Home on the Range: Family and Constitutionalism in American Continental Settlement
Brandon, Mark E.
For more than a century the Supreme Court of the United States has championed family as an institution of constitutional significance. The Court recently affirmed this position in Troxel v. Granville, 530 U.S. 57 (2000). How to make sense of the Court's invocations? This Article is part of a larger study that attempts to answer that question. The Article proceeds along two fronts. The first is constitutional theory. Might family play an institutional and normative role-like federalism, rights, or divided national power-that serves as a kind of "Madisonian check" in a constitutionalist order? The second is history-social, political, and legal. Specifically, what were the family's form and functions in the westward settlement of the United States in the nineteenth century? The argument essentially is this: To solve basic problems of power and authority, constitutionalism requires institutions of three general types Substantively, it needs institutions that can span three dimensions of human experience: political, economic, and moral. Functionally, it calls for institutions capable of creating, maintaining, and dissolving (or transforming) authority. Procedurally, it expects institutions that, in aggregate, promote "reflection and choice." Conventional wisdom has held that American constitutional order-through text, formal institutions, and socio-economic diversity-solved the problems of power and authority. Alexis de Tocqueville, however, was not convinced. He worried that American institutions and ethos made the order vulnerable to the centralization of political authority and that the absence of intermediary institutions, like aristocracy, only enhanced this vulnerability. Might Tocqueville have overlooked something? Through an examination of national policy, judicial doctrine, and the experience of families in the westward territorial expansion of the United States in the nineteenth century, this Article argues that family was constitutionally useful. Substantively, family contributed to the political, economic, and moral constitution of the expanding realm. Functionally, family assisted in maintaining the order by helping it consolidate and extend authority westward across the continent. On the moral front, family's role was, in important respects, dictated by national and territorial policies. Decisions of the Supreme Court-on issues of common law, statute, and Constitution-reinforced these policies. Specifically, the order aimed to use a particular kind of family to settle the West: nuclear, monogamous, and mostly white. With respect to political economy, however, family's constitutional utility was caught in a conflict over the formal commitments of the order. One conflict involved national policy that vacillated between a liberal-capitalist (Hamiltonian) conception of political economy and an agrarian-republican (Jeffersonian) conception. For reasons of interest and sheer numbers, many families inclined in the agrarian-republic and direction. This inclination had political and social implications of two sorts. First, cutting against Tocqueville's concern, western families served as a kind of intermediary institution that aimed to resist the centralist tendencies of Hamiltonian political economy. Second, those families contributed to a substantial revision of the social, economic, and political roles of women, providing them a larger domain for action than had typically existed elsewhere. This revision would lead eventually to women's suffrage, at first in the West, then eastward, back to "civilization."