Document 23: Judith Resnik, "Categorical Federalism: Jurisdiction, Gender, and the Globe," The Yale Law Journal, 3 (December 2001), pp. 619-680.


       In the following article, Judith Resnik describes what she calls categorical federalism and analyzes how this concept illuminates the passage of the Violence Against Women Act.

Categorical Federalism: Jurisdiction, Gender, and the Globe[A]

       Judith Resnik+


       "The Constitution requires a distinction between what is truly national and what is truly local."[1] These words were used by the Chief Justice of the United States Supreme Court in 2000 to explain why a statute described by Congress as providing a "civil rights remedy" for victims of gender-biased assaults unconstitutionally trenched on lawmaking arenas belonging to the states. Neither the phrase "truly local" nor "truly national" appears in the United States Constitution. Indeed, the Court's reliance on the modifier "truly" suggested that calling something local or national did not suffice to capture the constitutional distinction claimed -- that the Violence Against Women Act (VAWA) impermissibly addressed activities definitional of and reserved to state governance.

       This Essay considers the mode of analysis for which the phrases "truly national" and "truly local" are touchstones. Categorical federalism is the term I offer for this form of reasoning. Categorical federalism's method first assumes that a particular rule of law regulates a single aspect of human action: Laws are described as about "the family," "crime," or "civil rights" as if laws were univocal and human interaction similarly one-dimensional. Second, categorical federalism relies on such identification to locate authority in state or national governments and then uses the identification as if to explain why power to regulate resides within one or another governmental structure. Third, categorical federalism has a presumption of exclusive control -- to wit, if it is family law, it belongs only to the states. Categories are thus constructed around two sets of human activities, the subject matter of regulation and the locus of governance, with each assumed to have intelligible boundaries and autonomous spheres.

       Categorical federalism has appeal, particularly in a world as full of vivid changes as the one we inhabit. Proponents of categorical federalism argue that its virtue lies in its democracy-enhancing features. The Court's interventions, in the name of federalism, are supposed to engender responsibility on the part of government officials by promoting transparent lines of accountability. Categorical federalism posits and promises clearly delineated allocations of power by suggesting, comfortingly, that these delineations flow "naturally" through the United States's history from a topic to a geographically located government. As federal judges distinguish the "truly local" from the "truly national," they abjure their own responsibility by casting their project as empirical rather than interpretive, a historical exercise aimed at describing and implementing agreements forged in 1789. A resulting cottage industry for law professors is the scouring of texts from 1760 to 1840 to pin down the thoughts of various drafters and Justices.

       But the search for meaning from 1789 cannot work because "the federal" had yet to be made. The issue then[2], and now, is what meaning and purposes to give to federal and state governments. In a world increasingly conscious that "the local" and "the national" are ideas as well as places, the quaint tidiness of categorical federalism ought to prompt skepticism. In international parlance, "local law" refers to what in the United States is termed "national law." Technology permits easy transgeographic exchanges that diminish the significance of physical boundaries. Transnational organizations promulgate worldwide legal norms, affecting practices within nation-states.

       Moreover, national borders are not the only lines that are blurring. Boundaries of role are also shifting, as women and men explore the possibility that their genders offer less instruction on their life opportunities than has been claimed for thousands of years. Gender systems work through assumptions about the intelligibility of the categories of "women" and "men," which in turn depend upon demarcations of "the family" from "the market" and of "the private" from "the public." Currently, violence and money play different roles in the lives of women and men. Women live with threats to their physical safety from men within and outside their households; women's unpaid household labors facilitate men's market capacities. To diminish the categorical coherence of gender requires extricating women from the dominion, both physical and economic, of male-headed households. Efforts to do so are underway worldwide, as longstanding rules of politics (such as who can vote), of entrenched legal and social practices (such as who controls access to women's bodies), of markets (such as what work is remunerated), and even of war (such as whether victors may exercise sexual dominion over enemy civilian women) are all being revisited.

       Given this context, categorical federalism ought to be understood as a political claim, advancing an argument that certain forms of human interactions should be governed by a particular locality, be it a nation-state or its subdivisions. Return then to the Chief Justice's locution -- "truly national," "truly local" -- and reread it to betray anxiety as well as insistence, as an effort to make meaningful a division that is not only elusive but increasingly inaccurate. Categorical federalism's attempt to buffer the states from the nation, and this nation from the globe, is faulty as a method and wrong as an aspiration.

       Below, I sketch the empirical case against categorical federalism by showing that the very areas characterized in the VAWA litigation as "local" -- family life and criminal law -- have long been subjected to federal lawmaking. Decades of federal constitutional family law create substantive rights anchored in the Fourteenth Amendment for parents and children, just as decades of federal legislation -- addressing welfare, pension, tax, bankruptcy, and immigration -- have defined membership in and relationships within groupings denominated "families" by the national government.

       The normative critique of categorical federalism stems from the political injuries caused by equating family life with state law. Categorical federalism is not only fictive but harmful, for it deflects attention from the many political and legal judgments made by the nation's judiciary, executive, and Congress as they regulate the lives of current and former householders. Federal actors ought not to be sheltered from accounting for their work in shaping the meaning of gendered family roles. And just as it cloaks the exercise of national powers from view, categorical federalism also provides a false sense of security from transnational lawmaking. United States laws of all kinds are increasingly altered, if not trumped, by practices stemming from quarters physically distant from Washington but not far in forms of space that globalization has come to represent. The United States government needs to develop means of interacting with these laws rather than to assume an ability to remain insular. In the twenty-first century, believing one can mandate the boundaries is seductive but wrong (a lesson all too powerfully brought home as this Essay was in press).

       To interrupt the embrace of categorical federalism, I offer another approach, which I term multi-faceted federalism, to highlight alternative ways of reasoning about federated governance and regulation. Categories are endemic, in law as elsewhere, but what fills categories and their contours varies with context. Return to the issue of violence against women: If a man raped a woman and proclaims he did so because he likes to inflict such pain on women, what should law call that action? Should the description vary if the man and woman have been (or are) married instead of strangers? If they were employer and employee? Opponents in a war? Should the legal import vary if the man assaults the woman as she is about to leave the house on her way to school, work, or another shelter? Do understandings of the relevant legal norms shift upon concluding that many men rape women, many husbands beat wives, many employers sexually assault certain kinds of employees, and many soldiers rape women in countries at war? As these questions illustrate, in law, decisions to categorize are purposeful, consequentialist, and situational.

       My goal is not to refuse categorization but to introduce other presumptions into federalism discourse -- that many categories are intertwined in lawmaking enterprises and that more than one source of legal regulation is likely to apply to any set of behaviors. This legal theory mirrors contemporary research about categorization in cognitive psychology. Criticism of the "classic" view that categories have specified boundaries comes from studies demonstrating that "categories are variable as well as stable,"[3] that people use "differing bases for assessing category membership,"[4] that "what counts as a feature of a category and which features are likely to be important" are influenced by background knowledge,[5] and that categories have ambiguous boundaries. Multi-faceted federalism brings those insights into legal discourse by providing better descriptions of contemporary practices and more desirable goals for federations functioning within a wealth of transnational and local activities. The image of a faceted rock, which results in varied observations -- depending on the cut taken, the angle of the view, and the placement of the source of light -- underscores law's choices and the layers through which a single event can be seen.

       Multi-faceted federalism refuses to ascribe a single mark of identity to a specific law. Laws may be about both family and equality, about both economic capacity and violence. Multi-faceted federalism presumes that governance cannot accurately be described as residing at a single site. State, federal, and transnational laws are all likely to be relevant. And multi-faceted federalism remembers that any assignment of dominion can be transitory. One level of government may preside over a given set of problems for a given period rather than forever. Were one to use this lens, the assignment of regulatory authority would become a self-conscious act of power, exercised with an awareness that a sequence of interpretive judgments, made in real time and revisable in the future, undergirds any current designation of where power to regulate what activities rests. Forms of analysis common in what is called the law of preemption in the United States[6] would become more frequent. That body of law focuses on the question of whether both state and federal laws can regulate a particular event. In theory, preemption analysis is anchored in deference to congressional choices and proceeds from the assumption that Congress did not intend to dislodge state laws absent express direction or specific conflicts.[7] In lieu of the abstract exegesis about the Framers' purposes now routine in judicial decisions creating categorical federalism, the judicial work would be more narrowly focused on concrete explorations of statutory provisions as applied to specific events. Demanding factful, rather than "factless," discussions could help tether judges to records and statutes, thereby cabining the reach of their decisions.

       Multi-faceted federalism not only functions as a means of critique but also invites exploration of the rich veins of federalism beyond the boundaries of contemporary legal discourse, fixated on a bipolar vision of states acting singularly and of a predatory federal government.[8] The contemporary debate about whether to prefer, a priori, the states or the federal government for certain forms of lawmaking misses dynamic interaction across levels of governance. In practice, federalism is a web of connections formed by transborder responses (such as interstate agreements and compacts) and through shared efforts by national organizations of state officials, localities, and private interests. Regional agreements among states are commonplace; coordinated judicial proceedings across state lines are increasing, and many state laws are made uniform through joint efforts. Moreover, localities routinely reach beyond the United States through, for example, resolutions about human rights and "sister cities" programs promoting trade. Categorical federalism ignores such endeavors, but multi-faceted federalism calls attention to them to engender analysis of their legal and political legitimacy.

