The Declaration of Independence imagines revolution and legislation as two distinct phases in man’s political history. First, an aggrieved people “alter or abolish” a form of government destructive of man’s rights. Only then does that people “institute new Government, laying its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect their Safety and Happiness.”

America’s revolutionaries, however, had to fight and legislate at the same time. As they were beating the British, they ratified state constitutions and legislated for a free people. New Hampshire’s temporary constitution was written before the Declaration was adopted, as was South Carolina’s. Ten of the 13 colonies adopted constitutions before the Battle of Saratoga in 1777—only Massachusetts, Connecticut, and Rhode Island did not. (Massachusetts adopted its constitution in 1780, well before the Treaty of Paris.)

Although state constitutions were defective in significant ways, they accomplished much. Combined with the Articles of Confederation, they were good enough to win independence. State constitutions reflected a social vision for a republican people that Americans could rally around during the war, one that would be elaborated for decades. They contained the promise of something better, something worth fighting and dying for.

America’s revolution in domestic policy removed the pillars of the old aristocratic family while establishing the grounds for a middle class ready and able to defend republican self-government. Some elements remained implicit, but much was spelled out through state legislation.

Republicanizing Inheritance Law

Especially crucial to the new regime were inheritance law and a republican conception of family law. Alexis de Tocqueville argues that the family “ought to be placed at the head of all political institutions” since it shapes the destiny of a people. Lawgivers throughout history have taken great interest in inheritance laws. Lycurgus of Sparta created inalienable family estates for all citizens, locking families and land in place for centuries. Caesar Augustus linked inheritance laws directly to family policy as he was establishing the principate. Russian reformer Pyotr Stolypin imagined breaking up estates as part of an effort to stave off disaster for the Romanovs before the outbreak of the Russian Revolution.

Laws of entail (which limit an owner’s ability to divide and sell property) and primogeniture (which favored first sons in inheritance) were pillars of Europe’s feudal order. Edward I codified entail in 1285, according to David Hume’s History of England. Both primogeniture and entail came earlier to France and Germany; later and more harshly to Spain and Russia; and later and somewhat more easily to Scandinavia, as depicted in Sigrid Undset’s epic novels.

As a result, an intimate connection developed between family and land. The family came to be understood across generations on a trustee model. “Family spirit,” as Tocqueville writes, is “materialized in the land.” The idea of legacy was enshrined through law, as marriage became the indissoluble bond between the family and the land. Men represented the family in councils as leaders; the role of sons was fixed. Capital was tied to land, so the economy emphasized stability over dynamism.

Whereas primogeniture and entail support the patriarchal family, American states abolished them in order to lay, in the words of Thomas Jefferson, “the axe to the root of Pseudoaristocracy.” Jefferson wanted “to annul” the privilege of those who owned estates as “essential to a well-ordered republic.” America defeated aristocracy on the battlefield and at the hearth.

Aristocrats from Europe could not plant their family institutions in America, nor could polygamists—whether from Muslim lands or domestic sects—transplant their family situations here. Property would become more widely held and more easily circulated. Repealing primogeniture and entail takes “away from landed property owners a great interest of sentiment, memories, pride, and ambition in preserving the land,” as Tocqueville points out. Families eventually sold estates to redeploy capital toward higher-growth investments. As property circulated, more people could own it, which set the stage for the American Dream.

Georgia repealed entail and primogeniture in 1777. Pennsylvania, North Carolina, and Vermont abolished entail before Saratoga, and primogeniture thereafter. Every state that had both “abolished them during the Revolution,” according to Tom West. Some never had them.

Widely available property would support the middle-class, nuclear family model. It even affected the old world, as nearly every European country abolished entail and primogeniture during the 1800s; Britain waited until 1925.

But the nuclear family has limits, too. According to Tocqueville, one “dreams of the establishment of the generation that is going to follow, and nothing more.” In America, families disappear as rapidly as fortunes. Rents no longer pay the bills, though dividends might. Parents prepare children for independent life away from the family, and parental authority legally expires when children become adults. Children need practical schooling for real careers, which means many move away to pursue their dreams and fortunes. Homes become “assets” more than loci of meaning. The family thins, but is sweet and close.

The Founders’ Indirect Method of Promoting Family Life

Family in times of churn risks becoming, in Tocqueville’s words, something “vague, indeterminate, and uncertain.” Rather than anchoring the family to land, the founders sought stability by defining family form and function. The American nuclear family might be more temporary than the medieval family, but it would be centered around raising children to honorable adulthood.

The founders channeled natural human desires (for posterity, for love and loving one’s own, for sex, for protection) toward enduring, procreative marriage between husband and wife. As I have argued elsewhere, laws reinforced through a system of honor allowed divorce in limited circumstances and prohibited adultery, polygamy, and sodomy. They united man and woman, by consent, in a union where two were recognized as one.

American laws were often stringent in theory, but somewhat loose in practice. America adopted and expanded English common-law marriages. In colonial times, fornication was illegal and severely punished with public shaming and corporal punishment, and fornication remained illegal after the Revolution—but these prohibitions instead aimed mostly to maintain a healthy marital culture, and punishments declined. Laws against sodomy and adultery followed the same pattern: strictness in law, mercy in practice. Once a marriage was formed, divorce would be allowed only for reasons that struck at the heart of marriage—adultery, abuse, desertion, and, in some cases, infertility. Obscenity was hardly available. Allowances for human weakness coexisted with public favor for a stable family form.

What emerged from the American Revolution was a mixed family regime for a republican government. Defending the nuclear family supports the republican revolution in government, as it rests on old wisdom about the distinct needs and nature of men, women, and children—wisdom the founders held and social scientists continue to affirm.

At the same time, Tocqueville would not be surprised by the atomizing pressures on the nuclear family in the founders’ regime. This is why American statesmen have always given pride of place to Christian practice as a means of reinforcing support for the family. Throughout most of our history, public opinion on matters of sexuality remained relatively strict until the revolution in obscenity law in the 1950s and divorce law in the 1970s. The founders sought to uphold a family structure buttressed by public opinion that discouraged destructive practices and protected and promoted the republican family.

In a technological republic where wealth is no longer tied to land, reinstituting primogeniture and entail is a nonstarter. Protection of the family form as it relates to function is the only path. Those interested in reviving our republican roots should take up that mantle today. Human nature remains the same—and so do the needs of an enduring republican people. America’s revolutionary family legacy is the only place to begin.