Two Models of Sociolegal Change

Posted on Categories Legal History

My article, Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System (previously mentioned here and commented on here), is finally out in the current issue of the Alabama Law Review. (Pre-publication version here.) This article represents the end point of a fairly long process that began with a seminar paper in law school. In 1996, I was impressed with the tenor of the debate in Congress over the Defense of Marriage Act; there were several statements to the effect that failing to wall off the status of legally married same-sex couples would lead to the downfall of society. It reminded me strongly of the rhetoric in Dred Scott that recognition of Scott’s citizenship would have calamitous effects. As I dug into it, I found even stronger parallels in antebellum debates in Congress over travelling black Northern citizens in Southern states, and the extension of slavery to the territories. Congress seemed, then as now, appeared alarmed at the prospect of a state-recognized social status to destabilize the societies of states that didn’t recognize that status, merely by virtue of individuals with that status travelling.

The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it’s not at all clear that we are heading that way. There’s another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.

There is, I think, a fairly interesting article yet to be written on the history of the conflict in the early twentieth century over interstate recognition of divorces. The Supreme Court decided no fewer than 17 divorce cases between 1901 and 1957. The controversy over one of those cases, Williams v. North Carolina, 317 U.S. 287 (1942), prompted Justice Robert Jackson to write a book about such interstate conflicts, Full Faith and Credit: The Lawyer’s Clause (1944). A number of states, with Nevada leading the way, eased their divorce laws in the early twentieth century, and with the increasing ease of travel, married individuals were travelling to such states with the purpose of getting a divorce they could not secure at home. This caused conflicts over whether such status determinations needed to be recognized by other states. The conflict concerned not only the changing view of marriage, but also the role of women in society. The women’s movement was a part of the Progressive program of the early twentieth century, culminating in the right to vote.

But the conflict over divorce never became entrenched; instead, it dissipated. It turned out that the friction over divorce was due to a different rate of change in divorce law in the various states, but that change eventually became uniform, and with it the conflict disappeared. It is possible that same-sex marriage and gay rights generally are heading toward this conclusion; the difference between now and just 15 years ago is striking. If so, the second coming of the Privileges or Immunities Clause that I describe in my article will have to wait for another day.

[Cross-posted at PrawfsBlawg.]

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