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Vanderbilt University Law School




Today marriage-based entitlements are considered part and parcel of marriage itself. This was not always the case. Mining hundreds of handwritten administrative records, executive branch reports, and federal statutes, this Article traces the origins of public marriage-based entitlements to an underexamined and surprisingly broad-scale system of early nineteenth-century federal military pensions and land grants that provided financial assistance to tens of thousands of widows. The story of widows’ military subsidies challenges claims to laissez-faire liberalism’s particular hold on the nineteenth century and, as important, evidences the complex mutually constitutive relationship between marriage law and social provision for women. While traditionally marriage had worked to insulate the polity from women’s financial needs by assigning liability for women’s support to husbands and their estates, with the creation of marriage-based entitlements marriage also became a potential doorway to public support. This, in turn, shaped the legal construction of marriage itself. This Article demonstrates how, in an early instance of bureaucratic disentitlement, the administrators charged with adjudicating women’s subsidy claims systematically resisted the capacious conception of marriage used by contemporary courts and narrowed the legal definition of marriage, in part to protect the public purse from women’s claims.

The story of early nineteenth-century marriage-based entitlements provides a critical perspective on the relationship between social provision and marriage more generally. Modern marriage critics emphasize that the liberal state has traditionally deployed the private family as a means of protecting the state from women’s financial needs and has used expansive conceptions of marriage and marriage-like relationships to achieve that end. However, the historical evidence presented in this Article shows that marriage has also long been used as a conduit for public support of significant classes of women. In that context, the state has tended to narrow the definition of marriage - also in order to limit the state’s responsibility for women’s dependency. Ultimately, by providing ample evidence of marriage’s protean qualities, this Article demonstrates how the state has shaped the metes and bounds of marriage and the family at least in part in response to the pressure created by different legal liability rules and systems of social provision. And it has done so while preserving and sustaining the image of marriage’s transhistorical and enduring stability as a socio-legal institution that privatizes women’s dependency.

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