The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.
-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia
This wonderfully lucid, judiciously penetrating, and most edifying book grew out of lectures that Matthew Spalding, a contributor to this journal, has delivered to politically minded young conservatives over the years. It is the best available expression of the view that the timeless truths of the Founders provide the best antidote to the Progressive deformation that has characterized our country’s self-understanding since the time of Woodrow Wilson. Wilson inaugurated a movement away from devotion to the natural and divine principles—the true foundationalism—that guided our Founders and best statesmen prior to the twentieth century. This “Founders good, Progressives bad” theory has become the stock conservative response to the era of Obama, with its most popular exponent being Fox News’ Glenn Beck.
This stark dichotomy obscures a source of our moral disorientation today: the ambiguous but overwhelming influence of John Locke on the Founding. That our principles are primarily Lockean is not all good or all bad, but it is a problem that should receive scrutiny from conservatives in a friendly and loyal but nonetheless real criticism of the Founders as theorists. These individualistic principles fail to do justice to who we are as political, social, familial, and communal beings who lovingly assume personal responsibility for the duties we have been given.
Much to his credit, Spalding strongly defends “the family, centered on marriage . . . as the natural or prepolitical institution of a free society.” Every effort must be made to “shore up all the institutions of civil society that are increasingly under progressive assault—families, churches, schools, and private associations—for their own sake, but also so that they can sustain and cultivate the virtues and character required for republican government.” The family, he contends, is “deeply embedded in Western civilization and the worldview of the American Founders.”
The word worldview, however, was never used by any Founder. It comes from evangelical Protestants in our generation who make the clear distinction between the secular and biblical worldviews as being based on incompatible foundations. The Founders did not make the distinction, nor did Locke. But the worldview of this or that Founder really is not wholly compatible with the individualistic principles called self-evident truths of the theoretical part of the Declaration of Independence. The worldview of the Founding was, as the evidence that Spalding has gathered meticulously suggests, a somewhat incoherent mixture of classically republican, Christian, and Lockean elements.
The embedded family of Western civilization, however, was clearly under assault by Locke. Consequently, a defense of the family, the church, and the local community in our time has to be in opposition to the application of his principles in every area of life. More than anything else, Americans cannot turn to Locke or even Jefferson to learn why the family and religion are good for their own sakes as the core of who we are; we cannot learn from them the whole truth about who we are as social and relational persons created in the image of God.
Spalding admits that Locke was hugely influential during the founding generation, but the Heritage Foundation scholar is careful to present a subdued and somewhat superficial view of that influence: “The American Founders understood Locke in light of classical political reason and biblical revelation, as part of the English Whig Republican thinking and the natural law thinking in which they understood himself.” He notes that they absorbed the teaching of Locke’s Two Treatises of Government. They held that “all men are by nature free and equal” and that “legitimate government came into existence through a social contract,” and that these positions were “understood to be perfectly consistent with the arguments of biblical theology.” Locke’s teaching was often understood during the founding generation, as Spalding does well to emphasize, not to be in tension with the other elements of the founding worldview.
That’s not to say that Jefferson and Madison understood biblical theology and the Lockean view of personal liberty to be consistent. Nor is there any evidence of a state-of-nature doctrine—basically a replacement for the account of origins recorded in the Book of Genesis—anywhere in the natural law tradition prior to the liberated individualism of Hobbes and Locke. “Nature’s God” of the Declaration, it has been often explained, is understood by Jefferson, following Locke, as a past-tense alternative to the active and personal God of the Christian tradition. The alternative dispenses with the classical idea of the goodness of the created order (nature) and the Christian idea of grateful reliance on divine providence.
Spalding is right that the leading Founders were formed incompletely by Locke; only a few of them bought into all the baggage associated with Locke’s constructivist view of human understanding. For that reason, most of them seem to have lacked a consistent understanding of who human beings are, what nature is, and what purpose government serves. They were not consistent Lockeans, but they lacked a coherent alternative to his individualism. Yet Lockeanism, more than anything else, provided the principled foundation of our free institutions.
