Constitutional Thinking

Family and Change in the American Constitutional Order

Mark E. Brandon

• Publisher: University Press of Kansas
• Year: 2014
• ISBN:
  9780700619764
• Topic: History
• Subtopic: Social History
• Index: History

Silver Gavel Award Finalist In two canonical decisions of the 1920s— Meyer v. Nebraska and Pierce v. Society of Sisters —the Supreme Court announced that family (including certain relations within it) was an institution falling under the Constitution's protective umbrella. Since then, proponents of "family values" have claimed that a timeless form of family—nuclear and biological—is crucial to the constitutional order. Mark Brandon's new book, however, challenges these claims. Brandon addresses debates currently roiling America—the regulation of procreation, the roles of women, the education of children, divorce, sexuality, and the meanings of marriage. He also takes on claims of scholars who attribute modern change in family law to mid-twentieth-century Supreme Court decisions upholding privacy. He shows that the "constitutional" law of family has much deeper roots. Offering glimpses into American households across time, Brandon looks at the legal and constitutional norms that have aimed to govern those households and the lives within them. He argues that, well prior to the 1960s, the nature of families in America had been continually changing—especially during western expansion, but also in the founding era. He further contends that the monogamous nuclear family was codified only at the end of the nineteenth century as a response to Mormon polygamy, communal experiments, and Native American households. Brandon discusses the evolution of familial jurisprudence as applied to disputes over property, inheritance, work, reproduction, the status of women and children, the regulation of sex, and the legal limits to and constitutional significance of marriage. He shows how the Supreme Court's famous decisions in the latter part of the twentieth century were largely responses to societal change, and he cites a wide range of cases that offer fresh insight into the ways the legal system responded to various forms of family life. More than a historical overview, the book also considers the development of same-sex marriage as a political and legal issue in our time. States of Union is a groundbreaking volume that explains how family came to be "in" the Constitution, what it has meant for family to be constitutionally significant, and what the implications of that significance are for the constitutional order and for families.

1

Family and Civilization

THE AMERICAN CONSTITUTIONAL ORDER

David and Lydia Maynard were married in Vermont in 1828. They had two children. In 1850, the Maynards moved to Ohio. From there, David departed, bound, he said, for California. He promised to send his wife money for support during his absence and vowed that, once he was settled, he would return or send for the family. He never sent the promised support; nor did he return or send for his wife and children; nor did he go to California. Instead, he moved to the Oregon Territory, settled on a homestead (claiming the tract as a married man), and petitioned the territorial legislature ex parte for a divorce from Lydia. The legislature granted the divorce. Twenty-four days later, David married Catherine Brashears. After residing on the tract for the requisite four years, he petitioned the United States to have title vested in him. (In his petition, he apparently swore falsely that his first wife had died.) The petition granted, David continued to live on the tract with Catherine until he died intestate in 1873, leaving no children from the second marriage. As sometimes happens, the death of a familial relative incited competition for his worldly possessions. Lydia and the children challenged the validity of David’s divorce and contested Catherine’s title to the land. The first family lost at trial and again on appeal to the territorial supreme court. It lost a third time before the Supreme Court of the United States, but not before the Court pronounced the marital family to be “a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”¹

The irony of this pronouncement was apparently lost on the Court. It is tempting, therefore, to dismiss the Court’s celebration of marriage as a cynical flourish designed to give the impression that the Court was defending an institution or value that it was actually undercutting. There’s much to support this temptation, but let’s not give in to it now. It might also be tempting to dismiss the Court’s paean to family, not as cynical or hypocritical, but as a quaint anachronism, sincerely expressing nostalgic longing for a bygone era. Here, too, there might be reason for such a view. Even so, the Court has repeated encomiums to family across the centuries, in a diversity of contexts, among an array of otherwise incompatible justices.

