History 248 Reading Guide

Family, Welfare, and the State

  • Steven Mintz, “Regulating the American Family,” Journal of Family History 14.4 (1989), 387-408.  SAGE Premier or (e-reserve)
  • Michael Grossberg, “Who Gets the Child? Custody, Guardianship, and the Rise of a Judicial Patriarchy in Nineteenth-Century America,” Feminist Studies 9 (1983), 235-260.  JSTOR or (e-reserve)


  • In his study, Mintz examines changes over time in the “outward” dimension of the family—the legal relationship of family and community (conceived of in the law as the “state”) and the evolution of family law.
  • Mintz divides the American past into different eras during which society viewed family law as serving a particular function, and in which the law helped define and protect particular relationships within the family and particular goals of the family.  What kind of basis for family law did English common law provide?  How did different colonies interpret that basis, and why?  In each of the eras of his legal chronology, how did Americans conceive of family law (how did family law function in the society) and what familial and community ideals did family law attempt to preserve?
  • How does his periodization of American legal history of match the periodization for the “inner dimension of family life” that we’ve been developing over the semester?
  • At the end of his article, he proposes a series of shifting “modes of discourse” or a shifting balance of four themes or constructs that characterize the history of government regulation of the family.  How did the balance among those themes or constructs shift from the 17th to the 20th centuries, and what do those shifts tell us about changes in the family, community, and the relationship between them?
  • As we consider change over time in the history of the family in America, does his legal examination sharpen or blur the boundaries between family and community/state (between public and private)?
  • Michael Grossberg offers a case study of a particular aspect of family law, describing the rise of a “judicial patriarchy” that replaced the former patriarchal powers invested in husbands and fathers.
  • According to Grossberg, how did the law define rights and interests in colonial America?  How did judges redefine the responsibilities and rights of parents in the nineteenth century, especially with respect to child custody and guardianship?  On what values, norms, and assumptions were those legal redefinitions based?
  • Under judicial patriarchy, what limits did the law impose on men’s traditional family rights? What did women gain by the changes in the law—what were the limits of change for women?  How did the judiciary redefine and/or reaffirm ideals of manhood and womanhood in the nineteenth century? Why?
  • How does his study of legal assumptions about the relationships of husbands and wives and of each parent to the children add to our understanding of change and continuity—and of persistence in the midst of change—in the history of the family?