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Family Choice and the American Dream


Julie Suk (@JulieCSuk) is Professor of Law at Fordham University School of Law.

This post is part of a symposium on Maxine Eichner’s book, The Free Market Family.

The Free-Market Family is a much-needed account of the crisis facing American families in the twenty-first century. Maxine Eichner argues that this crisis is not an inevitable fact of post-industrial democracy, pointing to other wealthy democracies that have supported families to enable them to meet their members’ needs. The difference, according to Eichner, is that the US, in contrast to its peers, embraces market maximization by seeking first and foremost to increase GDP.  Free-market approaches to employment and childcare policy proceed on the misguided assumption that families will reap the trickled-down benefits. To restore the American Dream, Eichner proposes stronger state intervention in the market by way of pro-family policies, such as access to family planning, paid parental leave, child benefits, public investment in childcare, and limitations on employer freedom to enable their employees sufficient time and pay to care for children and elderly family members.

The “pro-family” policy proposals that shape the normative core of The Free-Market Family are a longstanding feature of most European countries. Yet, the contrasting labels “pro-family” and “free-market” mask an additional normative commitment that drives the American approach. More so than blind faith in the market, U.S. family policy embraces the principle that government should not intrude into parents’ choices on whether and how to raise children. Liberalism in law and public policy cautions against a government wielding a heavy hand to shape these choices. What Eichner calls “free-market family policy” is parasitic on “pro-choice” normative commitments in public law when it comes to family matters.The free-market approach that Eichner excoriates is parasitic on the constitutional commitment to respecting privacy, autonomy, and individual choice affecting reproduction and family life. 

Eichner’s definition of “free-market family policy” appears simply to be the absence of the “pro-family policies” that exist in countries like Finland and Germany, jurisdictions for which Eichner expresses admiration in Chapter 2, “America’s Free-Market Family Policy.” Pro-family policy can include “a relatively high minimum wage,” or the “decommodification” of services, like daycare, which benefit families. It often also includes child benefits, including notably in Finland, a care package of baby essentials sent to each family upon the arrival of a newborn. America’s “free-market family policy” leaves parents to work for wages set by the market, which they can spend on baby essentials if they choose to procreate. Eichner suggests that the American approach flows naturally from the unbridled effort to maximize GDP, regardless of its destructive effects on families.

But the policies that support families in many wealthy democracies, including Germany, did not emerge from a decision to put families before GDP. Rather, many continental European countries sought to rebuild their economies after World War II. Constitutional drafters in Germany, France, and Italy, to name a few, assumed that the traditional family was the fundamental and enduring mode of social organization. They treated it as an institution necessary to the nation’s growth and prosperity. The long-term growth of the market would not be possible without families, especially mothers, bearing and raising the next generation of citizens and workers. The postwar constitution of Germany, one of the jurisdictions whose pro-family policies Eichner praises, guarantees, “Marriage and the family shall enjoy the special protection of the state.” (art. 6(1)). Such provisions are fairly common in European constitutions, as are clauses explicitly protecting mothers.  Echoing a provision that had been adopted in the Weimar Constitution following World War I, the German Basic Law in 1949 entitled every mother to the protection and care of the community (art. 6.4). Such provisions led courts to treat paid maternity leave as a constitutional requirement. Paid maternity leave – which was eventually expanded to include paid paternity leave—grew out of wartime economies which depended on women combining work and motherhood. Supporting families, especially mothers, continued to be important to the economic growth of nations that had lost so many men to war.

Understood in historical context, pro-family policy is not in tension with the pursuit of economic growth and GDP maximization. By contrast with other countries, Eichner argues that the United States has “adopted free-market family policy, in which families are expected to arrange and pay privately for what they need, without help of government.” Families are expected to arrange what they need privately without government involvement, not because such expectations are endemic to the pursuit of GDP maximization, but due to a simultaneous normative commitment to the autonomy and privacy of individuals’ choices and value judgments about whether to have a family at all, and how to raise and educate that family. Supreme Court decisions of the 1970s most prized by liberals repeatedly insisted that people had a constitutional right to be free from “unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”  (See, e.g. Eisenstadt v. Baird, Roe v. Wade, Cleveland Board of Education v. Lafleur).