One pivotal later decision was Griswold v. Connecticut, which addressed the constitutionality of a state’s policy prohibiting use of certain contraceptives. In the climactic paragraph of his opinion for the court, Justice William O. Douglas located a right to contraception, not in the individual, but in the marital family:

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.²

In short, the marital relation is constitutionally protected because it is private, it is old, it is sacred, and it is noble and enduring.

Lovely as these sentiments may be, we should not take them at face value. First, if the relationship is private, it is also subject to regulation by law—no less so now than ever in the past. Traditionally in the United States, regulation was almost exclusively the province of the states. Over time, the marital relation has become subject to legal regulation—direct and indirect—from other sources, including national legislative enactments, national administrative norms, even international law. Hence, as lots of scholars have observed, law permeates the relationships that constitute marriage. Second, it is true that the marital family is old, even ancient, if not prehistoric. But, if it is old, it has also been changing. The changes have occurred since families first appeared in human experience. Some changes may have been random. Others have been adaptations to various geographic, social, political, technological, and economic conditions. Thus, if family is old, specific elements of the lives of families are variable. Third, many people do view family, especially the marital family, as a sacred relationship, of divine provenance and subject to divine ordinance. There is an alternative view: that marriage is a civil relationship, sanctioned by and governed under civil law (if not private ordering). Frequently, the sacred view does not compete with the civil or private view of marriage. In fact, governments in the United States have taken numerous steps to ensure that civil law does not collide with religious commitment. And various religions have adapted to prevailing views embodied in civil law. But conflicts between the two views—between secular and sectarian domains—have arisen and show little sign of abating. Fourth, there are important ways in which family does embody what we might take to be noble purposes. As Douglas put it, familial relations can promote bilateral loyalty (even multilateral, if children or extended relations are a part), a way of life, and a harmony or self-sacrifice in living that life. But there is also a darker side to family, less noble by our lights. Sometimes family is a locus for control, manipulation, even violence. Sometimes it instills values that many people abhor. Sometimes it sacrifices children to parental neglect or abuse. And sometimes particular relationships are not enduring but temporary. Thus, if families exhibit something of human beings at their best by our lights, they also reveal people at their worst.

In sum, while Douglas’s celebration may be inspiring, it is an insufficient explanation for why an important organ of the nation would attribute to a particular form of family a status entitling it to exemption from a general, authoritative policy of government. What, then, might account for the ostensible constitutional status of family, apart from the fact that the Supreme Court has proclaimed it or that family is an institution widely used and sometimes liked? Why, moreover, is it the marital family that is constitutionally significant?

The standard interpretive sources and methods of the constitutional lawyer provide only modest help for answering these questions. As we’ll see, the text that calls itself the Constitution is largely silent about family.³ This did not prevent Justice John Marshall Harlan II from creatively locating a right of marital privacy in the Third and Fourth Amendments, among other sources.⁴ Justice Douglas in Griswold augmented Harlan’s analysis, discerning general protections in “penumbras” and “emanations” issuing from the “specific guarantees in the Bill of Rights.” On Douglas’s reading, the First Amendment’s right of assembly connotes association, including intimate associations, one of which is marital family; and the Third Amendment’s prohibition of quartering soldiers in time of peace, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Fifth Amendment’s self-incrimination clause all presuppose “the sanctity of a man’s home,” which might house not only “a man” but a family as well.⁵ Text aside, we’ll see that intentions of framers or “original meanings” may have interesting things to say about family. But they are conflictual, and the evidence for any particular intention or meaning in this context can be thin. Common law also has something to offer and has the advantage of being thicker than intentions and original meanings, though it, too, may cut in different directions.⁶ Other possible sources include tradition,⁷ principles distilled from doctrine,⁸ structure,⁹ “spirit” or purpose,¹⁰ contemporary ethos,¹¹ norms of civilized nations,¹² and natural law (or right).¹³