Spalding’s view is that the Founders gave us all we need in terms of timeless moral and political truths; he does not believe that any of today’s disorder or confusion reflects their limitations or confusions. The Progressives, he insists, brought to the country what they believed to be “a new way of thinking appropriate to the modern age,” a way of thinking they had discovered “in what were perceived to be modern nations like England, France, and especially Germany.” They denied anything permanent about the “natural rights or natural law” thinking of the Founders, arguing that the principles of public life must evolve in response to ever changing natural laws of life. Progressivism was an alien infusion that undermined our indigenous principles. It was Wilson in politics and John Dewey in education who taught Americans to be open to experimentalism in the direction of big government.
The Constitution’s Implicit Intentions
There is a lot of truth to this narrative, but it is far from a wholly true account of what ails America today. Much of the development of this country has come from the liberation of the Lockean individual from traditional social restraints—the very liberation some of the Anti-Federalists feared would be the inevitable product of the new Constitution.
“Many of their [Anti-Federalist] concerns and warnings,” Spalding acknowledges, “were prescient in light of modern changes in American constitutionalism.” Spalding does not mean to suggest that those “modern changes” were either based on tendencies in the original Constitution or anticipated by the Anti-Federalists. But the Anti-Federalists’ own view was that the real danger inhered in long-term developments that the Constitution actually encouraged. The Anti-Federalist author Brutus, for example, attempted to expose the implicit presence of judicial review in the Constitution, which he claimed was the unlimited power given to the Supreme Court to negate any law of the states according to the Constitution’s “spirit.” The hidden purpose of judicial review, Brutus asserted, was to level the states, to complete the secret intention of the leading Framers to create a wholly national government, one distant from the virtuous concerns of ordinary people. When Publius (Hamilton) answered such Anti-Federalist allegations in Federalist 78, he called attention to the limits of judicial power under the Constitution; Brutus exaggerated the Court’s power, forgetting that it is not empowered to enforce its decisions. But Hamilton agreed with Brutus both in that the written Constitution implies the necessity of judicial review and, by his silence, on its purpose in protecting rights against out-of-control state democracies.
Concern about latent nationalizing intentions in the Constitution is the primary reason that Anti-Federalists demanded a Bill of Rights. The purpose of those first ten constitutional amendments, Spalding properly observes, “was to limit the federal government, not the states.” That fact, he goes on, is “underscored by the words of the First Amendment: ‘Congress shall make no law.’” Those words indicate that the Constitution actually allowed the states—but not Congress—to establish religions; the expectation was that the states would legislate with religion and morality in mind. Spalding also notes a horrible downside of the original limits to national power. The spirit of the “colorblind” Constitution—a document deliberately written without any degrading references to persons in terms of race or slavery or property—could not be applied by the national government to state law, which was permeated with racism and in many cases the monstrous institution of race-based slavery.
Spalding is virtually silent on the thoroughgoing constitutional change that the Fourteenth Amendment eventually proved to be. That change was from a deservedly positive view a completion of the Framers’ intention to make the law colorblind at all levels of government and to protect the rights of all human beings equally, regardless of race. But the amendment also, in the hands of the Court, radically expanded the power of the judiciary to transform state and local government with all individual rights in mind. The Court understood itself to now have the power, ironically, to apply the Anti-Federalists’ Bill of Rights to state law. In recent years, the Court has even presumed the authority to bypass the specific provisions of the Bill of Rights and declare state laws regulating education, public morality, marriage, abortion, and the family unconstitutional through its evolving interpretation of the single word liberty in the Fourteenth Amendment’s due process clause.
Brutus is vindicated in his premonition that the Court would unleash the Constitution’s rights-based nationalizing intentions from specific provisions of the Constitution through its clever molding of the Constitution’s overarching spirit. To what degree we should blame that change on the Progressives is completely unclear. A strong case can be made that the Court has worked out some implications of the Constitution’s aspirational spirit.
