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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, March 06, 2007 ::
    Troxel too fuzzy? Try Fausey:

    The Family Research Council has submitted an amicus brief in support of cert in a parent's rights case, Fausey v. Hiller, in which the Court could clarify -- as it omitted to do in its last parent's rights case, Troxel v. Granville -- what the standard of review is when third parties seek visitation or other rights over children whose own parents have not been adjudicated unfit.

    This case puts FRC, as amicus, on the same side as the estimable Howard Bashman, who is representing the plaintiff.

    I note that in Howard's reply brief in support of cert, there is a section devoted precisely to the concerns voiced by Justice Scalia when he declined to join the majority in Troxel: "Providing States a Clear Legal Standard to Safeguard Troxel's Fundamental Right Will Not 'Constitutionalize' New Areas of Law Or 'Enmesh' the Court In Case-By-Case Adjudication."

    Bingo. Though, myself, I'd have done without the scarequotes around "constitutinalize" and "enmesh." But whatever. Good luck. Scalia's views are trenchant as always, but it is Justice Thomas's concurring view in Troxel (including his intriguing footnote) that the Court should adopt.

    :: David M. Wagner 10:48 PM [+] ::

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