Between the Gilded Age and the Progressive Era, American state legislatures enacted a series of new laws that delineated a class of citizens who were deemed ineligible to participate in the institution of marriage. Scholars have characterized this development as evidence that lawmakers had lost faith in a laissez-faire approach to nuptial governance, and thus transformed marriage into an object of public regulation. This essay argues that behind the ostensible nuptial privatism of the mid-nineteenth century lay a self-conscious policy. of judicial governance. Judges invoked the language of nuptial privacy and the common law of contract strategically to advance their vision of moral and economic discipline. The new marital prohibitions thus represented, the essay argues, not the expansion of the state's police power into the previously private realm of domestic relations, but rather a critical transformation in how nuptial reformers and lawmakers understood the relationship between marriage and the well-being of the polity.
Fueled by growing concerns about pauperism, the racial character of the urban proletariat, and the collapse of the economically independent single-male- breadwinner household, the changing form of nuptial governance signaled a thoroughgoing intellectual and strategic reorientation from an understanding of marriage as forming economically and morally viable households—the fundamental units of society—to an understanding of marriage as a largely procreative institution, as the literal source of the citizenry. This reconceptualization of marriage underwrote a strategy of nuptial governance that mobilized marriage as a strategy in the state's regulation of social reproduction.
Reproducing a Fit Citizenry: Dependency, Eugenics, and the Law of Marriage in the United States, 1860-1920, 23 Law & Soc. Inquiry 541 (1998)