Spalding is certainly right to say that the Court’s claim to be the supreme decider of what the Constitution means has no constitutional warrant. But surely, as Brutus predicted, one reason the Court has gotten away with that assertion is one version of the logic of the written Constitution: The legislature or legislatures, most of all, need to be supervised with that Constitution in mind. A constitution is just words without an enforcer that can effectively negate legislative excesses. That logic, Spalding reminds us, is found not only in Federalist 78, but also in Marshall’s opinion for the Court in Marbury v. Madison, an opinion Spalding presents with unreserved approval. The Court can be trusted to warn us about and sometimes exaggerate the danger of legislative tyranny, but we cannot expect it to say much about the elitist and abstractly principled danger of judicial tyranny.
From Progressive Restraint to Libertarian Activism
Spalding makes a spirited effort to account for contemporary judicial tyranny in terms of the derailing that came with the Progressive movement. The Progressives, he contends, opposed the founding idea of a government limited to the securing of rights. They were for a government with unlimited powers to produce unlimited progress in the direction of “social justice.” They focused on replacing the founding idea of unchanging and inalienable natural rights with the notion of “evolving historical rights to be discovered and granted by government.” These new rights connected with economic security are the foundation of the welfare state. Not content with equality of opportunity, the Progressive movement called for a guaranteed equality of outcome. The result was a “new sense of entitlement” and the huge bureaucratic initiatives that were characteristic of the Great Society.
Yet Spalding’s polemic against guaranteed economic security could have been written in 1966, and it would have been a lot truer then. The national government has not been pursuing a Great Society since, and redistribution was dealt a heavy blow with President Clinton and the Republican Congress collaborating to end welfare as we know it. Well, what about Obama? His victory was a “negative landslide” more than anything else, and it is too early to tell whether we are really in a new Progressive era or just in the midst of a deviant historical blip. Polls show that most Americans want his health-care legislation reversed, and the Republicans seem poised to recapture Congress.
The role of the judiciary in Progressive reform was meant to support the idea of the “living” rather than the written Constitution. Economically speaking, as Spalding neglects to emphasize, that idea led the Court to discover a new foundation for judicial restraint. The Court, as he describes, decided to stop striking down New Deal legislation as unconstitutional; instead, it began to defer to the president and Congress concerning what the Commerce Clause actually authorizes and what prudence requires under new economic conditions. Spalding complains, “The Constitution was changed not by the democratic process of amendment but by the interpretation of a handful of appointed judges, amounting to what some have called a Constitutional revolution.” But the anti-New Deal interpretation came from a handful of judges, too. Even the great libertarian, Friedrich von Hayek, objected to the Court’s initially promiscuous leveling of New Deal legislation. The Court’s “switch in time” was clearly a victory for the elected branches over the appointed one. The least we can say is that the living Constitution seems to have produced the opposite of judicial imperialism when it comes to economic issues. The Framers, for good reason, didn’t really empower the Court sufficiently to engage in sustained resistance to the united will of the national elected branches. Progressive economic reform did not come from the courts; most of it was populist as well as Progressive.
Spalding holds that the personal rights cases beginning with Griswold and Roe can be understood in the same Progressive way. They are, indeed, also based on the principle that the Constitution evolves. But these cases matter not primarily because they reflect a continued judicial willingness to defer to the big-government excesses of the elected branches of national government. They reflect, instead an unprecedented willingness by the High Court to intervene in remaking state law. Their accomplishment is the imperial, rights-based negation of a variety of policies that had heretofore been left to the prudence of states. According to Spalding, the Progressive view is that “the Constitution’s focus on controlling and restricting government power and moderating democratic opinion was not only misguided but had become a serious barrier to the new activist government.” But these personal-liberty decisions were themselves new limitations on the influence of majoritarian politics (on, say, abortion or even partial birth abortion) and government power, limitations that would seem to run counter to Spalding’s understanding of the Progressive impulse. They contravened the Constitution by negating democratic moral opinion that supported certain kinds of activist government at the state and local level.
