In my judgment, Thomas West has written the best book on the political theory of the American Founding published in recent memory. Though it is not West’s primary focus, his treatment of marriage and family in the Founding is particularly thought-provoking.
West persuasively demonstrates that the Founders held virtue and morality to be necessary conditions for freedom and self-government. A self-governing people must be able to govern itself—that is, citizens must have the moral character that predisposes them to use their freedom well both as individuals and as citizens who will select and hold responsible those who govern. Since virtue and morality are the necessary conditions of natural-rights republicanism, the Founders believed it legitimate that government foster virtue and morality.
One of West’s most important contributions is to correct the historical record on this exact point. A number of leading scholars assert that the Founders were unconcerned with virtue or, worse, that the Founders designed a system that encourages narrow self-interest and eschews virtue and morality. And West names names. The most influential scholar that got it wrong is Martin Diamond. Diamond got it wrong because he was too influenced by Leo Strauss and the Straussian distinction of ancients from moderns. To this list one might add Wilson Carey McWilliams and his student, Patrick Deneen.
West documents the Founders’ concern for virtue and morality by pointing to what they said in their authoritative documents and what they did in their public policy. The Founders attempted to cultivate virtue through public education, including university education, through the promotion of religion, and through other restrictions, such as laws against gambling.
But perhaps the most important institution for the cultivation of the character necessary for natural-rights republicanism is the family. And strong families are made possible by good marriages. West devotes a full chapter, accordingly, to the Founders’ political theory of the family, a topic that deserves more scholarly attention (though see this fine overview by Scott Yenor).
West says the Founders recognized marriage as a natural right, and he suggests that it is part of the natural right to pursue happiness. I suppose that is true, but I wonder if it is sufficiently precise. The pursuit of happiness seems a bit vague to generate other natural rights—what couldn’t be connected to happiness? I’m not sure that it much matters or even if what follows is more precise, but marriage might be more accurately seen as a part of the natural right of liberty. Whatever is the case, West says that one has the natural right to marry an individual of one’s choice, subject only to the limitations of the law of nature.
West does not go into detail about what it means for government to secure the rights associated with marriage, but it would seem to require government to act in some ways and refrain from acting in others. It must refrain, most obviously, from violating the individual’s right to consent to enter a marriage. Required governmental action includes specifying how individuals convey consent as well as regulating who is eligible to marry whom.
A natural-rights public policy approach to marriage would take its bearing from the law of nature, as all natural rights are a part of (and thus are bounded by) the law of nature. But what is the law of nature regarding marriage? West’s inquiry leads us to ask this question, but he doesn’t clearly provide the Founders’ answers.
West says that when the Founders discussed marriage and natural law they focused on children and the duties that parents owe to their children. This suggests that marriage law should take its bearing from what parents owe their children according to the law of nature. In a different work, West explains that Locke argues that parents have a natural-law duty to “preserve, nourish, and educate” their children until those children reach maturity, which Locke defines as being able to govern themselves in line with the law of nature. Our natural-law parental duties, in other words, are obligations to our children while they are children. But when the children grow up and are capable of taking care of themselves, parental duties come to a close.
If marriage policy should take its bearings from the natural law, and the natural law of marriage pertains to our duties to our children, when our natural duties to our children are completed so would be our duties to remain in our marriages.
To speak plainly: the natural law of marriage, according to Locke, is that we are morally bound to our marriages until the children are grown and can take care of themselves. One might extend this a bit to say that if, say, the wife has stayed home to care for the children and thus is unable to support herself after the children have grown, her husband has a duty to support her. But according to the Lockean classical liberal account of the law of nature, he does not have an obligation to stay married to her.
West knows all this, of course. The Founders, he says, “never adopted Locke’s minimalist view that the obligation of the marriage tie ends when the children are old enough to ‘shift for themselves.’” West continues: “civil society may and in the founders’ view should add to this minimum.” It is legitimate, West says, that marriage law prohibit divorce even after the kids are grown.