       Multi-faceted federalism brings opportunities, but I do not ignore the risk of its admittedly open-ended approach, potentially endangering whatever safe harbors the claimed categorical boundaries provide. Were one to believe either that the constitutional text specifies categorical boundaries with a clarity sufficient to withstand manipulation or that claiming such assignments creates more common good (however defined) than would their alteration, multi-faceted federalism opens up discussions that some want foreclosed. For example, if one assumes a national commitment to "civil rights" and hostility from states, decoupling civil rights from "the national" would jeopardize the symbolic capital gained from such an association.[9] But this country's history is replete with competing strands of antiliberal as well as liberal lawmaking at the national level.[10] The collapse of both the first and the second Reconstructions illustrates that, without popular support at all levels, moments of national affiliation to widening norms of equality are fleeting.

       My willingness to stray from categorical federalism rests on the premises that it is inaccurate as a description of current practices, that it undermines the ability to hold actors politically accountable, and that it disserves federations to assume that any single level of government is a consistent source of certain sorts of social change. Further, categorical federalism does special harm to those seeking to alter gender relations. Categorical federalism represents a commitment to the coherence of unitary categories; feminism poses a fundamental challenge to a host of categorical claims about the meaning of female and male.

       Categories of jurisdiction have particular saliency to women because the legal concept of jurisdiction has served as a vehicle by which to preserve male control, first by a claim that the family was itself a jurisdiction free from state superintendence and then by arguing that the family was a specially situated arena sheltered from government intrusion.[11] But jurisdiction can also be a means of protest against subordination; alternative governing authorities offer the possibility of changing rules. The achievement of VAWA was not that "the national" replaced local anti-violence work but that it was derived from and supplemented such work, mostly through substantial funding of local programs and symbolically through announcing national rights of personal security for women. The rebuff -- that violence against women is beyond Congress's reach because it is "truly local" -- reiterates a painful history of using jurisdiction as a justification for patriarchal control.

       Part II grounds the analysis of federalism and gender by offering a close examination of efforts to enhance women's equality and economic agency by redressing violence against women. By demonstrating that household work is constitutive of marketplace capacities and that federal law joins state law in regulating the obligations of family members, Part III rebuts the claim, proffered by categoricalists, that judges can distinguish among activities that are or are not "economic in nature" and that, in turn, such a dividing line separates national from local power. Also provided is a brief history of twentieth-century federal family laws, making plain both the reach of federal lawmaking about family life and the impracticability of walling off "the federal" from "the family." Part IV turns to the laws of other polities, striving to increase women's equality through measures addressing the interdependencies of market and family work. This discussion examines the repeated efforts within the United States to use federalism as a buffer against "foreign" human rights norms. By tracing the interactions among local, national, and global rights movements, I demonstrate that, because "the foreign" is deeply entrenched within the United States, the proposed boundaries of the nation and the state cannot ward off such "intrusions." Part V acknowledges the anxiety flowing from the inevitable ambiguity of living with multiple legal regimes and sketches what multi-faceted federalism offers for lawmaking in this federated society.


        The Supreme Court ruling in United States v. Morrison provides a vivid instance of and insistence upon a categorical conception of federalism. Passed in 1994, VAWA authorized millions of dollars for programs to train police and to provide shelters. VAWA also created new civil and criminal provisions to ease interstate enforcement of protection orders.[12] At issue in and held unconstitutional by Morrison was only one provision, termed by Congress a "civil rights remedy,"[13] permitting victims of "gender-motivated violence" to bring actions for damages in federal courts.

       Congress had held four sets of hearings on VAWA between 1991 and 1994, during which a thick record developed about the role of violence in women's lives. Given that congressional authority was then seen as ample, the issue of federal power to legislate did not claim center stage. Proponents did explain that the Commerce and Equal Protection Clauses provided the constitutional premises for nationwide action.[14] Factual bases came from witnesses testifying that violence organized women's working lives by placing certain jobs (for example, those requiring dangerous nighttime travel) out of reach.[15] Data produced by some twenty states' judiciaries documented widespread discriminatory practices against female victims of violence by police, prosecutors, judges, and jurors.[16]

       In 1995, a year after VAWA passed, the Supreme Court imposed new standards on congressional exercise of its powers. In United States v. Lopez[17], a five-person majority held unconstitutional a federal criminal statute permitting prosecution of individuals alleged to possess guns within 1000 feet of a schoolyard. The Lopez Court blamed the congressional record for failing to identify the relationship between guns near schoolyards and interstate commerce; lacking was a showing that the regulated activity had a "substantial effect" on interstate commerce.[18] For some, the lesson of Lopez was that Congress could not name something "commerce" without offering sufficient bases for its action, but that Lopez only required a coordinate branch to engage in more factfinding.[19]

       When the legality of the congressional action was subsequently before the Supreme Court, its proponents therefore distinguished the bare record in Lopez from the fact-filled record in VAWA. Rather than relying only on a generic, aggregate-effects-on-the-economy claim akin to that rejected in Lopez[20], VAWA's advocates also pointed to record evidence that violence targeted against women qua women limited their economic options.[21] Proponents argued that, just as the Court had accepted the Commerce Clause as a proper predicate for civil rights legislation aimed at reducing barriers to commerce for African Americans in the 1960s,[22] it should do the same for gender in the 1990s. Further, to rebut the claim of national intrusion on state prerogatives, proponents focused on the limited and supplemental nature of the federal remedy, supported by thirty-nine state attorneys general before it was enacted[23] and by thirty-six when its constitutionality was before the Supreme Court.[24]

       The majority opinion in Morrison is, in contrast, notably "factless," by which I mean that it refused to engage with the record before it. The majority did not delve into the claimed relationship between market participation and gender-targeted violence, nor did it interrogate whether and in what fashion states were harmed by the provision of a supplemental civil cause of action in federal court. Rather, the majority stipulated that aggression against women was "non-economic, criminal violent conduct."[25] The majority then argued that, if Congress could regulate such criminal activity, it could "equally as well" regulate "family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childbearing on the national economy is undoubtedly significant."[26]

       Why did the Morrison majority -- and even more so, the en banc Fourth Circuit decision below[27] -- view VAWA as a federal assault on state governance of the family? Morrison itself did not involve family members. A young woman university student, alleging that two male co-students had raped her, filed the VAWA complaint,[28] assumed by the lower courts sufficient to show animus based on gender.[29] Similarly, almost half of the fifty reported decisions on VAWA's civil rights remedy had likewise involved work or educational settings, not interactions within families.[30] Moreover, Congress had precluded federal courts from exercising their ordinarily available powers of supplemental jurisdiction over claims raised between VAWA plaintiffs and defendants if related to divorce, alimony, or child custody,[31] thereby creating a statutory barrier to any "family" issues attempting to ride the coattails of a VAWA lawsuit. Yet the Morrison majority equated a complex set of legal regulations with the categories of family and crime, located those categories as subject to state governance, insisted on the naturalness of the division, and assumed the federal/state options to be bipolar and exclusive. Through categorical federalism, Morrison established the Court's role as superintendent over Congress's exercise of its Commerce Clause powers, just as the Court (or more accurately, its now famous five-person majority) has claimed its authority over congressional implementation of the Fourteenth Amendment.[32]


        Two kinds of defects undermine the claimed coherence of categorical federalism: Category mistakes are common, and permanent categorization is itself a mistake. The first objection, about category errors, offers a critique from within the normative framework of categorical federalism, while the second objects to the framework itself. This Part makes both arguments by excavating the stipulated truths (that violence against women is not "economic in nature," that the Constitution requires a distinction between "the truly national" and the "truly local," and that family law is the domain of states) proffered by the Morrison majority to obscure its own role in making the meaning of commerce, of women's roles and the import of violence, and of the relationships among state law, federal law, and family life.

       I begin by probing the idea of something being "economic in nature" and, after detailing the relationships between gender, householding, and wage work, question why federal laws aimed at protecting women failed this test. I also demonstrate the malleability of the naturally economic by looking at post-Morrison decisions finding debts to pay child support not "economic in nature" but laws prohibiting possession of child pornography and protecting wolves in the wild sufficiently "commercial in character" to permit federal lawmaking. Brought to the fore is the role played by morality; certain forms of federal morals legislation pass even contemporary Commerce Clause tests. Thereafter, I turn to the relationship between federal law and families. Assuming for that discussion the propriety of the Morrison majority classification of VAWA as about family and criminal law, I disagree with its proposition that the "federal" has no role to play. Rather, the extant legal patterns are best described as multi-faceted federalism in which state and federal laws cohabit.

       A. "Economic in Nature"

       1. Gender and Economic Agency

        The Morrison majority claimed that violence against women was not "economic in nature."[33] Even as it constructed this category, the majority denied its own role in making it:

While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these [commerce] cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.[34]

        What could "economic in nature" mean? The phrase is one coined relatively recently by judges[35] rather than found in the literature of economics, which does not evidence much of a sense that it has "natural" boundaries.[36] Economists proffer analyses for an array of human activity, including family life.[37] Consider also the boundary-bending term "home economics," coined a century ago to make plain that tasks once thought definitional of household labor -- laundry, baking, and making clothes -- had, by the early 1900s, become associated with the market.[38]

       The interplay between markets and homes was and is thick.[39] Federal funds supported education in home economics as a part of vocational training;[40] efforts at "municipal housekeeping" aimed to improve localities;[41] and businesses relied on home economists to market products to consumers.[42] Contemporary feminist arguments address the lack of market value accorded to work within households.[43] Some seek to have that work commodified as a means of underscoring that, in two-adult households, women's work inside the household subsidizes and enables wage-earning outside the household. Once women are understood as economic agents when at home as well as when at wage workplaces, laws prohibiting attacks on women in or outside their homes can similarly be understood as protecting and enabling economic capabilities.

