Table of Contents

OAH Magazine of History
Volume 15, No 4
Summer 2001

Copyright ©
Organization of American Historians

Bringing the History of American Family Law into the Classroom

Michael Grossberg

Yet that need not be the case. Like the present, the American past is strewn with the remains of family law conflicts and controversies. And there is now a substantial and accessible body of scholarship and materials that teachers can use to bring the history of family law into secondary and college classrooms. It chronicles a rich and revealing history that can be made into a teaching tool to probe fundamental questions about the relationship between legal and family change as well as the changing nature of American society.

Family law is the body of rules, practices, and beliefs that govern the home. Its policies govern all aspects of family life from courtship and child rearing to spousal violence and inheritance. And since family law is both a subject of its own and a means of studying other topics, it can illuminate a wide array of subjects such as changing notions of state authority, individual decision-making, race, gender practices, and family size. Perhaps most importantly, family law holds an intrinsic fascination for students. It touches their own experiences as family members and as legal actors as do few other subjects. Being barred from getting a marriage license, experiencing a parental divorce, confronting bans on birth control information, and countless other past controversies bring students and family law together. Studying such encounters illuminates key themes in family law by building on the reality, recently documented by Roy Rosenzweig and David Thelen, that the family continues to be the central means through which most Americans study and understand the past (1).

I want to explain how family law can be brought into the classroom by suggesting how teachers can conceptualize its history, offering some pathways through the literature, and providing examples of teachable episodes. My intent is to demonstrate how teaching this topic allows us to probe the intersection of family and public life in a way that is only possible through historical inquiry.

One of the fundamental ways of bringing family law into the classroom is to recognize that its past accords reasonably well with our conventional understanding of the periods of the American past. Periodization also raises basic questions about the scope and range of family law. Laws governing the family were enacted as soon as colonists organized political communities; however, a distinct category of family law emerged only in the years after the Revolution. In colonial America, rules governing marriage, child rearing, illegitimacy, and other family relations were strewn across the legal landscape, and family governance included responsibilities such as overseeing apprentices. Provincial codes were notable for their deviations from English household governance practices such as partible inheritance, divorce, and greater toleration for informal marriages. However, none of the colonies considered family governance a distinct legal activity or its laws a separate body of rules. Consequently, the very act of legal categorization that occurred over the course of the nineteenth century raises fundamental questions about the changing relationship between homes and the legal order, and provokes revealing comparisons between colonial and post-revolutionary family law (2).

As a distinct legal category, family law’s past can be divided into three recognizable eras. It begins with a formative phase that lasted from the 1790s to the 1870s and culminated in the 1870 publication of the first law book titled “domestic relations.” Critical developments in this era included the institutionalization of the basic division of the law—husband and wife, parent and child—and the establishment of some of the law’s fundamental ideological commitments, such as the primacy of individual choice in marriage and parental control of child rearing. Representative policies of the era included common law marriage, abortion before the first fetal movements, increased rights for illegitimate children, and the widespread adoption of judicial divorce.

A second era in American family law lasted from the 1870s to 1930s. Occurring in the midst of a crisis over the family, it did not fundamentally alter the content of the law, but did make some major changes. Most of these revisions increased state regulation of the home. They included restriction if not abolition of common law marriage, new marital regulations such as blood tests, limits on grounds for divorce, and bans against birth control and abortion.

A final era has lasted from the 1940s to the present. Once again, major policies were modified including the elimination of bans on interracial marriage, legalization of abortion and birth control, increased paternal custody rights, and the adoption of no-fault divorce. Of course, these periods are not ironclad demarcations. There were overlaps between eras and differences in each period due to regionalism and other variations. However, the scheme I have outlined suggests how family law can be integrated into the periodized stories we teach about the past (3).

Dividing the history of American family law into distinct periods also focuses attention on the sources of legal change. Studying period shifts compels students to raise useful questions about continuity and transformation: Why those policies? Why then? Why through statutes? Why through the courts? Similarly, opposition to dominant legal rules, such as the resistance to bans on abortion or interracial marriage in late-nineteenth-century America, provide opportunities to investigate the legal struggles of a particular era.

At the same time, periodization points to another critical reality of family law: the law was not so much a set of fixed rules as a set of choices; and those choices were not predetermined but bound in time and place. As clients have always learned, a lawyer can explain general rules but cannot guarantee exactly how they will be applied to a particular case. Antebellum codes, for example, gave women the right to sue for the breach of a marriage promise, and many women won damage awards. However, a particular woman might lose such a lawsuit if her former lover successfully accused her of sexual immorality (4). As a result, students can use the forums of family law&emdash;the law office, courtroom, or legislative chamber&emdash;as places to study clashes over the meaning of the law. Recognizing the variability of outcome introduces a notion of indeterminacy that can challenge students’ notions of historical inevitability and uniformity.