It’s worth remembering that the peak of economic Progressivism was probably 1965, but the evolution of the personal liberty or autonomy idea with the Court began with Griswold (1965) continued from Roe through Planned Parenthood to Lawrence v. Texas (2003), which has set the stage for the Court’s eventual creation of a constitutional right to same-sex marriage. It is also worth noting that the initial phase of the New Deal—including support of labor unions—had the intention of making the “family wage” available for as many as possible in an industrial society and assumed the family to include the husband as breadwinner and the wife as stay-at-home mom. The more libertarian Republicans, through the mid-sixties, were the party of the Equal Rights Amendment, which might be understood to have had the intention of turning as many women as possible into productive wage slaves just like men. Only in the late sixties, due to the influence of the liberationism specific to the sixties, did the Democrats become the party of uninhibited personal liberty.
With good reason, Spalding criticizes the Court’s personal-liberty cases, beginning with Griswold, for changing the “substance” of the Constitution in the name of “a general right to autonomy.” But the Court understands that change as being in accord with the indefinite character of the word liberty in the original Constitution. The Framers, Kennedy explains in the opinion for the Court in Lawrence, regarded that word as a weapon to be used for each generation of Americans to expand the range of personal freedom. What is accepted as a necessary and proper limitation to liberty for one generation of Americans becomes intolerable to the next. The idea that words are, above all, weapons for the liberation of individuals is Lockean. It is not the kind of liberation embraced by the Progressives who believed, as Spalding explains, in “a great national community” to be formed through the habituation and indoctrination of the public education recommended by Dewey.
The Progressives were not libertarians. But Randy Barnett in The Lost Constitution has figured out why libertarians should love Lawrence. The Court’s general doctrine had been that in most cases the benefit of the doubt should be given to law, with exception of “strict scrutiny” for “suspect categories” such as race. But in Lawrence the Court did not claim that laws criminalizing homosexual sodomy should be strictly scrutinized. Instead, it affirmed a presumption of liberty that seems to apply to all law. All law, it seems, will be scrutinized carefully for reasonableness before it can be affirmed as constitutional. Law itself is unreasonable unless proven otherwise.
Barnett wants the Court to become more consistent and apply the presumption of liberty standard to economic policies as well. He thinks Roe was rightly decided for the same reason Lochner, which divined a “liberty of contract” in the due process clause of the Fourteenth Amendment, was rightly decided in 1903. And Lawrence was rightly decided for the same reason the Court was right to strike down key New Deal legislation. Lawrence, therefore, has nothing in common with eventual Progressive deference of the Court to the New Deal. The conservative Scalia is more consistent than Spalding in being both anti-Lochner and anti-Roe and in not regarding the New Deal as unconstitutional.
Spalding gives one formulation that reconciles the Court’s economic and personal “evolution.” Liberty, for a Progressive, “is the autonomous pursuit of self-realization within the horizon of national social ideals.” The main social ideal is economic security for all. That sounds a lot like John Rawls’s liberal theory of justice—what political philosophy is for most sophisticated liberals today. It is also a lot like the communism Marx describes, where all free persons will do what they please when they please with hardly any need to work, the kind of future that inspired the visionaries of the sixties. It is, moreover, a rough description of the leisurely, unobsessive life that many of today’s Europeans pride themselves in enjoying.