       That violence against women, in particular, should not be included within activities that are "economic in nature" is painfully ironic. Women were once understood as all too "economic in nature," as a species of property, a bundle of goods and services.[44] The Supreme Court has many times acknowledged that women can be treated as commodities. For example, in the early part of the twentieth century, the Court upheld the Mann Act (named after its sponsor) making illegal the transportation of women for "immoral purposes" across state lines.[45] Despite the defendant's argument that no money had been exchanged for sex,[46] the Court approved the statute by analogizing the movement of women to that of articles of merchandise.[47] This law remains in use.[48] More recent legislation also addresses the treatment of women as property by penalizing "trafficking,"[49] which is on the rise as an artifact of current forms of globalization.[50] Yet, when women seek to be holders and producers of property, to be players in the market, thinking about women in economic terms is claimed to be a category error.

       Even some commentators who seek to engender more national rightsmaking would rather avoid the language of commerce -- arguing that it dilutes commitments to freedom and status transformation.[51] The strategic reason why VAWA relied on commerce powers is understood. In the 1960s, the Supreme Court had avoided questions about congressional power to reach "private" actors under the Fourteenth Amendment by relying on the Commerce Clause to uphold civil rights legislation. Yet, say such objectors, congressional power to deal with violence against women ought to be understood as related to equality, not commerce.[52]

       But framing the problem of violence against women as embedded in commerce provides descriptive accuracy and normative instruction about the degree to which the current economy is formed by gendered allocations of work that subordinate women. Obtaining equality for women depends upon their gaining recognition as commercial actors. Virginia Woolf explained it well in 1928 when she compared the value of the right to vote (then recently won) with the receipt of a regular income (specifically her new "legacy" of "five hundred pounds a year"): "The money, I own, seemed infinitely the more important."[53] Her book's title -- A Room of One's Own -- reflects the power to control one's physical space. "That five hundred a year stands for the power to contemplate, ... a lock on a door means the power to think for oneself."[54]

       A locked room denotes a safe space, a home. Yet many women do not have that safety, as home-based aggression blocks their access to participation in the national economy. Once out the door, the fear of walking down deserted streets, of using public transportation at night, and of entering empty corridors disproportionately affects women, who regularly report surveying their surroundings as a protective measure.[55] Moreover, once at work, physical threats remain for women. The law of sexual harassment now marks the idea that women are harmed at work because they are women. But the term "sexual harassment" may mask (for some) that not only are women confronted with threats of sex, they are also sometimes physically assaulted.[56] The argument is not that every act of violence directed at women is aimed at undermining economic capacity but that, cumulatively, the volume of violence directed against women limits women's roles as commercial actors and as wage-workers. Decades ago, Commerce Clause jurisprudence shifted to acknowledge the interrelationship between production and sales and to take into account that enterprises like insurance and agriculture, once thought to be "local," are too much a part of the national economy to be exempt from federal regulation.[57] Commerce Clause jurisprudence could shift again, now to acknowledge that activities such as gender-targeted violence, once conceived as external to the economy, are constitutive of it.[58] That federal powers are enumerated does not tell us what content they have.

       2. Endangered Children and Wolves

        In Morrison's wake, the category of "the economic" has taken on a vitality that opens up challenges to many federal statutes about topics ranging from debt repayment to child pornography to endangered species. As the case law grows, we have come to learn that not all kinds of debt are "economic in nature" but that some wild animals are sufficiently a part of the economy as to permit congressional action.

       A first example is the Child Support Recovery Act (CSRA),[59] enacted in 1992 and modified in 1998. The statute makes certain willful failures to pay child support, if noncustodial parents live in another state, a federal offense.[60] In the years before Morrison, several defendants challenged the CSRA, all unsuccessfully, as circuit after circuit found it constitutional.[61] As one commentator explained, the reason for unanimity was "simple: The CSRA is within Congress's Commerce Clause power because the statute regulates the payment (or nonpayment) of money across state lines."[62] Further, federal oversight of interstate obligations is not unique to this context; "jurisdiction jumping" is also a phenomenon in bankruptcy.[63]

       Since Morrison, however, a few lower courts have held the CSRA unconstitutional on the ground that, like VAWA, it relates to a sphere of human activity inappropriate for national legislation. While lower court judges disagree, these decisions illuminate the ongoing effort to curb federal power through categorical claims about the economic import of family life. For example, according to one decision, child support debt was not "commercial in nature," described as the "mutual exchange of value motivated by economic self-interest,"[64] because orders to pay child support lack "this essential feature of reciprocity."[65]

        The idea of the family as a nonreciprocal entity stems from eras in which male patriarchs had power over both wives and children. Law enforced that regime in many ways. Wives were not legally competent to enter contracts or to bring lawsuits. Federal diversity jurisdiction was itself unavailable because the husband and wife, legally one, could not be citizens of different states. Once laws of coverture were jettisoned, however, such jurisdictional prohibitions and laws of interspousal immunity began to fall.[66] Adults in household units gained the status of legally interrelated, independent adults, both of whom were required to support their minor children.

       Law has done more than abolish prior practices; it has imposed new obligations on family members. For example, custodial parents receiving federally supported benefits must assist in obtaining child support from noncomplying co-parents or risk a loss of benefits.[67] Federal statutes thus use one parent's economic self-interest to motivate her (or, infrequently, him) to help the government pursue the other. Markets also reinforce the interdependent economic obligations within households; work time spent in providing care to one's own children reduces work time for wage earning.[68] As a consequence, partners in marriage, ex-partners in divorce, and never-married coventurers often rely on "mutual promises and bargains,"[69] as do other contracting parties.

        Yet some federal judges, attempting to shift the focus from the custodial parent to the child as creditor,[70] reject the concept that debts arising from parenthood reflect reciprocal agreements on the allocation of work between parents. Further, national laws are claimed to interfere impermissibly with state prerogatives.[71] As another federal judge explained:

The Supreme Court's current federalism jurisprudence teaches that the CSRA, by making it a federal crime to fail to make child support payments -- a matter of family law -- based merely on the fact that the parent and child reside in different states, upsets the delicate balance "between what is truly national and what is truly local."[72]

        In contrast, statutes prohibiting conduct less readily commodifiable have survived Morrison challenges, as the term "economic in nature" is supplemented with the concept that something can be "commercial in character."[73] One example comes from constitutional objections lodged by criminal defendants charged with possession of sexually explicit depictions of minors if those depictions or the materials used to produce them were shipped in interstate commerce.[74] Courts have concluded that possession of such photographs, even when self-generated and not intended for commercial use, is enough like the production of local wheat in Wickard v. Filburn[75] to qualify as economic activity. Why? Because local possession of photos "interacts with a national market on both the supply and demand side," thereby justifying a congressional conclusion that it had power to reach the activity.[76] Unlike the majority in Morrison, reluctant to accede to congressional assessments about women and violence, these judges readily relied on congressional views of the need for national protection against possession of child pornography.[77]

       "Judicial deference to the judgment of the democratic branches"[78] was also in evidence in a Fourth Circuit decision, Gibbs v. Babbitt, which provides further insight into the plasticity of the new commerce jurisprudence. A man shot a wolf who had strayed onto private lands; he was charged under federal laws making it illegal to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" any threatened or endangered species.[79] His challenge raised the question of congressional power to protect endangered species on private property. Recall that judges within the Fourth Circuit were the first to hold that violence against women was not related to commerce.[80] In contrast, in Gibbs v. Babbitt, the circuit concluded that "economic activity must be understood in broad terms ... not ... limited to its "18th-century' forms."[81] Because the motivation to harm wolves came from farmers and ranchers worried about commercially valuable livestock, because wolves had been and might again be hunted for their pelts, because wolves were part of a "national wildlife-related recreational industry that involves tourism and interstate travel,"[82] and because the regulation of red wolf takings was "also closely connected to a second interstate market -- scientific research" -- which generated jobs[83] and might also lead to "other potential economic activities,"[84] it was up to Congress -- not the courts -- to weigh the value of removing wolves to protect commercial development against the value of restoring the species. Thus, the court rejected federalism pleas that land regulation and wildlife management were "traditional state functions."[85] Endangering women is about family life, claimed to be the province of state law; endangering animals is potentially about commerce, and that potential suffices to sustain national laws, at least thus far at the circuit level.[86]

       3. The Commerce in and of Morals

        This foray into doctrine illustrates that, even with the new addendum of "economic in nature," choices abound about the reach of Commerce Clause powers. The current judicial effort to naturalize its conclusions by reference to activities "economic in nature" or "commercial in character" resembles the nineteenth-century equation of commerce with sales.[87] The issue is not whether commerce could be so circumscribed but rather why to draw this particular line. Given the import of the Commerce Clause holding in Morrison for constitutional law, the majority's discussion is cursory, lacking much by way of justification other than reductionist categorical stipulations.

       Had the majority, in contrast, taken on a forthright exploration of Commerce Clause precedents, it would have been required to distinguish its frequent approval of the use of Commerce Clause powers to sustain social morals legislation -- ranging from the many federal statutes reinforcing conventional status arrangements (such as the prohibition on possession of forms of pornography) to the more unusual ones altering entrenched practices (such as the 1960s civil rights legislation). Indeed, the majority would have confronted not only repeated recognition of federal power but, upon occasion, the unapologetic use of Commerce Clause powers to "promote the general welfare, material and moral."[88] For example, in early twentieth-century case law sustaining congressional regulation of liquor, lotteries, prostitution, and sexuality, the Court repeatedly upheld the propriety of national-level efforts (acknowledged to have ""the quality of police regulations'"[89]) to exert social control. Mann Act prosecutions did not focus exclusively on the commerce in sex. Rather, a high percentage involved interracial couples, interstate adulterers, and breaches of promise to marry.[90] The justification rested squarely on the national government's need to protect certain forms of family life -- ""the sure foundation of all that is stable and noble in our civilization.'"[91] Deciding in an era when Commerce Clause powers were read more narrowly than during the subsequent sixty years, the Court read Article I to permit police power policies aimed at suppressing activities seen as immoral so long as an interstate "hook" was available.

