Federalism and the Family Reconstructed

University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1998 Federalism and the Family Reconstructed Jill Elaine Hasday Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Jill Elaine Hasday, "Federalism and the Family Reconstructed," 45 UCLA Law Review 1297 (1998). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. FEDERALISM AND THE FAMILY RECONSTRUCTED Jill Elaine Hasday INTRODUCTION ...................................................................................................... 1297 I. ARGUING FROM HISTORY FOR LOCALISM ....................................................... 1301 A. History Marks Family Law as the Lodestar of Localism ........................... 1302 B. The Unexplained Elevation of History ................................................... 1306 C. The Definition of Family Law in Localism .............................................. 1310 II. THE CONSENSUS ON FEDERAL JURISDICTION AT RECONSTRUCTION .................................................................................... 1319 A . Reconstruction as Crux ........................................................................... 1319 B. Antebellum Context: Race and Family Law Intertwined ....................... 1324 1. The Antebellum Proslavery Discourse on the Family ...................... 1325 2. Abolitionists on the Family Law of Slavery ..................................... 1329 C. The Reconstruction Debates .................................................................. 1335 1. The Centrality of Family Law for Reconstruction's Architects ....................................................... 1338 2. The Consensus on Federal Jurisdiction over Family Law ................ 1343 3. Status Relations and the Case for Localism at Reconstruction ......................................... 1350 4. Outcom e .......................................................................................... 1353 D. Congress's Anti-Polygamy Campaign and the Postwar Anti-Miscegenation Litigation ............................................ 1357 1. Anti-Polygamy and Federal Family Law .......................................... 1357 2. Federalism in the Anti-Miscegenation Litigation ........................... 1365 III. A NEW PERSPECTIVE ON MODERN FEDERAL FAMILY LAW ............................. 1370 A. The Relevant Definition of Family Law .................................................. 1371 B. M odem Federal Fam ily Law .................................................................... 1373 IV. THE PLACE OF HISTORY IN FEDERALISM ......................................................... 1386 INTRODUCTION The family serves as the quintessential symbol of localism. Through- out the debate on federalism, family law emerges as the one clear case in which federal involvement is inappropriate, an uncontested core rendered * Law Clerk to Judge Patricia M. Wald, U.S. Court of Appeals for the D.C. Circuit. Assistant Professor, University of Chicago Law School (starting July 1998). B.A. 1994, J.D. 1997, Yale University. I am extremely grateful to Reva Siegel for the guidance and encourage- ment she has given me in pursuing this project. I would also like to thank Bruce Ackerman, Akhil Amar, Lawrence Lessig, Jerry Mashaw, Martha Minow, and Judith Resnik. 1297 HeinOnline -- 45 UCLA L. Rev. 1297 1997-1998 1298 45 UCLA LAW REVIEW 1297 (1998) special precisely because almost everything else has been nationalized and the limits on federal power elsewhere are so murky. In United States v. Lopez,' for instance, the Supreme Court could agree on little else except that Congress's commerce power does not reach "family law (including marriage, divorce, and child custody);"2 in fact, the majority opinion repeated this proposition no less than four times.' Yet courts and com- mentators, whether in Lopez or elsewhere, do not explain the singular status of family law primarily in terms of public policy or institutional design. Rather, they argue that regulation of the family has been wholly local throughout American history and contend that this tradition conclusively demonstrates the intrinsic nature of "family law," a category that they leave highly ambiguous but expansive in scope. Indeed, Chief Justice Rehnquist has claimed that it is actually inappropriate to rely on reasoned analysis when determining family law's place in the federal system, arguing for exclusive localism in family law on the ground that "[i]f ever there were an area in which federal courts should heed the admonition of Justice Holmes that 'a page of history is worth a volume of logic,' it is in the area of domestic relations."4 This Article challenges both the existence of an exclusively local tradition in family law and the uncritical use of historical claims in federalism discourse. This Article does not advocate the nationalization of all of family law. Instead, it analyzes the positive and normative structure of the argument for exclusive localism, which contends that family law has always been under exclusively local jurisdiction and that history should control the family's present and future position in the federal system. It finds that exclusive localism in family law simply misdescribes American history and concludes that family law's actual historical record gives no weight to the claim that tradition should count as a reason for exclusive federal nonin- volvement. This is not a judgment about the ultimate wisdom of federal regulation of the family; it is a conclusion that the ground on which the argument for exclusive localism in family law now stands is entirely inade- quate. If a cogent case can be made for why family law should be uniquely impervious to federal involvement, it requires a better understanding of what "family law" is and why exclusive localism is appropriate, one that is 1. 514 U.S. 549 (1995) (holding that Gun-Free School Zones Act of 1990 exceeded Con- gress's authority under Commerce Clause). 2. Id. at 564; see also id.at 624 (Breyer, J., dissenting). 3. See infra note 11. 4. Santosky v. Kramer, 455 U.S. 745, 770 (1982) (Rehnquist, J., dissenting) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)). HeinOnline -- 45 UCLA L. Rev. 1298 1997-1998 Federalism and the Family Reconstructed 1299 consistent with actual past practice and contemporary constitutional norms. Even if one accepts the historical paradigm currently shaping federalism discourse about family law, claims for exclusive localism do not survive their own standard. The positive aspect of the localist argument from tradition could be analyzed from many different historical vantage points; after all, actually establishing the proposition that family law has been exclusively local throughout American history would require a complete survey of our nation's past. But for several reasons, close scrutiny of Recon- struction is particularly appropriate and my focus here. During Recon- struction, the jurisdictional lines between state and nation began to take their modern shape. Indeed, several historians have described Recon- struction as one of the defining moments in which family law remained under exclusively local control even as the federal government increasingly entered other areas of life.5 These accounts, however, have missed a crucial aspect of Reconstruction. Rather than supporting claims for the exclusive localism of family law, Reconstruction was actually the culmination of a sustained national debate about the federal government's ability to inter- vene in family law, as both present-day and nineteenth-century Americans would understand that term. In the nineteenth century, many Americans defined slavery as a domestic relation and believed that the dispute over federal intervention into slavery importantly turned on whether the federal government could regulate family law. By abolishing slavery, the federal government answered that question and fundamentally altered one of the most significant domestic relations of the time. Yet one need not adopt the popular nineteenth-century view that slavery is itself a domestic relation in order to understand that federal Reconstruction massively inter- vened into family law. The legal disabilities that constituted slavery in America involved profound restrictions on family formation, as we would understand that term today. Slaves had no right to marry and no right to parent their chil- dren; slave families could be separated at their masters' will. And Recon- struction saw a broad consensus that the federal government could exercise jurisdiction over this sort of family law, one extending from Recon- struction's supporters to a strong majority of its critics. Reconstruction's advocates placed protecting family rights at the core of their project. The far-reaching agreement that the federal government could involve itself in family law was evident in the congressional debates over the 1866 Civil Rights Act and the Fourteenth Amendment, Congress's wildly popular 5. See infra note 142. HeinOnline -- 45 UCLA L. Rev. 1299 1997-1998 1300 45 UCLA LAW REVIEW 1297 (1998) campaign against polygamy, and even in judicial opinions evaluating pro- hibitions on interracial marriage in light of Reconstruction. Indeed, the only significant

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