The United States Supreme Court currently understands parenting as a constitutionally protected, substantive due process right. Yet the divisive nature of the doctrine of substantive due process has resulted in a confusing cacophony of pluralities, concurrences, and dissents that offer little guidance to lower courts. In this Note, Merry Jean Chan offers a new model with which to understand the Court’s parental rights jurisprudence. Identifying the expressive aspects of both procreation and childrearing, she argues that the constitutional foundation for the protection of parental rights lies in the First Amendment. The First Amendment, however, is only part of the story. The democratic state has a valid interest in children and the continuing production of functioning, diverse citizens. This interest may conflict with parental prerogative. Chan observes that intellectual property law mediates a similar tension between state interests and expressive rights. She proposes the “authorial parent paradigm, ” conceiving exclusive parental rights as an incentive for and reward to those who meaningfully and responsibly contribute to the perpetuation of democracy through reproduction and childrearing. The interplay between the intellectual property analogy and the protections of the First Amendment serves to recognize both the rights of parents and the interests of the state.
LawReview
