PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION, By Nancy F. Cott. Cambridge: Harvard University Press. 2000. Pp. v, 297. $27.95.
Marriage is a quintessentially private institution. Justice Douglas put the point this way in 1965, writing for the Supreme Court in Griswold v. Connecticut: (1)
We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. (2) Ironically, this appeal to history elided the fact that the Court's decision made a substantial break with a longstanding tradition of marriage regulation. In hindsight, Griswold's paean to privacy stands as an important turning point. American family law changed quickly and radically in the years that followed. What has remained constant is the belief that family life is private, even as the meaning of family privacy has changed.
The subject of Nancy Cott's Public Vows: A History of Marriage and the Nation (3) seems startling at first in view of this conventional understanding. As she suggests, "[t]he monumental public character of marriage is generally its least noticed aspect" (p. 1). Cott addresses this oversight with a sweeping investigation into marriage and family policy throughout American history. She argues that "[f]rom the founding of the United States to the present day, assumptions about the importance of marriage and its appropriate form have been deeply implanted in public policy, sprouting repeatedly as the nation took over the continent and established terms for the inclusion and exclusion of new citizens" (p. 2).
The approved model of marriage in American law and policy, based on religious tradition and the English common law, was quite specific: lifelong, monogamous, Christian marriage. Founded on a principle of mutual consent, marriage echoed and reinforced the prevailing political ideals (pp. 2-3). In Public Vows, Cott traces the political and rhetorical uses of this model of marriage in national debates about federal Indian policy, immigration law, polygamy in the Mormon territories, citizenship for former slaves after the Civil War, and labor and employment policy during the New Deal. She demonstrates that "positive and punitive laws and government policy choices" established a political definition of marriage with a pervasive influence on the body politic and the entitlements and obligations of American citizens (pp. 2-3).
Cott's book also challenges the conventional understanding in the United States that family regulation is the exclusive province of state governments. For that reason, this volume adds an important dimension to legal historical work focused on the evolving norms and rules of family law in the states during the eighteenth and nineteenth centuries. (4) As she demonstrates, the national government was centrally involved in definition and regulation of the family, from a time long before the recent wave of "nationalization" or "federalization" of family law.
The discussion that follows briefly considers this history in three stages. For the earliest period, Cott charts the strong link between domestic and political governance in the philosophy of the founding generation. Her account demonstrates that, during the nineteenth century, marriage became central to the definition of citizenship, and marriage norms were deeply embedded in debates over the civil and political rights of former slaves, Native Americans, Asian immigrants, and women. By the twentieth century, with the character of the national polity well established, marriage was effectively disestablished, as laws enforcing gender roles and creating barriers to divorce and nonmarital childbearing were abandoned. Cott's analysis describes how marriage was rewritten in economic terms, and how new norms of family privacy and liberty accompanied these political and economic changes.
Beyond its historical significance, Cott's thesis about the public character of marriage serves to illuminate the contemporary politics of family life. Her detailed and nuanced historical account ends with a discussion of recent debates over same-sex marriages and welfare reform. Cott sees the conservative policies implemented in both of these areas as illustrations of "the national government's continuing investment in traditional marriage" (p. 223). The second portion of this Review takes up this proposition and considers some of the similarities and differences between the current debates and their historical antecedents.
MARRIAGE AND THE NATION
Sculpting the Body Politic
As Cott elaborates, political theorists in the eighteenth century understood both the family and the state as forms of governance and drew explicit parallels between the two. In the American context, the patriarchal equation of father and king gave way to a new image based on the marriage bond, in which the legitimacy of governance derived from the voluntary consent of the governed. Once the consensual relationship was established, the parties took on reciprocal rights and obligations, and once formed, it could not be dissolved. Cott writes that "[t]he suitability of the marital metaphor for political union drew tremendous public attention to marriage itself in the Revolutionary era." (5)
In both Christian tradition and the common law of the period, marriage was a strongly hierarchical relationship. Under the system of coverture, a married woman's legal and economic identity merged into her husband's. Cott notes that a man's citizenship was enlarged by marriage, which made him both the political and legal representative of his wife. "He became the one full citizen in the household, his authority over and responsibility for his dependents contributing to his citizenship capacity" (p. 12). This connection between marriage and men's citizenship status is a centrally important theme in the larger story that Cott tells.
The right kind of marriage and family life were also understood to be important for fostering necessary social and political virtues in citizens of the new republic. Writers of this period saw close links between domestic government and political government. Following Montesquieu, they disapproved particularly of polygamy. "The harem stood for tyrannical rule, political corruption, coercion, elevation of the passions over reason, selfishness, hypocrisy--all the evils that virtuous republicans and enlightened thinkers wanted to avoid. Monogamy, in contrast, stood for a government of consent, moderation, and political liberty." (6)
Despite the importance of marriage to the national self-definition in the earliest days of the nation, the national government had few opportunities to implement its vision of appropriate marriage norms. Cott describes federal Indian policy as one arena, pointing out that the government "consistently encouraged or forced Indians to adopt Christian-model monogamy as the sine qua non of civilization and morality" (p. 26). She notes that federal policy encouraged intermarriage between white men and Indian women and periodically offered land and citizenship to "heads of households"--presumably male--who agreed to give up their tribal affiliations (p. 28).
During this period, direct regulation of marriage was carried out by state legislatures and courts, which defined who could be married and how a marriage was solemnized, what the consequences of marriage were, and when and how a marriage could be terminated. Cott explains that informal marriage and divorce (or desertion) were widespread, and that the incidence of bigamy was probably substantial. In the early years, local communities played a significant role in tolerating or sanctioning marital misbehavior. Between 1820 and 1860, state legislatures began enacting divorce statutes and revising the system of coverture through married women's property acts. Cott notes that while the legislation was not identical in different states, the direction was consistent, and that by midcentury a "uniquely American system" of divorce laws was in effect across the country (p. 51).
Marriage and Citizenship
Against this background, Cott considers the central role that marital norms played in the transformation of the republic during the nineteenth century. As she demonstrates, "[m]arriage values and practices animated the rhetoric of both sides" of the debate over slavery (p. 57). Abolitionists preached against "the master's power to sever relationships between slave couples and families; the inability of enslaved women to prevent unwelcome white masters, overseers and sons from using their bodies sexually; and slave men's inability to act effectively as protectors or defenders" (pp. 57-58). For their part, the defenders of slavery emphasized its more benign parallels to marriage: wives and slaves both were dependents, subordinated to the authority of the husband or master and subject to his guidance and protection. As Cott points out, this parallel found support in the legal tradition categorizing both master-servant and husband-wife relationships under the rubric of "domestic relations." (7)
Following the Civil War, the tension between these views of slavery and marriage played out in the passage of the Thirteenth and Fourteenth Amendments, and Cott traces the appearance of marital norms as Congress debated (and rejected) formulations that would have extended full legal and political rights to women (pp. 80, 95-98). She describes the Reconstruction-era philosophy that free labor and marriage rights were complementary. Full citizenship was equated with taking on rights and responsibilities as a husband...