       The Mann Act example cannot be cast aside as a relic of times past. In this era, when Commerce Clause powers are again being narrowed, the condemnation of certain forms of immorality continues to provide licensure for federal powers, as is exemplified by the Child Pornography and the Trafficking in Women Acts. Given these decades of rulings, the puzzle is why that umbrella did not suffice to shelter VAWA's civil remedy. VAWA could have been read as responsive to the threat to family life stemming from the immorality of hitting one's wife (and hence within the convention of federal social welfare legislation) or as an innovative gender equality provision, following the model of public accommodations laws (and hence within the convention of federal civil rights legislation). That a high volume of cases might have resulted has been proffered as the basis of some federal judges' objection to VAWA,[92] but were plentitude alone the issue, the rationale would also topple pornography regulation.

        Explanation of the refusal to subsume VAWA within legitimate federal morals and civil rights legislation requires an appreciation of the stakes embedded in VAWA's civil rights remedy. It promised more than access to federal courts for the relatively few claimants seeking damages for gender-motivated violence. Had VAWA been sustained, federal legislative power would also have been available to redress other aspects of women's inequality. For example, as Justice O'Connor indicated at the Morrison oral argument, if the Court upheld VAWA's civil rights remedy, perhaps Congress could have the power to address discrimination in alimony payments made upon divorce.[93] Federal laws might also have considered the question of compensation for home-based but currently unpaid "domestic" labor. Indeed, current federal pension law takes comparable concerns into account. The Employment Retirement Income Security Act (ERISA) allocates the wage-work benefits of pensions between spouses and protects divorced spouses in an effort to further equality norms; it is a species of marital property law.[94] Similarly, the Family and Medical Leave Act, whose application to states has now been limited through Eleventh Amendment doctrine,[95] had begun a conversation about the relationship between caregiving obligations and wage work. Commerce Clause powers could thus have been the basis for Congress to experiment with efforts to alter the gendered patterns of the economy, constituted by wage and nonwage work, inside and outside households. VAWA was but one aspect of the many possible exercises of federal power needed to achieve a categorical shift of women from dependent householders to physically secure equal citizens, able to partake of the full range of economic and political activities.

       Those prospects proved intolerable for those intent on constraining national powers because they object to specific substantive policies and/or to the use of federal power to forward them. Keenly aware of the interdependencies of economic transactions and status, the search for a cap on "commerce" is a search to limit national lawmaking. The goal of reining in federal power is, of course, a reasonable political stance, but represents a choice between competing and contested views about the meaning of the United States Constitution. Through deployment of categorical federalism, however, the majority in Morrison neither provides an account of nor takes responsibility for its decision to stop federal legislation aimed at acknowledging female subordination inside households and the role that violence plays in economic citizenship.

       In this discussion, I have deliberately linked VAWA, marking a progressive national effort to remake status relationships, with the history of federal statutes now seen by many as unattractive examples of social control. As Alexander Bickel explained, legislation like the Mann Act was inspired by "distinct strains of anti-urbanism, of xenophobia and opposition to continued large-scale immigration, and even of anti-Semitism."[96] Both VAWA and the Mann Act are founded on a view of federal constitutional power that is expansive. Their juxtaposition underscores that deployment of federal power is not, however, inevitably wise. Both statutes augment state police powers. Both have the potential to displace conflicting state laws evidencing differing views on the moral, political, and economic status of women. I offer these examples (and more below) of the many varieties of federal social welfare legislation to remind readers that multi-faceted federalism is not a new word for a pro-national stance but rather an effort to shift the focus toward the many sources of political rightsmaking, all to be engaged critically as we make meaning of both "the federal" and of "women's rights."

       B. Working Moms, "Runaway Pappys," and Visiting Grandparents

        By categorizing violence against women as not "economic in nature" but related to family law and crime, the Morrison majority claimed a relationship between family, crime, and state government in which federal law could play no role. Critique is again available at two levels, first that the majority had choices when categorizing and erred, and second, that boxing itself into a choice was itself an error. For the first aspect of this analysis, I will share the majority's premise that VAWA was centrally related to family life.

       VAWA symbolizes an understanding that violence within households, "domestic" in popular nomenclature, is a violation of "national" rights of adults to be equally safe within families. The power of the legislation should not be equated with the one provision struck in Morrison. The bulk of VAWA survives and thrives. In the years between 1994 and 1999, Congress provided $ 1.4 billion to antiviolence programs, including $ 549 million for services, training, officers, and prosecutors -- "STOP" -- to all fifty states; $ 21 million for "safe houses" and law enforcement training; some $ 140 million to facilitate arrests and prosecutions; $ 40 million focused on rural domestic violence against women and children; and $ 32 million in legal assistance and in grants for college campuses, community policing, and for help to children exposed to such violence.[97] In the fall of 2000, Congress reauthorized VAWA and provided yet more funds.[98] VAWA also continues to facilitate the interstate enforcement of protection orders[99] and to supply bases for criminal prosecutions of violators of certain of those orders.[100] Federal law thus augments state work on the miseries of some families' lives, helps to provide shelter and counseling, supports state and tribal police and prosecutors, and brings needed dollars and attention to this arena. Arguably, even the defeat of the civil rights remedy has been productive. After Morrison, some municipalities and states have tried, in the words of the New York City Council, to fill the "void" left by the Supreme Court by enacting comparable provisions.[101]

        Let us thus call VAWA a regulation of the family (or more appropriately, of dissolving or disabled families) and applaud it. But, in contrast to the Morrison majority's proffered logic (if a law is "about families," then it is beyond the authority of Congress), placing a law within that category does not preclude federal legislation. In fact, upon entering the categorical box of the family, one finds a great deal of federal law inside.

       1. Federal Laws of the Family

        That federal law should speak substantively about, impose requirements upon, and offer protection to family life is an artifact of this country's founding, expressed periodically during the nineteenth century through federal legislation using marriage policy to limit polygamy, to establish rights of freed slaves, and to distance Indian tribal members from their communities.[102] During the twentieth century, action on this federal front (like many others) expanded. Interest in developing federal family law stemmed from several factors including an increasingly mobile population, economic crises clarifying the relationship between individual circumstances of poverty and national markets, waves of immigration, and comparative data that the United States lagged behind other nations in addressing infant mortality and children's health.[103] As a consequence, contemporary federal family law is a melange of national norms aimed at affirming certain conceptions about how families are constituted, what relationships within families have primacy, and the material consequences of family life.

       The legal routes to federal family lawmaking are -- like federalism itself -- premised on a range of constitutional provisions including the Commerce and Spending Clauses, the Full Faith and Credit Clause, and the Fourteenth Amendment.[104] A brief sketch of some statutes and constitutional law that create substantive federal family law policies exemplifies the breadth. Federal tax law defines family units and creates economic incentives for members.[105] Social security law endows wage-work with the power of enabling subsequent retirement benefits but treats domestic production and reproduction differently.[106] Although state law initially organizes assets between divorcing couples, "federal bankruptcy law radically alters all the financial obligations created by state law."[107] Immigration law gives meaning to the act of marriage,[108] and the Defense of Marriage Act defines it for purposes of federal law and interstate obligations.[109] ERISA creates federal marital property law in pensions that trumps state property laws.[110] In short, a variety of familiar areas of federal law intersect with and regulate aspects of family life.

       2. Supporting Children

       Categoricalists define the care and economic support of children as within the core of family law. I have therefore chosen it as an aspect of federal family law to mine in more detail. Governments can facilitate parental provision of care by a variety of methods, such as paying parents to provide care to children, subsidizing care outside of homes, supplying food and health benefits, and requiring employers to provide release time from work. The choice of policy sustains or alters assumptions about the parental roles and earning potentials of women and men. Further, given cultural, religious, and ethnic variations in family patterns, governments also have decisions to make about which individuals to recognize as constituting a "family."[111] Thus, when governments impose obligations of child support, their rules either reaffirm or disrupt extant understandings of family constellations and gendered allocations of labor.

       That state laws make such decisions is common ground. What the Morrison majority ignored is that federal law also makes such decisions. Federal social welfare legislation, sometimes assumed to have begun with the 1935 Social Security Act, in fact was launched decades earlier, as Theda Skocpol documents in her history of pensions provided for civil war veterans and for mothers. Skocpol's titular delineation in Protecting Soldiers and Mothers neatly encapsulates the prevailing gendered assumptions, reinforced in part by what she terms "maternalist" social policy.[112] Prompted by women's organizations seeking to reduce infant mortality rates, the federal government created the Home Education Division of the U.S. Bureau of Education in 1911, the Children's Bureau in 1912, and the Women's Bureau in 1918,[113] to provide "information, investigation, and publicity."[114] By 1921, through the Federal Act for the Promotion of the Welfare and Hygiene of Maternity and Infancy (the Sheppard-Towner Act, in force until 1929), federal funding provided more than a million dollars to the Children's Bureau to disperse to cooperating states for family care.[115]

       During the following seventy years of federal lawmaking, substantive policies reflected and reinforced gendered assumptions about parental responsibilities. Aid to (Families with) Dependent Children, a program begun during the first half of the twentieth century, represented a federal policy that mothers who lacked their own income or that of spouses should be able to stay at home to care for children. Welfare legislation in 1996 illustrates a different federal policy: that such women should be prepared to entrust their children to others and demonstrate their commitment to gaining market employment.[116]

       Attitudes toward the roles fathers should play -- in terms of both support and care -- have also shifted over the century.[117] As Linda Gordon explains, in 1900 and in 1960, more than 85% of children lived with two parents.[118] Furthermore, "from the late nineteenth century until the 1930s, in all classes, races, and ethnic groups, most single mothers were widows" -- 77%.[119] By the 1930s, however, the proportion of single widowed mothers had fallen to under 55%.[120] Men had left households but, with divorce generally uncommon, desertion was the description.