A second way of integrating family law into the classroom is to study its dominant themes. Teaching the recurrent issues that surface in each of family law’s periods provides a way to link family law to its larger context and to ongoing issues in American history. A few of the major themes suggest their pedagogical potential.

Perhaps the most significant theme in American family law has been the way we use the law to talk about conflicts in our households. Like a teeter-totter, we balance concerns about individual and family choice against the right of the state to regulate families. The right to wed is balanced against state regulation of matrimony; parental rights to raise children against state concern over child protection. At the same time, contests over the proper balance between public and private interests have erupted in the past because of time-bound concerns raised by the constant reality of American family diversity. Since there has always been a wide range of family forms, debates over how to balance family law have focused on the legal standing of these various types of families.

These disputes can be understood as conflicts over functional families and ideological families. Functional families represent various ways women, men, and children actually lived; ideological families are the household configurations embedded in statutes, legal doctrine, administrative regulations, and other public narratives of society. The two family forms coincide at some moments in time and clash at others. Throughout American history, conflicts over the status of the two&emdash;particularly over the status of functional families such as slave families, single-parent homes, or same-sex unions&emdash;have upset the legal balance and spilled out into the public sphere to ignite battles over family law. These clashes provoke debate and controversy because they raise basic questions: What is a legal family? What are the responsibilities of family members? Who can marry? Who ought to be recognized as a parent? The changing answers provide a ripe area for classroom study (5).

A second critical theme in American family law has been judicial dominance. Though legislators codify the laws pertaining to family, judges have been the primary interpreters. From the creation of common law marriage by New York judge James Kent in 1809 to the legitimation of abortion rights by Supreme Court Justice Harry Blackmun in 1973, judges have performed an oracular role in American family law. As a result the judicial record offers the most revealing body of evidence to examine the history of family law (6).

Judicial hegemony over family law also introduces issues of localism and regionalism to history. American federalism ceded control of family law to the states, and they always guarded this right jealously. Thus, despite the dominance of particular policies at particular times and the growing federalization of family law since the mid twentieth century, diversity has been a constant reality of American family law. Current debates over same-sex marriage, and past ones over the proper grounds for divorce and the legitimacy of divorce colonies like Indiana and Nevada, highlight that reality. Regionalism has also been apparent in family law. Peter Bardaglio, for instance, contends that a distinctive southern family law tied to the racial realities of the South emerged over the course of the nineteenth century (7).

Equally important, despite the power of judges, family law has never been the sole province of legal professionals. Family law rules have always been produced out of the complex relationships between legislators, judges, lawyers, clients, and the public. As a result, individual agency is another dominant theme in the history of American family law. For example, Linda Gordon and Mary Odem have documented how family members used the family law reforms of the early twentieth century (such as juvenile courts) to serve their own needs. Parents used them to control their children, wives to challenge the power of their husbands, and daughters to resist paternal abuse (8).

Similarly, the ongoing presence of American civil society as an alternative source of power to the state is evident in family law. Repeatedly women and men have banded together in voluntary associations to promote or challenge particular family law policies. James Mohr and Donald T. Critchlow have documented one example by tracing the power of organized groups such as the American Medical Association in the nineteenth century and the Moral Majority and the National Abortion Rights Action League in the late twentieth to help determine the law of abortion (9).

Examining basic themes of American family law like these suggests that its history chronicles not permanent resolutions but rather generational solutions to persistent problems. These themes thus provide a means for students to consider the primary poles of historical analysis: change and continuity.

A final way to teach the history of American family law is by studying particular episodes. Tracing the creation of a particular policy or the unfolding of a particular event illuminates the distinct dynamics at work at a particular moment in the history of family law. A couple of examples illustrate the kind of episodes that can be brought into the classroom.

The judicial construction of a particular doctrine is one possibility. For instance, a major change occurred in child custody law during the antebellum era, as judges made maternal preference the fundamental rule of American law. They tilted the rules in favor of mothers in fights over the custody of children through the creation of a new legal guide, “the best interest of the child” doctrine. Under the sway of the maternalism of the era, judges used their discretion to interpret the doctrine to mean that mothers reared children best. Consequently maternal preference overturned the traditional superiority of paternal custody rights. Until a fundamental revision during the last few decades, maternal preference determined how custody law was used and turned custody cases into battles over stories of good and bad mothers, fathers, and guardians (10).