But it is not the life actually enjoyed by most Americans today. Americans are more economically anxious than ever, and are consequently working all that much harder than in the past. The safety nets they come to rely on—public and private pensions, unions, 401ks, Social Security, Medicare, and so forth—are falling victim to tough economic and demographic realities. Sophisticated Americans are also exceptionally productive. They pride themselves, as David Brooks observed, as “bourgeois bohemians.” They are, for the most part, devoted to both economic and personal freedom—the two dimensions of liberty for the modern individual, the Lockean individual. In our productive meritocracy, the good news—from the viewpoint of the noble individualism of the Founders—is that people are defined less than ever by race, class, gender, religion, and even sexual orientation. The bad news might well be that individuals are more alone than ever to define and secure themselves without any guidance beyond one‘s own self. “Freedom,” Spalding correctly asserts, “now means liberation of the individual will.” That means each person has the freedom to be both autonomous and productive, to be in every respect self-reliant or self-creating. That view of personal freedom has been present from the beginning of our constitutional order; it wasn’t an alien infusion of the Progressives from Germany. Many of the Progressives, in fact, worked to develop a “national community” or a kind of civic religion to temper that very freedom, just as Spalding is promoting renewed devotion to our “sacred Founding” and its immutably divine principles.
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 rights—that 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 is less 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.
The Need for Prudential Statecraft
Reconciling the free pursuit of personal happiness with stable social institutions—such as religion, the family, friendship, and local community—that are indispensable for making the lives of social and moral beings worth living is a matter of prudence. The enemy of such statesmanlike prudence in America today is the tendency—reflected most of all in the imperial judiciary—to resolve every question, even modest questions that arise in local communities, according to high principle, according to the maximization of the liberty of the autonomous individual. The enemy of prudence is the judiciary and the experts directing centralized administration. The friend of prudence is the statesmanship required to elevate public discussion of moral and political differences and dilemmas and to compromise, as much as possible, in resolving the perhaps irreducibly different views of legislators. The most obvious example is abortion. But Social Security, Medicare, and health care are good examples, too. For many liberals, these entitlement programs have become inalienable rights; they think it immoral to even think about whether the country can actually afford these programs. For some libertarian conservatives, the whole welfare state is unconstitutional, and that is where the deliberation should begin and end. The truth is that most such programs are neither unconstitutional nor a government-guaranteed right; our deliberation should be about what is most sustainable economically and in terms of what is best for both individuals and families.
Let me conclude by concurring with Spalding’s affirmation of the Declaration of Independence as our political creed. Americans as a people are dedicated to the proposition that all men are created equal. As G. K. Chesterton noted, the “dogmatic lucidity” of our belief in the equal significance or equal liberty of every human person distinguishes “a nation with the soul of a church” and “a home for the homeless” everywhere. But maybe the time has come to acknowledge that the full achievement of the Declaration was made possible by a most prudent legislative compromise. The theoretical core of the Declaration—the part with the self-evident truths, the inalienable rights, and Nature’s God—is pure Locke. If that were our whole civic faith, it would seem too lax or duty-free to Christians; it would have marginalized those who take their bearings from a personal God. If the Declaration were written by the New England Puritans, it might have been very dutifully egalitarian and full of social responsibilities, but also illiberally theocratic.
Jefferson’s Locke draft was amended by the more Christian members of Congress. References to a present-tense providential and judgmental God were added. In that way, the God of Nature became the Creator of the Bible, and we can even say that the artful accommodation of both the secular Lockeans and Calvinist or residually Puritan members of Congress produced a result more truthful than the intentions of either of the parties to the compromise. Our devotion to personal equality was deepened, our view of who we are as natural beings became better and more purposeful—both in a way that preserved political liberty and limited government. I join Spalding in affirming these timeless truths, yet I cannot help but notice their origin not in the high principle of this or that Founder but in legislative compromise. It may really be the case, as John Courtney Murray said, that our political Fathers built a better country as statesmen than they knew as theorists.
Dr. Lawler, the Dana professor of government at Berry College, Mt. Berry, Georgia, served on President George W. Bush’s Council on Bioethics. Editor of the quarterly Perspectives on Political Science, his latest book is Modern and American Dignity, forthcoming from ISI Books.