       The issue was what obligations these men had to those left behind. In the 1930s and 1940s, state laws did not offer uniform answers on which adult members of families were obligated to support children of what ages[121] and whether to pursue violators civilly or sanction them criminally.[122] The variation became a subject of discussion among state leaders, who attempted to create uniform laws[123] but found themselves unable to lower the costs of pursuit or to sustain interest in pursuit from prosecutors in states distant from the particular families in need.[124] Additional hurdles came from state courts unwilling to hold that judgments for future payments from another state were enforceable under full faith and credit requirements.[125]

       With the creation in the 1930s of federal welfare benefits for needy children came federal interest in ensuring that adult family members who had the resources to pay child support did so.[126] The development of federal policy stemmed from substantive visions about who constituted families, about which adults had obligations to children, and about how to spend tax dollars wisely. Federal family policy reflected gender-conventional roles rather than attempting to alter norms of masculinity by promoting fathers as care providers. Fathers were identified as the primary wage earners; mothers were situated as caregivers. For example, a 1932 federal law, permitting only one person within a household to be in federal employ, embedded the concept of the "family wage." The presumption of the man as a family's wage earner can be seen from the fact that almost all of the 1500 people fired during the law's first year were women.[127]

       Federal involvement in child support increased as federal dollars went toward support of children and as state actors sought help in enforcement of their collection laws. Initially, federal statutes focused on encouraging and assisting state collection of child support from wayward fathers. Subsequent federal regulation sought to take direct action against adults liable for support,[128] resulting in what some have termed "the federalization of child support enforcement."[129] Through laws passed in 1968, 1974, 1984, 1988, and 1996, Congress created a federal locator system and imposed federal standards on how to search for absent fathers, how to recoup funds from them, and how to assess how much to recoup from them.[130] The 1996 Act mandated adoption of uniform state laws on child support as a condition of federal funds, resulting in state enactments that march to a federal drum.[131] In terms of the content of federal policy, Gwendolyn Mink describes the 1996 legislation as representing a bipartisan agreement that "poor women with children should at least be financially tied to their children's biological fathers, or better yet, be married to them."[132]

       Federal criminal law can also be a vehicle for national norms. During and after World War II, federal legislators began to consider what became known as the "Runaway Pappy Act" -- a version of which was championed in the late 1940s by then-Representative Gerald Ford.[133] Proponents sought to craft a federal crime based upon a father's willful departure from a state to avoid child support obligations.[134] They argued for federal lawmaking because (1) during World War II, the federal government had contributed to the problem by encouraging fathers to leave their households to work in factories or to go to war; (2) state laws varied, and interstate enforcement was expensive and sometimes unavailing; and (3) by moving from state to state, fathers could avoid obligations of support.[135] Some of the proposals would have permitted direct prosecution and imposed criminal penalties, while others sought to deploy the federal courts as a registry for interstate support orders and therefore as a means of enforcement for moneys due. In the legislative records of the many bills, proponents did not evidence concern about the constitutional vulnerability of their proposals. Long before the 1960s interpretations of Commerce Clause powers, members of Congress assumed that obligations for child support had a sufficient nexus to the economy to support federal legislation,[136] which was welcomed by state officials seeking federal assistance.[137]

        As is familiar to those who focus on either family law or federal jurisdiction, the criminal legislation (the Child Support Recovery Act of 1992, or CSRA)[138] became law decades later, by which time "runaway pappys" had became "deadbeat dads."[139] Together, whether wisely or not,[140] both civil and criminal federal statutes focus on collecting child support payments from fathers. Less familiar is that major opposition to the deployment of federal legal resources for these efforts came from the federal judiciary itself.[141] At first, objections came through commentary from the official voice of the Article III judiciary. Between 1958 and 1992, the Judicial Conference opposed all of the many proposals for federal jurisdiction for either the registration in federal court of support orders or criminal sanctions.[142] The Conference argued that the various bills were ill-advised, a misuse of federal power in matters that would be best left to the states. (In contrast, the Conference has often declined to comment on proposed bills on the ground that such issues were matters of "legislative policy.")[143] Subsequently, the Supreme Court has registered its objections to federal court involvement in family life in other forms, such as by declining to interpret legislation to endow individuals with rights of enforcement[144] and by imposing restrictions on jurisdictional provisions that could have enabled litigants to file family-related claims in federal court.[145] Most recently and vividly, as in Morrison, judges have held that Congress has no power to vest certain matters in federal courts.[146]

       These exchanges represent a long history of the judiciary and Congress debating -- and disagreeing about -- the shape of federal family-law policies and particularly about whether Congress could or should enlist the federal courts in implementing its laws.[147] Such debates are themselves further testaments that federal statutory family policies are plentiful and well-known to federal judges. Through a range of civil and criminal statutes enacted under Spending and Commerce Clause powers, Congress has developed a regulatory regime reflecting substantive decisions about family policy, only some of which involve rights of action in federal court. Within the category of the family can be found federal regulation, and within the category of the federal can be found rules of family life.

       3. Superintending States

        Morrison might be read as signaling more -- that all such legislation will soon fall because it invades the "truly local" province of the family. But Congress is not the only source of federal law relating to family life. When one turns from statutes to the Constitution, one finds that the federal judiciary is itself a font of federal family lawmaking.

       The word "family" does not itself appear in the Constitution. The concept is only mentioned by way of prohibitions on forms of intergenerational inheritance: No titles of nobility may be passed from parent to child, nor shall the treasonous acts of ancestors result in penalties to children by way of "corruption of blood."[148] Yet Supreme Court Justices have regularly understood that they have the power to speak about families. As we learned in June of 2000, for example, the Constitution has an affirmative vision of family life. In Troxel v. Granville[149] (popularly styled the "grandparents' visiting rights" case), the Supreme Court held that the State of Washington could not constitutionally confer on judges the ability to order that a range of persons other than legal parents be able to visit children. Not one of the briefs filed in Troxel argued that the United States Constitution did not speak to family life.[150] Only Justice Scalia's dissent claimed that federal law had no role in correcting what he saw as a misguided provision.[151] In contrast, his colleagues (through five opinions) all agreed that the Constitution applied, although they disagreed about what flowed from its deployment.[152]

        Troxel does not stand alone. From the 1920s forward, Justices have articulated federal constitutional norms regarding families, including that legal parents are protected from state intervention absent compelling evidence[153] and that they have various forms of control over their children such as direction of their education.[154] Similarly, federal constitutional law has bounded state rules on marriage and sexuality (by banning race-based marriage barriers, by prohibiting polygamy, and by permitting contraception[155]) and on child custody,[156] as well as prohibited discrimination based on whether parents were married at the time of a child's birth.[157] Given the many cases that address the parental status of men,[158] the Court could even be understood as specializing in the law of fatherhood.

       My claim is not that federal law, statutory or constitutional, specifically regulates all aspects of family life but rather that denominating an issue as about family life has not precluded federal legal regimes from imposing obligations, structuring sanctions, and creating incentives among individuals designated to be family members. Even in areas such as marriage, divorce, alimony, and child custody, which are often listed as comprising the set of "domestic relations" within the aegis of state law,[159] federal law plays an important role. Indeed, for divorcing couples with certain forms of income, the federal rule on spousal pension rights is central to the division of assets. For couples at lower income brackets, federal welfare laws structure economic options, and, as federal funding diminishes, federal child support obligations become all the more central.[160] Moreover, international law is playing a growing role in family life as conventions related to children gain adherents and as parents in conflict transport children across national boundaries.[161]

       Similarly, describing problems as "criminal" -- a category also invoked in passing by the majority decision in Morrison and more extensively in the Fourth Circuit's decision[162] -- does not preclude congressional power to legislate. Given that prosecutors rather than victims bring criminal cases, the majority's reference to criminal law in conjunction with the civil rights remedy in VAWA was more of a reach than relating the statute to family law. But embracing rather than contesting the category criminal does not result in a descriptive conclusion that federal law must be silent. Rory Little, John Jeffries, John Gleeson, and Daniel Richman, among others, have detailed the overlap between state and federal law enforcement.[163] How much crime should be "federalized" is a contemporary subject of debate;[164] that certain crimes are beyond federal law is a proposition established by Lopez, but that crime as a category is beyond federal jurisdiction is not a statement that any description of the United States's law can support.

       In the areas of both family life and crime, state systems currently bear the brunt of dealing with the volume of disputes. But state courts do more of the work for all forms of disputes. Federal filings (of some 300,000 civil and criminal cases annually) are a small fraction of the thirty million disputes brought annually to state courts.[165] To use (or to fear) quantities of work stemming from legal regulation as the basis for reading into the Constitution a prohibition on federal lawmaking gives judges arbitrary and unaccountable power. Calling VAWA a family and criminal law statute does not provide an argument about why Congress could not act. Rather, the interacting legal regimes in these arenas demonstrate the prevalence, in practice, of multi-faceted federalism.


