Federalism is a Feminist Issue: What Australians Can Learn from the United States Commerce Clause

Abstract:     
Federalism is a constitutional model designed to accommodate regional self-government within a national framework of government, and which distributes powers to make laws between the two levels of government. The merits of this model have been the subject of much debate since the first modern federal constitution was drafted more than two hundred years ago. In recent years in particular, questions have been raised about the capacity and suitability of federalism to serve and respond to other forms of demographic diversity. In the United States and, to a lesser extent, Australia, feminist scholars have also begun to question the gendered assumptions built into the federal distribution of powers and the value of federalism in serving the interests of women. The case of United States v Morrison (2000) in which the interpretation of the United States Constitution's "Commerce Clause" was at issue provides a focus for this analysis, and serves to illustrate the proposition that federalism is a feminist issue. This article explores the reasoning in Morrison, explains the feminist critique of the case, and suggests ways in which Australians may learn from it, in understanding federalism "non-categorically."

Number of Pages in PDF File: 19

Keywords: federalism, feminism, constitutional law, United States v Morrison

JEL Classification: K10, K30

Accepted Paper Series