Categorical Federalism: Jurisdiction, Gender, and the Globe

Abstract

"The Constitution requires a distinction between what is truly national and what is truly local." 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.