Equally important, this change occurred in part because of the determination of countless women to keep their children. Elsewhere, I have chronicled one such battle, Ellen d’Hauteville’s fight for her son in an 1840 Philadelphia courtroom. Her case suggests how teachers can present trials as dramatic events that humanize the past with stories students can readily understand. In the d’Hauteville case, the Boston-born mother fought her Swiss husband by emphasizing in the courtroom her virtues as a mother, the needs of her son, and the parenting deficiencies of her husband. Her widely publicized triumph helped establish maternal preference in the law. As the recent Elián González case vividly demonstrated, trials like this one are attractive because they are evocative dramas with real people with whom audiences can identify. And they can be used in the classroom to make complex issues like gender realignments or international law comprehensible. Family law’s past is littered with such struggles, which teachers can turn into classroom tools (11).

A more recent episode, the advent of no-fault divorce in the 1970s, illustrates the impact of legislative change in American family law. There has been a debate about the legitimacy and social utility of divorce since well before the Revolution. Until recently, however, fault and its attendant notions of individual marital morality dominated those discussions and the divorcing experience. Equally important, the act of divorce and its frequency and rules have consistently served as measures of the well-being of the larger society. However, the increasing frequency of divorce transformed the legal reality. Beginning in California in 1969, every state quickly rewrote its laws to eliminate fault from divorce contests. The goal was to make the law conform to the way marital dissolution actually functioned. The change represented one of the most fundamental redefinitions of legal rules and individual legal responsibility ever attempted in American family law. Equally important, like many family law changes, it occurred throughout Western Europe and North America, not simply in the United States. And, not surprisingly, it generated an intense reaction. Debate persists about the wisdom of getting rid of fault in divorce and the consequences of rising divorce rates for women, children, and men. Consequently, the creation of no-fault divorce is a compelling episode through which to investigate the larger social and legal context of family law change (12).

There are countless other episodes that can bring the history of family law into the classroom. They include the addition of marrying a Shaker to the grounds for divorce in some antebellum states, the creation of child adoption in Massachusetts during the 1850s, the efforts of freed slaves to win legal recognition for their families during Reconstruction, the late-nineteenth-century campaign against Mormon polygamy, the effort to give children new family rights in the early twentieth century, the acceptance of charges of marital rape in the late twentieth century, and many, many others. Information about such episodes can be found in texts, monographs, articles, web pages, and countless other sources (13). The legal record itself can be explored in local courthouses, libraries, and newspapers and found in articles, books, easy-to-use guides to the law, and Lexus computer searches.

Looking at the periods, themes, and episodes of family law reveals how it can be brought into the classroom as a new way to examine particular times and subjects in American history. And such a survey demonstrates that the history of family law is full of sources for classroom discussions, projects, and even reenactments. It also indicates why the law has had such a profound impact on the way Americans have understood and experienced family life. Thus, it suggests why family law, past and present, is too important to be left to the lawyers, or even the legal historians.

1. Roy Rosenzweig and David Thelen, The Presence of the Past: Popular Uses of History in American Life (New York: Columbia University Press, 1998).

2. For the full development of this argument, see Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985).

3. For an example of a similar periodization scheme, see Steven Mintz, “Regulating the American Family,” Journal of Family History 14, no. 4 (1989): 387.

4. See examples in Grossberg, Governing the Hearth, chap. 2.

5. For a fuller explanation of this argument, see Michael Grossberg, “Balancing Acts: Crisis, Change, and Continuity in American Family Law, 1890-1990,” Indiana Law Review 28 (1995): 273-308.

6. For particularly illuminating illustrations of these points, see Hendrik Hartog, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000).

7. See Peter W. Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 1995); and Daniel W. Stowell, ed., In Tender Consideration: Women, Families, and the Law in Abraham Lincoln’s Illinois (Urbana: University of Illinois Press, 2001).

8. Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence: Boston, 1880-1960 (New York: Viking, 1988); and Mary E. Odem, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920 (Chapel Hill: University of North Carolina Press, 1995).

9. James C. Mohr, Abortion in America: The Origins and Evolution of National Policy (New York: Oxford University Press, 1978); and Donald T. Critchlow, Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America (New York: Oxford University Press, 1999).

10. For a history of American custody law, see Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States (New York: Columbia University Press, 1994).

11. For an analysis of this case, see Michael Grossberg, A Judgment for Solomon: The d’Hauteville Case and Legal Experience in Antebellum America (New York: Cambridge University Press, 1996). For examples of other cases, see Linda Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998); Richard Wightman Fox, Trials of Intimacy: Love and Loss in the Beecher-Tilton Scandal (Chicago: University of Chicago Press, 1999); and Linda Gordon, The Great Arizona Orphan Abduction (Cambridge: Harvard University Press, 1999).

