The Once and Future Marriage

In the mid-twentieth century, America’s marriage regime was legally restructured from a public to a private institution. Whereas at the American Founding marriage was itself a facet of public life with important domestic components—public marriage—it was re-oriented toward self-fulfillment with the provision of downstream social benefits: private marriage. Over the span of several decades, no-fault divorce was adopted by governors across the nation on the grounds that the state held no meaningful interest in judging between aggrieved parties in troubled marriages. In several rulings, the United States Supreme Court established the “right to privacy,” a novel legal doctrine that constitutionally protected all sexual activity between competent, willing partners from state oversight and punishment. Marriage was, in short order, de-regulated and privatized. This, as we shall see, has profound implications for the prospects of a robust family policy in America today.

Many scholars have addressed the legal nature of marriage during the founding era, but none more comprehensively than Nancy F. Cott in Public Vows: A History of Marriage and the Nation (2000). “[T]he founders had a political theory of marriage,” Cott says. That theory was republican in nature. Marriage was a medium of social unity cleaving disparate citizens together till death did them part. As opposed to the sharp opposition between public and private life we find today, to the Founders, the marital state was where liberty, self-government, and public-mindedness would be most fulsomely practiced. This marital unit resulted, naturally, in the begetting of children (i.e., future citizens), and the domestic family was where they were elevated in virtuosity and attained the good character upon which the young republic depended. 

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