visit the US federalism site
U.S. Federalism Site
What is federalism? This site explores the relationship between states
and the national government in the United States. Our U.S. system of
government is based on sharing, overlapping and competing powers of
these levels of government. I believe that relationship, ambiguous by
design, is a crucial source of tension and energy in our system of
government. This site celebrates the many ways that relationship
affects us, presenting a number of perspectives on that relationship.
In addition to descriptions of the issues and overviews of major
contemporary debates, the site links to essential documents, key legal
decisions, and sites where debates are currently under way as part of
the continued unfolding of federalism.
A Quick Definition
Federalism in Context
This site focuses on the United States system, and does not deal with
comparative federalism. It also concentrates on the relationship
between the states and the national government, rather than exploring
other intergovernmental relationships. These limits lead to a
particularly strong emphasis on constitutional and legal
interpretations of the relationship.
Perspectives on Federalism
The site is organized into several sections representing perspectives
on the federal relationship. Click on the underlined words to go to
pages dealing with each of these aspects of federalism, or select other
pages at this site from the set of links at the very end of this page.
o Philosophical roots. This perspective interprets federalism as an
expression of philosophical theories and concerns, particularly
those 18th century theories of the nature of society that were
influential during the founding period. This section presents
these views and links to writings of the prominent philosophers. .
o Historical documents and perspectives. This section views
federalism as a historical and evolving activity that has
different characteristics in different historical periods. It
contains links to key historical figures and documents from the
founding period, as well as commentaries related to federalism in
other periods. In contrast with the philosophical approach, this
section emphasizes the contingent and cumulative nature of
federalism. The Law and its evolving interpretation of the
constitution is the permanent record of these changes.
o Economic interpretations and fiscal federalism. An important line
of theory and empirical research, beginning with Alexander
Hamilton, emphasizes the economic rationale for federalism and
examines changing fiscal relationships between states and the
national government. Much of the recent research on federalism,
which this page references, focuses on this "fiscal federalism".
In particular, contemporary devolution is predominantly fiscal.
o Politics and interest groups in federalism. James Madison
explicitly proposed federalism as a mechanism for managing and
balancing competing interests. This section takes the same
viewpoint and includes links to related sites. An emerging
phenomenon that may reshape federalism in this era of mass
communication and instant feedback is direct democracy.
o Managing across governments presents unique challenges as a result
of divisions in authority, accountability and control. This
section also addresses intergovernmental regulation.
o New Federalism, or devolution, returns authority for certain
programs--and responsibility for their costs--to the states.
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Philosophy of Federalism
ABSTRACT
Is federalism a theoretical construct, or a pragmatic, evolving
accommodation? This section examines the underlying ideas that form the
ideal of federalism, particularly the ideals of liberty and republicanism.
It looks backwards to understand the political philosophies that converged
onto American federalism, and forward to current commentaries about the
meaning of this structure of government. There is considerable overlap
with the section on the history of federalism insofar as both sections
deal with the history of the idea of federalism. Federalism as a
utilitarian theory is dealt with in the section of this site addressing
economics and federalism, while institutional theories are in the section
dealing with administration and federalism.
OVERVIEW
Federalism is an expression of political and philosophical ideals. The
Constitution, which describes what was, at the time, a radically new
arrangement for sharing power among governments may be viewed as an
operating manual for government without diminishing the sense that it is an
expression of philosophical ideals. In the words of James Madison, "...what
is government itself but the greatest of all reflections on human nature?"
Federalist No. 51
This page deals with the philosophical underpinnings of federalism. The
United States and its Constitution were creations of an era when
philosophers considered the nature of government and the ideal relationship
between government and citizens. We are taught in school that the
revolutionaries who wrote, debated and ratified the Constitution included
practical philosophers attempting to apply theories of the enlightenment to
the greatest of all practical experiments, the construction of a government.
The genius of the drafters lay in their invention of a system of government
that shared power among governments and citizens in a way that would assure
the greatest benefits of liberty and good government, a system that could
change and grow to accommodate new needs as the country inevitably grew.
While this version of the writing of the constitution and the role of its
drafters have been given an almost sacred place in the national mythology
(as befits origin myths), it has been fashionable since Beard to apply a
more critical scrutiny to the personal and economic motives of the founders.