        The layers of lawmaking related to violence, family, crime, and equality go beyond state and federal law within the United States, as the problem of violence against women has become a topic for lawmakers worldwide. Beginning in the late 1940s with the Universal Declaration of Human Rights,[166] international treaties recognized women's equality. More recent enactments (such as the Convention on the Elimination of All Forms of Discrimination Against Women,[167] the Declaration on the Elimination of Violence Against Women,[168] and regional agreements[169]) expressly address women's right to physical safety. Indeed, in the Morrison litigation, a group of human rights scholars argued that Congress had the power to enact VAWA as part of its obligation to implement the International Covenant on Civil and Political Rights (which the United States has ratified[170]) and to enforce customary international law that freed women from violence based on gender bias.[171]

       Also beginning in the 1940s, politicians in the United States opposed such transnational lawmaking as a threat to this nation. They relied specifically on states' rights as an argument against participation in the new human rights laws.[172] Transnational efforts to define equality are therefore relevant in two respects to the contemporary invocation of categorical federalism. First, an overview on gender equality elsewhere makes plain how much at odds the Morrison majority's response is with lawmaking in other countries, acknowledging the links among women's safety, equality, family roles, and economic capacity. Second, the existence of these new definitions of women's rights reveals yet another function of categorical federalism -- its role in attempting to buffer the United States from the effects of lawmaking beyond its borders.

       A. Developing Human Capabilities and Creating Legal Innovation

       The harms suffered by women have become a subject of study around the world. Illustrative is an international survey, Domestic Violence Against Women and Girls,[173] issued by UNICEF in June of 2000. This report concludes that violence against women is "one of the most pervasive of human rights violations, denying women and girls equality, security, dignity, self-worth, and their right to enjoy fundamental freedoms."[174] While noting that most countries prohibit such violence, the report finds that violations are common and are often

sanctioned under the garb of cultural practices and norms, or through misinterpretation of religious tenets. Moreover, when the violation takes place within the home, as is very often the case, the abuse is effectively condoned by the tacit silence and the passivity displayed by the state and the law-enforcing machinery.[175]

        Indeed, although the "family is often equated with sanctuary," the family "is also a place that imperils lives, and breeds some of the most drastic forms of violence perpetrated against women and girls."[176] In contrast to the jurisdictional lines drawn by the Morrison majority, the UNICEF report refuses to bound its inquiry into the family, culture, and religion.[177] Rather, the report identifies the systemic and widespread practices of violence against women as predicated upon economic dependency, acculturation to sex roles, and legal and political inequality. Poignantly, "women's increasing economic activity and independence is viewed as a threat which leads to increased male violence," particularly in economies that are themselves in transition.[178]

       International analyses also address "human capability," a term used to denote a range of activities including but not limited to economic activity. Since the early 1990s, the United Nations has provided an annual Human Development Report with "balance sheets," listing a rise of women's economic activity in the "progress column" and the high incidence of physical violence against women by their intimate partners on the "deprivation" side.[179] The variable of gender correlates with education and poverty levels. As Ruth Bader Ginsburg and Deborah Jones Merritt explain, for every one man who is illiterate around the world, two women are,[180] and seventy percent of the world's poor are women.[181] Women's risk of violence, their poverty, and their high illiteracy rates relate to women's roles within families. The job of being a parent limits market options, as does the danger of violence. Martha Nussbaum relies on such research for what she terms a feminist argument that attends specifically to women's status as "less well-nourished than men, less healthy, more vulnerable to physical violence and sexual abuse."[182]

        The economic and sociological work is both a product and a source of international efforts to obtain recognition of women's equality.[183] A series of constitutional documents recognize women as rightsholders.[184] Some instruments make more wide-ranging commitments to action for achieving equality than does contemporary equality law in the United States.[185] For example, in 1979, the United Nations General Assembly promulgated the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).[186] Although signed by then-President Jimmy Carter in 1980 and adopted by more than 165 countries, the United States Senate has not (yet) ratified CEDAW.[187] That Convention defines prohibited gender-based discrimination to include "any distinction, exclusion or restriction [that] has the effect or purpose of impairing women's and men's equality and exercises of human rights and fundamental freedoms." Further, CEDAW requires that:

State parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.[188]

        The "appropriate measures to eliminate discrimination" may include "temporary special measures aimed at accelerating de facto equality between men and women"[189] -- in United States parlance "affirmative action." In the early 1990s, the committee superintending the Convention issued a statement that its provisions include prohibitions on violence against women, whether occurring in the family, the community, or other institutions.[190] A year thereafter, the UN adopted a resolution addressing violence against women.[191]

       In addition to such transnational efforts, many countries have created new laws and institutions aimed at undermining gender inequality. Political governance is one arena of concern. Despite women's access to the vote, women remain markedly underrepresented in most democracies. In response, the European Union (EU) supports "parity democracy," by which is meant the "balanced participation" of women and men at all levels of government and in all commissions, committees, and councils of the Community.[192] Concern that only small numbers of women served in elected positions prompted France to enact legislation (the "Electoral loi of 6 June 2000") requiring that equal numbers of women and men candidates, with equal placement on lists of candidates, be put forth for most elections.[193] Some two dozen countries, including Argentina and South Africa, have variations on this approach.[194] Governments have also forged new positions, such as the Ministry for Women established in Great Britain.[195] That work is part of the effort to implement what both the EU and the United Nations describe as "mainstreaming,"[196] bringing questions of women's equality into all policy areas and ensuring that all policies be made with an awareness of their effects on women.

       If one axis is political governance and participation, another is the workforce and households. As Norwegian sociologist Arnlaug Leira comments, "Mothers have changed the gender balance in breadwinning. Changing the gender balance in caring may prove even more difficult."[197] In France, the thirty-five-hour work week has become mandatory for much of the workforce,[198] in part to shift cultural patterns in which women continue to take more responsibility than men for providing care to children, other relatives, spouses, and themselves.[199] In Denmark, Norway, and Sweden, a portion of all parental leave is reserved to each parent as a "non-transferable right" to prompt both mothers and fathers to take paid time (including, in some instances, part-time) away from their workplaces.[200] Further, in Sweden and Norway, benefits provided upon the birth of a child are reduced if both spouses do not participate by taking time off from work.[201] As Leira explains, "In the Nordic countries parental leave is one element in more comprehensive legislation to promote gender equality."[202] Such provisions point to an appreciation that "increasingly, ... what differentiates gender roles is not whether individuals have a job, but the amount of time spent in paid employment."[203]

       A third focus is on women's lack of physical security. Although VAWA's attempt to make certain assaults a breach of national norms did not succeed in the United States, that approach is being adopted internationally, as rape is comprehended -- for the first time -- to be a crime against humanity, a war crime.[204] In the winter of 2001, an international tribunal dealing with war crimes in the former territories of Yugoslavia convicted perpetrators of such crimes.[205] This premise has also been codified in the Treaty of Rome,[206] "the first international treaty to recognize a range of acts of sexual and gender violence as among the most serious crimes under international law,"[207] to be redressed in the International Criminal Court.

       This brief sketch highlights the degree to which male prerogatives to run or to dominate governments, workplaces, households, international relations, and war are being challenged through both texts and practices. Globalism has helped to make plain the patterns of inequality. Technology has enabled individuals, nongovernmental organizations (NGOs), and countries committed to diminishing such inequality to communicate with each other. As a result, transnational understandings are developing that reflect the degree of transformation needed for women to achieve equality. Reorganization of all aspects of daily life, from homes to streets, markets, and politics is required.[208] Many of these remedial efforts are not continuous with the political cultures in which they are placed but are disjunctive interruptions of prior patterns. Illustrative is the change to democratic parity in France; the "citizen" unmodified had been the tradition in French law until the recent enactments aimed at achieving parity for women and men.[209]

       One cannot therefore dismiss cross-cultural comparisons as evidence that some innovation, "natural to them," cannot provide insight "here." Categories such as the family or war, previously used to preclude gender equality norms from operating, are no longer understood as prior to and thereby exempt from new rules and practices. Returning to the United States, Morrison becomes remarkable not just as a "local" example of a Supreme Court override but as parochial refusal to permit innovations aimed at altering gender roles in the face of a national and growing worldwide consensus that all social institutions require reconsideration in light of knowledge of gender subordination.

       B. Fears of "the Foreign" Within

       These developments abroad illuminate another aspect of the appeal of categorical federalism in the United States. Insistence on the "truly local" as a jurisdictional limit underscores territorial boundaries in an effort to defend against waves of transnational laws and increasingly homogenized cultures. Categorical federalism therefore promises (or threatens, depending on one's view) not only to limit (or undo) the New Deal, but also to reinscribe isolationist foreign affairs policies aimed at returning the globe to a description of the planet rather than a powerful presence within the physical boundaries of the United States. Categorical federalism deploys "the local" as if it is inevitably a site of participatory democracy that protects some categories of human enterprise from distant power by safely ensconcing them in decisional processes controlled by one's friends, one's neighbors, and oneself.

       Categorical federalism is thus specially responsive to the history of this nation's birth in rebellion from a distant and centralized power. The central gesture of the American Revolution -- separation from King George -- is reenacted by claiming that "the Constitution requires a distinction between what is truly national and what is truly local,"[210] thereby limiting Washington's power. Moreover, a tenet of constitutional faith, that the Constitution defines and confines all power, is invoked to justify the Court's exercise of its own power. In addition, categorical federalism has psychological appeal; "people often believe that there is an underlying essence or reason for categories to be the way that they are."[211] Categorical federalism thus helps to cushion anxiety occasioned by dissolving boundaries.

