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Friday, August 29, 2008

Why don't feminists like federalism?

I might be mistaken, but my impression from the work of Reva Siegel (on the 19th Amendment), Anne Dailey, Jill Hasday, Kristi Collins (on the domestic relations exception to Article III diversity jurisdiction), and others, is that scholars sympathetic to feminism do not like judicially enforced federalism very much. In particular, it is sometimes claimed that relegating family law to the states is like treating family relations as a private matter beyond governmental control law as a private matter -- in effect, licensing private patriarchy. (See, for instance, Reva Siegel, She the People, 115 Harv. L. Rev. 947, 1000-1001 (2002)).

Feminist dislike of federalism seems odd to me for two reasons. First, women have done pretty well by the states. It was, after all, entrepreneurial western states that first enfranchised women in the late 19th century as a way to entice them westwards: Tiebout-style competition for mobile citizens seems, at least in this case, to have benefited women. And women fare well in voice as well as exit at the state level: The National Conference of State Legislators that women hold roughly 22% of state legislative seats, a number that has steadily risen over the last forty years. By contrast, there only 16 women in the Senate and 78 women in the House (roughly 16-17%).

So why the skepticism about states and the general complacency about broad national powers? True, some states can be nastily patriarchical -- but so can the feds: Males dominate both institutions, after all. The difference is my second reason for why feminists ought to like federalism: States provide far cheaper and more abundant access to elected office than Congress. The cost of running for state legislative office outside of California in the mid-1980s generally ran under $50,000, according to Thad Beyle's 1993 report for the Congressional Quarterly -- far lower than the cost of running for the U.S. House of Representatives, I'm guessing. If one assumes that women have less access to money and power than men, then why would want to allocate more power to an institution -- Congress -- that is likely to be costlier to access?

Of course, I could be wrong on my assessment of feminist scholarship: There might be lots of decentralizing feminists out there that I have overlooked. (And I'd be obliged to anyone who points them out to me). But, assuming my initial cursory survey is correct, I am curious why feminists are not more fond of an institution that, more or less, has done well by women.

Posted by Rick Hills on August 29, 2008 at 12:06 PM in Constitutional thoughts | Permalink


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If you look back a generation, the women's movement that spawned modern feminism was closely allied with a civil rights movement that saw federalization through the courts as a major (and maybe *the*major) way to advance their policies. At the time, the bad guys wanted states' rights and the traditional family; the good guys wanted constitutional solutions imposed by the federal courts that could challenge those traditional hierarchies. The goal was using the courts as an engine for progressive social change, and federalism was a barrier to that goal. A generation later, those allegiances have stuck around.

That's my sense, at least.

Posted by: Orin KErr | Aug 30, 2008 3:26:04 PM

Thanks for all of these very helpful and thoughtful comments. Two responsive thoughts:

(1) On Orin's remark: My question to Orin is -- Which page of history suggests that feminists ought to love the feds? Do you have some specific history in mind, in which the feds have been especially more beneficial to women than the states?

(2) On the idea of national recognition of rights mentioned by Jennifer Hendricks and Marcia: Of course, the best result for any advocate of social justice is always uniform, national recognition of one's own preferred version of social justice. But the worst result is nationally ensconcing a rule that contradicts one's preferred sense of social justice. So the question arises: Should feminists press for broad federal power to enact, say, criminal and family law in hopes that the feds will "get it right" (whatever "right" means in this context)? Or should feminists be risk-averse and limit federal law-making power on the theory that a uniform federal law that contradicted the preferred theory of feminism would be a disaster?

A concrete example might help here. Take, for instance, "no drop"/automatic arrest policies for domestic violence. My guess is that feminists have generally pressed for nationalization of such policies. But there is non-trivial evidence that such policies have significant costs for women. They may, for instance, deter many women from calling the cops because the victims of violence do not want their partner/spouse to be arrested and excluded from the household by a restraining order. (Jeannie Suk has gathered some information about victims' ambivalent attitudes towards automatic arrest policies in "Criminal law Comes Home," 116 Yale L.J. 2 (2006), and Radha Iyengar has produced evidence that such policies seem to reduce willingness of women to call the police for help).

What is the Feminist attitude towards national laws imposing such policies? Risk-averse desire to preserve state options to experiment on difficult social issues? Or gung-ho desire to impose a uniform national rule, confident that the feds will impose the right rule and enforce it in the right way? Again, I am only guessing, but none of the responsive comments -- not even Kirsten's -- contradicts my vague impression that feminists go for the latter position, not the former.

This willingness to seek national legislation seems odd to me, especially because the legislators, judges, and prosecutors employed by the feds do not seem especially sympathetic to feminism. There is, after all, a non-trivial chance that the national baseline of federal rights might turn out to be anti-feminist -- that the rights might actually harm the cause that feminists seek to advance.

Of course, my sense that federal law can injure feminist causes might spring from my being (like most federalism fans) a timid and risk-averse person where law-making is concerned. I was just wondering if there are any feminists out there who share my pessimism.

Posted by: Rick Hills | Aug 29, 2008 3:59:25 PM

Well, I'm a feminist (and a leftist), and I am mildly pro-states on questions of federalism. Still, I agree with Marcia's comments.

I would add, first, that if your political agenda requires an affirmative response from the government, you get it where you can, so want to preserve the power of both levels of government to act. At least so far, the tendency has been to allow states to go farther than the federal floor. (See, eg., CalFed v. Guerra, rejecting argument that federal PDA preempted state's maternity leave statute.)

