Waxing State, Waning Family: The Radical Agenda of the American Law Institute
Very enligtening.
by William C. Duncan, Ruth Institute Advisory Board Member
The one great principle of the English law, is to make business for itself.—Charles Dickens, Bleak House
In the modern state, law—like nature—displays a marked distaste for a vacuum. Spurred by elites distrustful of independent social institutions and a cultural embrace of atomistic individualism, the United States in past decades has experienced a dramatic incursion of legal regulation into mediating institutions like the family. Institutions that had previously been considered outside the domain of state control in order to provide a check on the totalitarian temptation find themselves under increased scrutiny. As changes in family law have dovetailed with societal trends, family breakdown has become more common, triggering yet more legal changes thought to be justified by the parlous state of family life. More and more aspects of the family, ultimately to include the very definition of marriage, family, and parenthood, are thus subjected to the jurisdiction of courts and government agencies. Of the elites advocating invasive legal interventions, none is more exclusive than the American Law Institute; no proposals for the expansion of the state into the family domain better illustrate the expansive tendency of the law than its recent proposals for a revolutionary overhaul of American family law.
The American Law Institute is a small and highly selective group of judges, practitioners and legal academics. Its first meeting, in 1923, was attended by three justices of the Supreme Court, five judges of the federal appeals court, and twenty-eight state high court judges, along with representatives of the American Bar Association and the National Conference of Commissioners on Uniform State Laws. It was initially funded by a large ten-year grant from the Carnegie Foundation. The institute’s stated purpose was to address perceived confusion and complexity in the law precipitated by a flood of court decisions, statutory enactments, and administrative regulations. It thus compiled “restatements” of the law describing prevailing legal rules on various topics.1
The ALI was not content to tally court decisions. At its inception, the institute’s mission involved an implicit tension between the goals of describing the law as it stood and of suggesting changes that would make the law substantively “better”—to reform the law. Legal historian N. E. H. Hull notes: “The driving force behind the institute’s founding was a cadre of progressive law professors who set its original reformist agenda.” Indeed, its origins “lay in the vision of a group of ‘progressive-pragmatic’ legal academics, who wished to reform law,” and its first leader, who had “committed himself to an active reformist role for academic scholars.”2
In some areas, the Restatements of the Law are extremely influential, almost controlling.3 The more directly “reforming” work of the institute, such as the Model Penal Code, has also affected the law of many states. Indeed, the organization notes, presumably with some pride, that it ranks thirty-fourth in Playboy’s honor role of “men and women who changed the face of sex” and called its members “unsung heroes of the sexual revolution” because of its recommendation in favor of decriminalizing sodomy and fornication.4
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This is a long read, but well worth it. A couple of shocking excerpts:
“Domestic partners have two choices: they may contract with one another to avoid the application of the Principles’ rules governing the financial consequences of their breakup; or they may do nothing and be covered by those rules without any action on their part. Cohabitants who want to avoid the legal status of domestic partners would only be able to do so by entering a legal contract, the effect and meaning of which will, of course, ultimately be determined by a government official. …
“In the domestic partnership situation, a couple is automatically presumed to be subject to state regulation unless they “opt out” by signing a contract that is itself subject to legal regulation. Either way, the state involves itself in the couple’s relationship.”
The idea that any and every two people living together have to sign a contract in order to state that they are not in a contractual relationship is just mind-boggling!
Or how about this, regarding the prohibition of the concept of “fault” in divorce proceedings:
“…the drafters specifically provide that if spouses enter an agreement including terms that would “limit or enlarge[] the grounds for divorce otherwise available under state law” or “penalize[] a party for initiating the legal action leading to a degree of divorce,” those terms will not be legally enforceable. In other words, the idea of marital fault is so alien to the Principles that spouses are to be prevented from making even a private arrangement to hold themselves to a higher standard of conduct.”
So even with a legal contract between spouses, pledging fidelity “or else”, the state would declare it to be void. Talk about intrusive!
A retired lawyer, with some originally unexpected family law experience, and an awful lot of even more unexpected representation of survivors of childhood sexual abuse, mostly incest, some of which involved prominent persons including politicians of both parties, I had some exposure to the American Law Institute (ALI) in law school and practice, but, despite my family law practice, had no idea how far from “restatements’ of the law and technical recommendations into extreme left-wing anti-family policies the ALI had wandered until I read your well-documented, footnoted piece.
No-fault divorce was, or appeared to have been, a well-intentioned move, but it had the effect, which I had thought was unintended, of creating, instead, something very different, divorce on demand of either party without any requirement of proving any good cause whatsoever. It became a lot easier to get out of the marriage than the mortgage the couple had signed to buy a house. I actually heard a couple, who had already married with little preparation and without knowing that much about each other, express more hesitancy about signing a mortgage that would hast for thirty years. This regimen gave all the power to the person who wanted to bail out, and exacerbated the imbalance if that party was the one with more earning capacity, typically the husband. The children often get used or lost in this process, but, since, over the shorter time frame, more and more children were born out of wedlock to cohabiting or otherwise unwed couples, or of temporary couplings where, to my shock, the mother often really did not know who the biological father was.
To recoup money spent on “welfare,” we then got state laws mandated by federal law that ignored several economic realities affecting these people. One of the mandated situations was child support orders, with or without marriage, that one law required be set at a specific percentage, or within a narrow range of percentages, of the non-custodial parent’s disposable income, but another part of these state and federal laws required that it be expressed, instead, as a fixed dollar figure. You can’t adjust the numbers to reflect the statutory percentage after the fact, so, if, as very often happens, the obligor parent becomes injured loses his job, or loses a lot of overtime on which this dollar figure was set using the percentage, things can get desperate before and after he hires a lawyer. At the same time, the upwardly-mobile father can evade a lot of his obligation legally because the standard order prescribed does not require him to report increases in income.
This whole ALI thing, which I had not seen before, will unquestionably be a factor in the Supreme Court’s consideration of the issue of so-called “’gay’ marriage>” I have noted that the federal courts are also getting entangled in alleged Constitutional questions about polygamy, marriage to your mentally incompetent sister, etc..
perhaps you should all work on banning divorce (and I’ll still be out there protesting against you fools because no one can legislate morality, and because it’s an affront to individual liberties) instead of going around the country trying to ban gays from getting married. The end is coming, you know you’re losing this war. Why do all polls suggest increasing amounts of support for SSM? COuld it be because more and more gay people are coming out at record rates, and GASP, by coming out, we teach people it’s no big deal and we’re human, like everyone else?
The biggest enemy to your cause are Out, successful gay people.