The Place of Families

Larry Solum highlights, in his "Legal Theory Bookworm" feature, the new book by Linda McClain, "The Place of Families:  Fostering Equality, Capacity, and Responsibility."  Here is a description:

In this bold new book, Linda McClain offers a liberal and feminist theory of the relationships between family life and politics--a topic dominated by conservative thinkers. McClain agrees that stable family lives are vital to forming persons into capable, responsible, self-governing citizens. But what are the public values at stake when we think about families, and what sorts of families should government recognize and promote?

Arguing that family life helps create the virtues and character required for citizenship, McClain shows that the connection between family self-government and democratic self-government does not require the deep-laid gender inequality that has historically accompanied it. Examining controversial issues in family law and policy--among them, the governmental promotion of heterosexual marriage and the denial of marriage to same-sex couples, the regulation of family life through welfare policy, and constitutional rights to reproductive freedom--McClain argues for a political theory of the family that embraces equality, defends rights as facilitating responsibility, and supports families in ways that respect men's and women's capacities for self-government.

(Here, by the way, is an interesting debate that McClain had, with Mary Shanley, as part of the Legal Affairs "Debate Club," about whether "the state should abolish marriage.") 

McClain believes, among other things that the "government should give more robust economic and social supports to families, reflecting society's interest in helping children grow into capable, responsible members of society and good citizens."

Interestingly, the late Pope seems to have agreed:

"[T]he State cannot and must not take away from families the functions that they can just as well perform on their own or in free associations; instead it must positively favor and encourage as far as possible responsible initiative by families. In the conviction that the good of the family is an indispensable and essential value of the civil community, the public authorities must do everything possible to ensure that families have all those aids- economic, social, educational, political and cultural assistance-that they need in order to face all their responsibilities in a human way."

McClain's book gathers together and integrates interesting work she has been doing, over several years, on the role of civil-society institutions in constituting both autonomous persons and good citizens.  Here, for example, is a quote from an earlier article, "The Domain of Civic Virtue in a Good Society:  Families, Schools, and Sex Equality," 76 Fordham L. Rev. 1617 (2001):

[G]overnment should pursue a formative project to foster the capacities for self-government, both in the sense of democratic self-government and personal self-government, and that the institutions of civil society also have a proper role to play in fostering such capacities.  As a matter of constitutional interpretation, I believe that our constitutional order presupposes that citizens possess the capacities for democratic and personal self-government; its scheme of basic rights and liberties serves to foster and protect the exercise of such capacities. The Constitution permits and depends upon, if not authorizes or even requires, a formative project, even as it places certain limits upon its pursuit.

tend, I think, to take the latter route.

In any event, McClain's work strikes me as important, and worth engaging.

Or, we could say (something like) "families are -- in addition to being communities of persons united by love -- important mediating institutions that, like other such institutions play a crucial checking function on the state and its ambitions, and they provide ideological competition for the state and majoritarian values."  (We could also say other things, I realize).  Put differently, we could emphasize (in McClain's words) the "formative project" that the Constitution purportedly "permits and depends upon, if not authorizes or even requires"; or, we could instead emphasize the "constraints" that the Constitution (and political theory, and religious freedom, and morality) might place on any such project.  I

It seems to me that we can go (at least) two ways, after we observe and agree that families are (among other things) institutions that, like mediating associations of other kinds, help to form persons and to construct the scaffolding of civil society (for more thoughts of mine on this, see, e.g., these two articles):  We can say, on the one hand, "yes, families are important, and they do important work in which the public authority has an interest, and so they can and should be regulated in order to ensure that they are constructed and ordered in ways that reflect our public values and that they produce the 'outputs' -- i.e., autonomous, other-regarding persons -- that we want."