Yeshiva University Benjamin N. Cardozo School of Law
By examining the history of the federal government's role in the regulation of the family, this article joins the work of others who in recent years have begun to piece together the history of the federal government's role in crafting domestic relations law and policy.'8 Much of this attention has focused on federal involvement in domestic relations in the late nineteenth and early twentieth centuries, with relatively less consideration given to the pre-Civil War period. Though recent contributions to this field have helped to cure this imbalance, 19 there remains a strong sense, especially among lawyers and judges, that prior to the general expansion of federal authority and administrative capacity during the Reconstruction and New Deal eras, federal actors played no role in the development of the law and policy of domestic relations.
...In Part I, I describe the inconsistency with which the state sovereignty paradigm is invoked in modem federal adjudicative and legislative processes. In Part II, I provide a brief introduction to the status-based common law of domestic relations that Americans inherited from England-important background for understanding the nature of federal involvement in domestic relations during the pre-Civil War era. In Part III, I examine the federal government's significant involvement in domestic relations during the pre-Civil War era, specifically through the creation and administration of pensions for war widows and orphans, the regulation of domestic relations though citizenship law (and vice versa), and the federal courts' adjudication of a wide variety of disputes concerning domestic relations. In Part IV, I provide a broad overview of the emergence of the state sovereignty paradigm as a generally applicable theory of federalism in the context of several perceived crises in American family law in the late nineteenth century. I close with some considerations of the implications of these historical findings for current federalism debates.
Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of States' Rights
Cardozo Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2394