Whither the family and family privacy?

I. INTRODUCTION Whither notion of privacy? That question can be taken seriously is probably sufficient evidence that is jeopardy. Somehow, its appeal and our appreciation of it seem to be at cross-purposes. Thus, while President may seek protection from public exposure and humiliation by calling upon our sympathy for privacy, scholars ask us to look upon and its traditional shield as a breeding ground of pathology and oppression1 and the prototype of totalitarian regime.2 In same vein, parental and rights movements attract increasing political attention at same time that courts, as we shall see, diminish oversight matters like child-birth and child-rearing. Understanding where notion of is headed requires us to see how our attachment to conflicts with contemporary academic and legal ideas about family. With this mind, we consider how traditional view of as unique entity deserving special treatment has been seriously harmed by legal developments wherein claims are considered of no greater weight than individual claims or other group claims. Our focus this regard is traditional idea, famously recalled by Justice Douglas Griswold v. Connecticut,3 that occupies zone of that protects it from certain kinds of outside interference. Family privacy, this sense, consists domestic version of being let alone.4 By family privacy we do not mean that right of was ever specifically ascribed to family, although contemporary discussions of privacy, like discussions of individual privacy, are typically couched terms of rights.5 Rather, respect for insulated against intrusion from outsiders and made it court of first resort domestic matters.6 In connection with idea of was respected as primary authority matters relating to it qua family. This has now changed. What was once honored has been rendered dubious. Recent literature, for example, discloses claims that a based right is out of sync with contemporary sociological reality,7 that a based right is both constitutionally and philosophically unsound,8 and that familial needs to be replaced by version of that centers on autonomous individuals.9 II. CHARACTERISTICS THAT DISTINGUISH THE FAMILY FROM OTHER ASSOCIATIONS The undoing of or, if one prefers, domestic privacy, rests on prior undoing of two characteristics that have been identified with families by thinkers from antiquity to recent past (with noteworthy exceptions like Hobbes). First, is different in kind,10 or distinct,11 from other associations. Second, relationships among immediate members are discrete and unique compared to other relationships or to relationships outside family. In latter case, for example, Aristotle specified that slaves and females, what he called despotic and conjugal relationships within family, respectively, are different from one another.12 Similarly, Locke carefully distinguished adults from children and paternal/parental relationship from political and despotic relationships outside family,13 two distinctions which are intertwined and reinforce one another. Because fathers and mothers and children are distinct, differs, for example, from law abiding political association with its presumption that all are equal face of law. Because ends of are different from that of political order, members pursue different goals than citizens. Few thinkers, for example, are more radical than Aristotle on political association's responsibility for rules about marriage, procreation, and education: he expressly maintained that superintendence of education is to be public, and not on private lines and lauded Spartans for taking public control of education. …