Federalism and families.

AuthorDailey, Anne C.

Table of Contents


  1. The Localist Strand in Constitutional Federalism

    1. Localism Under Dual Federalism

    2. The Paradigm of Procedural Federalism: Process and

      Institutional Models

    3. The Reemergence of Substantive Federalism: United

      States v. Lopez

    4. Localism and Family Law II. Families and the Development of Civic Character

    5. Families in Liberal Theory

    6. Liberal Citizenship and Civic Character

    7. Civic Character and Parental Authority

      1. The Relational View of the Situated Self

      2. The Communal View of the Situated Self III. A Localist Theory of Family Law

    8. The Communitarian Nature of Family Law

    9. State Sovereignty over Family Law

      1. Strengthening Communitarian Decision-making

      2. Fostering Diversity

    10. The Role of the Federal Government

      1. Setting Constitutional Limits

      2. Reinforcing State Authority Conclusion


      Until most recently, the principle of federalism and the law of domestic relations appeared to be following the same well-worn path in the direction of an all-embracing nationalism. In both fields, the traditional virtues of state sovereignty had been displaced, if not banished altogether, by an increasingly powerful ideal of national supremacy. Over the last century, federalism had evolved from being a structural constraint on the powers of the federal government to a pragmatic accommodation of the interdependent relationship between the national and state governments. And as the chains of state sovereignty fell away, family law had emerged in recent years as an important arena of national interest, increasingly governed by national legislation(1) and increasingly presided over by federal courts. Indeed, prior to the current Supreme Court term, one might easily have concluded that we were witnessing the inevitable surrender of perhaps the last remaining substantive legal area within the states' exclusive control.

      In its recent decision in United States v. Lopez,(2) however, a majority of the Supreme Court defied conventional wisdom by reestablishing substantive limits on federal lawmaking authority. In an opinion by Chief Justice Rehnquist, the Court struck down the Gun-Free School Zones Act of 1990,(3) a federal statute prohibiting the possession of firearms on or near school property.(4) Displaying a dramatic shift in its approach to constitutional federalism, the Court set limits on congressional authority under the Commerce Clause for the first time in almost sixty years. More importantly, the Court did so on the ground that the sphere of private noncommercial activity falls outside the scope of Congress's enumerated powers. No Supreme Court decision since 1936 has attempted to revive the principle of federalism by staking out a substantive realm of purely local concern belonging to the states. Even the Supreme Court's most notorious (and short-lived) stand in support of federalism--National League of Cities v. Usery(5)--was premised on a respect for the institutional autonomy of state processes and structure rather than on a concern for safeguarding a sphere of substantive state authority.

      Lopez did not directly concern federal legislation on the family, yet the case provided the opportunity for an otherwise deeply divided Court to unite around the principle that family law constitutes a clearly defined realm of exclusive state regulatory authority. Both the majority and the dissent invoked the regulation of "marriage, divorce, and child custody" as a paradigmatic example of lawmaking power beyond the constitutional competence of the federal government.(6) Although the majority rested its analysis on an untenable distinction between commercial and noncommercial activities, and the dissent rested on no evident rationale at all, the opinions in Lopez laudably draw our attention to the importance of family law within the constitutional ideal of federalism.

      This Article defends state sovereignty over family law(7) on grounds very different from those briefly noted in Lopez. States enjoy exclusive authority over family law, not because families are in some sense noncommercial, as the Lopez majority suggested,(8) but instead because of the fundamental role of localism in the federal design. The theory of localism presented here rests on the view that the law of domestic relations necessarily promotes a shared moral vision of the good family life. Although in law, as elsewhere, we are accustomed to thinking of the family as a private realm free from governmental influence and control, the domestic sphere is deeply patterned by state laws regulating the formation, maintenance, dissolution, and boundaries of family life. Legal regulation of the family forms domestic roles, directs intimate relationships, and consequently shapes human identity in profoundly normative ways. Legal decision-makers confront fundamental questions concerning the meaning of parenthood, the best custodial placements for children, the rights and obligations of marriage, the financial terms of divorce, and the standards governing foster care and adoption. In answering such questions, state legislatures and courts draw upon community values and norms on the meaning of the good life for families and children.

      This Article argues that the normative character of family law is closely tied to a communitarian model of state authority under the federal Constitution. Part I traces the roots of this communitarian ideal in early Supreme Court decisions recognizing exclusive state authority over matters of "local" concern. Although the localist conception all but disappeared from constitutional law by the time of the New Deal--in no small part because of its association with proslavery sentiments--its continuing absence from the contemporary debate over constitutional federalism raises serious concerns regarding the future role of the states in the federal design. As Part I explains, the prevailing procedural model of federalism extends protection to--at most--the institutional processes and structure of state governments; the procedural model establishes no safeguards against the threat of unlimited national regulatory power. Although the recent decision in United States v. Lopez attempts to set substantive limits on national authority, the Supreme Court relied on an untenable distinction between commercial and noncommercial activities that missed altogether the vital connection between localism and the substantive domains of education and family law. Part I concludes with an historical review of the localist philosophy underlying the Supreme Court's traditional deference to state sovereignty over family law.

      Part II of this Article provides the theoretical foundation for the localist theory of family law by examining the relationship between government and families in liberal society. This Part seeks to dispel the prevailing myth of family privacy and to elaborate the family's essential role in raising good citizens. Traditionally, liberal theorists have assumed the existence of adult citizens possessing the psychological and moral autonomy--what I refer to as "situated autonomy"--necessary for full participation in the political life of the liberal state.(9) This assumption ignores, however, that families provide the human environment within which the infant acquires a distinct sense of self and the dependent child acquires a sense of mastery over the moral direction of his or her own life. Laws regulating family life have less to do with respecting the moral autonomy of mature individuals than with fostering the growth of responsible, independent citizens. What distinguishes family law as a distinctly communitarian subject matter is its concern for the development of children in liberal society.

      Part III explains why national authority over family law raises a serious threat of governmental tyranny over the moral identities of developing citizens. To begin with, a politics of the good family life entails a degree of civic engagement and a sense of shared community identity unattainable at the national level.(10) Although family law does not require the moral homogeneity characteristic of strong communitarian cultures, it does demand a political discourse built upon the normative commitments of a specific historical community. States are far from exemplifying the participatory ideals of classical Greece or colonial New England, yet they are far better situated than the national government to develop and sustain a normative political discourse on family life. Moreover, regulatory diversity among the fifty states preserves some measure of individual and family choice in matters touching upon the formative conditions of human identity. National regulation on the family destroys the opportunity for citizens to exercise choice through exit, that is by moving to a different jurisdiction more accommodating to citizens' particular preferences. Federalism thus utilizes diversity as a crucial structural safeguard against the threat to individual moral freedom posed by uniform national laws on the family.

      The localist theory of family law speaks to national tyranny, but what safeguards exist against the threat of local oppression? Part III emphasizes that state sovereignty over the core domain of family law does not diminish the federal government's role in protecting individual rights against the tyranny of local regulation. Communitarian lawmaking in an area so constitutive of human identity and essential to liberal citizenship raises obvious concerns about the oppressive effects that such laws may have on particular dissenting individuals. In addition to enforcing the fundamental rights to equality, individual privacy, and parental authority, the national government bears the responsibility for ensuring the right of citizens to exit state communities, for settling jurisdictional disputes among states over family matters, and for reinforcing state authority through the allocation of national resources.

      The localist...

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