may temporarily appear to be the “public good.”41 Life within the
home is in need of the utmost protection due to its private nature.42
The governmental entities that yield power over individuals must
recognize the constitutional limitations to act. “The challenge is
essentially, of course, one to the capacity of our constitutional
structure to foster and protect the freedom, the dignity, and the rights
of all persons within our borders, which it is the great design of the
Constitution to secure.”43 The court must scrutinize and limit any
governmental action that hinders family interaction. However, when
the court does intervene into the affairs of the family, court
intervention should necessarily protect the rights of the family, which
involves balancing the individual rights of each family member.
B. Balancing the rights of all involved
A judge must carefully balance the rights of all family
members involved and not exercise his or her own authority
according to his or her own morals and values.44 Justice Brennan
quoted Justice Robert Jackson in stating, “the burden of judicial
interpretation is to translate ‘the majestic generalities of the Bill of
Rights, conceived as part of the pattern of liberal government in the
eighteenth century, into concrete restraints on officials dealing with
the problems of the twentieth century.’”45 These restraints should be
exercised as courts interpret and protect the rights of the entire
family. However, this “concrete restraint” fell to the wayside as
complicated family issues were presented before the court. Courts
now fashion remedies to everyday issues within the family, claiming
to act in the “best interest” of the child. Yet, because of the court’s
subjective definition of “best interest,” this encroaches the court’s
standards and values on raising a family into someone else’s home.
41 Justice Brennan, Jr., Speech, supra note 39 (“As government acts ever more
deeply upon those areas of our lives once marked ‘private,’ there is an even greater
need to see that individual rights are not curtailed or cheapened in the interest of
what may temporarily appear to be the ‘public good.’”).
42 Poe v. Ullman, 367 U.S. 497, 550 (1961) (Harlan, J., dissenting).
43 Justice Brennan, Jr., Speech, supra note 39.
44 Wayne, supra note 1, at 41.
45 Justice Brennan, Jr., Speech, supra note 39 (quoting Justice Robert Jackson in
Barnette, 319 U.S. at 639).