The sharp conflicts of the past two decades over same-sex marriage are but the latest chapter in a long narrative of contention over the forms of family to be promoted or accepted in the United States. Understandings of appropriate ways to build family life have developed in close interaction with views about desirable forms of political authority, obligation, political community, and the nation around the world for over two centuries. In States of Union, Mark Brandon uses the analyses emerging from the family values movement as a foil for a compelling historical account of the reciprocal formation of the constitutional order and American families since colonial times.

Proponents of the family values movement (e.g., Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe, 1989, and various public figures) have argued that the traditional and natural form of the family was heterosexual, monogamous, permanent, and reproductive at least in the West, and that the American Supreme Court’s elevation of the family to a quasi-constitutional institution through the doctrine of privacy in the 1960s changed the regulation of the family in ways that undermined these long-lasting and valuable social and legal norms. Brandon corrects this understanding by examining the varied forms of family life that emerged in the United States in different contexts, and the different ways in which the American constitutional order engaged with these family forms. Specifically, he highlights the alternatives to heterosexual marital monogamy that were salient among certain groups, in some cases for long periods, and the courts’ toleration of certain of these alternatives and embrace of at least one with reference to the constitution. The courts acted thus although they upheld the monogamous and reproductive nuclear family when they explicitly gave the family a constitutional status in crucial decisions of the 1920s.

Scholars have understood that the historical analyses of the family values movement are seriously flawed. While these limitations are nevertheless worth highlighting in view of the movement’s political influence, Brandon’s account does not stop there. Rather, it also provides a valuable alternative to more nuanced understandings of the development of family life and state regulation of family practices in the United States, such as those of Nancy F. Cott (Public Vows: A History of Marriage and the Nation, 2000) and Lawrence M. Friedman (Private Lives: Families, Individuals, and the Law, 2005, and A History of American Law, 1985). The contrast is particularly striking with Cott’s influential understanding that American political and legal authorities attempted to promote the permanent, reproductive, and patriarchal nuclear family, which they associated with republican ideals, since the founding of the republic. While the primary focus of Brandon’s account is the engagement of the constitutional order with diverse family forms, it also addresses the increased recognition since the 1960s of women as having independent, full, and equal legal personalities and familial and social roles. The latter set of changes and their causes could have been discussed at greater length.

The alternatives to heterosexual, nuclear, and reproductive marital monogamy that Brandon demonstrates to have been important through the nineteenth and early twentieth centuries are: the slaveholding household, which was not necessarily monogamous or nuclear; the agrarian white nuclear families of the frontier, in which the roles of men and women varied and often overlapped, and marriages were less often solemnized and could be more easily dissolved due to the needs of frontier production and the limited reach of the law; the consanguine and matrilineal kinship practices of indigenous groups associated with collective property control; and the communalist and polygamous or polyamorous practices of various Protestant offshoot sects. State responses to these forms of family life were not consistently driven by a specific vision of a normative family. Rather, Brandon highlights the diverse family models that the founders upheld, all of which were compatible with the nature of the polity: the Jeffersonian self-sufficient agrarian family, the urban and liberal-individualist Hamiltonian family tied to commercial capitalism, and the slaveholding household (pp. 263–4). Of these, he arrestingly claims, the antebellum constitution offered the slaveholding family the greatest support, especially once Dred Scott gave such families the right to settle in any state, although the prevalence of such families was in tension with aspects of republicanism as well as with the founders’ concerns to limit aristocratic estates and other dynastic families. It did so because slaveholding households were compatible with other constitutional values—patriarchy, the view of the family as the basic unit of economic production, and the racial social order. Brandon shows that the state did not however promote the slaveholding household at the expense of either the monogamous nuclear families predominant in the Northeast or the more varied forms of family among frontier whites. Nevertheless, the state limited two other kinds of families—indigenous families, through the allocation of individual titles to formerly tribally controlled land, the forced transfer of tribes to reservations, and the grant of authority over indigenous education to common schools or parochial schools; and the “uncommon families” of Protestant offshoot sects through the increasingly coercive imposition of marital monogamy. It however tolerated certain uncommon white family practices, such as those of the Shakers.