Moreover, a historical debunking of the ideological origin theory describes
the arrangements between governments in the constitution as little more that
the ratification and reproduction of an earlier version of the organization
of the American states, finding the prototype for federalism in the
relationship between the Crown and the colonies (McLaughlin, 1918). However,
these perspectives are presented elsewhere. The structure of the site
reflects my belief that alternate readings do not need to be reconciled and
may be simultaneously valid.
Even a discussion of the philosophical roots of federalism must address more
than the ideals that this system was designed to further, however. Elazar
(1987:80) contrasts federalism as a means with federalism as an end in
itself, a useful distinction in considering how various theories came to be
embodied in the evolving American Constitution. According to Elazar's
analysis, federalism in the United States has usually been treated as a
means, although Madison does value it as an end as well. Furthermore, the
debate around the Constitution, and the Constitution itself, is shaped by
the authors' beliefs about the essential nature of history, their
conflicting theories about human nature and human institutions, and their
familiarity with faith-based sharing of responsibility under covenants. That
is, in examining the philosophical underpinnings of federalism, one must
include the very notion that a system of government could be created and
that the "course of human events" could be redirected by such a creation.
The authors of the Constitution understood very well that their ideal ends
were grounded in and shaped by historical, economic and political realities.
Recent experience with conflicts within and among states impinged on (in
Madison's words) the "artificial structure and regular symmetry which an
abstract view of the subject might lead an ingenious theorist to bestow on a
constitution planned in his closet, or in his imagination" (Federalist 37).
THE IDEALS
The Constitution was designed to serve both liberty and republicanism. The
contradictory implications of these principles for the distribution of
political power set the stage for the invention of U.S. federalism.
Constitutional federalism strengthened the national government while
conserving a large amount of state power. It created a structure that
permitted a secure government to form without requiring the assembly to
resolve all its conflicting ideals and interests.
In the eighteenth century, like today, liberty meant a number of different,
and sometimes contradictory, things. The conservative definition of liberty
emphasizes property rights: to own or govern oneself, as well as to be
secure in one's ownership of property. The founders go beyond this
materialistic conception of liberty, elevating the right to "pursuit of
happiness" to the place Locke gave to property (Kenyon, 1962). Among the
Federalists, liberty is described in various ways. While Hamilton stresses
the secure enjoyment of property, Madison associates liberty with the
pursuit of individual values and religion, which form the basis of an
individual's ability to participate fully in society (Lawler). In this
formulation, liberty is conceived as valuable not only for itself but as a
means to community.
Liberalism seeks liberty in the exercise of "values, behavior and social
norms". At the extreme, however, such liberty may actually be corrosive of
community, a criticism that the antifederalists put forward and that
communitarians make today (Brinkley, 1996). Elazar (1987:91-93)
distinguishes among five different notions of liberty -- ranging from
communal liberty to affiliate in various ways and to varying degrees, to
radical individualistic liberty from almost any shared ties -- and sees
these differences as fundamental to various models of federalism. The
contemporary U.S. understanding of liberty in the libertarian sense of the
term, rather than affilliative and community meanings, is a legacy of the
triumph of the federalist version of history, and the particular form that
federalism has taken in this country, one that emphasizes individual liberty
over the liberties of groups or governments that make up the federation.
The centrality of liberty as an ideal is tempered by the fear of excesses in
its name and hence the quest for structures to mediate conflicting
interests. Government of some kind may be a necessary device to protect
individual liberties from "the war of all against all", but at a price in
freedom. Republicanism was the ideal of government that served as a
reference point for the framers of the constitution as the system best
suited to preserve liberty. After all, the colonies had successfully
rejected monarchy. As free states, they were engaged in establishing a
system of government with power residing in the governed. While some liberty
must be relinquished, they argued that it should only be given up to a
government that derived its power from the free individual, rather than
narrow social or commercial interests or a hereditary regime.
The founders struggled to match up the economic and demographic
circumstances of the former colonies to classical theories of republicanism,
and eventually modified the theories to meet their circumstance. The ideal
form of a republic, harking back to classical political philosophy, was the
republic of virtuous men. When it came to translating that ideal into a
national blueprint, however, the definitions of republican government proved
to be as protean as liberty.
