The American Founders cherished the idea of the (informed) consent of the governed as an animating principle of our political order. But they also fully appreciated that a liberal political order depended upon healthy and vigorous family life rooted in both consent and permanence in marriage, a commitment to procreation and childrearing, and an understanding of marital unity that put enduring commitment above self-indulgent freedom. In a learned and suggestive essay, Professor Brandon Dabling advocates a thoughtful reconsideration of the Founders’ understanding of love and marriage as a means of recovering a broader and deeper understanding of the role that marriage plays in fostering republican self-government and private happiness.
This essay is part of RealClearPublicAffairs's 1776 Series, which explains the major themes that define the American mind.
The United States is engaged in a prolonged struggle over the meaning of marriage, and the American Founders’ conception of marriage remains something formidable to reckon with in this contest. The centrality of the Founders’ thinking was apparent in the 2015 Supreme Court same-sex marriage case Obergefell v. Hodges, in which each side argued that justice and history supported its cause. Notable historians filed a brief arguing that “voluntary consent between the couple” was and always had been the only meaningful feature of American marriage. On the other side, advocates of man-woman marriage argued that procreation and childrearing were vital to the institutional and historical understanding of marriage because they were inherently linked to what the Founders understood to be marriage’s beating heart—the concept of enduring marital unity.
The Court thus stripped marital unity from the legal understanding of marriage and replaced it with a liberationist account consistent with the sexual revolutions of the 20th century.
These advocates were tapping into a long and venerable history that recognized marital unity as American marriage’s animating principle. The language of marital unity is ubiquitous in the Founding era’s popular, religious, and legal discourse. The eminent Framer and Supreme Court Justice James Wilson recognized this when he said that nearly every moral and legal principle governing marriage sprang from the foundational principle of marital unity.
The Court in Obergefell, however, ultimately agreed with (and cited) the historians’ brief, saying that the personal and sexual bond between two consenting adults was the key moral and historical meaning of American marriage. The Court thus stripped marital unity from the legal understanding of marriage and replaced it with a liberationist account consistent with the sexual revolutions of the 20th century. Before we accept the Court’s new account, we would do well to understand what we are giving up, and, perhaps, what we ought to recover.
The Meaning of Marital Unity in America
In the country’s first half century, the chief goal of American jurists and lawmakers at the state and national levels was to weave marital unity together with the nation’s understanding of liberalism. These lawmakers and jurists consciously used liberalism, the language of rights and consent, to refine preexisting ideas of marital unity from ancient Greek and Roman civilizations as well as Christianity. Similarly, marital unity placed salutary limitations on liberalism’s potential excesses and reminded the political community of goods beyond rights and freedom. In bringing liberalism and marital unity together in deliberate fashion, these thinkers believed that they had fashioned a vision of marriage that would simultaneously honor the truth of liberal equality and the truth of enduring and intimate marital love. It would make of marriage a more perfect union.
The Founding generation understood marital unity to be the complementary union of a man and woman for life—the full giving of each spouse to the other. This understanding had both religious and secular roots. The Bible urged this marital oneness when Jesus commanded that a man “shall cleave unto his wife: and they shall be one flesh.” The Roman founder Romulus similarly taught that marriage formed between the husband and wife a “community of goods and sacrifices.”
Marital unity was meant to secure familial, private, and public goods through the storms of life. It complemented an otherwise fleeting democratic romantic love to create what Nathaniel Hawthorne would later suggestively call the “troubled joy” that necessarily comes with binding one’s self to another. This was a hardy love, capable of producing a healthy republican society and sustaining bonds of affection and responsibility.
The Founding generation understood marital unity to be the complementary union of a man and woman for life—the full giving of each spouse to the other.
The marital unity envisioned by the Founding generation consisted of five components: the equality and complementarity of the sexes, consent and permanence in marriage, exclusivity in marriage, marital love, and a union oriented toward procreation and childrearing. These components logically flowed from a normative understanding of marital unity as the full coming together of a husband and wife in an unadulterated yet deliberative love. These components bolstered private happiness and nurtured public order. They were the indispensable origins of a meaningful liberal society that valued some goods or purposes more than unrestricted freedom.
Equality and the Family’s Public Vitality
The Founders thought that their liberalized marital unity would strengthen society. They had confidence that the recognition that all human beings are equal self-governing beings would change how Americans viewed the husband-wife relationship. Sure enough, the language of “mutual,” “reciprocal,” and “shared” duties is ubiquitous in newspaper essays, sermons, and the pages of the era’s women’s journals discussing marriage. The American conception of equality fostered warmer and more tightly knit marital and familial relations. John Adams reflected this growing sentiment of equality when he counseled that all wise and happy men would “willingly give up the harsh title of master for the more tender and endearing one of Friend.”
