Clark Neily
Among the most challenging and important questions in constitutional law is whether the constitutions of the United States and various individual states protect unenumerated rights—and if so, which rights. The Supreme Court has long held that the US Constitution does protect certain rights not explicitly set forth in the text, including the right to guide the upbringing of one’s children.
At issue in M.M. v. King is a policy of certain county jails in Michigan prohibiting in-person visits and forcing pretrial detainees and others to instead interact with their families, friends, and other loved ones exclusively through video conferencing and telephone calls. As a result, presumptively innocent arrestees who are detained pretrial have been prevented from seeing and hugging their own children for weeks, months, or even longer—and for no bona fide penological reason.
A state trial court dismissed a challenge to this no-contact, no in-person visitation policy, finding that the Michigan Constitution does not protect a right to family integrity or specifically for incarcerated parents—including ones who are being held pretrial and are therefore presumed innocent—to hug their own children.
On appeal, Cato joined an amicus brief with more than a dozen other organizations and individuals, including the American Civil Liberties Union of Michigan, the Electronic Frontier Foundation, and the Children’s Law Section of the State Bar of Michigan, arguing that incarcerated parents have a right to in-person visits with their children. Besides the constitutional argument, the brief summarizes extensive social-science data showing that in-person visits (a) mitigate the harm of incarceration to children as well as parents; (b) aid in the peaceful administration of jails by reducing prisoner misconduct and aggressive behavior; and (c) facilitate reentry into society by helping maintain potentially stabilizing family ties.
It is hardly surprising that neither the US Constitution nor any state constitution explicitly protects the right of a parent to hug their own children because the idea that the government would gratuitously interfere with such a basic expression of love and affection is almost incomprehensibly dystopian. But the mere fact that a given right is not expressly set forth in a constitution does not mean there is no such right, nor does it relieve the judiciary of its obligation to protect that right from infringement by the government.