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Marriage, Change, and the Future of Constitutional Self-Government

Marriage and family life are not what they once were and this “change” should continue with the embrace of further reforms in the direction of disestablishing or de-institutionalizing both institutions. The winds of change are blowing, and law, as pragmatic adaption to changing circumstances, must adapt, reflect and foster these ­changes. This is the core theoretical argument of Mark E. Brandon’s States of Union, a legal realist contribution to the history of marriage in law and public consciousness.

The story Brandon, a Professor of Law at Vanderbilt University Law School, tells parallels those seen in other fine histories of marriage and family life, including most especially Mary Cott’s Public Vows: A History of Marriage and the Nation (2000). Let us separate the essentially progressive history about marriage from the theoretical significance of that history for the purposes of grasping his line of argument. The book contains more than a few examples of “law school history,” in my view, but none of the simplifications or elisions affects the central narrative, which is one of the minimizing of marriage.

In the beginning, marriage and family life were patriarchal and monogamous; official divorce was relatively difficult to acquire, though desertion was easy because people were difficult to track; marriage and family life concerned laboring together and acquiring joint property, under the legal ownership of the male head of household who covered his wife’s legal identity (pp. 114ff.). Americans jettisoned some remnants of English common law (primogeniture and entail, for instance) to accommodate their different circumstances, and the English tradition was a moving target; Americans set out on their own path—a prudential adaptation to circumstances and to distinctly American ideas of consent and human equality.

What is more, this model of marriage and family life was constitutional in a sense. First, though the Constitution does not protect or integrate a vision of a quasi-patriarchal nuclear family into its text, this vision formed part of the culture that, in the beginning, perhaps, was thought to be essential to preparing future citizens for self-government in a republic. The political architecture of the Constitution seems to “presuppose a particular sort of society to make it work” (p. 75). What Brandon means by this is not clear.

The family participates in an “organic hierarchy of human attachments,” providing a first, indispensable rung on a ladder of attachments to a local community and churches and ultimately to their states. In Brandon’s telling, these local attachments, traceable to the republican tradition emphasizing virtue, formed part of Hamilton and Madison’s plan of protecting against “the oppression of a distant central power” (p. 78). Brandon also alludes to the connection between virtuous citizenry and a desire for manly independence and self-sufficiency, which presumably could be fostered in the middling families of American agrarian lore (pp. 71-72).

Brandon focuses on the particular forms of families in the constitutional order. “After the creation of the new constitutional order and the emergence of states with competent regulatory powers, it was within this legal structure that the social dynamic of American families played out.” Foremost among the attributes of this family were emphases on forming marriage though free choice of individuals (as opposed to arrangement marriages), sexual equality within separate spheres, and children as “new and special in the life of the family” (pp. 114, 115). The “private” mother would bear and educate children, giving rise to the ethos of republican motherhood, captured in Tocqueville’s Democracy in America. This is the fulcrum on which the American history of marriage and family life turns—new insights into the nature of equality lead to different forms of cultural and legal recognition, which themselves fostered more insights. All of this culminates in love conquering marriage (in Stephanie Coontz’s delicious phrase) or, what is the same thing, in the embrace of same sex marriage.

The formless, difficult life on the frontier meant that the roles men and women would take were increasingly fluid. Men would mind the hearth; women engage in productive labor. Women would leave the household to conduct their civilizing function, as teachers, as members of Christian organizations emphasizing virtues such as temperance, and as participants in political associations. These new functions led women to gain admission into institutions of higher education and to demand suffrage—both of which happened on the frontier first. At the same time, even more unconventional families formed on the frontier as men lived with men and, due to a shortage of women, men cross-dressed promiscuously so that they could play courtship, thus providing circumstantial evidence of the first homosexual couples penetrating the national consciousness.

There were also “uncommon families” based on the principle of sexual equality and communal property. These forms “departed from the legal template that the common law. . . presumed to impose” (p. 151), in that they either practiced celibacy and communal property (the Shakers) or the practice of complex marriage, the establishment of a more genuine equality between men and women, and the communal raising of children (the Oneida community). Brandon might also mention the nascent women’s rights movement culminating in the Seneca Falls Declaration (1848), wherein a group of women declared independence from the American norms of soft patriarchy. Seneca Falls marks a point similar to Oneida in most such histories—a point where the fracturing of the original American consensus becomes somewhat evident.

