Categorical Federalism: Jurisdiction, Gender, and the Globe

Abstract

This essay analyzes the idea, put forth in the new federalism jurisprudence of the United States Supreme Court, that "the Constitution requires a distinction between what is truly national and what is truly local." This mode of analysis has generated a posture I term categorical federalism; the Court assumes that a particular law can be categorized by identifying its aims as governing certain aspects of human behavior. The litigation about the Violence Against Women Act provides a first example. In United States v. Morrison, the majority claimed that what Congress had termed a "civil rights remedy," enacted through its Equal Protection and Commerce Clause powers, was instead related to families and crime because violence against women was not "economic in nature." The majority then proceeded to identify families as a subject matter for state, rather than federal, lawmaking. The litigation about a state's human rights law, Crosby v. National Foreign Trade Association, offers a second example. There, the majority focused on a Massachusetts' prohibition on purchasing goods made with forced labor as relating to foreign affairs, rather than police powers and state spending. Categorical federalism posits and promises clearly delineated allocations of power by suggesting that authority flows "naturally" through the history of the United States from a topic to a geographically-located government. As federal judges distinguish the "truly local" from the "truly national," they abjure responsibility by casting their project as an empirical one aimed at implementing agreements forged in 1789. But the reference back to the founding does not work, for the "federal" had yet to be made. And the descriptive claim about what "the federal" became also fails. Decades of constitutional law creates substantive rights anchored in the Fourteenth Amendment for parents and children, just as decades of federal legislation - addressing welfare, pension, tax, bankruptcy, and immigration - define membership in groupings denominated "families" by the national government. Further, both civil and criminal federal law regulate child support obligations. Similarly, as a descriptive matter, state and localities have an array of relationships with countries and norms outside the United States. And lawmaking by localities - such as Massachusetts's law related to forced labor - are products of networks that span local, national, and international organizations. Categorical federalism not only fails as a description, it is also harmful, for it deflects attention from the many political and legal judgments made by the national government in its regulation of the lives of current and former householders, and made by local governments in their relations with economies outside the United States. Just as it cloaks national and local powers from view, categorical federalism also provides a false sense of security from transnational lawmaking. To interrupt the embrace of categorical federalism, I offer another approach, termed multi-faceted federalism, which acknowledges the reliance on categories but refuses to ascribe a single mark of identity to a given law and which presumes governance may reside at multiple sites. When conflicts among legal regimes exist, multi-faceted federalism makes the assignment of preemptive power to a particular level of government but does so with a presumption against permanency. By examining shifting roles for women, by detailing the interrelationships among violence, family and women's economic capacity, and by examining changing laws both within the United States and beyond (such as the U.N. Convention on the Elimination of All Forms of Discrimination Against Women), this essay demonstrates that multi-faceted federalism provides a better description of current practices and a better set of aspirations for living in a world increasingly, and painfully, of permeable borders.