and giving consequences when rights are violated.36 Therefore, the
court is required to interpret and define “best interest” of the child as
the rights of the child. When the parental rights come into conflict
with the rights of the child, the court may protect the child’s rights by
limiting the parent’s conduct or enforcing the child’s rights by
removing the child from the parents’ care. But until there is a
balancing of rights between the parents and child, the court should
protect the rights of the parents from governmental intrusion.
A. Constitutional limits on actions by the courts
Today’s court system was authorized such that the judicial
power “shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or
which shall be made, under their authority.”37 The Judiciary Act of
1789 set up the court structure, with each court’s authority arising
under the Constitution.38 In a speech at Georgetown University on
October 25, 1985, Justice William Brennan Jr. stated, “The
Constitution on its face is, in large measure, a structuring text, a
blueprint for government. And when the text is not prescribing the
form of government it is limiting the powers of that government.”39
The Constitution limits the authority and power of the executive and
judicial branches of government to interfere into the private life of
Therefore, the government’s limitation is based upon the
rights of the individuals.40 The more intrusive government action in
the private life of the family becomes, the greater the need to protect
the individual rights within the family unit and avoid judgments that
36 Willson v. Black-Bird Creek Marsh Co., 27 U.S. 245, 252 n.1 (1829) (addressing
the question of public use of land and proper compensation regarding rights of
individual property owners).
37 U.S. CONST. art. III, § 2.
38 Matter of Steamboat Josephine, 39 N. Y. 19, 21 (1868).
39 Justice William J. Brennan, Jr., Speech at the Text and Teaching Symposium,
Georgetown University, Wash. D.C. (Oct. 12, 1985) [hereinafter Justice Brennan,
Jr., Speech], transcript available at
40 See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 636-37 (1943) (stating
that government power is limited in favor of individual freedom).