Categorical federalism: jurisdiction, gender, and the globe.

• Author: Resnik, Judith
• Position: Federalization of family law

1. PLACING POWER

   "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 "[w]hat 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 multifaceted federalism remembers that any assignment of dominion can be transitory. One level of government...