On October 10, 2002, the Independent Women’s Forum and The Federalist Society co-sponsored a debate on Feminism & Federalism at the Georgetown University Law Center. Panelists addressed the question of whether federalism jurisprudence has a positive, negative, or neutral impact on the lives of American women.
The lively, thought-provoking debate with panelists of varied political perspectives, was moderated by Jennifer C. Braceras, Senior Fellow for Legal Policy at the Independent Women’s Forum. The following are excerpts from the debate:
JENNIFER C. BRACERAS
IWF Senior Fellow for Legal Policy
In the Morrison case, a 5-4 majority, led by Chief Justice Rehnquist, reasoned that the Constitution requires a distinction between what is truly national and what is truly local. In other words, the Court held that Congress had no business making a Federal case out of crimes that have no obvious effect on interstate commerce and for which state law provides an adequate remedy. Not surprisingly, the Morrison decision upset a great many feminist groups who used the decision to attack the Supreme Court’s federalism jurisprudence as an effort to turn back the clock on women’s rights in particular, and civil rights in general.
ISABELLE KATZ PINZLER
NOW Legal Defense and Education Fund
Is the current version of federalism good for women? Of course not. But not simply because it has already cost women a federal remedy for victims of sexual violence, or because it now threatens the Family Medical Leave Act and other civil rights protections. More fundamentally, the Supreme Court’s recent federalism jurisprudence is bad for women because it threatens our democracy. Yes, Congress — and other legislatures — may sometimes act unwisely. But the Supreme Court’s federalism decisions have elevated the factual and policy judgments of nine unelected officials over those of our elected representatives in Congress.
MARCI HAMILTON
Benjamin N. Cardozo School of Law
The notion that all of a sudden women, or families, or children, or men, are being disserved by federalism overstates the case. It is a fundamental mistake to assume that federalism will only serve conservative interests. Rather, in Justice Brandeis’ view, it leaves individual states the freedom to provide rights that the Constitution does not contemplate. What federalism has done is change the locus of decision-making on issues that are not truly national. It has required interest groups and lobbyists to open up 51 offices — not just one in Washington — but in the 50 states as well.
VICKI JACKSON
Georgetown University Law Center
On the one hand, a system in which power is held closely might be good for gender equality. It brings government closer to the people. You don’t have to travel as far if you are a primary care giver in order to participate in public policy decisions. In addition, you might be able to maximize some preferences by allowing different parts of the country to resolve issues differently. On the other hand, if we look at women as a group that has traditionally been subordinated and discriminated against, those kinds of groups, history tells us, often need to use the levers of government to shift the balance of power. And it’s a lot easier to shift those levers at one central location.
GAIL HERIOT
University of San Diego School of Law
I was originally puzzled by today’s topic: “Is federalism good for women?” It’s a little like asking, ‘Is our floating currency exchange rate good for women?’ Why not ask whether federalism is good for Americans? It’s not obvious why women as a group would oppose deciding issues on a local basis. But it finally occurred to me that the real reason for the passion surrounding this question is not that federalism is bad for women, but that federalism is bad for modern interest group politics. And that’s a very different thing.
IWF released a special report at the debate, Cornerstones of American Democracy: A Primer on Judicial Restraint, Federalism, and Nominations to the Federal Bench, by Jennifer C. Braceras.