Bringing the States Back In: Understanding Legal Subordination and Identity through Political Development

Abstract

A wealth of scholarship has addressed the connections among legal categorization and regulation, subordinated identity, and the process of political development in the United States. Focusing primarily upon the U.S. Supreme Court, this scholarship has enhanced our understandings of both the legal generation of group identity and constitutional/political development. Nonetheless, it misses a significant aspect of development due to its national location. Although citizenship since the Civil War has been seen as a national phenomenon, many of the specifics of ascriptive conceptions of citizenship have been worked out on the subnational level. Thus, the states must be studied to understand the context for citizenship and identity, especially when subordinated group identities are placed in the center in research. Using states’ legal and constitutional struggles over race, intimate associations, and family relationships as an example of a developmental process occurring in significant part on the state level, this article argues for incorporating analysis of states more directly in studying constitutional and political development. As the example suggests, focus on processes of subordination occurring on the state level generates important questions for scholars interested in understanding development, citizenship, and constitutional change through broader lenses.