States of Union: Family and Change in the American Constitutional Order by Mark E. Brandon (review)

Brandon employs a wide-angle lens to review the ways by which the monogamous, nuclear, patriarchal family became enshrined within the U.S. constitutional order from the eighteenth century to the present. Thus does he provide a useful framework for understanding how American families have served as a tool of nation-building and a means of sociopolitical control, particularly around race and gender relations. With broad strokes, the book paints a chronological narrative in which the family—in theory and law—has always played a central role in shaping U.S. history. This narrative is particularly useful for making sense of the polarizing “family values” debates of the contemporary era.

The book’s analytical framework is not entirely new. Nancy F. Cott’s Public Vows: A History of Marriage and the Nation (Cambridge, Mass., 2000) evinced a similarly sweeping historical analysis about the public functions of marriage as a means of social and political regulation. Nonetheless, the value of this book lies in its many detailed accounts of how and why a particular form of family became established in American constitutional law, and with what long-term consequences. It marshals the interdisciplinary perspectives of political theory and legal analysis to ground the historical narrative, primarily through a case-study methodology.

The precedent of English common law, with its assumptions about class, gender, and political authority, provided both the foundational basis for American legal traditions of marital and family relations, as well as the impetus for change. The American Revolution helped to validate a new family form that was more egalitarian and fluid than its English counterpart. Throughout U.S. history, Brandon argues, there has been a tension between competing ideals and models of family—the Jeffersonian vs. the Hamiltonian, the patriarchal slaveholding family vs. the agrarian frontier family, etc. There have also been dramatic challenges to the singular, monogamist, nuclear family—including Native American kinship structures, communitarian groups with nonmonogamous marriages and collective living arrangements, and Mormon polygamy.

The nineteenth and early twentieth centuries saw many legal cases that sought to regulate and normalize family structure and relationships around a heterosexual, nuclear model. These cases and their theoretical underpinnings are the methodological building blocks of the book. Some of the chapters (Mormon polygamy) contain richer and more compelling case studies than others (Native Americans). The book was never intended to be a social history of American families. It does, however, draw on the work of social historians, although highly selectively and with surprisingly dated sources. The book is most usefully read as providing the legal backdrop of the values, norms, regulations, and policies that have always represented the American standard of family behavior and practice.

Much of the historical and analytical framework of the book will already be familiar to historians and sociologists, but the final three chapters offer a riveting, critical synopsis of recent legal cases concerning reproduction, gender, and marriage, including (through October 2012) two precedent-setting cases about same-sex marriage. Brandon’s analysis with its broad legal, political, and social context; its reasoned perspective; and its critical insight helps to make sense of these highly contentious issues.