Substantive Due Process and Parental Corporal Punishment: Democracy and the Excluded Child

This Article questions whether parents have a right to corporally punish their children, and if they do, how this right should be defined. The author argues that parents should not receive the heightened constitutional protection conferred by a fundamental right. She argues that the political process already adequately protects the interests of parents in disciplining their children. To the extent that the political process chooses to permit parents to administer reasonable corporal punishment, this Article proposes a five-part test that courts can use to determine whether an act of corporal punishment fits within that reasonableness standard.

This test is more sensitive to the interests of children than are current standards and resolves all doubts in favor of the children.