Marriage and federal police power

Studies in American Political Development

Volumn 20, Issue 1, 2006, Pages 45-56

  Sullivan, Kathleen S ^a  

^a OHIO UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 33746266837     PISSN: 0898588X     EISSN: 14698692     Source Type: Journal    
DOI: 10.1017/S0898588X06000046     Document Type: Review

References (123)

1. William Novak, "The Legal Transformation of Citizenship in Nineteenth-Century America" in The Democratic Experiment: New Directions in American Political History, ed. Meg Jacobs et al. (Princeton, NJ: Princeton University Press, 2003), 92.
2. James Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press, 1978).
3. Rogers Smith, "Beyond Tocqueville, Myrclal, and Hartz: The Multiple Traditions in America," American Political Science Review 87 (1993): 549-66.
4. Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000).
5. Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997).
6. See Karen Orren, Belated Feudalism: Labor, the law and Liberal Development in the United States (New York: Cambridge University Press, 1991);
7. Reva Siegel, "The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930," Georgetown Law Journal 82 (1994): 2127.
8. Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 38 n.8.
9. See Hummer v. Dagmhart, 247 U.S. 251 (1918), overturning the federal child labor law.
10. The Pure Food and Drug Act of 30 June 1906, was upheld in Hippolite Egg Company v. U.S., 220 U.S. 45 (1911);
11. The White Slave Traffic Act of 25 June 1910 (36 Stat. 825) was upheld in Hoke and Economides v. U.S., 227 U.S. 308 (1913).
12. Samuel Orth, "The Webb-Kenyon Law Decision," Cornell Law Quarterly 2 (1916-1917): 286.
13. Robert Cushman, "The National Police Power Under the Commerce Clause of the Constitution," Minnesota Law Review 3 (1918-1919): 297;
14. Charles Merill Hough, "Covert Legislation and the Constitution," Harvard Law Raview 30 (1913-1917): 801.
15. William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 14.
16. Ernst Freund, The Police Power, Public Policy, and Constitutional Rights (Chicago: Callaghan & Company, 1904), 5.
17. Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005).
18. Christopher Tomlins, "Law, Police, and the Pursuit of Happiness in the New American Republic," Studies in American Political Development 4 (1990): 14.
19. Novak, The People's Welfare,
20. Dubber, Police Power.
21. Dubber, Police Power, xiii.
22. Tomlins, Law, Labor and Ideology, 32;
23. Orren, Belated Feudalism, 2-3.
24. Novak, People's Welfare, 38.
25. William Blackstone, Commentaries on the Laws of England (1765; Chicago: University of Chicago Press, 1979), 421-33.
26. The exceptions lie in those states that rested on a civil law, rather than the common law system.
27. Burnita Shelton Matthews, "Legal Discriminations Against Women," Equal Rights 1 (1923): 317.
28. Sophonisba Breckenridge, The Family and the State: Select Documents (Chicago: University of Chicago Press, 1934), 109-48.
29. Those who have studied the conferral of property rights upon married women in the nineteenth century have also recognized that the Married Women's Property Acts and earnings statutes did not dismantle the patriarchal family, On this, see Norma Basch, In the Eyes of the Law: Women, Marriage und Property in the Nineteenth Cetury (Ithaca, NY: Cornell University Press, 1982);
30. Peggy Rabkin, Fathers to Daughters: The Legal Foundations of Female Emancipation (Westport, CT: Greenwood Press, 1980);
31. Richard Chased, "Married Women's Property Law, 1800-1850," Georgetown Law Review 70 (1983): 1359-1425;
32. Sara Zeigler, "Uniformity and Conformity: Regionalism and the Adjudication of the Married Women's Property Acts," Polity 28 (1996): 467-95;
33. Sara Zeigler, "Wifely Duties: Marriage, Labor, and the Common Law in Nineteenth-Century America," Social Science History 20 (1996): 63-95.
34. One would not want to overstate the demise of coverture. Legacies of coverture, such as the marital rape exemption, survived into late late twentieth century. See Robin West, "Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment," Florida Law Review 42 (1990): 45.
