CEDAW, Federalism, and Democracy in U.S. International Lawmaking

I’d like to join the conversation prompted by several of the posts, particularly Curt’s insights on federalism and human rights. Federalism has been frequently used as a red herring in the context of ratification debates over human rights treaties. Structural labels such as “federalism” have been invoked with some regularity to veil more substantive concerns underlying resistance to human rights treaties. For example, let’s examine the debate over U.S. ratification the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Gender equality is a national problem that requires national solutions. However, in the 2002 CEDAW ratification debates, structural concerns regarding federalism were advanced to mask substantive resistance to women’s equality. As I’ve explored in greater detail elsewhere, in the ratification debates, treaty opponents cloaked themselves in banners of “constitutionalism” and “federalism” as a way of obscuring the role that culture and cultural stereotypes play in U.S. resistance to women’s human rights. More precisely, by foregrounding federalism, treaty opponents asserted a particular view about localism (and therefore local culture) as a mode for addressing gender inequality, rather than acknowledging that the ongoing disenfranchisement women face has a distinctly national character. (Consider the fact that reproductive rights, Family Medical Leave Act, the Equal Pay Act, and Title VII all involve federal constitutional law and/ or national civil rights legislation, despite objections by “states rights” adherents).

Conservative commentator Phyllis Schlafly expressed what were essentially cultural objections (to what she viewed as CEDAW’s radical approach to family and the role of women in society) by invoking the notions of federalism and limited government. In an article written shortly before the June 2002 CEDAW ratification hearings, Schlafly invoked federalism to assert that CEDAW’s provision concerning family planning “levels a broadside attack on states’ rights.” Schlafly pointedly wrote, “Private relationships should be none of our government’s business, much less the business of the United Nations.” Invoking the principle of limited government, Schlafly also rejected what she viewed as CEDAW’s support for government intervention in the market. She criticized the fact that CEDAW applies to discrimination against women “by any person, organization or enterprise”–a provision that extends the Convention’s protection to private actors, including corporations. Schlafly was also critical of a provision in CEDAW which ostensibly requires equal pay for work of comparable value (a notion reflected in the “comparable worth” doctrine, which some U.S. courts have rejected, though hundreds of companies as well as state and local governments require comparable worth as a matter of course). Relatedly, Schafly complained that CEDAW requires that “subjective” determinations of equal or comparable worth be made (by the government) in lieu of “objective” determinations made (by the market).

As Oona’s article points out, the Commerce Clause authorizes Congress to regulate the private sphere in particular ways (for example, to address gender and other forms of inequality). I share Oona’s broad view of the Commerce Clause. Moreover, so long as the federal government seems able and willing to bail out banks and investment houses, I simply don’t see the constitutional problem with government intervention in the market to address gender inequality. As such, I view the objections to CEDAW as grounded in culture, not constitutionalism.

Indeed, in her testimony before the Senate Foreign Relations Committee, Kathryn Balmforth, a treaty opponent, complained that CEDAW, in requiring equality for women in the workplace, will threaten U.S. culture and values (as she conceived of them), testifying that “These matters, and other matters covered by CEDAW, go to the core of culture, family, and religious belief. . . . The doctrinaire approach of the CEDAW Committee is nothing less than “cultural colonialism,” which attempts to force a radical western agenda which is widely rejected even in the West. It completely ignores the right of women and men, to political, social, and cultural self-determination.” She went on to argue that CEDAW would undermine the traditional role of women as mothers who pass on “culture and values.” These concerns echoed earlier remarks made by Republican Senator Jesse Helms when he chaired of the Senate Foreign Relations Committee and explained his opposition to CEDAW, saying, “[I]t is a bad treaty; it is a terrible treaty negotiated by radical feminists with the intent of enshrining their radical antifamily agenda into international law.” Helms concluded, “This treaty is not about opportunities for women. It is about denigrating motherhood and undermining the family.” As I’ve demonstrated elsewhere, these concerns are misguided and mischaracterize CEDAW (not to mention that these concerns overlook studies demonstrating the positive impact women’s empowerment has on children and families).