"All good government is and must be republican. But at the same
time, you can or will agree with me, that there is not in
lexicography a more fraudulent word... Are we not, my friend, in
danger of rendering the word republican unpopular in this country
by an indiscreet, indeterminate, and equivocal use of it? [...]
Whenever I use the word republic with approbation, I mean a
government in which the people have collectively, or by
representation, an essential share in the sovereignty." (Adams to
Sam Adams, 18 Oct, 1789 in Works, VI:415,420-421) definitions of
republicanism
Is a republican system democratic? While today those terms are often used
interchangeably, in the eighteenth century these were two distinct concepts.
Republicanism might contrast with autocracy, where an individual could
exercise tyrannical whims, but it would also contrast with democracy, where
the tyranny of the majority was perceived to be a danger in polities that
were too large or too diverse for face-to-face consensus and a shared sense
of the common good, requirements for a republic.
For the drafters of the constitution, republicanism had a more modern
meaning that included representative government and majority rule, with
representatives chosen by the people. However, there was considerable
disagreement about what the nature of that representation should be, with
different structures of representation reflecting different federal or
national arrangements. Republicanism also meant limited government with a
commitment to basic rights, including a concern that the rights of
minorities not be lost to unrestrained majorities (Carey, 1990). This
concern for minority rights has been variously interpreted through the
changing lenses of Americas history as concern for religious freedom,
protection of the economic perquisites of a ruling class, and a framework
for pluralism.
THEORIES OF POLITICS AND GOVERNMENT
Political theorists of the eighteenth century disagreed on the best means to
the end of republican liberty. Montesquieu in his discussion of the ideal
scale of government considered how best to balance the ideal of liberty and
the need for national security. On the one hand, he believed with the
conventional wisdom of the day that only a small state could assure a
republican form of government, where the common good was the object of
citizens' attention. By contrast, while an "extensive republic" might have
the virtue of greater strength, the strength would be achieved at the
sacrifice of freedom because in a large state where citizens were no longer
intimately engaged with one another private interests and individuals'
despotic ambitions could successfully encroach on liberty without alarming
the public. To reconcile the conflicting virtues of the two scales of
government, Montesquieu proposed a "confederate republic", a pluralistic
convention of small republics that could combine defensive strength with
internal liberty.
Hume's assessment of the relative virtues of various scales conflicts with
Montesquieu. Far from encouraging republican government, he believed small
polities would be particularly prone to waves of opinion, and that in fact a
larger, representative republic was a preferable model for avoiding factions
and protecting diverse interests. While Madison shared the belief that a
large republic was desirable because it was likelier to be able to elect
wise men, he differed from Hume in assuming there would be a large number of
voters. An "extensive republic" was necessary, however, in order that
competing interests would neutralize one another (Morgan, 1986) .
According to Samuel H. Beer (1978: 12-14), the inventive genius of the
founders of American federalism lay in their combining the contradictory
theories of Montesquieu and Hume. The general government, following Hume,
was designed to represent the social pluralism of the nation as a whole,
while state governments would more nearly reflect Montesquieu's proposition,
that multiple polities could protect the populace from central government
encroachment. The key innovation in this design, as Hamilton points out
(Federalist 28) is the creation of parallel, competing systems that the
people can manipulate to check overreaching government at either level.
THEORIES OF VIRTUE AND HUMAN NATURE
Two very different concepts of civic virtue are invoked in the definition of
a republic. In the classical version, virtue is an attribute of certain
individuals, who stand out from the rest of society because of their
character and civic dedication. The problem of representation is to assure
the selection of virtuous individuals to disinterestedly serve the good of
society. A strongly engaged electorate is not necessary. Because virtue is
not certain, moreover, the structure of government must include many
constraints to limit the possibility of abuse of power by unvirtuous men.
Classical republicanism depends on a "virtuous" elite to understand and
carry out the best interest of the people. The education of future leaders
is an important tool to assure that the leaders have the needed skills and
character, a concern reflected in George Washington's preoccupation with the
idea of a national university (Loss). A strong alternative view of the
relationship of virtue and society requires that society itself be virtuous,
and that typical -- not superior-- representatives should be drawn from
virtuous communities of shared interests. The most important task of
government is to continuously raise the level of virtue in society. Civic
involvement is an essential part of community life, and political
communities--republics-- should be limited in size to assure the
face-to-face accountability in which civic virtue is grounded. (Duncan,
Zuckert).
