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The Good Society 11.3 (2002) 57-67

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Reconstructing Law and Marriage

Peggy Cooper Davis and Carol Gilligan

Feminists have long known that patriarchy begins and lives at home in hierarchies consisting of male "household heads" and subordinate women and children. And feminists have long known that these domestic hierarchies are enforced by law as well as by custom. Nancy Cott's wonderful book gives us new clarity about how—and how very pervasively—that enforcement is accomplished.

In many respects, Cott's achievement lies in the subtlety of her analysis. The conspicuous, and now undone, laws that unembarrassedly defined coverture are background. Cott describes legal regimes in which women were represented politically and socially, and controlled physically and economically, by heads of household, but she does so en route to explaining the more lasting impact of less explicit reinforcements of male family headship. With the eye of a disciplined cultural critic, Cott uncovers the hierarchical structure of a host of legal schemes: Of social welfare systems, starting with the Freedmen's Bureau and continuing through contemporary "Personal Responsibility" legislation, that favored, and encouraged, families in which a male spouse was the only breadwinner. 1 Of requirements that the wages of women and children be paid to their husband or father. 2 Of social welfare laws that directly supported women only when they were "legitimately" unmarried as a result of widowhood or desertion. 3 Of immigration laws that granted admission to the United States or citizenship on the basis of paternity or wifehood, withdrew citizenship from women who married foreign nationals, and disproportionately excluded women. 4 Of tax laws designed, albeit sometimes unsuccessfully, to subsidize marriage. 5 Of legal campaigns to enforce the support obligations of (usually poor) men. 6 Of laws prohibiting governments from hiring more than one member of a family. 7

Cott deepens her analysis of the pervasiveness—and the effectiveness—of laws enforcing male family headship by connecting those laws to an evolving national ideology in which marriage is both a metaphor and a foundation for the democratic state.

Metaphorical uses of marriage spoke to the character of the state as well as to the duties of citizens. Paternal metaphors that were used to describe both the subject's relation to a monarch and the colonies' relation to the colonizing state were rejected in the revolutionary era in favor of a characterization of national union as the willing subordination of individuals and states to principles and political structures of their own choosing. And this willing subordination was regularly likened to the subordination of a wife to her chosen mate. The idea of choice was important to the success of the marriage metaphor. The subordination of women in marriage was justified both by the perceived capacities of women and men and by the fact that marital status is freely chosen. Women, knowing their rightful place, bound themselves to provident providers. Similarly, citizens, understanding a need for collective governance, sacrificed their will to provident laws.

But the marital unit was more than symbol. It was the basic unit of the state, embodying virtues of loyalty and order that were mirrored in local unions of citizens and in the union of the states. The character of the nation was determined by the manners of its people, and manners were learned in the home. 8 Moreover, it was in the family that virtues of mutual concern were fostered to balance the individualism that was valorized in political and economic sectors. 9 The mutually derivative characters of nation and family were taken as national character. They were then given the appeal of the exclusive as family forms were racialized and the United States was seen as Christian, monogamous, European, and (therefore) superior. And they were protected, or so it was thought, by resort to laws that went beyond establishing and supporting marriage to policing it—determining its form, its durability, and its obligations. So complete was the conceptual amalgamation of nation and family that government propaganda of the 1940's proclaimed that World War II was "about love and gettin' hitched, and...


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