Brandon does not emphasize these aspects of conventional progressive history because he wants to tell a different part of the story—one where the law is used as an “instrument to kill new things,” but also where “law’s touch was sometimes relatively light” and accommodating (p. 180). Courts made pragmatic rulings in light of these uncommon families—sometimes finding that an intergenerational household of Shakers counted as a family for the purposes of insurance policies; sometimes making possible the freedom of association that made uncommon families possible. Law could be a killer (as when it sought to civilize Indian tribes or coerce Mormon polygamists into the American mainstream), but it can also hold the promise of greater and greater liberation and a redefinition of the relationships at the heart of the family. This is where matters stand in States of Union as Brandon approaches his last substantive chapter—Chapter 9: “Modern Times: Family in the Nation’s Courts.”

As a prelude to this most important chapter, Brandon provides a summary of “nineteenth-century developments.” At times he seems to suggest that the anti-polygamy cases of the late 1800s (including most prominently Reynolds v. United States) were attempts to “read a form of family into the Constitution” (p. 211)—thus Brandon follows the argument of Nancy Cott, who sees the states first as agents “perfecting community” (Public Vows, Chapter 2) and later sees Monogamy (and a soft patriarchy) as a “Law of Social Life” (Public Vows, Chapter 5). Again, Brandon has a different purpose in telling this story. There is a dissonance in 19th Century jurisprudence between acknowledging a “sweeping power to regulate familial life” and a vision that suggests “that family might actually constrain the exercise of governmental power” (pp. 212 and 213). Regulation meant an emphasis on the cult of womanhood, the separate spheres, the centrality of children, while the family as a constraint on government (apparently) fostered “the cultural appeal of companionate marriage” based on affection, respect and a deeper equality and similarity between men and women (p. 215).

What his history means to demonstrate, as he says in the last words of Brandon’s Conclusion, is that “the history of the family. . . has been a story of change and contestation” and that “aside from [monogamy], there is no constitutional ideal of marriage, nor of family. There are merely constitutional parameters within which debates over marriage and family have played out. America has always been a place for experiments and for diverse ways of life” (p. 266). Michael Grossberg’s Governing the Hearth (1985) is superior in its demonstration of such changes from a legal point of view. This conclusion about the constancy of change leads into his Conclusion on same sex marriage and other recent changes in marriage and family life.

There is much that is sloppy in Brandon’s account. He plops the ideal of “companionate marriage” into the book only in the last chapter, asserting that it had been an artifact of much that preceded it; had his account of the 19th Century substantiated this claim, the book’s contribution to our understanding of the changing constitution of marriage would have been obvious to all. He closes his eyes to the Seneca Declaration but focuses much on the origins of Joseph Smith’s revelation. His criteria for inclusion and exclusion are not made clear. As a legal history, it has much non-legal in it and it omits crucial legal events such as the passage of the 19th Amendment and the inclusion of family as an acceptable category in the Progressive Era and the New Deal; as a cultural history, it fails to include important cultural watersheds and the critical shifts in cultural mores. He does not really deliver on his promise to show how the family is “constitutional” or woven into the constitution of the nation. Cott’s fine book is superior in all these respects.

The closest Brandon comes to delivering on his promise to show how the family is integrated into our constitutional order is in his discussion of the two most important early family cases in “Modern Times”—Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)—which, when added together, suggest that there is a substantive right for parents to nurture and direct the education of their child. He immediately shows that this relationship has its limits, through his discussion of Buck v. Bell, the case in which the Supreme Court allowed for the sterilization of unwanted people. These cases, concerning the state regulation of parenthood and the limiting of Buck (in Skinner v. Oklahoma, 1942), might have made for an interesting place for Brandon to take stock in the status of the family in constitutional law. Here it seemed that the constitutional decisions had limited states in their regulation of “traditional” family life, put forward an idea that procreation and education would be best served through particular forms, and defended the family as an institution that would be somewhat impervious to state control.