The authors of the Federalist Papers had little faith in either classical
republican virtue or the virtue of the general will. Madison proposed that a
republican government could be structured in such a way that it did not
depend on virtue in either men or society. The constitution was layered with
competing systems, including the rivalry of state and national governments,
designed to harness the sheer energy of human political activity without
regard to the purity of its purpose. That very skepticism may have made it
acceptable at that point in history. It allowed a national government to
form without first resolving conflicts among groups that mistrusted one
another--notably the Northern and Southern states-- albeit only after the
bill of rights was added to assure the primacy of individuals.
Madison believed that virtues orient people to proper action, but he
believed that contradictory impulses of ambition and personal interest were
often more powerful. The challenge was to design a government based in the
people and serving the general good without entirely relying on either
community or individual virtue. Madison offered a pluralistic design that
gave government the role of balancing competing interests, on the theory
that the general good would be served in the process. To assure this
required designing a system that would automatically adjust itself if any
interest became too strong. Institutional structures would reinforce the
tendency to promote public good and harness the force of competing
interests. (Howe, Kobylka, Scanlan, Sorensen).
The antifederalist opposition to this approach rested in the belief that
virtue and communities were not only necessary as the basis for the
republic, but that communities generated virtue. A society designed to
function without the moral demands of face-to-face government and consensus
would inevitably lose the very virtues on which it ultimately depends. While
they were equally pessimistic about human nature, they were also skeptical
about the effectiveness of artificially constituted institutions to
compensate for deficiencies in other societal systems.
CONSTITUTION AND COVENANT
The act of drafting a blueprint for the national government--the
Constitution--to be ratified by representatives of the people was an
unprecedented act (Kenyon, 1962). Elazar (1987: 115) points out that the
term "federal" derives from the Latin foedus, meaning a covenant, and he
points out that the authors of the federal covenant were familiar with
religious covenants. A covenant explicitly delineates a relationship in
which authority and power are shared . They are agreements between parties,
not dictates from ruler to ruled. Such dyadic relationships are balanced by
the covenant to assure that neither party entirely dominates; if that were
to happen, the covenant itself would fail. In terms of game theory, a
covenant or constitution defines the rules of play. In those terms, the
American constitution is particularly successful because its rules have
produced dynamic stability and continued play, resisting the tendency to
collapse to a simple game of dominance.
Who are the parties to the covenant of American federalism? The Articles of
Confederation is a covenant among states. But the Constitution creates
something new, neither fully national nor entirely federal in the
traditional sense. The document is a covenant among the people, not the
states. They hold dual citizenship--in states and in the nation.
Beer (1978:12) contrasts two theories of American federalism that have
repeatedly emerged in national debates over the meaning of federalism:
* National theory, which asserts that the sovereign people of the United
States created both state and federal governments, each of which was
delegated certain limited authority, and
* Compact theory, which considers the colonies to have become independent
polities after they separated from Great Britain. These sovereign
entities then created a limited general government.
While the general view is that compact theory was laid to rest once and for
all by the Civil War, it occasionally re-emerges in the national discourse
about the role of states.
THEORIES OF HISTORY
The relationship among the states, nation, and individuals has changed over
time. This may be viewed as a corruption of the original design, or an
affirmation of its dynamic stability.
The constitution was created at a time when history was held to be
inevitably cyclical. The cycles were seen as a guarantee of virtue by the
antifederalists: a corrupt government would inevitably be overthrown
(Lienesch). This was not a reassuring prospect to founders who hoped to
establish a durable republic. The only historical precedent in English
history for a revolution against the throne, Oliver Cromwell's Commonwealth,
had fallen into civil war, dictatorship and the return of monarchy. In the
American Confederation, Shays' rebellion raised fears that a similar cycle
would repeat itself if something new in history was not done. The federalist
theorists explicitly set out to design a system to resist the violence of
historical cycles. To their triumph, they succeeded in designing a system of
checks and balances that creates a self-enforcing equilibrium, a veritable
"machine that would go of itself" (Brynner, Lowell, Mannin).