       Working in conjunction with other precepts of current federalism jurisprudence about the relationship between "the local" and "the international," the boxes constructed through categorical federalism become fortresses designed to ward off incursions not only from the national government but also from abroad.[212] This posture also has a history. The claim that states' rights ought to preclude the application of international human rights law was raised in the early 1950s, when, after the creation of the United Nations and the promulgation of the Universal Declaration of Human Rights, Senator John Bricker proposed a constitutional amendment that would have limited federal treaty power if deployed to undercut states' rights.[213] According to one commentator, "Bricker wanted to insure that international agreements would not lead to United Nations interference or more liberal social and economic policies and legislation in the United States."[214]

       Although the Bricker Amendment did not become law, some believe it has become fact -- through practices of the Senate that consistently limit the application of international laws by reference to federalism.[215] For example, when the Clinton Administration proposed that the Senate ratify CEDAW, the executive also submitted "reservations, understandings, and declarations" (RUDs) -- caveats used in international treaty-making to enable selective adherence to treaty provisions.[216] The CEDAW RUDs specified that the Convention's provisions would not be enforceable domestically; that ratification would not result in "changing U.S. law in any respect."[217] Further, in what is termed a "federalism understanding," the RUDs specify that the allocation of power between state and national governments would be unaffected.[218] Parallel reservations accompanied the United States's joining of the International Convention on the Elimination of All Forms of Racial Discrimination,[219] and of the International Covenant on Civil and Political Rights.[220] Federalism concerns have also been proffered as the rationale for the United States's refusal to ratify the Convention on the Rights of the Child.[221]

        States' rights are one set of prerogatives to be protected; gender roles are another. Since the 1940s, the fear of international law undoing gendered relationships in the United States has been express. The theme emerged in hearings on the Bricker Amendment,[222] and has now been put forth vividly through a 2001 Heritage Foundation publication entitled How U.N. Conventions on Women's and Children's Rights Undermine Family, Religion, and Sovereignty.[223] That monograph argues that the implementation of CEDAW undervalues the nuclear family and marriage by encouraging mothers to "leave their children in the care of strangers and enter the workforce."[224] Complaining that the "United Nations has become the tool of a powerful feminist-socialist alliance that has worked deliberately to promote a radical restructuring of society," the monograph calls on Congress to devote time and resources to protect against the dangers the UN poses to sovereignty.[225]

       These concerns about the influence of "foreign" ideas are based on accurate appraisals of the capacity for ideas and practices to transcend boundaries. But an assumption that bolstering states' and nations' sovereignty could achieve safety from such influences is ill-founded. The relationships among the local, the national, and the international are yet more complex. Within the United States, localities are turning to international law as a model for their own lawmaking. For example, although the United States Senate has yet to ratify CEDAW, the City of San Francisco has, making it a part of its local law in 1998.[226] (Since then, the city's Departments of Juvenile Services and of Public Works have filed reports, as CEDAW requires on an international level, detailing the results of "gender analyses" to understand the role of gender in their processes, structures, and decisions.)[227] And, as of 2000, nine states, the Territory of Guam, sixteen counties, and thirty-eight cities have enacted ordinances calling on the United States to ratify CEDAW.[228]

        The legality of local lawmakers engaging with international human rights was also the subject of decisionmaking in 2000 by the United States Supreme Court. In Crosby v. National Foreign Trade Council,[229] the Court imposed some limits by relying on the category of "the international" to preclude certain forms of local innovation. In Crosby, commercial litigants challenged a Massachusetts boycott on goods from Burma. In defense of its policy, Massachusetts argued that its police powers supported its refusal to spend state dollars on goods produced in violation of its local standards.[230] The Supreme Court held, however, that Massachusetts could not refuse Burmese goods, because federal statutory provisions and executive actions addressed the issue, preempting the state's rules.[231] The Burma boycott case is thus an example of "the local" (Massachusetts) voluntarily allying itself with "the international" (human rights law) and defining local obligations in reference to international standards. Readers of that decision disagree about the breadth of its import, with some claiming it illustrative of a conventional preemption analysis and others understanding it to restate the exclusivity principle that foreign affairs policy be made with "one voice," speaking from Washington.[232] However read, the local is constrained if not prohibited when it seeks to play globally.[233]

        But many of today's economic interactions do not track national boundaries, a point powerfully illustrated by Crosby and well-known in practice to consumers able to find the same commodities around the world. Technology not only renders the local visually indistinct (as retailers, products, and peoples reappear from site to site), but also enables nonlocal participants to play major roles in "local" political practices. Massachusetts's paper goods may come from Burma; its foodstuffs from other places, its inhabitants from hundreds of countries, and the funds for its political campaigns from people within and without the United States.[234]

       Further, Massachusetts did not itself conceive of the idea of boycotting goods made through forced labor. Its human rights ordinance was achieved through a mixture of local, national, and transnational organizing efforts, which Harold Koh terms "issue networks."[235] Such practices are not new. Voluntary associations are often organized in layers (national, state, and local) to link activists in this country and abroad. In the early part of the twentieth century, for example, women's clubs in the United States coordinated to help create "mothers' pensions."[236] More recently, a wave of local ordinances objected to apartheid in South Africa,[237] as others have sought to ban land mines[238] and to enhance women's rights. This list does not cover the spectrum of local ordinances, which range from expressive efforts to seek social and political change at a national level (such as cities calling for the ratification of CEDAW) to reliance on a locality's economic or political power to produce immediate changes in practices abroad (such as the provision at stake in Crosby) to the use of international exchange to enhance a municipality's economy.

        These enactments might be read as demonstrating the genius of rigorous enforcement of federalism boundaries, enabling experimentation generated by varying legal regimes. But such an interpretation misses the political purposes that are the predicates of localities' involvement with labor standards and with CEDAW. Proponents' goals are to change local, national, and international laws; their means deploy local actors working in concert with outsiders. To conceive of local action as rooted in specific conditions and indigenous to a particular place is to miss how often that work is a product of broad efforts to shift social policy. New technologies facilitate national and international campaigns by repeat-players, who organize campaigns for issues from those as seemingly parochial as elections of local judges[239] to those evidently transnational, sometimes in an effort to generate universal human rights and other times horrifyingly to destroy them. In short, not only does categorical federalism fail as a description; it is unattainable as an aspiration. In contrast, multi-faceted federalism provides the better account of the layers of political authority now inevitably and sometimes uncomfortably present.


       An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense that they are neither exclusive nor necessarily enduring. With an understanding that "the local" and "the national" are not naturally bounded sites, multi-faceted federalism serves as a reminder about how much work is required to make democratic institutions accountable, at any level. The diminished clarity of physical boundaries becomes an invitation to renew interest in the work of local, subnational, and transnational structures, to interrogate current practices, and to imagine new ones. Freed from a sense of siege and a desire for fortifications, inquiry can proceed about the vitality of the United States's institutions and the array of joint ventures that subnational organizations have created.

       How could federalism discussions change? First, United States history ought to be retold to recognize the impressive contributions of local political structures. Rather than reading this century as a triumph of the national on the one hand or as a narrow escape from federal overreaching on the other,[240] the persistence of local governance structures should be highlighted. Take the example of Indian tribes, which, in the face of federal efforts expressly aimed at "termination" of tribal identity, have had force sufficient to require return of tribal artifacts and the fulfillment of treaty obligations.[241] Consider also the powerful role of states and cities, which, as demonstrated by the election of 2000, remain central players in national elections. Not only have local forms proven to be notably resistant to collapse through nationalization, they have also generated a range of national but not federal institutions. Indeed, as Theda Skocpol comments, the layers of federalism with its multiple sites of power create an "opportunity structure" that has made the United States specially nurturant to an array of associations.[242]

       Thus, and second, we ought to pay more attention to the legal and political import of the many forms of federalism extant within this country. One important example is the interstate compact, which permits lawful means for joint ventures between contracting states.[243] A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources[244] to managing transportation systems[245] to administering economic programs.[246] The use of compacts increased during the twentieth century, and a greater number and more varieties (including interstate agreements that do not result in formal legal compacts) are likely in the coming years.[247]

       Attention to such agreements opens up possibilities for legislative innovation. For example, why assume that a new cause of action for VAWA victims could only exist in a state or a federal court? State court systems might coordinate their responses to victims of gender-based violence, as they already coordinate the movement and transfer of prisoners,[248] and as they have begun to do in response to certain kinds of multistate actions such as mass torts and consumer products litigation. Further, in an array of such aggregate litigations (including a school desegregation case in Baltimore, asbestos claims in New York, and environmental injuries in Alaska), state and federal judges have crossed jurisdictional lines to respond to shared problems.[249] A comparable joint venture, drawing on state courts' claimed advantages from working directly with families in disarray and on federal courts' association with equality law, could be forged to address violence against women.

       In addition to prompting invention, awareness of interstate compacts and judicial joint ventures ought to prompt sustained investigation into the allocation of power within such agreements.[250] Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords?[251] For example, should multistate agreements be channeled through the compact model, requiring congressional approval, or ought we be supportive of more diverse and less formal forms of such contracts? Should legal rules, such as the presumptive longevity of interstate compacts and the current formal barriers to joint venturing by state and federal judges, be restructured? Compacts could be conceived either as threats to the intelligibility of states or as a kind of "morphing" of states, in issue-specific arenas, to take into account subject matters that do not track state boundaries. Responsive policymaking ought to depend on a thicker understanding of the degree to which formal compacts enhance the visibility and accountability of governing structures, as well as better empiricism on the frequency and form of noncompact multistate agreements. The central question is the degree to which compacts enhance or impede democratic goals identified with state-based federalism, including accountability and participation.[252]

       Third, as joint and interactive decisionmaking becomes the subject of lawmaking, conflicts should be addressed under the rubric of preemption doctrine. Given that state and federal laws address aspects of family law or international relations, the issues become narrowed to whether, in a particular circumstance, legal regimes can cohabit and whether one set of rules needs to be set aside. These focused inquiries would require judges to retreat from their forays into global political theory and thin historicizing. Instead, they would have to detail how and why joint governance was or was not possible in a specific context. Crosby, the Court's decision in the Massachusetts Burma case, is exemplary of this preferable, albeit more mundane and less powerful, role for judges, confined to discussion of the degree to which redundant or overlapping governance can be tolerated in a particular instance. That such decisions do not etch clear lines for all further lawmaking becomes their virtue, as adjudication becomes appropriately "local" in the sense of being limited by legal rules applied to discrete factual circumstances.[253] Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers,[254] but the methodology -- examine statutes, apply facts, presume concurrency -- cabins the reach of even the adventuresome.