Men and women were thought to be equal, yet each sex served separate vital roles. James Wilson argued that a flexible implementation of this expectation was the most natural way to uphold the equally essential goods of the private and public spheres. He thought it a mistake to privilege one role above the other, both being essential to human order and happiness. The public sphere comprised commerce, government, and politics. It sought material wealth, just order, and the protection of rights. Wilson called the private sphere “society” generally, but he stressed that the family formed its most essential part. It was also the realm where women played an indispensable role.
Government does not exist solely to protect rights, he said. It is “made for something better”—to maintain the space for social and family life to thrive. Government is but “the scaffolding of society: and if society could be built and kept entire without government, the scaffolding might be thrown down, without the least inconvenience or cause of regret.” Government exists to foster human flourishing within society, but it must recognize that the family will always be the institution most directly and intimately tied to this flourishing and therefore worthy of honor. Reversing this order would have dangerous political and social effects.
Consent and Permanence in Marriage
Marital consent sprang naturally from the equality of the sexes and a democratic society that allowed and even honored romantic affection. The Founding generation stressed, however, that this consent must be enduring. Enduring consent urges individuals to take these choices seriously and then binds them to those they have chosen. It reflects the truth that the binding of a particular choice must reflect the seriousness of the thing chosen. The consent involved in choosing Saturday night’s entertainment is necessarily different than the consent needed in protecting one’s fellow soldiers during a battle, founding a country, or establishing a family. The more serious the thing chosen, the more serious and binding the consent must be. Moral obligations necessarily inform and elevate consent or choice.
Marital consent sprang naturally from the equality of the sexes and a democratic society that allowed and even honored romantic affection.
This moral seriousness of choosing and nurturing a successful marriage rested most clearly on individuals’ shoulders, but society was organized to prepare youths to choose partners with virtues that would help build a home and make love endure. Princeton president and Declaration of Independence signer John Witherspoon summarized the ethos of the age when he counseled youths to pay little attention to physical beauty’s “false signal” and instead to find a spouse whose strengths complemented their own. “It is not the fine qualities of both or either party that will ensure happiness, but that the one be suitable to the other.” As society would not take away individuals’ freedom, it aimed to give them the tools to choose wisely and to prepare them to face the joys and struggles of marriage. Sustainable liberal society depended on the wisdom and endurance of these choices.
State laws generally allowed divorce in cases of abuse, adultery, and abandonment but did not include other grounds. Following the Declaration, lawmakers and jurists refused to grant divorce for “light” or “transient causes,” fearing that doing so would harm couples’ ability to foster enduring love, struggle through manageable difficulties, and build a future together. As marriage creates a “community of sacrifices,” spouses must have reasonable assurance that their current and future sacrifices for the union will be reciprocated by their mates. Without these assurances, spouses are inevitably tempted to withhold from the marital union the unity that lies at its foundation. The Founders feared that a culture of frivolous consent would tempt spouses to hedge commitments to the marital union and withhold financial and emotional resources, mindful that the marriage might end.
Exclusivity in Marriage
In the view of the wide consensus that informed the Founding generation, and the laws and jurisprudence that followed, sexual fidelity served the material, emotional, and spiritual goods of marital unity. On the most basic level, a woman’s promise to be faithful provided her husband the reasonable assurance that the children he raised were his own. But exclusivity in marriage more profoundly reflects the emotional and spiritual truth that every marriage forms a kind of belonging, a form of communion. The husband belongs to the wife and the wife to the husband. The husband’s vows asked him to promise to worship his wife, meaning that he should love and serve her and have no other woman beside her. These vows bridled the jealousy naturally arising in the human heart and turned it into a holy belonging, a meeting of souls. The Founders argued that systems fostering free love or polygamy generally failed because they denied this human longing for oneness—for unique and meaningful belonging. Sexual infidelity in this view was another betrayal of marital devotion and the enduring commitment on which it rested.