35. Norma Basch, "Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America," Feminist Studies 5 (1979): 346-66.
36. Reva Siegel, "Modernization of Marital Status Law," Lawrence Stone, The Family, Sex, and Marriage in England 1500-1800 (New York: Harper & Row, 1979);
37. and Joan Williams, "Is Coverture Dead? Beyond a New Theory of Alimony," Georgetown Law Journal 82 (1994): 2227.
38. Siegel, "Modernization of Marital Status Law," 2170.
39. Blackstone, Commentaries, 422-27.
40. See, e.g., Julie Novkov, "Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890-1934," Law and History Review 20 (2002): 225-77.
41. Edward Spencer, A Treatise on the Law of Domestic Relations: and the Status and Capacity of Natural Persons as Generally Administered in the United States (New York: Banks Taw Publishing Co., 1911, 13).
42. Chester Vernier, American Family Laws: A Comparative Study of the Family Law of the Forty-eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931), 1-2 (Stanford: Stanford University Press, 1931), 1:199.
43. Note, Harvard Law Review 27 (1914): 573.
44. The leading case upholding the police power to regulate women's employment is Muller v. Oregon, 208 U.S. 412 (1908).
45. See also State ex. Kel. Marion v. Reynolds, 14 Mont. 383 (1894);
46. Ex Parte Felchin, 96 Cal. 360 (1892); Woodford v. Hamilton, 139 Ind. 481 (1894).
47. Blanche Crozier, "Constitutionality of Discrimination Based on Sex," Boston University Law Review 15 (1935): 749.
48. Contemporary accounts of this phenomenon are found in Virginia Sapiro, "Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States," Politics and Society 13 (1984): 1-26;
49. and Siegel, "Modernisation."
50. An additional area in which the federal government had power to rely upon and shape marriage was in its governing of territories. See Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002).
51. 28 U.S. 242 (1830).
52. Ibid.
53. Sapiro, "Women, Citizenship, and Nationality," 4-5.
54. The use of family intimacy to protect the patriarchal family from reform is acknowledged in Reva Siegel, "Modernization";
55. Stone, family. Sex, and Marriage,
56. and Williams, "Is Coverture Dead," 2227.
57. Act of 10 Feb. 1855, 10 Stat. 604.
58. Sapiro, "Women, Citizenship, and Nationality," 8.
59. Luella Gettys, The Law of Citizenship in the United States (Chicago; University of (Chicago Press, 1934) 25-27.
60. Gettys, Law of Citizenship, 114-15.
61. Act of 2 Mar. 1907, 34 Stat. 1228.
62. J. Stanley Lemons, The Woman Citizen: Social Feminism in the 1920s (Urbana: University of Illinois Press, 1973);
63. and Candace Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley: University of California Press, 1998).
64. 239 U.S. 299 (1915), 311.
65. Maynard v. Hill, 125 U.S. 190 (1888), 210-11.
66. VanKoten v. VanKoten, 154 NE 146
67. Walter G. Tiffany, Handbook on the Law of Persons and Domestic Relations (St. Paul, MN: West Publishing Co., 1896), 4-5;
68. Epaphroditus Peck, The Law of Persons and Domestic Relations (Chicago: Callaghan and Company, 1918), 4.
69. Roether v. Roether, 180 Wis. 24 (1923), 27.
70. Sophonisba Breckenridge, Marriage and the Civic Rights of Women (Chicago: University of Chicago Press, 1931), 24.
71. Cott, Public Vows, 165;
72. Rredbenner, Nationality of Her Own.
73. Chang Chan, Wang Hung Kay, Yee Sin Jung et al. v. Nagle, 268 U.S. 346 (1925).
74. See the discussion between Senators Cowan and Trumbull over the Civil Rights Act of 1866, The Congressional Globe, 30 Jan. 1866, 39:498.
75. 169 U.S. 649 (1897).
76. Sucheng Chan, "The Exclusion of Chinese Women, 1870-1943," in Entry Denied: Exclusion and the Chinese Community, 1882-1943, ed. Sucheng Chan (Philadelphia, PA: Temple University Press, 1991), 94-146.
77. Todd Stevens, "Tender Ties: Husbands' Rights and Racial Exclusion in Chinese Marriage Cases, 1882-1924," law and Social Inquiry 27 (2002): 271.
78. U.S. v. Gue Lim, 176 U.S. 459 (1900).
79. Tsoi Sim v. U.S., 116 F. 920 (1902).
80. Cott, Public Vows, 151-55.
81. Cott, Public Vows, Ibid., 147-48.
82. Chan, "Exclusion of Chinese Women," 97;
