There's No Place Like Home: Homestead Exemption and Judicial Constructions of Family in Nineteenth-Century America
Alison D. Morantz
Law and History Review, Vol. 24, No. 2, Summer 2006
Stanford Public Law Working Paper No. 113
In the latter nineteenth century, most U.S. states passed laws granting special protections to family homesteads. As long as the head of a "family" resided on land with his or her dependents, creditors were prevented from seizing the homestead for non-payment of debts, and some immediate family members could enjoy such protections even after the death of the family head. Promoted as a means to deter family poverty and homelessness, the statutes perplexed contemporary jurists. This article explores why the homestead exemption proved so divisive, and reconstructs the laws' major doctrinal fault lines. Analysis of state high court opinions reveals that the laws had complex effects on women's interests in homestead land. Ironically, although the laws formally vested married women with new rights over family property, their husbands may have been its primary material beneficiaries. More broadly, judicial decisionmaking reflected a widespread concern with safeguarding the link between property ownership, manhood, and citizenship. Homestead exemption laws also, for the first time in U.S. history, transformed the definition of "family" into a politically charged locus of public policy. Instead of strictly limiting the scope of the protected class to nuclear families, most high courts exercised their discretion to permit several other groups of related cohabitants to enjoy the same privileges as husband and wife.
Number of Pages in PDF File: 84Accepted Paper Series
Date posted: July 29, 2005
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