Equality freed Americans to marry for love, but it was the cast of this love that fostered republican virtue. By its nature, marriage asks spouses to bind themselves to a person rather than a perfectly controlled life plan. While one can use judgment in choosing a spouse with good character, one never has control of whether that same person will advance himself professionally, be diagnosed with cancer, or suffer from a debilitating accident. Love and life are full of uncertainty, and yet the reliability of marriage and family depends on a loving commitment that persists through life’s storms. It requires enduring consent, but it also requires a love that faces down these fears and courageously chooses marriage anyway. This love is risky, but it is the only love that provides children the stability they need. It is likewise the only love that gives spouses the assurance they need to give themselves fully to another. It is the truest form of human intimacy. It is the only love fit for marriage.
[Marriage] requires enduring consent, but it also requires a love that faces down these fears and courageously chooses marriage anyway.
American lawmakers, jurists, and other opinion leaders explicitly chose marital love over shallower and less reliable loves that tried to protect the individual from marriage’s uncertainty. While these leaders recognized the justice in allowing divorce in limited circumstances, they argued that failing to embrace love’s riskiness produced a hedged and self-indulgent love that narrowed the human heart, jeopardized children, and failed to foster republican virtues. Promiscuous divorce laws would have appalled them.
State marriage-licensing schemes did not require that couples demonstrate willingness to have children or even to engage in sexual relations, but they were certainly assumed. Marriage was regulated because it provided the literal lifeblood of the community, and the community relied on mothers and fathers to raise their children in a responsible manner. Government served the family, but the family also served the political community. Love, friendship, and responsibility were first taught in the home. James Wilson insisted that the community depended on these “bonds of affection . . . created [to stretch] ever outward, from the family, to friends, the community, the nation, and even humankind itself.” The family gave individuals a touchstone that taught, demonstrated, and demanded the nature of true affection, rather than a mere theorized, signaled, or abstract love. It was the humanizing home that first prepared individuals to meet the responsibilities of citizenship and their duties toward their fellow men and women. It was for this reason that John Adams said that “the foundation of national morality must be laid in private families.”
We must foster a discourse that restores marriage and family to its high and noble station requiring nothing less than the nation’s best and brightest men and women.
For a century and a half or more, the American family gave the country the one thing it most dearly needed but was ill-suited to produce—a strong and self-governing citizenry. Alexander Hamilton famously wrote in Federalist 1 that the eyes of the world seemed to be on the young country to settle the question of whether human beings could govern themselves wisely through reflection and choice. If such self-governance were possible, the Founders knew that it would be because of the countless sacrifices of mother and fathers—but mothers in particular—who instructed their children in these democratic arts. A husband was generally expected to uphold public order, the woman to serve the goods of family and society. When joined together, man and woman together worked toward human flourishing. This complementarity of men and women was not viewed as unjust or exploitative. Indeed, the men and women of that earlier age would likely view their descendants as failing to understand the virtues of the liberal republican family and its indispensable role in fostering private and public happiness.
What to do with American Marriage
We cannot, nor should we, go back to the Founders’ marriage practice. Modern technology, for example, has made it possible to ease strictly delineated sex roles relating to work outside the home while allowing mothers and fathers to provide their children the love and care they need. But just as we might insist that we see things that they did not, we should be open to the possibility that they saw goods that we now neglect. Modern marriage is losing its hold on the American mind and heart. The share of married adults in the country has steadily decreased over the last 50 years—from 69 percent in 1970 to 50 percent in 2019. Birthrates have similarly declined. Even Utah, a longstanding religious holdout, dipped below the replacement rate in 2019. More than 40 percent of children are born to unmarried mothers. Research is not ambiguous about the obstacles these children will face. They are more likely to be involved with drugs and crime and less likely to graduate from high school and college. They are more likely to be unemployed or underemployed as adults and more likely to suffer from mental and physical illness. In nearly every aspect, their domestic environment makes them less likely to develop the virtues necessary for private flourishing and civic responsibility. The Founders would have expected nothing less from a society that has abandoned marital unity.
We cannot and ought not return to the Founders’ practice, but we must draw from their wisdom. We must do the hard work of creating a marriage culture that embraces marital unity as its animating principle. We must foster a discourse that restores marriage and family to its high and noble station requiring nothing less than the nation’s best and brightest men and women. We must remain vigilant in resisting the modern temptation to elevate public honors over the soul-nourishing duties of the home. Whenever possible, we should move marriage policy toward marital unity and enduring consent, recognizing that only such consent is capable of securing a community where people govern themselves in the highest sense of the term.
Brandon Dabling is a Visiting Assistant Professor of Government at Hampden-Sydney College. He has forthcoming book titled A New Birth of Marriage: The Story of Love and Politics in America. He can be reached at firstname.lastname@example.org.
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