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States of Union

Family and Change in the American Constitutional Order

By Mark E. Brandon

Publication Year: 2013

In two canonical decisions of the 1920s—Meyer v. Nebraska and Pierce v. Society of Sisters—the Supreme Court announced that family (including certain relations within it) was an institution falling under the Constitution’s protective umbrella. Since then, proponents of “family values” have claimed that a timeless form of family—nuclear and biological—is crucial to the constitutional order. Mark Brandon’s new book, however, challenges these claims.

Published by: University Press of Kansas

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Cover

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p. 1-1

A revealing analysis of the place of families in American culture and law, which addresses ongoing debates such as the regulation political order, since the founding, has rested upon a particular values, family forms, and the political and constitutional order.??A timely, substantive, and deeply engaging book that brilliantly ...

Title Page, Copyright

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pp. 2-7

Contents

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pp. vii-9

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Acknowledgments

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pp. ix-xi

This book is about the constitutional status of family in the American order and how and why that status has changed through the years. My interest in the sub-ject began when I was a law student, many years ago. Griswold v. Connecticut had been decided in the previous decade, and Roe v. Wade was announced just a few years before I encountered it in a course in constitutional law. The Supreme ...

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Introduction: Family Values

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pp. 1-13

Forms of human relations that are recognizable as families have been around since the beginning of recorded history. Partly because of this longevity and partly because the functions that families have served can be important, we?ve come to think of ?the family? as being basic to human experience, basic even to human flourishing or happiness. Indeed, it is. In fact, it would be difficult to overestimate ...

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1. Family and Civilization

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pp. 14-31

David and Lydia Maynard were married in Vermont in 1828. They had two chil-dren. In 1850, the Maynards moved to Ohio. From there, David departed, bound, he said, for California. He promised to send his wife money for support during his absence and vowed that, once he was settled, he would return or send for the family. He never sent the promised support; nor did he return or send for his wife ...

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2. The English Ancestry of the American Law of Family

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pp. 32-61

It?s a commonplace to refer to the English law that preceded the American separa-tion from Britain as ?common law.? If, by common law, we have in mind rules rooted in custom and made binding by judicial precedent, the English rules were not, strictly, common law. Nor was the English law unchanging. The laws and putative customs of eighteenth-century England had changed considerably since ...

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3. Family at the Birth of the American Order

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pp. 62-80

Plainly, English law aimed to structure and influence the forms and functions of family in ways that preserved key aspects of the existing order. What was happen-ing in North America was something quite different. This chapter examines new relations between family and the emerging order in the British colonies of North America. We?ll look at family as a social institution and as a political metaphor or ...

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4. Slaves, the Slaveholding Household, and the Racial Family

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pp. 81-107

The nuclear family was not the only form of family in America. Another was the slaveholding family. It was prolific and prominent. It had ancient founda-tions, both classical and biblical. It was present in North America almost from the beginning of European settlement. After the founding, it was constitutionally protected. And it would become the subject of intense political debate, which ...

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5. Home on the Range: Families in American Continental Settlement

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pp. 108-134

As important as the racial family has been, it would be myopic to view race as the sole constitutive marker for American family. Another type of family has also been central to American identity. It?s the frontier family. To be sure, there was no single model for families that pushed westward across the continent to settle the frontier. Still, American lore has produced a potent image of hearty families, ...

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6. Tribal Families and the American Nation

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pp. 135-150

In the process of helping to extend the authority of the nation-state across North America, white families on the frontier performed an additional role: they helped solidify the displacement of the native tribes, who had occupied vast portions of the continent for centuries before the coming of the Europeans. The tribes were not collections of ?individuals? in the modernist sense of the word. They were ...

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7. Uncommon Families, Part 1: American Communism

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pp. 151-180

From an improbable but fertile mix of plentiful cheap land, immigration, religious and associational freedoms, opportunities for communal self-sufficiency, and mil-lenarian Protestantism, uncommon experiments with familial forms sprouted in America. The experiments began to appear even before the constitutional found-ing of the nation, but they proliferated during periods of social complexification ...

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8. Uncommon Families, Part 2: Polygamy

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pp. 181-210

As we?ve already seen, the earliest examples of polygamy in North America were found in some of the native tribes, even before the coming of the Europeans. It?s impossible to know with certainty when or how polygamy first appeared among whites. Doubtless, there was a version of it in North America that was similar to the English experience, in which (typically) husbands would leave their wives ...

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9. Modern Times: Family in the Nation’s Courts

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pp. 211-239

If the Mormon cases were an indication that the Supreme Court was prepared to read a form of family into the Constitution, they were not the sole nor the first such indications. Many of the Court?s early decisions involved applications of common law. Neither the existence nor the number of these cases is especially surprising, given the Court?s function in the nineteenth century as the common-...

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Conclusion: The Meanings of Marriage

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pp. 240-266

I?ve married two hundred couples in my day. Do I believe in it? I don?t know. I suppose I do. M marries N. Millions of them. The cottage, the go-cart, the Sun-day afternoon drives in the Ford?the first rheumatism?the grandchildren?the second rheumatism?the death-bed?the reading of the will. Once in a thousand Guns, not for militias but instead for the sake of hearth and home and family? ...

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Epilogue

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pp. 267-273

The American landscape of marriage and family continues to change, even as I write. In just the six months since the previous chapter was written, we witnessed The first was demographic. In a report released in May 2013, the Pew Research Center announced that ?a record 40% of all households with children under the age of 18 include mothers who are either the sole or primary source of ...

Notes

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pp. 275-321

Index

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pp. 323-335

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Back Cover

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p. 351-351

A revealing analysis of the place of families in American culture and law, which addresses ongoing debates such as the regulation political order, since the founding, has rested upon a particular values, family forms, and the political and constitutional order.??A timely, substantive, and deeply engaging book that brilliantly ...


E-ISBN-13: 9780700619764
Print-ISBN-13: 9780700619238

Page Count: 350
Publication Year: 2013

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Subject Headings

  • Domestic relations -- United States -- History.
  • Constitutional history -- United States.
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