This article analyzes divorce as a technology of governance in twentieth-century America in order to examine the emergence of a rights-based liberal welfare-state regime during the postwar era. The author offers an interpretation of the post–World War II “divorce boom” that challenges prevailing notions of postwar domestic tranquillity and highlights the legal formalization of family relations and the administration of the developing welfare state. The article posits an important shift in postwar public policy regarding divorce from the policing of public morality through family preservation to the regulation of public welfare through family structures. The legal consequences of this shift are explored at the local level by focusing on the “problem” of the Chicago divorce courts and the frustrated attempts of postwar reformers in Illinois to employ the traditional methods and rhetoric of Progressive Era reform. At the national level, the author examines the formulation of new governmental objectives and individual rights in the liberal welfare-state regime through an analysis of the United States Supreme Court's decisions regarding migratory divorce.

In an early-eighteenth-century legal contest on Chappaquiddick Island, Massachusetts, an Indian leader, Jacob Seeknout, appealed a ruling that undermined his political authority. Seeknout's lawyer, Benjamin Hawes, crafted an argument that intertwined the sexual legitimacy of Seeknout's ancestors with his political legitimacy; at the same time, Hawes also linked Indians' collective chastity as a “nation” to their sovereign status. This paper examines the economic, religious, criminal, and historical contexts of this argument, exploring the history of Indians' conjugal practices and their reinvention as the criminal acts of fornication. The case illustrates some of the diverse sources of early American law, links between these legal structures and colonialism, and the importance for scholars of attending to the local level in exploring the power of colonial law to shape new racial identities.

When we are planning for posterity, we ought to remember that virtue is not hereditary.

—Thomas Paine, Common Sense

Common sense creates the folklore of the future, a relatively rigidified phase of popular knowledge in a given time and place.

Antonio Gramsci, Selections