Bringing the History of American Family Law into the Classroom

Abstract

Family law seems to be everywhere today. Abortion remains a litmus test for political allegiances. Single-sex marriage divides state voters. Child custody cases periodically domi nate newspaper front pages. Parents, family experts, and social critics debate the consequences of divorce and single-parent families. Adoptees demand the right to locate their birth moth ers. And on and on. The only place that family law seems absent is in the history classroom. Aside from occasional lines in textbooks about polygamy or abortion, students rarely encounter family law as a significant subject of historical inquiry. 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 relation ship 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 stu dents. 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 contro versies 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 dem onstrate how teaching this topic allows us to probe the intersec tion of family and public life in a way that is only possible through historical inquiry.