Thursday, February 9, 2012
This article takes up the axiomatic place of family law under federalism. Family is often depicted as belonging squarely in the state law domain, reflecting its nature as a matter of moral deliberation, rather than of, say, commerce or constitutional rights. This article demonstrates, however, that family law is a matter of federal law in an endless number of substantive areas, from immigration and taxation to privacy in the marital bedroom and the relative rights of putative and presumed fathers. It asks how the innumerable exceptions to the rule about family law’s place under federalism come to be rationalized. The answer, the article argues, has to do with the fact that the state-federal divide with respect to family maps onto the private-public divide that has long vexed feminists. The constant creation of exceptions to the general rule that family law is state law serve to preserve family’s allegedly moral character and obscure individualist dimensions of family.