Early Man and the Law

In Friday’s Ex Parte E.R.G., the Alabama Supreme Court struck down the Alabama grandparent visitation statute, holding that it violated the rights of parents. The decision was a splintered 4-3-2 decision, which reflects the Supreme Court’s splintered decision in Troxel v. Granville (2000) — which held that some such laws are unconstitutional, but didn’t decide whether all such laws are unconstitutional. And the opinion among state courts is likewise splintered. I hope to have a chance to blog about this in the next few days.

But for now, I just wanted to note this passage from Justice Parker’s concurrence (which also contains various assertions about the Christian basis of American law):

I concur specially to write on the origin of the fundamental right of parents to direct the upbringing and care of their children. The main opinion in this case references Troxel v. Granville, 530 U.S. 57 (2000), for the principle that parents have a fundamental right to direct the care and upbringing of their children. This right does not originate with Troxel, however; it has existed for millennia, an integral part of the institution of the family.

I. The family preexisted the state.

The family was the first of all human institutions. One man and one woman came together in covenant before God, and they, with the children God gave them, became the first human social structure. As William Blackstone wrote, “single families … formed the first natural society,” becoming “the first though imperfect rudiments of civil or political society.” 1 William Blackstone, Commentaries on the Law of England *47 (1765). There was no state: no one person had been given civil authority over another, to punish evil and to prevent oppression. Nor was there a church to provide structure and order in the worship of the Creator. Both of these necessary institutions would come later — indeed, they were prefigured in the discipline and worship of the family — but the “sacred” relationships, Montgomery v. Hughes, 4 Ala.App. 245, 58 So. 113 (1911), within the family came first.

I certainly agree that the family preexisted the state as we know it. But is there any solid basis for believing that it was an exclusively two-person family in which the parents exercised parental authority even to the exclusion of the grandparents? Certainly families in many early societies could be polygamous, rather than “[o]ne man and one woman”; in particular, the society described by the Old Testament, which Justice Parker cites several times, allowed polygamy. And in at least one famous ancient Western civilization — the Roman — grandfathers at least nominally had power over their grandchildren, as well as over their adult children. Do any readers know whether Justice Parker’s assertions that the two-parent-controlled nuclear family (or for that matter just the father-controlled two-parent nuclear family) indeed came “first,” under any plausible scientific understanding of when “human institutions” emerged?

I should say that if Justice Parker had limited himself to saying that parental rights and monogamy were well-established in English law at the time of the framing of the Constitution, I would have had no historical objections to that narrower claim. Thanks to How Appealing for the pointer, and to Alabama Appellate Watch for posting the opinions.