Second, when your agenda is full inclusion as part of the national citizenry, you want a national solution. The 19th Amendment is not the ERA. A statute like the civil rights remedy of the Violence Against Women Act was important for its recognition that the problem _was_ about civil rights. US v. Morrison, the decision striking it down, was a perfect illustration of the feminist critique of the deployment of federalism. [shameless self-promotion: I wrote about the VAWA, predicting US v. Morrison and trying to offer a more robust defense on civil rights grounds, in "Women and the Promise of Equal Citizenship," 8 Tex. J. Women & Law 51.]

Third, along similar lines, you could make all kinds of arguments about why family law cases are better suited to local courts. Many of those arguments would be based on differences in how local versus federal courts currently operate, which is of course a function of their current jurisdiction. And, in my view, none of them adequately explains how family law developed its super-local aura better than the explanation that it was both too private and too unimportant to consume the time of federal judges.

Posted by: Jennifer Hendricks | Aug 29, 2008 2:51:58 PM

"Think about the fact that the states stood more for racial subordination and bigotry from the Civil War through at least the Civil Rights Movement."

The SOUTHERN states. Northern states often had much more progressive racial policies than did the federal government. E.g., Massachusetts abolished de jure segregation in the 1850s. DC still had it until court order in 1954.

Posted by: SBY | Aug 29, 2008 2:12:08 PM

Speaking only very impressionistically, I would be surprised if feminist scholarship is significantly more or less anti-federalism than other scholarship that is generated under similar conditions. More generally, it seems that we go through long historical waves in the political valence that is attached to questions about more state autonomy versus a more centralized federal government, and that these shifts are often a perfectly reasonable response to changing circumstances. (Of course the valence may vary issue by issue, and there may be periods of lag.)

Think about the fact that the states stood more for racial subordination and bigotry from the Civil War through at least the Civil Rights Movement, but that at some earlier periods “states rights” was derided by slavery states and promoted by some non-slave states because it was used to support refusals to return fugitive slaves. (I believe this history is discussed by H. Robert Baker.)

Even on female enfranchisement, I believe there is no consensus as to whether state-by-state action was an inferior strategy at all moments. Sometimes, it is argued (analogous to an argument that is made about enactment of the 17th amendment) that the success of women’s suffrage in some states created leverage action in the Congress that enabled national action to occur earlier than might have been possible without some of the early state-by-state efforts--because some important members of Congress who supported the 19th amendment had constituencies that already included enfranchised women (as well as men who had learned not to fear women’s suffrage). On this argument, state-by-state action was preferable at an earlier period, and then--once some tipping point was passed--it became very inefficient. So while I haven’t done the research on this to have my own opinion, it does strike me that these questions about whether federalism is good for women are empirically contingent (and again my impression is that feminist scholarship reflects its context to a similar degree as other scholarship).

Also, for suggestive purposes only, I would mention women’s suffrage in New Jersey from 1776-1807 (which I have studied some). Only this one state at the Founding allowed women who met the property qualification to vote. (Elsewhere some localities allowed some women to vote.) One of the arguments used to end women’s suffrage in 1807 was that New Jersey should not be an outlier, that is, that it should not be the one state that kept the nation from having a uniform policy on women’s suffrage!

Posted by: Kirsten | Aug 29, 2008 1:55:20 PM

Because they are not just feminists, they're leftists? How many leftists do you know that like federalism? If there is federalism, one side won't win every time, and leftists are all about making sure that their own views prevail, everywhere, every time. It's part of the perfectionist messianism of leftism. Would you rather have a political system where you win some, lose some, or have a winner take all system. Obviously the latter, because otherwise you are "tolerating injustice."

Posted by: SBY | Aug 29, 2008 1:03:58 PM

I can't speak for all feminists or scholars sympathetic to feminism, but I'm not sure the question is framed in a way that's going to lead to an intelligible answer. The question conflates political participation with substantive gender protections, assuming that they are the same thing or that one is a proxy for another, perhaps.

Women may choose to focus on the national level for substantive protections for a number of reasons. There's an expressive value in something being a federal law, particularly a matter of federal constitutional law. Federal protection adds an air that this matter is one of our core values--that's what I believe Reva Siegel is referring to by her public/private analogy. Federal law also has a much broader sweep, covering the whole country, rather than a single state. And the history of pieces of the women's movement demonstrates that is where we've achieved success. The fight for suffrage was progressing extremely slowly when the strategy was state-by-state. The vote was won more quickly, in the end, when the focus was on gaining a federal constitutional amendment. And several serious victories have been won in the Supreme Court or Congress, rather than in all 50 states. In the end, these protections may not be as robust as they would have been if they had been instituted from the bottom up instead, but the federal victories are the symbols that we continue to come back to.

As for the political participation question, there is some research that shows women's political participation in legislatures in the aggregate affects the subjects of what laws are introduced and passed and changes the debates. Women are a very heterogeneous group, however, and do not all identify as feminist. Moreover, some men do identify as feminist. Thus, female participation may not be necessary to achieving at least some feminist goals, nor sufficient.

Finally, simply because some feminists may prefer a focus on the national level, does not mean that the states are ignored. If there was some sort of feminist push for preemption, I would agree with the basic premise that feminists are anti-federalism. But there's nothing inconsistent with federalism to have the federal government set the floor of a minimum level of protection and allow state and local governments room to experiment with greater protections.

Posted by: Marcia | Aug 29, 2008 12:59:50 PM

A page of history is worth a volume of logic.

Posted by: Orin Kerr | Aug 29, 2008 12:29:56 PM

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