Legal Commentary

I might be mistaken, but my impression from the work of Reva Siegel (on the 19th Amendment), Anne Dailey, Jill Hasday, Kristi Collins (on the domestic relations exception to Article III diversity jurisdiction), and others, is that scholars sympathetic to feminism do not like judicially enforced federalism very much. In particular, it is sometimes claimed that relegating family law to the states is like treating family relations as a private matter beyond governmental control law as a private matter -- in effect, licensing private patriarchy. (See, for instance, Reva Siegel, She the People, 115 Harv. L. Rev. 947, 1000-1001 (2002)).

Feminist dislike of federalism seems odd to me for two reasons. First, women have done pretty well by the states. It was, after all, entrepreneurial western states that first enfranchised women in the late 19th century as a way to entice them westwards: Tiebout-style competition for mobile citizens seems, at least in this case, to have benefited women. And women fare well in voice as well as exit at the state level: The National Conference of State Legislators that women hold roughly 22% of state legislative seats, a number that has steadily risen over the last forty years. By contrast, there only 16 women in the Senate and 78 women in the House (roughly 16-17%).

So why the skepticism about states and the general complacency about broad national powers? True, some states can be nastily patriarchical -- but so can the feds: Males dominate both institutions, after all. The difference is my second reason for why feminists ought to like federalism: States provide far cheaper and more abundant access to elected office than Congress. The cost of running for state legislative office outside of California in the mid-1980s generally ran under $50,000, according to Thad Beyle's 1993 report for the Congressional Quarterly -- far lower than the cost of running for the U.S. House of Representatives, I'm guessing. If one assumes that women have less access to money and power than men, then why would want to allocate more power to an institution -- Congress -- that is likely to be costlier to access?

Of course, I could be wrong on my assessment of feminist scholarship: There might be lots of decentralizing feminists out there that I have overlooked. (And I'd be obliged to anyone who points them out to me). But, assuming my initial cursory survey is correct, I am curious why feminists are not more fond of an institution that, more or less, has done well by women.