Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State

I INTRODUCTION 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. Even seemingly progressive landmarks in family law remain within the neoliberal frame. Loving v. Virginia, Lawrence v. Texas, and United States v. Windsor, for instance, mark true victories for social progressives, protecting important rights long denied to persecuted groups. (1) And yet, none of them challenges in any deep way the three core ideals of neoliberal family law: negative liberty, laissez-faire market distributions and the minimal state. To take another example, the earned income tax credit (EITC) passes in today's United States for a progressive welfare program, even though it alleviates only modestly the harshness of laissez-faire labor markets. (2) In this article, 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. So strong is the Court's ideal of negative liberty, and so extreme is its skepticism about state power, that it has insulated the state from any responsibility to protect children--even against vicious and foreseeable parental attacks. 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. Even in the parent-child relationship, neoliberalism dominates, as state law leaves children's fates to depend on their parents' market earnings. Rich children prosper and poor ones suffer, and neither children nor their parents can seek legal redress. 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. Absent constitutional rights to aid, welfare programs exist at the sufferance of political actors, and the programs' terms reflect neoliberal commitments. So, for instance, the major U.S. social insurance programs privilege paid employment by granting benefits that reward high earnings and steady participation in the workforce. And welfare programs often feature time limits, work requirements, and other conditions that ensure that poor individuals and their families subsist primarily on their market earnings. 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. We can also imagine--and, again, other countries have enacted--law that looks beyond the minimalist task of settling private disputes and instead aims to correct market distributions and promote a family life open to all. …