       Fourth, in addition to looking within the United States to survey and to analyze the range of federalism here, multi-faceted federalism may draw on lessons from abroad. The challenges of coexisting and coextensive legal regimes are common to all federations, which must address when to permit shared "competence" and when to require preemption.[255] While one cannot transport one federation's solution to another, countries can learn of the plausibility of particular delineations of authority. Take, for example, the increasing and formalized position of NGOs in the United Nations, which permits these nongovernmental groups to have a place in some official meetings.[256] In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so.[257] Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised.[258] What role NGOs play in the United States has been given less attention. For example, might the National Association of Attorneys General be understood as an NGO, representing segments of state interests distinct from those presented through senators and members of Congress? Should the work of a host of such organizations become a part of political policymaking through formalized roles? What are the positive and the perverse effects of commingling or disaggregating the idea of "state interests" and states' decisional authority?[259] In short, once willing to let go of categorical federalism's strictures, opportunities for invention multiply. The options are great because political practitioners are engaging in a range of group-based actions, enlisting the local, state-level, national, and transnational, the governmental and the nongovernmental, and whatever other entities they can, all to bring them closer to whatever their aspirations may be.

       Fifth, multi-faceted federalism makes more difficult the valorization of certain levels of government as specially able to get any particular social policy "right." Take the claim that the "national" is a venue committed to civil rights and that the federal courts are specially able to implement such commitments. Relying on the symbolic capital of a link between national lawmaking and civil rights, VAWA proponents argued that it was a traditional function of the national government to protect equality and to do so by vesting federal judges with jurisdiction.[260] But that "tradition" was painfully incomplete when the country was founded, invigorated after the Civil War, then dismantled, then renewed, and now called again into question. The identity of the federal courts has shifted during the twentieth century -- at times courts have been seen to be institutions of oppression (by labor and other populists) and at other times perceived to be institutions of salvation (by civil rights claimants). Both state and national constitutions speak of their commitments to equality, as do many other countries' constitutions and many international declarations. But to embody equality requires recommitment of national law in that direction, not simply the invocation of the nation as if it has intrinsically and inevitably allied itself with practices of equality.[261]

       To equate the "local" with progressive human rights movements would also be erroneous. Above, I discussed a series of local innovations -- focused on forced labor, land mines, apartheid, and women's rights -- cheerfully allied with transnational human rights movements. But another group of local activities in the United States stands in opposition to such efforts and has been the brunt of targeted criticism from abroad. For example, the "local" in the United States has insisted on its right to execute individuals, juveniles included, despite transnational efforts to ban capital punishment.[262] The phrase "states' rights" has been a shorthand for hostility to African Americans. Localities have also enacted ordinances aimed at limiting rights of lesbians and gays and of immigrants. In short, multi-faceted federalism counsels against assuming that either "the national" or "the local" has an intrinsically rosy glow.

       In parallel fashion, while CEDAW has been discussed as a powerful example of the possibilities of transnationalism to improve gender relations, neither transnational lawmaking nor globalism is necessarily an engine of equality. Indeed, some current expressions of globalization do significant harm to women. An oft-cited example is that offshore manufacturing is made attractive by the unending supply of impoverished female workforces, seeking to survive through a range of underpaid jobs.[263] I claim no essence for globalization but only its existence, in that physical distances which had previously precluded certain forms of interactions no longer serve that function. What globalization -- under current market and political conditions -- has done is promote interest in forms of governance that regulate transactions outside and beyond the nation-state. That interest, in turn, has generated new opportunities for women to advance equality claims. Equality is not a necessary outcome of federating, but with the formulations of new structures come opportunities for alternative allocation of power. Gaps in governance are spaces in which all power-seekers, be they entrenched or newly fabricated, try to gain toeholds. And in this era, women's rights and human rights advocates have prompted governance institutions to make statements of commitment to equal treatment.[264]

       That women have windows of opportunity to participate in generating laws does not necessarily result in laws good for all women. Serious questions, constant within feminism, remain about how to shape such equality demands and about which women will benefit.[265] The category "women" -- like the others discussed herein -- is neither unitary nor necessarily permanent. Indeed, proponents of many forms of affirmative action deploy categories of identity in the hope of their future incoherence. Further, provisions that may benefit one group of women may not serve others of differing classes and races. The debates about the enactment of VAWA addressed such concerns.[266] Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary.[267]

       Moreover, words about equality committed to paper in transnational documents such as CEDAW do not necessarily translate into conditions of equality in the lives of women and men.[268] For example, some of the 165 countries that have ratified CEDAW have conditions oppressive to women more detrimental than those in the United States, a country that has not ratified CEDAW. Further, even when countries ratified CEDAW, they did so with unusually high numbers of reservations.[269] In addition, CEDAW has limited means of implementation.[270] CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized.[271] Similarly, I make no claim that international organizations are particularly receptive to women's rights; indeed, some are notoriously poor places for women to work.[272] Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them.[273]

        Rather, globalism offers a contested political space, an interesting, additional place of potential power, of shifting categories and of new organizations. Proponents of women's rights have had the occasion to work in that venue and have been able to bring attention to injuries and their sources that heretofore were not of great interest to international institutions. A contemporary account can properly point to the correlation between expressions of human rights and certain transnational efforts made possible by historically specific conditions but ought not to lapse into essentializing any level of governance as intrinsically a source of equality norms.

       Moving toward a multi-faceted approach thus requires a willingness to face such complexities. The nation-state has been the means of governance for some three centuries, and for each harm that form of government has generated, a benefit can also be detailed. The perceived desirability of shifts that diminish the import of the nation as the key unit of governance depends in part on empirical assessments resting inevitably on debatable databases and a host of unknowns. If the nation no longer serves as a unit of accountability, if (for example) within the United States the "one voice" doctrine of international law relaxes, will a larger role for regions and localities do harm to the political stability of the United States and whatever human rights agendas it espouses? Might categorical federalism be a better route to import evolving equality norms into United States jurisprudence, based on an understanding that international law is itself a part of national law and therefore could preempt divergent state practices?[274] Are international human rights obligations assigned at the national level at risk if localities gain prominence and the reliance on national borders diminishes?

       These questions are not, of course, novel or unique to the United States. Every federation is an ongoing experiment in how to maintain accountability and distinctive agendas concurrent with the reduction of the saliency of borders.[275] While at one time, physical power and physical space provided at least temporizing answers that made plausible that unity of power (democratic or not), those boundaries no longer have the capacity to contain.[276]

        The argument is not that place is irrelevant. The local is very much present in each person's life, manifested by the persons with whom one forms families and communities, by the weather systems that shape daily routines, and by the regions that are proximate and offer either friendship or hostility. But the boundaries of a given nation no longer control markets and can no longer promise physical security. In a parallel fashion, the family unit (predicated on very undemocratic power) once controlled goods, services, and people. The revolt against patriarchal families also ruptures the ability to confine familiar relationships to only certain kinds of pairings and offspring. The litigation about the civil remedy in VAWA raised an enduring problem of United States constitutional law about how to divide the power of judgment between courts and legislatures and, to a lesser extent, between states and Congress. The majority sought to answer by turning back to old images of state boundaries and to worn equations of jurisdiction and gender. The assumptions that located certain forms of action in the nation and other forms of action in local institutions have been overtaken by the permeability of institutions, both large scale political and small scale familial. Therefore, a retreat to those categories becomes a willed but unsuccessful effort to buffer oneself and one's country from the transformations with which one has to live.

       One cannot essentialize particular forms of federated governance as guarantees of certain outcomes or particular kinds of family relationships as generative of human growth. In the end, neither categorical nor multi-faceted federalism provides solutions to the problem of democratic organization and accountability. These are but the forms that may, depending on the content and meaning humans import to them, serve such ends.

A. For a full set of citations please see Judith Resnik's original article in The Yale Law Journal.
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+ Arthur Liman Professor of Law, Yale Law School. My thanks to Dennis Curtis, Barbara Atwood, Kathy Baker, Naomi Cahn, Mary Clark, Gene Coakley, Anne Dailey, Grainne de Burca, Rosa Ehrenreich, Julie Goldscheid, Margaret Groban, Marty Guggenheim, Carolyn Heilbrun, Vicki Jackson, Linda Kerber, Lisa Kloppenberg, Harold Koh, Sylvia Law, David Nachman, Jim Pope, Robert Post, Catherine Powell, Frances Raday, Tanina Rostain, Reva Siegel, Angela Ward, Merle Weiner, Robert Wintemute, and Diane Zimmerman; to Cecily Baskir, Eric Biber, Elizabeth Brundige, Josh Civin, Laura Fernandez, Joe Landau, Deborah Martinez, Tracey Parr, Sarah Russell, and Julie Suk; and to participants in the CUNY Graduate School Conference on Women and Constitutions, in the AALS session, Transcending Boundaries, and in the Yale Faculty Workshop, with whom I have learned a great deal.
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