Cynthia Godsoe recently posted to SSRN her paper Redefining Parental Rights: The Case of Corporal Punishment.

She writes that discussions of the constitutional elements of family law have largely focused on adult intimate relationships, yet it was a line of cases about parenthood, not marriage, that first reflected a substantive due process relational protection.

Since deciding Meyer in 1923, the U.S. Supreme Court has repeatedly expressed a parent’s fundamental right to raise her child as she sees fit, according parents significant choice in education, medical care, and other aspects of child rearing.

In this essay Ms. Godsoe argues that this thick conception of parental rights has been overread to shield the only remaining categorical exception to interpersonal violence, parental corporal punishment.

Every state has a parental discipline privilege, often little changed since Blackstone’s time. Permissible discipline often goes well beyond “spanking” to include hair-pulling, beatings with belts or sticks, and even choking. Corporal punishment continues to be widely practiced, despite the research consensus demonstrating that it (a) is ineffective at discipline, (b) impedes children’s socialization, and (iii) brings harms leading to serious physical abuse, as well (iv) as a strong correlation to future intimate partner violence.

The constitutional analysis of family status and privacy in the context of marriage and adult intimacy has changed significantly in recent years to recognize new equality norms. It is time, she argues, for the jurisprudence of parenthood to catch up. The constitutional analysis of parental rights should adapt to new empirical data and evolving social norms against the exculpation of intrafamilial harms.

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