But why is this legitimate? What justifies restrictions on our pursuit of happiness or liberty beyond the requirements of the law of nature? West never really explains.
One might respond that it is useful for society for marriage to be for life. It very well might be. But in a regime dedicated to natural rights, we are not supposed to sacrifice the individual’s legitimate freedom for the utility of society.
Let me state the matter another way: If the natural-rights republic depends on healthy families, and if healthy families depend on lifelong marriage, the natural-rights republic that recognizes at-will divorce as a matter of justice will inevitably undermine one of the foundational pillars on which its flourishing depends.
Moreover, West himself seems to suggest that following the law of nature is not really morally obligatory from the perspective of nature alone. In some ways, this issue lies beyond our discussion of marriage and the family proper, but it has implications for it so let me explore the point.
In Chapter Four, which is titled “The Founders’ Arguments for Equality, Natural Rights, and Natural Law,” West discusses the grounds of natural rights and the law of nature. The Founders, West says, offered three different grounds for the truth of natural rights and the morally obligatory character of the law of nature:
– That rights and the natural law come from God
– That rights and the natural law are established by the moral sense
– That rights and the natural law are part of “The Natural Fitness of Things”
According to West, the difficulty with the first two—the statements that rights and the law of nature come from God or are grounded in the moral sense—is that natural rights and the laws of nature “are supposed to be discovered by reason alone.” It’s not that West rejects the idea that our rights are “endowed by our creator,” but if we rely on God alone to ground natural rights, they aren’t really natural rights. If they are to be natural rights in the full sense, we must be able to ground the existence of rights through natural reason alone.
Natural rights and the law of nature can be understood to be part of the natural fitness of things, West says, because liberty is an essential condition of human happiness. The liberty that is essential to human well-being, then, is the foundation for natural rights and also the law of nature. But this means, according to West, that respect for natural rights and obedience to the law of nature are, strictly speaking, not morally obligatory. We should respect natural rights and we should obey the law of nature for our own good and own happiness: “[i]f moral laws are not commands,” West writes, “they are only suggestions.”
What does this mean for marriage? And what does it mean for the idea that laws governing marriage ought to reflect natural rights and the law of nature?
If following the law of nature is not morally obligatory, then is it necessary to stay in a marriage you don’t much like, a marriage that seems antithetical to your happiness and well-being? Is it even obligatory to stay married for the sake of the kids—that is, even when you are still under the obligation of the law of nature to care for them?
It seems that it can’t be, according to West’s understanding of secular natural law—that is, natural rights and natural law divorced from God. The most we can say is that, according to this version of natural law, individuals and society will be unhappy if divorce becomes prevalent.
That is certainly true, as our recent cultural experience suggests. At least some segments of the population are suffering, kids in particular, because of the prevalence of divorce. But not everyone is suffering. Some segments of the population seem ecstatic in our age of sexual liberation.
What does all this mean? I take West’s aim to be both to articulate the political theory of the founding and to show why that political theory is good. West contends that healthy families are central to natural-rights republicanism. But he also reveals the reasons why the political theory of natural rights and natural law—at least insofar as it relies on natural reason alone—may be unlikely to sustain healthy families. It seems a secular version of natural rights and natural law cannot furnish morally obligatory reasons for staying married. If the natural-rights republic cannot sustain the family, it seems doubtful that it is a good or attractive political theory.
If this is correct, the deepest teaching of West’s Political Theory of the American Founding might be that a secular natural-rights political theory—that is, natural rights and natural law without God—is insufficient to sustain the natural-rights republic. The Founders, of course, understood this, which is probably one of the reasons why they declared our unalienable rights to be “endowed by our Creator.”
Vincent Phillip Muñoz, the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at the University of Notre Dame, is the author of God and the Founders: Madison, Washington and Jefferson. This essay is adapted from remarks presented at Hillsdale College’s November 2017 Conference on Thomas West’s The Political Theory of the American Founding.