West points out that there is little in the Founding core documents on these topics because they were quite uncontroversial matters in the Founding era. Nevertheless they are so important to our own time that he decided they merited a chapter. He had to dig deeper to come up with material, looking at state and local laws, legislative statements and debates, court cases and rulings, even personal correspondence between John and Abigail Adams.
The findings are not very surprising. The Founders endorsed a rational, reasoned account of traditional Judeo-Christian moral views on sex and marriage. They rejected Islam's approach by name (235), not because of prejudice but because they felt it degraded women's natural right to equality and reduced them to near-slavish status. They approved of monogamous marriage, barred polygamy, sodomy, and bestiality; they banned prostitution and pornography as being contrary to the success of marriage, which they viewed as a fundamental institution of a natural society -- as well as a natural right of men and women, provided they took only one spouse of the opposite sex and with due reflection.
West finds that the laws on sex were very strict, but barely enforced. In principle sodomy was a capital crime in many places; Jefferson proposed to reduce the penalty to castration for men and nose-piercing for women. Massachusetts' adultery law prescribed public display on the gallows followed by whipping of up to 39 stripes, plus imprisonment and/or fines. In fact, though, there is no evidence that these corporal penalties were carried out, and there are only two recorded capital cases West could find. One of these was in a case of sodomy against an unwilling youth, and as a result the death penalty might have been as much for the rape as for the homosexuality. The other might have been a bestiality case, but it is not clear. (230-1)
This was how Georgia handled sodomy cases even in my own lifetime. In principle it was a felony, whether the sodomy was oral or anal, homosexual or otherwise. In practice almost no one was ever prosecuted for such a thing; the only case I know of was of a guy who admitted to it on the stand in the course of his divorce case. He ended up going to prison for what he'd confessed to under oath, but his wife (an equal partner in theory) was not prosecuted because she had not confessed.
West says, "For the most part, this de facto 'don't ask, don't tell' policy on sexual misconduct continued from the founding until... the 'surge of interest in victimless crime, in vice, in sexual behavior, at the end of the nineteenth century," i.e., the rise of the Progressive age. West documents that it was the Progressives who banned birth control, and pushed for aggressive enforcement of sexual morality laws. He quotes one of the Progressives on the subject, who wrote that the "purpose of the state... [is] the perfection of humanity;... the perfect development of the human reason, and its attainment to universal command over individualism[,]" (234) The 1910 encyclopedia article on crime praises the apparently rising crime rate because "it is almost in every case due to the enactment of new laws, police regulations, etc., with the stricter enforcement of social and hygienic regulations -- an indication, therefore, of social progress rather than the reverse." (ibid)
The common law inherited from Britain that continued at the Founding did place a significant limit on women's equality if and only if they became wives: their legal personhood was collapsed with their husband's ('one flesh' and all that), and he was therefore in charge of any money and property they held in common. Single women and widows had the same civil rights as regarded owning property or businesses (witness Betsy Ross), but this was not true for married women whether or not they had children. (237).
These laws were not immediately changed at the Founding, because the status of the family was uncontroversial in the society of that time, but they did begin to change in ways that asserted women's natural rights after 1776. Courts as early as 1816 held that, though a wife could not make a legally binding contract under the common law, husbands were bound to obey any contract their wife made provided that it was reasonable. (238) Courts also departed from the English common law that permitted husbands to "moderately chastise" (i.e. beat) their wives, holding that "the right of chastising a wife is not... recognized by our law." (ibid) The continual evolution of the laws after the Founding was in that direction, until we arrived where we are today.
Another thing that changed after 1776 was that American women no longer were expected to abide by their parent's wishes on whom they should marry, but were free to choose their husband. (241) West claims that "After 1776, the American family was increasingly based on a new view of wives as equal partners with their husbands, although men and women were still expected to occupy partially separate spheres in life." (ibid) He cites a number of publications from the period that praised women as the moral center of the family as evidence that women were increasingly entrusted by society with the right to make decisions about what morality required of their families as well as themselves. "Historian Linda Kerber has called this new idea of women's role 'republican motherhood," West notes, citing her work Women of the Republic. (ibid)
Once again West cites Locke mostly to point out that he has seen little evidence that the Founders read him on the subject; once again he does not cite Kant, whose work is quite close to the approach West attributes to the Founders. Kant, just as West says the Founders did, essentially endorsed the Judeo-Christian traditions on sex and marriage but put a coat of 'practical reason' paint on them rather than citing the tradition or the Bible. Kant also reasoned that marriage was a natural right of individuals, so much so that any individual had a right to insist that a society that had somehow not made legislation permitting marriage must do so on demand. Kant likewise reasoned to the conclusion that sex was only permissible in marriage, in a 'natural' way (i.e. one capable of producing children), and that marriage was a natural law institution consisting of exactly two parties of the opposite sex from one another. The Kantian project and the Founding project are quite different, but they are both expressions of the Enlightenment in this way (although, as you will recall from earlier sections of this review, West thinks the Founders were fairly suspicious of the Enlightenment's claim to rely on reason alone as a guide).
In any case, this chapter is unsurprising but was worth putting together. This is true even though I imagine it was a lot of work, compared with other chapters, because it required a lot more digging. Still, it is helpful to have it all spelled out.