Brandon fully establishes the importance of alternatives to reproductive marital monogamy, and his discussion of the unconventional practices of Protestant offshoots is particularly attentive to actor mentalities. But, he does not as clearly demonstrate that the state tolerated many of these alternatives before the 1960s. His discussion suggests that the constitutional order accepted only the slaveholding household (and that only until emancipation, of course). His illustration of its embrace of this institution is an important contribution to the literature. So is his argument that the racially homogeneous nuclear family was consolidated after emancipation as a distinctly American family through the recognition of earlier African-American conjugal bonds as common-law marriages, the adoption of anti-miscegenation laws in many former slave states and Western states, and the imposition of more fine-grained racial restrictions on immigration (pp. 81–107). Brandon’s own narrative shows that the state restricted the other alternatives. The restrictions were most binding over polygamy and indigenous consanguine and matrilineal kinship practices. While certain other alternative family forms were tolerated, such tolerance seems to have been premised on a commitment to a norm of reproductive monogamy. The practices tolerated either did not involve extensive sexual activity with many partners or for non-reproductive purposes, as was the case with those of the Shakers, or seemed safely marginal. When the rapid growth of certain unconventional family forms, such as Mormon polygamy, was seen to challenge the above norm, the state responded with stringent restriction.

The discussion could have benefitted from a consideration of certain other reasons why the judiciary and the legislature may have responded differently to particular forms of conjugality, and why their approaches to the regulation of family life changed at particular points as they did. For instance, if these institutions accepted alternatives to monogamy mainly in slaveholding households in the antebellum period, might this have been because policy-makers considered monogamy relevant only among those that they took to have full ownership of their reproductive capacities? This interpretation would be compatible with the shift Brandon outlines on the part of state elites from either a refusal to recognize African-American marriage or an inattentive tolerance of this institution during the times of slavery, to the promotion of African-American marriage after emancipation. Moreover, readers may wonder why the space for alternatives to reproductive marital monogamy shrank from the late nineteenth to the mid-twentieth centuries, only to expand again from the 1960s. Was this only because the abolition of slavery made the main alternative that legislators and judges had embraced until then irrelevant? Or was it also because other alternatives to reproductive monogamy had by then grown to an extent that rendered the nature of the normative family uncertain? Was the increased attention to family regulation an aspect of the greater attention to state centralization after the Civil War? If so, why was reproductive monogamy promoted in similar ways throughout the country although federalism was structured to provide space for varied rules in other respects, most notably regarding race relations? While the courts and legislators accepted varied family practices at different points, did the changes from the 1960s nevertheless mark a significant shift in so far as they were less contingent on a valuation of reproductive heterosexuality? How did prior changes in family practices, cultural debate, and political and legal mobilization influence how the courts developed a privacy doctrine that governed their approaches to the family from the 1960s? Fuller answers to some of these questions would have made Brandon’s provocative and wide-ranging analysis that much more valuable.

The careful elaboration of American experiences is not placed in a comparative perspective much, although some accounts that the author disputes drew such comparisons—e.g., Glendon did so with developments in Western Europe. Such comparisons are especially relevant as, even while certain state elites withdrew from the promotion of reproductive heterosexual monogamy in North America and Western and Central Europe, modernist reformers in various developing societies exerted increased efforts to promote these norms, particularly monogamy. In doing so, these actors often drew on rhetorical associations developed earlier in the West of alternative conjugal practices with despotism, backwardness, and resistance to state regulation and state-driven nationalism, as well as with anarchy and patriarchy. For all their empirical inaccuracies and analytical weaknesses, the discourses that inspired the promotion of reproductive heterosexual monogamy were not only revitalized in the United States by the family values movement, but also effectively transported to other locales in various forms. Scholars of comparative family and social regulation could understand such transports better by drawing from Brandon’s analysis, as well as from accounts that more fully consider why proponents of reproductive heterosexual monogamy gained significant political influence, despite the many shortcomings of their arguments. Such understandings could help develop better strategies to foster more democratic and diverse forms of family and social organization around the world.