Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State
26 Pages Posted: 29 Jun 2014
Date Written: June 27, 2014
Neoliberalism permeates U.S. family law. The law protects negative liberty in family life but denies positive rights to the resources that make family life possible. The law endorses laissez-faire market outcomes and portrays the state as overbearing and incompetent.
In this essay, I document how neoliberalism dominates U.S. family law in three legal arenas. The first is federal constitutional law, where the Supreme Court has adopted a thoroughly neoliberal vision of the family. According to the Court, the Federal Constitution grants individuals wide latitude to assert negative liberty — that is, freedom from state intervention — in family life. But individuals have no constitutional right to claim any distribution of resources other than that produced by the marketplace.
The second legal arena is state family law, which pursues a limited mission shaped by the contours of constitutional law. When individuals have sweeping rights to negative liberty but no rights at all to challenge market distributions, the primary task of subconstitutional law is simply to create legal space for individuals to exercise negative liberty. Accordingly, state family law pursues no broad mandate to foster family life. Rather, it seeks only to authorize private ordering and to adjudicate private disputes.
The third legal arena is federal and state welfare law. One might suppose that welfare would provide a legal vehicle for citizens to challenge market outcomes. However, in the United States today, welfare provision tends to ratify market distributions rather than upend them. The predictable consequence is that individuals and families can suffer dire poverty without any entitlement to state assistance.
The entrenched neoliberalism of family law is frustrating for many reasons, not least because it blocks sustained consideration of a more appealing liberalism. Negative liberty, as important as it is, is insufficient for justice. We can imagine — indeed, other countries have adopted — constitutional interpretations that convey positive rights. But so thorough is the neoliberal cast of U.S. family law at all levels that it is difficult to create legal space for consideration of such ideas. Today, constitutional law, family law, and social welfare represent separate legal specialties. To engage the possibilities of liberalism, a necessary, though hardly sufficient, first step will be to draw connections across bodies of law that are, today, treated as separate fields.
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