This is not at all Brandon’s purpose. What follows these early cases is a highlight reel of Supreme Court cases and congressional enactments aimed at securing greater sexual or reproductive freedom (Griswold, Roe, Casey, Eisenstadt, and Lawrence), promoting greater equal treatment between the sexes (Equal Pay Act and Reed v. Reed), allowing various family forms to receive government benefits (US Department of Agriculture v. Moreno), establishing a fundamental right to marry (Zablocki—prohibiting states from denying marriage to those behind in child support payments—and Turner v. Safley­—allowing marriage in prison). These developments track a new meaning in marriage, captured nicely by Justice O’Connor in Turner:

Many important attributes of marriage remain. . . First, inmate marriages, like others are expressions of emotional support and public commitment. . . . In addition, many religions recognize marriage as having spiritual significance. . . .Third, most inmates eventually will be released on parole or commutation, therefore most inmate marriages are formed in the expectation that they will be full consummated. Finally, marriage status often is a precondition to the receipt of government benefits. . ., property rights. . ., and other less tangible benefits.

This new understanding of marriage centers on emotional support, commitment, spiritual significance, and government benefits; it downplays sexual consummation, procreation, and education of children as public purposes of marriage. This revolution in the meaning of marriage, coupled with the acceptance of homosexual and other alternative lifestyles, means that there can no longer be legitimate, non-sectarian opposition to same sex marriage or, perhaps, other family forms (see pp. 258-262).

The only argument against same-sex marriage that Brandon seems to countenance is the “slippery slope” argument, which, he says, may lead to polygamy and, perhaps, adult incest, but they may not and we cannot tell if either of those would be good or bad things. Whether by Supreme Court decision or the slow working out of democratic federalism, same sex marriage is but the latest reflection of our fluid, realistic adaptation to change. Brandon seems to have written the whole book to lead to and support this conclusion.

The constitutional movement from “child-centered” marriage to “adult-centered” marriage is complete with the movement toward same sex marriage; it is difficult to gainsay Brandon’s contentions about the state of American law and, to a lesser degree, opinion in this regard. Since it is actual, Brandon seems to think it is also rational. His prophecies about our immediate future may indeed be coming true.

Brandon’s description of marriage and family life reflects a notable narrowing of what “constitutional” means. The original constitutional vision reflected a comprehensive system of how to sustain republican self-government in the long term. Government had its tasks, private institutions including the family had their tasks, and the proper functioning of each depended on the other. From the outset, non-hereditary government in a more fluid society required a less patriarchal family. Republican citizenship depended on a certain type of education, which, if the Founders were correct, would best be supplied by private nuclear families. Self-sufficient, independent, self-controlled, competent citizens were most likely to come from nuclear families. As long as this was the ideal of citizenship, governments were limited and families essential. There is a constitutional parallel between the city and the family—a family order sustained the constitutional order.

Brandon’s understanding of constitutional is, explicitly at least, mostly legal and confined to constitutional law with little regard to how well the societies that embrace this adult-centered model of marriage survive in the long term. Marriage no longer links procreation and sex and education for children. This freedom from linkages Brandon calls “associational freedom.” The United States and modern countries generally are, Brandon writes, undertaking “an experiment in whether societies that protect a large domain for associational liberty and choice can sustain themselves demographically, economically, and ethically. Children’s welfare is plainly part of that experiment” (p. 260).

Constitutional thinking about this experiment might seek to address several related questions. What is this experiment testing? Why is it testing it? How will we know whether this experiment has been successful? What vision of citizenship undergirds Brandon’s new constitution (broadly conceived)? Can the constitution broadly conceived be rebuilt if the experiment fails? In view of the social science data on family decline, when will enough data be in to allow us to evaluate this experiment? What is Brandon’s view of human nature? What is Brandon’s view of the challenges that constitutional orders must face in order to sustain themselves long term? How will this new family order work in the long term? What are the odds of success? As states grow in power and might, as education systems underperform, as populations shrink, as economic dynamism takes a hit, as individuals retreat into themselves, could we already judge this approach, underway for some time, difficult to sustain? Brandon blinks at these questions.

Brandon is interested in winning today’s debates, so he invests much time in shortening our time horizons and in taking the next logical step in family change. Genuine constitutional thinking broadens our time horizons and thinks through the challenges human nature poses to the success of the “experiment.” Genuine constitutional thinking reflects upon the relationship between civil society and the state. Brandon’s book does none of this. In this respect as in others, Brandon reflects our new Progressive constitutional order.

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