Federalism and female circumcision in the US: a reply to ‘The prosecution of Dawoodi Bohra women’ by Richard Shweder

Abstract

In his article on ‘The prosecution of Dawoodi Bohra women’, Richard Shweder (2022) discusses a federal criminal case in the United States that resulted from a practice that the sect calls female circumcision. Various parents and medical practitioners were indicted under a federal statute that made the practice criminal. Eventually, though, a federal district court held that Congress lacked authority – an ‘enumerated power’ under the United States Constitution – to enact such a criminal law. At first glance, the decision looked like a big victory for federalism, the division of authority between the federal government and state governments. Unfortunately, the Supreme Court’s jurisprudence in this area has left a rather gaping loophole: Congress can enact a ‘jurisdictional element’ that tries to connect the regulated activity to interstate commerce. As a consequence, unconstitutional laws can be made constitutional with seemingly cosmetic changes. That is, in fact, what happened to the law that was used to indict the Dawoodi Bohra women. This response explores whether federalism arguments can be repackaged outside of the ‘enumerated powers’ doctrine. It suggests that federalism may play a role in determining whether the government has a “compelling interest” in regulating a practice under the Religious Freedom Restoration Act. Because of federalist traditions in the United States, certain interests may be compelling for state governments, but not the federal government. If that were the case, a challenge to a federal law regulating or prohibiting ‘female circumcision’ might succeed where a similar challenge to a state law would fail.