Liberty and the Family

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The Limits of the American Founding: What Our Political Fathers Didn't Teach Us
by Peter Augustine Lawler, Ph.D.

A review of:
We Still Hold These Truths:
Rediscovering Our Principles, Reclaiming Our Future
by Matthew Spalding
ISI Books, 2009; 267 pages, $26.95

The following excerpt is taken from Dr. Lawler's review, as printed in the Summer 2010 edition of The Family in America, pages 304-307.

Liberty and the Family

"The Founders did not write much about the family,” Spalding observes, and "it is not mentioned in the Constitution and the core documents of the era.” That was because we consent to government as free individuals and not as members of classes or groups and certainly not as husbands or wives or children. But this Lockean understanding of who we are was to be limited to the national government. The Founders also assumed that the family's "centrality could be taken for granted," and its protection was reserved to the states. "State and local laws," Spalding goes on, "recognized and supported marriage, family, and the authority of parents in the upbringing and education." But they did so, he neglects to add, in ways that most Americans now believe violate the rights of adults as free individuals.

The history of our country has certainly been about the liberation of marriage from sacred and traditional duties given to us by God and nature. If the idea of marriage still depended on the confinement of sexual relations to the marriage bed, lifelong fidelity, and the almost universal expectation of multiple children, same-sex marriage would not be an issue today. But free persons, it seems, have liberated marriage from biological imperatives, and those that sign a marriage license these days are consenting to a few new rights but to no new duties. Because marriage has become a duty-free entitlement between any two autonomous individuals, the homosexuals are right to wonder why they, at this point, should be excluded. It's the Lockeanization of marriage - the reconfiguration of the social institution in terms of individual rightsthat created the context in which Lawrence v. Texas became plausible. Most of that Lockeanization did not come from the Courts but was the product of an increasingly more consistent application of the idea of individual rights to state law from a variety of sources. We consent to all government, as we see more clearly than ever now, to secure our rights and for no other reason than that, while our duties are limited to respect for the rights of other persons.

Anyone who has read Locke on marriage and the family in his Second Treatise knows the problem here: Marriage is the right of free individuals to one another's bodies. The result will often be children, and Locke recognizes the duty parents have to them. But he also says the duties of parents to each other as spouses are limited to the time required to rear the children. Locke would be all for individuals inventing their way out of that seemingly natural duty-say, through contraceptive technology. More than anything, Locke's intention was to free individuals by emptying the marriage contract of anything genuinely sacred, honorable, or even enduring. His intention was also to depend as little as possible on love, because love turns free, calculating individuals into obsessive suckers. The central individualistic or autonomous principle is the reversibility of every personal commitment according to changing conceptions of one's own interests and "lifeplan." Marriage becomes just another form of individual self-fulfillment in which individuals can switch their partners freely in their personal pursuits.

That the Founders presupposed a more traditional view of marriage is obvious. They also intended Lockean principles to have a quite limited effect on transforming marriage. They lost lots of sleep over their denial of rights to the Africans they brought over as slaves but were not particularly bothered by a world where women could not act as free and equal citizens just like men. Even a small women's liberation movement, based on applying the principle of the Declaration equally to both men and women, did not appear until after the founding generation.

The key process of change was the gradual transformation of state law in the wake of the Fourteenth Amendment, the gradual Lockeanization of all areas of American public life. Sex, remember, was added to race in the Civil Rights Act of 1964 at the eleventh hour by Southerners who hoped that it would seem much more controversial, even ridiculous. But whatever controversy there was evaporated quickly, and women quickly flooded the workforce. The Lockean idea of marriage as a contract between two equally free individuals has prevailed, as did the idea, expressed by the Court in Planned Parenthood v. Casey, that women, just like men, are free to define themselves as they please. That means that they are free not to limit themselves by being stuck with having babies, even babies already living in their wombs. A generation of American women, the Court pointed out, has organized their lives counting on the inventions of contraception and abortion. The Court argued that even if it had erred on what liberty is in Roe, it is impossible to roll the clock back now.

I agree with Christopher Wolfe that a shortcoming of Lockean liberalism, the kind of liberty to which the Founders were primarily devoted, is its tendency to undermine the stability of the family over time. As the nation's elites become more devoted to such principled individualism, the family weakens. Well before the Progressives, Tocqueville noted the many factors that would exact a toll on the kind of devotion that produces lots of well-raised children: self-obsessive, petty materialism; the restless anxiety that accompanies democratic affluence; the theoretical denial that we're anything more than ephemeral, biological beings; and doubt that human beings share moral or social goods in common-doubt that we really are, deep down, social and relational beings. The modern democrat has more and more trouble, as he becomes both more principled and more narcissistic, thinking beyond his own, personal being toward generating biological replacements or finding loving personal compensation for his own natural finitude in his family, children, and personal accomplishments generally. From its beginning in 1776, one dimension of the nation's heritage is the thought of the Lockean individual in the state of nature that being starts and ends with me. If I don't endure, nothing endures. .

That's not to deny that modern, democratic liberty has in some ways improved family life. As Tocqueville says, the disappearance of cold aristocratic formalities has been good for love in America, maybe especially for the friendship of the father with both son and daughter. Because everyone is free to marry the one he or she loves, there 1111ell excuse than ever for the dangerous liaisons that inevitably accompany being stuck with marrying for money or property or social standing. Who can also deny that thinking of women more consistently as free, consenting individuals has done wonders in the eradication of unjust "double standards;' making us much more attentive to the various dimensions of spousal abuse, undermining arbitrary and otherwise excessive reliance on "gender roles" in excluding women from the worlds of work and politics, and even in leading fathers to share the ordinary duties of parenthood? In general, we should follow Tocqueville in resisting the temptation to romanticize what was better about even the recent past by making our nostalgia so selective that we forget the human misery and injustice people endured then and which we should be grateful not to have to endure now. Lockean progress, we have to admit, has in many ways been real progress. But that progress has not proven beneficial in every way, and it has not delivered personal benefits without imposing personal costs.

That means, as Wolfe says, that "natural law theorists should help people as well as we can to be more self-critical about aspects of our liberalism that are less attractive." Even the Founders' principled devotion to liberty points in the direction of both the noblest and the most disorienting and degrading features of American life today. So we are grateful that the Framers were more than Lockean. But we should not pretend that they had some kind of comprehensive theory that incorporated all their influences, a theory that could be the foundation of the development of only the advantages and not of the shortcomings of modern liberal democracy. Nor can we blame only or even mainly the Progressives for the way the shortcomings are displaying themselves today.