Federalism and Families

University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 143 JUNE 1995 No. 6 ARTICLES FEDERALISM AND FAMILIES ANNE C. DAILEYt TABLE OF CONTENTS INTRODUCTION ................................. 1788 I. THE LOCALIST STRAND IN CONSTITUTIONAL FEDERALISM 1794 A. Localism Under Dual Federalism ................. 1796 B. The Paradigm of Procedural Federalism: Process and InstitutionalModels .......................... 1805 C. The Reemergence of Substantive Federalism: United States v. Lopez ............................ 1816 D. Localism and Family Law ...................... 1821 II. FAMILIES AND THE DEVELOPMENT OF CIVIC CHARACTER . 1825 A. Families in Liberal Theory .................... 1826 t Associate Professor, University of Connecticut School of Law. B.A. 1983, Yale College;J.D. 1987, Harvard Law School. I would like to thank Matthew Adler, Steven Ecker, Richard Kay, Stephen Morse,Jeremy Paul,Judith Resnik, Tanina Rostain, Vicki Schultz, Nomi Stolzenberg, Kathleen A. Sullivan, and participants at the University of Pennsylvania Legal Studies Workshop for their helpful comments and criticisms. Heather Stuart and Marc Ubaldi provided valuable research assistance. (1787) 1788 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143: 1787 B. Liberal Citizenship and Civic Character ............ 1835 C. Civic Characterand ParentalAuthority ............ 1850 1. The Relational View of the Situated Self ....... 1851 2. The Communal View of the Situated Self ..... 1856 III. A LOCALIST THEORY OF FAMILY LAW .............. 1860 A. The CommunitarianNature of Family Law .......... 1861 B. State Sovereignty over Family Law ................. 1871 1. Strengthening Communitarian Decision-Making 1872 2. Fostering Diversity ...................... 1877 C. The Role of the Federal Government ............... 1880 1. Setting Constitutional Limits ................ 1881 2. Reinforcing State Authority ................. 1885 CONCLUSION ................................... 1887 INTRODUCTION Until most recently, the principle of federalism and the law of domestic relations appeared to be following the same well-worn path in the direction of an all-embracing nationalism. In both fields, the traditional virtues of state sovereignty had been dis- placed, if not banished altogether, by an increasingly powerful ideal of national supremacy. Over the last century, federalism had evolved from being a structural constraint on the powers of the federal government to a pragmatic accommodation of the interde- pendent relationship between the national and state governments. And as the chains of state sovereignty fell away, family law had emerged in recent years as an important arena of national interest, increasingly governed by national legislation' and increasingly ' See, e.g., Parental Kidnapping Prevention Act of 1980,28 U.S.C. § 1738A (1988) (extending full faith and credit standard to child custody determinations); Child Support Enforcement Act, 42 U.S.C. §§ 651-669 (1988 & Supp. V 1993) (establishing national program to aid states in developing and implementing child support enforcement policies and procedures); Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106h (1988 & Supp. V 1993) (establishing comprehensive federal program directed toward the prevention and treatment of child abuse and neglect); Family Violence Prevention and Services Act, 42 U.S.C. §§ 10401-10415 (1988 & Supp. V 1993) (providing federal funding to states to address the problem of family violence); Safe Homes for Women Act of 1994, Pub. L. No. 103-322, § 40221, 108 Stat. 1796, 1926-31 (to be codified at 18 U.S.C. §§ 2261-2266) (making domestic abuse a federal crime when the perpetrator crosses state lines); Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, § 553, 108 Stat. 3518, 4056-57 (to be codified at 42 U.S.C. § 5115a) (prohibiting state agencies from denying foster or adoptive placements solely on the basis of race). FEDERALISM AND FAMILIES 1789 presided over by federal courts. Indeed, prior to the current Supreme Court term, one might easily have concluded that we were witnessing the inevitable surrender of perhaps the last remaining substantive legal area within the states' exclusive control. In its recent decision in United States v. Lopez,2 however, a majority of the Supreme Court defied conventional wisdom by reestablishing substantive limits on federal lawmaking authority. In an opinion by Chief Justice Rehnquist, the Court struck down the Gun-Free School Zones Act of 1990,' a federal statute prohibiting the possession of firearms on or near school property.' Displaying a dramatic shift in its approach to constitutional federalism, the Court set limits on congressional authority under the Commerce Clause for the first time in