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nineteenth-CentUry develoPMentS 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 commonlaw court of last resort.1 Still, if the Court was relying on the common law, this was common law with a difference. Although aspects of the Court’s jurisprudence originated in England, the Court took pains to distinguish the American law from that of the mother country. A familiar trope was that the English law was the product of a feudal or aristocratic regime, which tended to concentrate wealth in a few families or in a few hands within families. This way of thinking about family , the court reasoned, was inappropriate in the United States, where norms and institutions were republican in character. (In this respect, the English law, though “common” and not civil, resembled the European model.)2 As we’ve already seen, one arena in which republican norms did not hold in America was that of slavery; on this front, the Court occasionally took up cases involving the status of families as slave or free, though it rarely paused to consider potentially knotty questions about a difference of status between parents and children.3 In general, the Court’s familial jurisprudence during the nineteenth century touched on three related themes. One was the doctrinal connection between economy and family. The second was a growing dissonance over the political status of family—whether it was an institution created and regulable by law or was a prepolitical institution exempt from some sorts of regulation. The third, which rose to prominence in the cases on polygamy, was the importance of family in promoting and preserving a kind of moral order. 9 Moderntimes family in the nation’s Courts 212 ChaPter nine Unsurprisingly, most of the Court’s decisions implicated matters of contract and property even when they also involved family. The contexts varied in which these matters arose. One involved the duty of a father to support his wife and family .4 Another involved the privilege against adverse spousal testimony.5 Still other cases addressed a range of issues, including the general status or contractual capacity of women,6 the protection of a wife from liability for innocently promulgating fraudulent misrepresentations of her husband,7 the insulation of property from access by creditors,8 the permissibility of transfers of property between members of a family,9 and the status of illegitimate children or heirs.10 One case held that marriage was sufficient consideration to support a transfer of property;11 but more typical were cases that considered marriage to be a distinct, noncommercial sort of contract, partaking of a kind of status specially governable under the civil law.12 Dissenting in an antebellum case, for example, Justice Daniel emphasized the sweeping power of states to regulate familial life. “This power [of regulation],” he said, “belongs to the particular communities of which those families form parts, and is essential to the order and to the very existence of such communities.”13 At the same time, however, he could talk about families in libertarian terms that seemed to anticipate the notion of a private sphere for familial life, though he confined this doctrine to denying regulatory authority to the national government: It is not in accordance with the design and operation of a Government having its origin in causes and necessities, political, general, and external, that it should assume to regulate the domestic relations of society; should, with a kind of inquisitorial authority, enter the habitations and even into the chambers and nurseries of private families, and inquire into and pronounce upon the morals and habits and affections or antipathies of the members of every household.14 As we’ve seen, the states’ control of at least one aspect of domestic relations was abolished after the Civil War. The abolition of slavery and the Fourteenth Amendment’s concomitant reconfiguration of liberty and governmental power might have suggested a couple of innovations. One possibility, against Justice Daniel, was an expansive new national power over domestic relations, even beyond dismantling the relations entailed in slavery. The Court, however, held that the states’ antebellum authority over the marital family persisted after the War.15 The...

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