12. For historical analyses of these issues, see Norma Basch, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999); J. Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth-Century America (Charlottesville: University Press of Virginia, 1997); and Roderick Phillips, Torn Asunder: A History of Divorce in Western Society (New York: Cambridge University Press, 1988).

13. For examples, see the list of sources below.

Bardaglio, Peter W. Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South. Chapel Hill: University of North Carolina Press, 1995.

Basch, Norma. Framing American Divorce: From the Revolutionary Generation to the Victorians. Berkeley: University of California Press, 1999.

Brewer, Holly. Constructing Consent: The Legal Status of Children and American Revolutionary Ideology. Chapel Hill: University of North Carolina Press, 2001.

Carp, E. Wayne. Family Matters: Secrecy and Disclosure in the History of Adoption. Cambridge: Harvard University Press, 1998.

Critchlow, Donald T. Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America. New York: Oxford University Press, 1999.

DiFonzo, J. Herbie. Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth-Century America. Charlottesville: University Press of Virginia, 1997.

Edwards, Laura F. Gendered Strife and Confusion: The Political Culture of Reconstruction. Urbana: University of Illinois Press, 1997.

Fass, Paula. Kidnapped: Child Abduction in America. New York: Oxford University Press, 1997.

Fox, Richard Wightman. Trials of Intimacy: Love and Loss in the Beecher-Tilton Scandal. Chicago: University of Chicago Press, 1999.

Friedman, Lawrence M. A History of American Law. 2d Edition. New York: Simon and Schuster, 1985.

Gordon, Linda. The Great Arizona Orphan Abduction. Cambridge: Harvard University Press, 1999.

———. Heroes of Their Own Lives: The Politics and History of Family Violence. Boston, 1880-1960. New York: Viking, 1988.

Gordon, Sarah Baringer. The Mormon Question:Polygamy, Religion, and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2001.

Grossberg, Michael. “Balancing Acts: Crisis, Change, and Continuity in American Family Law, 1890-1990.” Indiana Law Review 28 (1995): 273-308.

———. Governing the Hearth: Law and the Family in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1985.

———. A Judgment for Solomon: The d’Hauteville Case and Legal Experience in Antebellum America. New York: Cambridge University Press, 1996.

Hall, Kermit. The Magic Mirror: Law in American History. New York: Oxford University Press, 1989.

Hartog, Hendrik. Man and Wife in America: A History. Cambridge: Harvard University Press, 2000.

Kerber, Linda. No Constitutional Right to be Ladies: Women and the Obligations of Citizenship. New York: Hill and Wang, 1998.

Leopold and Loeb Case (Child Kidnapping): <http://www.law.umkc.edu/faculty/projects/ftrials/ leoploeb/leopold.htm>.

Lizzie Borden Case (Family Murder): <http://ccbit.cs.umass.edu/lizzie/intro/home.html>.

Mason, Mary Ann. From Father’s Property to Children’s Rights: The History of Child Custody in the United States. New York: Columbia University Press, 1994.

Mintz, Steven. “Regulating the American Family.” Journal of Family History 14, no. 4 (1989): 387.

Mohr, James C. Abortion in America: The Origins and Evolution of National Policy, 1800-1900. New York: Oxford University Press, 1978.

Odem, Mary E. Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920. Chapel Hill: University of North Carolina Press, 1995.

Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society. New York: Cambridge University Press, 1988.

Pleck, Elizabeth. Domestic Tyranny: The Making of American Social Policy Against Family Violence from Colonial Times to the Present. New York: Oxford University Press, 1987.

Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley: University of California Press, 1997.

Rubin, Eva. The Supreme Court and the American Family: Ideology and Issues. New York: Greenwood Press, 1988.

Stanley, Amy Dru. From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation. New York: Cambridge University Press, 1998.

Stowell, Daniel W., ed. In Tender Consideration: Women, Families, and the Law in Abraham Lincoln’s Illinois. Urbana: University of Illinois Press, 2001.

Studies in Scarlet. Digital archive of legal materials on marriage, divorce, and sexuality in the United States and England, 1830-1930. Developed by the Research Libraries Group and available in participating research libraries.

Sutton, John R. Stubborn Children: Controlling Delinquency in the United States, 1640-1981. Berkeley: University of California Press, 1988.

Michael Grossberg is a professor of history at Indiana University and editor of the American Historical Review. He has written extensively on the legal history of the American family and is currently at work on Other People’s Children: Child Protection in America. This book will analyze issues such as child labor, juvenile justice, school reform, children with disabilities, and child abuse from the 1870s to the present. Professor Grossberg is also coediting The Cambridge History of Law in the United States.