The fight over federal childcare legislation in the 1970s, discussed in Chapter 9 of Eichner’s book, underscores this point. Despite bipartisan support and passage in Congress, proposed legislation to fund daycare centers that would be available to all children regardless of economic need failed because President Nixon vetoed it in 1971. Eichner astutely points out that, while it is tempting to regard Nixon’s veto as the promotion of a traditional family model, embracing the conservative belief that small children belonged with their mothers in the home, the rejection of federal childcare was more about the inappropriateness of government socializing children in the way it saw fit: “The problem with the CCDA was the role it envisioned for government . . . [Nixon’s veto] statement cast government action – even action intended to support families – as harmful to families’ well-being.” (181)  Nixon objected to “communal” approaches to child-rearing.

Eichner argues that the United States “bet its future on the losing proposition that the free market alone, without government regulation or assistance, would create flourishing families.” (192). However, as her interpretation of failed childcare policy suggests, the free market was the path chosen by political leaders in part because government assistance would require a collective definition of a flourishing family, about which Americans, even on the Left, disagreed. Did a flourishing family involve two breadwinning parents with twenty-four hour childcare centers to support their work schedules, or a breadwinner-caregiver division of parental responsibilities? Did supporting family flourishing  mean valuing, facilitating, and compensating parents’ care for young children in the home, or investing those resources into “communal” options? Could parental care in the home be supported without avoiding mothers’ disproportionate participation in that work, even if approached in gender-neutral terms? Politicians avoided these questions by leaving families themselves to define (and self- support) their own ways of flourishing.

Although Eichner does not necessarily connect the two subjects, the “intensive parenting” that she takes up in Chapter 3 illustrates the extent to which parents value the choices they can make for their children’s development, even as they experience severe anxiety about whether they are making the best parental choices. Parents spend more time parenting than they did a generation ago – overpacking their children’s schedules with a plethora of options such as “’super-fancy’ travel baseball.” (62). Eichner suggests that American parents reject “permissive styles of parenting that promote children’s independence and imagination,” (63) due to anxiety about the inequalities that persist in a free-market economy. But one wonders if American parents – particularly those amongst the educated elite – would loosen up if the state were more supportive, for instance, by making ordinary local baseball, available to everyone. Indeed, many Americans value their freedom to choose superior private schools to educate their children, albeit at price tags as high as $50,000 a year, even while the government provides free public education as an option for all families. Among low-income parents, some may prefer state grants-in-aid to care for their preschool-age children at home, whereas others prefer daycare centers, including baseball or whatever other activities the government deems worthy of supporting for everyone.

In Germany, the constitution declares what Eichner wishes would exist in the United States: a partnership between the state and parents in raising children. Article 6(2) provides, “The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.” Accordingly, the law prohibits home-schooling, on the grounds that the state has a duty and an interest in educating its citizens. Americans from both sides of the political spectrum home-school their children and do not want the state watching over the way they parent their children.  Indeed, the German constitution also severely limits parental choice in matters of education. It allows private schools to exist only with state approval, provided that “segregation of pupils according to the means of their parents will not be encouraged thereby.” (art. 7(4)).  Without limiting parental choice to a greater degree than the American legal order tolerates, supporting family flourishing towards greater social equality may not be possible, particularly in an increasingly polarized society like the United States.

Ultimately, The Free Market Family proposes to restore the American Dream through pro-family policy, blaming “the market” for crushing it. But the law also celebrated the freedom of individuals to liberate themselves from families, and to choose whether, when, and how to parent their own children. It eroded the state’s legitimacy in defining “the” American Dream. It has become difficult to imagine government supporting families, as European countries do, without defining the family and implicitly devaluing modes of social organization that depart from the norm.  Could public policy mandate the accommodation of working parents to care for their children, without offering similar accommodations for workers to care for elderly relatives, nonmarital partners, close friends, neighbors, or pets?  Is providing a child benefit to parents unfair to childless taxpayers who could use the benefit to pursue other socially valuable projects? The Free Market Family leads to difficult questions about the prospects for pro-family policy under the uniquely American conditions of liberal pluralism and political polarization.