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FORDHAM LAW REVIEW
[Vol. 75“Subnational Norms: Families and Civil Society,” alludes to this generativerole of families. Families, in our political and constitutional order, play arole in what I describe elsewhere as a formative project of creating personswho are capable of responsible personal and democratic self-government.
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Society relies upon this formative process, but contentious questions ariseabout its contours. What resolution will they have in a new constitutionalorder?A host of challenging questions issue from combining the general query,“Are we in a new constitutional order?,” with the specific inquiry aboutwhether and how families and other institutions of civil society are sourcesof “subnational norms.” Some familiar questions relate to the reciprocalrelationship between family and state: Families play a formative role insociety, but law and society also shape families. Are the legal andconstitutional norms governing families truly “subnational”? It iscommonplace in constitutional law to assert that, pursuant to venerableprinciples of federalism, family law (or “domestic relations”) ispreeminently a matter for states, not the federal government.
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And yetfamilies have long been the subject, not only of state regulation, but also of federal “family law” and of federal constitutional law. The ongoing debatein Congress over whether there should be a “federal marriage protectionamendment,” creating one uniform definition of marriage in the UnitedStates and barring same-sex marriage, most visibly raises this tensionbetween subnational and national family law.
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Family self-constitution, in the sense of battles over the legal definitionof what counts as a family and over how federal and state constitutions bearon such definition, is likely to remain an issue in any new constitutionalorder and any new “constitution of the family.”
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This article takes up anaspect of family self-constitution that has received little attention in thelegal literature: constitution making by families.
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Of what interest is it to
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. See
Linda C. McClain, The Place of Families: Fostering Capacity, Equality, andResponsibility (2006).2. The U.S. Supreme Court recently articulated this point:Long ago we observed that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to thelaws of the United States.” . . . [W]hile rare instances arise in which it is necessaryto answer a substantial federal question that transcends or exists apart from thefamily law issue, . . . in general it is appropriate for the federal courts to leavedelicate issues of domestic relations to the state courts.Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13 (2004) (quoting
In re
Burrus,136 U.S. 586, 593-94 (1890)).3
. See
S.J. Res. 1, 109th Cong. (2005) (as introduced, Jan. 24, 2005); H.R.J. Res. 39,109th Cong., (2005) (as introduced, Mar. 17, 2005).4. I allude here to Robert A. Burt,
The Constitution of the Family
, 1979 Sup. Ct. Rev.329.5. A search on LexisNexis and Westlaw found no scholarly legal articles discussing thetopic of families drafting constitutions or family mission statements. There were somearticles in state bar journals and some American Law Institute materials on the use of familymission statements by family businesses and for estate planning.
See infra
note 229 andaccompanying text.
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