83. Cott, Public Vows, 146-47.
84. 225 U.S. 460 (1912).
85. See also Reva Siegel, "The Rule of Love': Wile Beating as Prerogative and Privacy," Yale Law Journal 105 (1996): 2117.
86. Rogers Smith points to the irony of the inclusion of Native Americans in this period of explicit racial hierarchy (Civic Ideals, 459).
87. Related topics constituted one-half of the original Republican Party platform, and persisted through anti-polygamy laws, aimed primarily at Mormons in the Utah territory, in the 1880s (Gordon, Mormon Question, 55-83).
88. 98 U.S. 145 (1878), 164.
89. Cott, Public Vows, 121.
90. Amy Dru Stanley, from Bondage to Contract: Wage, Labor, Marriage and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998), 36-55.
91. Merrill Edwards Gates, "Land and Law as Agents in Educating Indians," in Executive, Documents (1886): 49:777, pt. 5.
92. Merrill Edwards Gates, Executive, Documents Ibid., 780.
93. Robert Porter identifies the rise of the category of "Native American" as a racial category that, in effect, has replaced the status of Indian tribes ("The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship Upon Indigenous Peoples," Harvard Blackletter Journal 15 [1999]: 107).
94. Francis Paul Prucha accounts for the social and political racialization of Native Americans in The Great Father: The United States Government and Amaican Indians (Lincoln: The University of Nebraska Press, 1984).
95. Klk v. Wilkins, 112 U.S. 94 (1884), 99.
96. Cherokee Nation v. Ceorgid, 30 U.S. 1 (1831).
97. Frederick Hoxic, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920 (Lincoln: University of Nebraska Press, 1984), 44.
98. "Report of die Dawes Commission," Nov. 20, 1894, in Documents of United States Indian Policy, ed. Francis Paul Prucha (Lincoln: University of Nebraska Press, 2000), 190.
99. Cited in Stephens v. Chemkee Nation, 174 U.S. 445 (1899).
100. "Report, of the Secretary of the Interior," in Executive Documents (Washington, DC: Government Printing Office, 1886), 491:28.
101. Dawes Commission Report qtd. in Stephens v. Cerokee Nation.
102. Margo Brownell, "Who is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law," Unhiersity of Michigan Journanl of Law Reform 34 (2000-2001): 279.
103. Alberty v United States, 162 U.S. 499 (1896), 500.
104. Congressional Record-House, vol. 19, July 26, 1888, 6886.
105. "Report of the Secretary of the Interior," Executive Documents (Washington, D.C.: Government Printing Office, 1886), 49:29.
106. Nofirf v. United States, 164 U.S. 657 (1896).
107. Stephens v. Cherokee Nation, 174 U.S. 445 (1899).
108. Cherokee Intermarriage Cases, 203 U.S. 76 (1906), 95.
109. See also Riynolds v. Fewell, 236 U.S. 58 (1915);
110. Woodward v. DeGraffereid, 238 U.S. 284 (1915);
111. Campbell v. Wadsworth, 248 U.S. 169 (1918);
112. Halbert v. United States, 283 U.S. 753 (1931); in which distinctions are drawn between Indians in the statement, "the plaintiffs are all of Indian blood arid descent, but none is a full-blood Indian."
113. Porter, "Demise of the Ongwehoweh," 107.
114. Hoxie, A Final Promix, 241;
115. and Smith, Civic Ideals, 459-61.
116. Bredbenner, Nationality of Her Own, 7.
117. John Cable, Decisive Decisions of United States Citizenship (Charlottesville, VA: Michie Company, 1967), 45.
118. "Mrs. Owen Defends Her Citizenship," New York Times, 19 Jan. 1930, 10.
119. Maud Wood Park, Hearings Before the Committee of Immigration and Naturalization House of Representatives 67th Cong., 2nd Sess., ser. 5-B (Washington, DC: Government Printing Office, 1922), 570.
120. Bredbenner, Nationality of Her Own, 4.
121. John Jacob Rogers, "Proposed Changes in Naturalisation Laws," Hearings Before the Commutee on Immigration and Naturalization, House of Representatives, 65th Cong., 2nd Sess., Feb. 28, 1920 (Washington, DC: Government Printing Office, 1920), 13.
122. Suzanne Mettler, Dividing Citizens; Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998);
123. Gretchen Ritter, "Jury Service and Women's Citizenship Before and After the Nineteenth Amendment," Law and History Review 20 (2002): 479.