We’ll see signs of these sources and methods in this book. It’s not my aim, however, to explore them systematically, for my purpose is not primarily doctrinal. I want instead to take a different approach to the question of constitutional status—an approach that borrows from the family values movement. I want to focus on three general aspects of the functional relationship between family (or families) and the constitutional order. (1) How has family participated (or how might it participate) in creating, maintaining, or changing the constitutional order? (2) How has the order tried (or how might it try) to shape or use family? (3) How effective has law been (or can it be) in achieving either? For the purposes of this study, I’m interested in family both as an institution and as a political, social, and legal idea. To approach the subject in this way requires moving outside the domain of conventional legal analysis. To be sure, we can’t (and won’t) ignore the legal, especially in light of the third question I’ve just offered. But the constitutive relations between family and the constitutional state are not merely matters of law. They are also about basic values, human needs, social practices, and institutional design.

FOUR FRAMES

To illustrate this fact, consider four elemental conceptual frames—religion, social evolution, power, and human psychology—each of which touches on the justifications Justice Douglas offered for constitutionalizing family. Religion deals in realms of sacred values and of people’s attempts to understanding the origin of and purposes for human existence. Through social evolution, we can see family as a basic human institution that has both endured and changed across the millennia. Through the lens of power, one can see family as a site for the exercise of control, not only between members and the outside world but also within the family itself. Through psychology, we might appreciate family’s role in forming the human psyche and influencing the expression of human personality.

Plainly, there’s more than one version of each of these frames. In fact, there are competing versions. To complicate further, the frames themselves are not mutually exclusive, as one or more iterations of one frame may be compatible with a version of another. For now, however, I’ll treat each frame as distinct. In doing so, I make no claim to comprehensiveness. Nor do I aim to fill in subtle details. For the present, I’ll merely sketch outlines. We’ll see, throughout the account that follows, their relevance to the constitutional status of family.

Religion

Among almost all traditions that are recognizably religious, some form of family is primal. It is primal in at least three senses: it was present either from creation or from the beginning of self-conscious human experience; it is of fundamental social importance; and it is an expression of what human beings are to be if fulfilled. To put the point more sharply, family is part of divine order. An aspect of this point appears in the Hindu account of creation, in which the original divinity became a divided self, whose gendered halves united to make a new whole self, free from fear and loneliness.

In the Beginning the (world) was only the self, in the shape of a person. Looking around he saw nothing else than the self. He first said, “I am.” . . . He was afraid. . . . This one then thought to himself, “since there is nothing else than myself, of what am I afraid?” Thereupon his fear, verily, passed away, for, of what should he have been afraid? Assuredly, it is from a second that fear arises. He, verily, had no delight. Therefore he who is alone has no delight. He desired a second. He became as large as a woman and a man in close embrace. He caused that self to fall into two parts. From that arose husband and wife. Therefore, . . . this (body) is one half of oneself, like one of the two halves of a split pea. Therefore this space is filled by a wife. He became united with her. From that human beings were produced.¹⁴

Here we have a psycho-sexual story of the beginning of the world. Divine loneliness incited duality. Duality became sexualized. Through sex, came (re-)union. And this union was the source for all humanity.

More familiar to most Americans are the two Judaic accounts of creation in Genesis. The first emphasized the sexual unity that is the basis for procreation:

Then God said, “Let us make humankind in our image, according to our likeness. . . . ” So God created humankind in his image, in the image of God he created them; male and female he created them. God blessed them, and God s...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Introduction: Family Values
• 1. Family and Civilization
• 2. The English Ancestry of the American Law of Family
• 3. Family at the Birth of the American Order
• 4. Slaves, the Slaveholding Household, and the Racial Family
• 5. Home on the Range: Families in American Continental Settlement
• 6. Tribal Families and the American Nation
• 7. Uncommon Families, Part 1: American Communism
• 8. Uncommon Families, Part 2: Polygamy
• 9. Modern Times: Family in the Nation’s Courts
• Conclusion: The Meanings of Marriage
• Epilogue
• Notes
• Index
• Back Cover