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

by Catherine Powell

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.


3 Responses

  1. I saw these types of federalism arguments brought by the members of the US delegation in the periodic reporting on CERD in February – they simply were not persuasive at all.

    In a way it was embarassing to see in the discussion of a treaty the DOJ and DOS representatives argue internal structure as if we were the only country in the world with international obligations that fall on an internal structure.

    I want to second the comments concerning the internal dialogue in the US that impoverishes domestic understanding of the international obligations. The defacto/dejure debate in the US as contrasted with the direct and indirect effects language of the CERD is one example of this. Even “affirmative action” in internal discussion does not capture the space with which “special measures” in the CERD is grappling. The constricted domestic articulation becomes so suspect when one think more broadly of the human rights language.

    Invoking Bricker of course brings us back to our racial history – something not inappropriate in this racially charged time in the campaign. In fact, the Constitution itself for reasons that have been said at many times brings us back to its structural legacies built to preserve slavery. To the extent federalism arguments are brought in, I must say that I am brought back to the notion of “Oh yeah, reifying the slavery protection mechanisms!” and seeing those rules as applied as being fundamentally inimical to human rights of disfavored groups. It is the purposeful gridlock of the Constitutional structure masking an effort to keep persons enslaved.

    I note the argument that domestic court enforcement of international law is the best way, yet I must say we see every day the limits to domestic courts actually enforcing international law – especially international criminal law given the monopoly of the executive. It seems the more interesting route is through having Americans appreciate that there are these obligations and understand why these are in place. In very localize human rights disputes in the US, to understand there is an international counterpart obligation is an amazing recognition of a role for these instruments in social struggles internally. I believe the fledgling domestic human rights (as opposed to civil rights) movement is coming to a recognition of that for the United States.

  2. Federalism is a key ingredient of our republic — not to be flippantly tossed out to fit in with some international “community” — talk about elites. How bad for you that we actually take federalism seriously. Those troglodytes Madison, Hamilton, Marshall, and Story did too.

    I’m not saying Schlafly is correct, but culture is important — indeed our Constitution embodies many of our fundamental cultural principles (ideals — which of course are not always achieved, but are nonetheless important.) Stick around for a few years. With dwindling — disastrously so — male enrollment in university women will rule the roost without question. I realize it’s a dead white male document requiring drastic change, but our internal obligations to our women are more important than any international obligations.

    Your Constitutional arguments are deceptive at best. The parts of the Constitution to which you refer 3/5 Compromise, etc. were amended out of the Constitution. Whatever original motivations regarding those portions (and your conspiratorial “white man bad” routine is comical — and a tad pathetic) they are dead letter — indeed — they are non-existent — historical relics — except for intellectually dishonest race baiters.

  3. Thank you for your comments. To see how much more is in the Constitution that specifically is there to protect slavery, I would refer you to the work of Paul Finkelman of Albany Law School. He did a presentation here in September of last fall that was absolutely devastating to me in showing just how much the Constitution as structured was and is a creature of the protection of slavery even with the advent of the 13th, 14th and 15th amendments. No export taxes, the section on insurrections, the electoral college, the limitations on Federal powers to interstate vs. intrastate Commerce and other parts are discussed by him in some detail. Those are there to protect slavery – they are not there out of just some grand wisdom. The elimination of slavery does not remove those structures and that is what is so profound about Finkelman’s work.

    If you would like to converse with him here is his e-mail pfink [at] albanylaw [dot] edu. He can give you all the relevant information and can take you through the significance of 1808 also if that would be of help. I do not believe Professor Finkelman’s work is “white man bad” animus or is race-baiting – just painfully gathered history that a scholar has done to help us see just how deep the history is.

    Similarly, the grand bargain of Eisenhower not to bring forward human rights treaties in exchange for the squelching of the effort of the Bricker Amendment (who was the drunken Senator pulled in from a bar to vote against the amendment? – I have forgoteen) was all about preserving segregation (or, if you prefer, selling out black human rights). This is no more a conspiracy theory then it is to say Senator Strom Thurmond walked out of the 1948 Democratic convention over segregation and founded what was called the Dixiecrats. It is just painful history.

    Why is it so hard to accept this evil at the heart of the Constitution? Thurgood Marshall spoke to this in the bicentennial year and many persons took umbrage.

    Every Constitutional or non-Constitutional system embodies the ideals of that state, but that is of no moment as a matter of international law obligations of the state.

    Our internal obligations to women under the Constitution may in fact be far more restrictive than the international obligations. That is the rub. It certainly appeared true with regard to CERD obligations and the terribly narrow visions of a peculiar American legalism of the foreign relations law arguments that were made.

    Culture can carry a great deal of unwanted baggage. It use to be called “Southern way of life” etc back in segregation as well as “a woman’s place was in the home”. Culture can be exploited as a mask to cover actual domination and oppression.

    Finally, there were people of color also representing the US government at the CERD periodic report meeting. The point is that the type of sclerotic analysis that they did simply did not stand up in an international arena. It seemed clear to me that there was either a problem of training for these representative (our fault as law professors) or a willingness to try to sell US foreign relations soap as international law. The rejection of the US representatives analysis was quite stunning.

    This is 2008 – I have had these kinds of reactions to things I have said in some form or another for 30 odd years. I get tired of it. I am not race-baiting, I am just calling these things as I see them and being accused of race-baiting. It is a kind of passive-aggression on these subjects I have noted for many years that I find sad as I try to be forthright. Such is life.



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