I am grateful to Professor Subramanian for his review of States of Union. The Supreme Court of the United States has built a substantial body of doctrine, central to which is the notion that family possesses a constitutional status. This creates a puzzle: If family is “in” the Constitution, how did it get there? The story of how it got there is the project of the book. The process by which it got there demonstrates that constitutional history is never simply a history of law, but unavoidably incorporates institutional, political, and social history too. That process has not been a smooth and seamless arc. It has grown out of conflict animated by competing understandings of family. It has been a process of relentless change.

Several types of family have been players in the constitutionalization of family in the United States, including types that deviated from heterosexual reproductive marital monogamy. But Professor Subramanian is worried (if I read him correctly) that I do not “clearly demonstrate that the state tolerated many of these alternatives before the 1960s.” Even if it makes sense to reify the state in this way, the state’s acquiescence is not a prerequisite to finding that alternative forms were constitutionally salient.

Institutions, values, and practices are subject to continual contestation, sometimes publicly, sometimes less so. Thus, even as the Supreme Court entrenched the constitutional status of monogamous marriage by the end of the nineteenth century, it did so in a way that signaled that even women might be entitled to enjoy the benefits of liberty and equality. Not that patriarchy died in the late nineteenth century, of course. But as early as 1845, Margaret Fuller eloquently understood the connection of constitutional values of liberty and equality to women, and much of the ensuing struggle over the constitutionalization of family has been about women’s role and status.

Professor Subramanian raises good questions, most of which the book addresses, though not always systematically. I’ll consider two of his questions here. First, why did elites accept slaveholding households as an alternative form of family? Assumptions about “full ownership of … reproductive capacities” may take us part of the way toward an answer. Additional elements may be that national elites believed that compromise with slaveholding interests was essential to creating and maintaining the constitutional order, and pro-slavery elites believed that controlling the familial lives of slaves was essential to maintaining slavery. These explanations are not exhaustive.

Second, why did the space for alternative familial forms shrink after 1865 and expand in the mid-twentieth century? The explanation for contraction is complex—rooted in the domestication of communal families, the regulation of families by race, the closing of the frontier, the subjugation of the tribes, and the legal abolition of polygamy. The strand that weaves through all of these trends was the victory of nationalism. For a time, this nationalism reinforced monogamy (often tied to reproduction), but nationalism eventually gave rise to constitutionalization, which, animated by values of liberty and equality, overturned patriarchy and reproduction, even as it has held fast (for now) to monogamy.