the conventional [sic] nuclear family ought to establish the visitation standard for every domestic relations case.”   

Indeed, because our Constitution recognizes the right of both mother and father to the custody of their joint offspring, that Constitution surely permits—if not requires—all the states of our Union to publicly favor, once again, the lifelong “union between one man and one woman as husband and wife.” 

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