Categorical Federalism: Jurisdiction, Gender, and the Globe

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"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. …