Oftentimes, scholars and policymakers assume that cultural and religious objections to women’s human rights are only asserted in by third world governments. In fact, the major rationale behind CEDAW ratification efforts in the U.S. in 2002 was so that the U.S. could sit at the CEDAW table (so to speak) to challenge cultural and religious practices abroad. President George W. Bush spoke of the need to “liberate” the women of Afghanistan in invading that country, and Democratic Senator Barbara Boxer proclaimed that “it is very important to the women of Afghanistan that” the U.S. ratify and “use CEDAW as a diplomatic tool for human rights” there. What is less well-known is how in the United States, cultural claims are sometimes manipulated to advance other interests, including those of male elites, and are, therefore, frequently contested by the very women in whose name these claims are made.

This brings me then to my final point, which is that women are grossly underrepresented in Congress (in roughly equal proportions in the House and Senate). In the 110th Congress, there are currently 365 men and 70 women in the House. In the Senate, there are 84 men and 16 women. (In term, of racial compensation, African Americans and Latinos are more disproportionately underrepresented in the Senate than the House: the House has: 364 white, 40 African American, 23 Latino, and 5 Asian American representatives; the Senate has: 94 white, 40 African American, 3 Latino, and 2 Asian American representatives). Rather than allow CEDAW to be held hostage by a supermajority requirement in the Senate, a congressional-executive agreement, by only requiring a simple majority, would provide women and their allies greater ability to secure passage. (Of course, I recognize that some women, such as Phyllis Schafly, oppose CEDAW, but my hunch is that broader, more inclusive modes of implementing human rights would permit women to accept or reject CEDAW norms based on a fuller understanding of what the Convention offers, rather than allow misplaced cultural objections to defeat the Convention before it even gets out of the Senate Foreign Relations Committee). While I agree with David Bowker’s point that the Treaty Clause was “intended in part to insulate our international commitments from the whims of a popular majority,” the advent of human rights treaties demonstrates a concern for politically disenfranchised groups for whom the supermajority requirement is an almost insurmountable barrier. Moreover, on Julian Ku’s popular sovereignty, a shift away from the supermajority strictures of the Article II treaty route toward the simple majority route may also be a way to reinforce popular sovereignty in a more representative way — that is, in a way that is more attentive to political participation by disenfranchise groups, such a women. I’ll try to come back to this point in a future post on Senate Bricker and the politics of race.

To operationalize Oona’s proposal, consider what might happen if a new Administration introduces CEDAW as a congressional-executive agreement. First, presumably the President could still enter any necessary RUDs. However, in adopting CEDAW as a congressional-executive agreement, Congress could include a sunset clause for periodic review of RUDs and for removal of particular RUDs as they become unnecessary (just as the U.S. reservation on the juvenile death penalty prohibition in the ICCPR became unnecessary with Roper v. Simmons). Second, Congress (with the President) could establish a gender commission that could collect data, monitor implementation, periodically review any RUDs and report to Congress on their continuing necessity, prepare the compliance reports that must be periodically submitted to the treaty body that oversees CEDAW, and provide assistance to state and local governments (along the lines of the assistance the State Department provides to state and local law enforcement to facilitate enforcement the Vienna Consular Convention). It strikes me that none of this is possible if CEDAW is adopted by treaty, unless further implementing legislation is enacted.

An outstanding issue that Oona has not squarely addressed (that may argue for CEDAW to be brought via the treaty route) is the linkage between CEDAW and U.S. v. Morrison. CEDAW’s General Recommendation Number 19 includes gender-based violence in the definition of gender discrimination and the Convention itself requires judicial remedies. In enacting the VAWA civil remedy (struck down in Morrison), I believe Congress failed to adequately document the connection between gender-based violence and the fact that women often flee their homes to escape violence, in ways that impact interstate commerce. In adopting CEDAW as a congressional-executive agreement, Congress could more effectively undertake this fact finding. Alternatively, in ratifying CEDAW as a treaty, enactment of any future civil remedies to challenge gender-based violence could benefit from a Missouri v Holland-type analysis. I’ll be addressing this dilemma further (along with the gender commission concept discussed above) in an upcoming issue brief I’m developing with the American Constitution Society.