Common and Uncommon Families and the American Constitutional Order

Abstract

This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, for example, recognizing the right of privacy. This essay argues that States of Union offers a wry and engaging answer to these rhetorical claims by illuminating that the relationship between the family and the constitutional order is one of change and contestation. Brandon illustrates this more complex story through examining the coexistence of several household forms at the time of the framing – the Jeffersonian agrarian family, the Hamiltonian commercial, capitalist family, the slaveholding family, and (later) frontier families – and by chronicling the relatively late constitutional entrenchment of the monogamous family, in reaction to the perceived threat to civilization posed by the Indian family, but, ultimately, by the Mormon polygamous family. Brandon also offers valuable glimpses of “uncommon families,” unconventional households that deviated from the nuclear family (e.g., ascetic, pietest, communist, millennial, as well as practitioners of complex marriage), and of the different ways that legal and political institutions dealt with each form, sometimes showing a surprising degree of tolerance. The essay concludes by addressing the tensions that Brandon teases out in the Court’s “modern” jurisprudence about the family and the relevance of those tensions to current debates, including over same-sex marriage and nonmarital families.

Keywords: marriage, constitutional law, slavery, polygamy, frontier, Mormonism, household, family, family law, privacy, framers, constitutional interpretation

JEL Classification: K19, K39, K49