Georgetown Law Journal
This article focuses on the shift from a world in which domestic relations are founded in a hierarchical ideology that manifests natural differences in the actual relationships between people to a world in which domestic relations are founded in an egalitarian ideology that presumes the autonomy of the individual within a world of contract. Part I of this article describes the American family just before a set of remarkable changes in the law's response to the family, beginning about thirty years ago, acknowledged and furthered the transformation of the American family into an association of separate individuals. This Part explains the roots of the traditional family by exploring the ideological and social contours of the medieval universe from which the family, almost alone and almost intact, emerged into the twentieth century.
Part II examines the moral dimensions4 of these changes for the society by comparing three landmark cases decided by the Supreme Court over more than half a century. The first, Lochner v. New York, a 1905 decision invalidating a state labor law, illustrates the assumptions with which nineteenth century liberalism approached the market. The second, Griswold v.Connecticut, which invalidated a state birth control law in 1965, distances itself from Lochner by predicating a constitutional right to privacy on the separateness and moral centrality of the domestic sphere. The third, Eisenstadt v. Baird, decided in 1973, transferred the privacy right articulated in Griswold from the family as a unit to the individuals who compose that unit. Eisenstadt, in which the Court relied expressly on the right to privacy delineated in Griswold, assumed a view of the family not unlike the view of the market assumed by the Court seventy years earlier in Lochner.
Janet L. Dolgin,
The Family in Transition: From Griswold to Eisenstadt and Beyond, 82 Geo. L.J. 1519
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/67