Slicing the American Pie: Federalism and Personal Law

79 Pages Posted: 9 Apr 2007 Last revised: 20 Apr 2018

See all articles by Jeffrey A. Redding

Jeffrey A. Redding

University of Melbourne - Law School

Date Written: April 2, 2007

Abstract

In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of personal law that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state's different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to generally-applicable law. That being said, the U.S. Supreme Court has also recently given renewed emphasis to state sovereignty and other federal values. As this piece argues, what results from this worship of federalism is a truly American-style personal law system, where territorial communities have taken the place of other personal law systems' religious and ethnic communal constituencies. This being the case, I conclude by questioning recent innovations in American constitutional jurisprudence which devalue religious pluralism, while simultaneously elevating territorial communalism.

Keywords: federalism, personal law, India, territory, religion, minorities

Suggested Citation

Redding, Jeffrey A., Slicing the American Pie: Federalism and Personal Law (April 2, 2007). 40 New York University Journal of International Law and Politics 941 (2008) . Available at SSRN: https://ssrn.com/abstract=978024

Jeffrey A. Redding (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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