Friday, 30 November 2001
111 Yale L.J. 619 (2001)
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, 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. 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.
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. A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources to managing transportation systems to administering economic programs. 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.
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, 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. 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. Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords? 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.
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. Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers, 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. 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. In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so. Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised. 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? 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. 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.
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. 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. 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.
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. 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. Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary.
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. 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. In addition, CEDAW has limited means of implementation. CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized. 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. Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them.
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? 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. 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.
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.