almost sixty years. More importantly, the Court did so on the ground that the sphere of private noncommercial activity falls outside the scope of Congress's enumerated powers. No Supreme Court decision since 1936 has attempted to revive the principle of federalism by staking out a substantive realm of purely local concern belonging to the states. Even the Supreme Court's most notorious (and short-lived) stand in support of federalism-National League of Cities v. Useiy-was premised on a respect for the institutional autonomy of state processes and structure rather than on a concern for safeguarding a sphere of substantive state authority. Lopez did not directly concern federal legislation on the family, yet the case provided the opportunity for an otherwise deeply divided Court to unite around the principle that family law constitutes a clearly defined realm of exclusive state regulatory authority. Both the majority and the dissent invoked the regulation of "marriage, divorce, and child custody" as a paradigmatic example of lawmaking power beyond the constitutional competence of the federal government.6 Although the majority rested its analysis on an untenable distinction between commercial and noncommercial activities, and the dissent rested on no evident rationale at all, the opinions in Lopez laudably draw our attention to the importance of family law within the constitutional ideal of federalism. 2 115 S. Ct. 1624 (1995). - 18 U.S.C. § 922(q)(1)(A) (Supp. V 1993). 4 See Lopez, 115 S. Ct. at 1630-31. 5 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 6 Lopez, 115 S. Ct. at 1632; id. at 1661 (Breyer, J., dissenting). 1790 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143: 1787 This Article defends state sovereignty over family law7 on grounds very different from those briefly noted in Lopez. States enjoy exclusive authority over family law, not because families are in some sense noncommercial, as the Lopez majority suggested,' but instead because of the fundamental role of localism in the federal design. The theory of localism presented here rests on the view that the law of domestic relations necessarily promotes a shared moral vision of the good family life. Although in law, as elsewhere, we are accustomed to thinking of the family as a private realm free from governmental influence and control, the domestic sphere is deeply patterned by state laws regulating the formation, maintenance, dissolution, and boundaries of family life. Legal regulation of the family forms domestic roles, directs intimate relationships, and consequently shapes human identity in profoundly normative ways. Legal decision-makers confront fundamental questions concerning the meaning of parenthood, the best custodial placements for children, the rights and obligations of marriage, the financial terms of divorce, and the standards governing foster care and adoption. In answering such questions, state legislatures and courts draw upon community values and norms on the meaning of the good life for families and children. This Article argues that the normative character of family law is closely tied to a communitarian model of state authority under the federal Constitution. Part I traces the roots of this communitarian ideal in early Supreme Court decisions recognizing exclusive state authority over matters of "local" concern. Although the localist conception all but disappeared from constitutional law by the time of the New Deal-in no small part because of its association with proslavery sentiments-its continuing absence from the contempo- rary debate over constitutional federalism raises serious concerns regarding the future role of the states in the federal design. As Part I explains, the prevailing procedural model of federalism extends protection to-at most-the institutional processes and structure of state governments; the procedural model establishes no safeguards against the threat of unlimited national regulatory power. Although ' I use the term "sovereignty" advisedly in light of Professor Rapaczynski's persuasive argument that the word should be abandoned in the context of American federalism. See Andrzej Rapaczynski, From Sovereignty to Process: TheJurisprudenceof Federalism After Garcia, 1985 SUP. CT. REV. 341, 346. My choice to retain the traditional terminology reflects my belief that the states retain exclusive regulatory control over a core domain of family law. "See Lopez, 115 S. Ct. at 1630-31. 1995] FEDERALISM AND FAMILIES 1791 the recent decision in United States v. Lopez attempts to set substantive limits on national authority, the Supreme Court relied on an untenable distinction between commercial and noncommercial activities that missed altogether the

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