Federalism, Theory of
FEDERALISM, THEORY OF
The American federal system came into existence when the United States declared its independence in 1776. Indeed, the very process of declaring independence involved a series of reciprocal initiatives and actions on the part of the colonies; the continental congress declared independence for all thirteen colonies in one act, federal to the extent that the declaration itself was a culmination of this interplay and was undertaken by delegates from the states, each state speaking with one voice.
The foundation of the United States was a federal act par excellence, involving a consistent and protracted interplay between the colonies (later states) and the Congress, which they created as a single, national body to speak in their collective name. In the year that the representatives of the people of the colonies collectively declared the independence of the United States, other representatives of the same people were reconstituting the colonies themselves as states. Four colonies—New Hampshire, South Carolina, Virginia, and New Jersey—adopted state constitutions in 1776 before the adoption of the declaration of independence, and four more—Pennsylvania, Maryland, Delaware, and North Carolina—did likewise before the year was out. Within sixteen months, all the former colonies except Massachusetts had adopted constitutions.
At one time this fact was used to argue that considerable disagreement existed over whether the states preceded the Union. Today it is generally agreed that both came into existence simultaneously—in the original federal act of the United States as such. In sum, all of the ambiguities of diversity in unity endemic to federalism were present at the creation. Even local governments (in this case the towns and counties) participated in the constitutional drafting and ratifying processes.
As Americans moved westward, they created new states "from scratch," in virtually every case establishing local and territorial institutions under the aegis of the federal government, but generally as a result of local initiatives. Ultimately, these new polities, with their new populations, would be admitted to the federation as states, fully equal to their sisters under the Constitution. Thus the American federation expanded from the Atlantic to the Pacific by settling what were, to white Americans, empty lands and organizing them politically.
The last of the forty-eight contiguous states was admitted in 1912; and Alaska and Hawaii, the two noncontiguous states, were added in 1959 and 1960, respectively, after relatively long periods of territorial status. In the same decade, the United States embarked upon a new experiment in federalism by creating a category of commonwealth or "free associated state," whose people, as American citizens, voted to associate their polity with the United States under a special charter. This new arrangement was devised for Puerto Rico, which became the first "free associated state" in 1952. In 1976 a similar arrangement was made with the Northern Mariana Islands. In both cases small, populated territories sought that status to increase their autonomy, not to diminish it. (See commonwealth status.)
Historically, then, the United States model is that of a political entity that was federal from its founding. The American states did not have to find a common cultural denominator because they had one from the first. All of their regimes were of the same character and their level of economic development was roughly equal. No plan for intercolonial union was ever put forth that was not federal in character. The American colonial period, indeed, had been a period of incubation for a uniquely American approach to governance, which properly can be termed "federal democracy."
Federal democracy is the authentic American contribution to democratic thought and republican government. Its conception represents a synthesis of the Puritan idea of the covenant relationship as the foundation of all proper human society and the constitutional ideas of the English natural rights school of the seventeenth and early eighteenth centuries. Contractual noncentralization—the structured dispersion of power among many centers whose legitimate authority is constitutionally guaranteed—is the key to the widespread and entrenched diffusion of power that remains the principal characteristic of and argument for federal democracy.
Federal democracy is a composite notion that includes a strong religious component. The religious expression of federalism was brought to the United States through the theology of the Puritans, who viewed the world as organized through the covenants that God had made with mankind, binding God and man into a lasting union and partnership to work for the redemption of the world, but in such a way that both parties were free, as partners must be, to preserve their respective integrities. Implicit in the Puritan view is the understanding that God relinquished some of His own omnipotence to enable men to be free to compact with Him.
According to federal theology, all social and political relationships are derived from that original covenant. This theological perspective found its counterpart in congregationalism as the basis of church polity and the town meeting as the basis of the civil polity. Thus, communities of believers were required to organize themselves by covenant into congregations just as communities of citizens were required to organize themselves by covenant into towns. The entire structure of religious and political organization in New England reflected this application of a theological principle to social and political life.
Even after the eighteenth-century secularization of the covenant idea, the behavioral pattern resurfaced on every frontier, whether in the miners' camps of southwestern Missouri, central Colorado, and the mother lode country of California, in the agricultural settlements of the upper Midwest, or in the wagon trains that crossed the plains, whose members compacted together to provide for their internal governance during the long trek westward.
It should not be surprising that Americans early became socialized into a kind of federalistic individualism that recognized the subtle bonds of partnership linking individuals even as they preserved their individual integrities. William James was later to write about the federal character of these subtle bonds in his prescription for a pluralistic universe as a "republic of republics."
In strictly governmental terms, federalism is a form of political organization that unites separate polities within an overarching political system, enabling all to maintain their fundamental political integrity and distributing power among general and constituent governments so that they all share in the system's decision-making and executing processes. In a larger sense, federalism represents the linking of free people and their communities through lasting but limited political arrangements to protect certain rights or liberties and to achieve specific common ends while preserving their respective integrities. To reverse the order, federalism has to do, first and foremost, with a relationship among entities, and then with the structure that embodies that relationship and provides the means for sustaining it. Originally federalism was most widely recognized as a relationship to which structural questions were incidental; but since the creation of the American federal system, in which a new structure was invented to accommodate that relationship, federalism has become increasingly identified in structural terms. This usage in turn has contributed to a certain emphasis on legal and administrative relations between the units and to a neglect of the larger question of the relationships federalism is designed to foster throughout the polity.
Although, in a strictly constitutional sense, American federalism is a means by which the national government shares authority and power with the states, the influence of federal principles actually extends far beyond the institutional relationships that link the federal, state, and local governments. The idea of the federal commonwealth as a partnership is a key principle of federalism and the basis of its integrative powers. Like all partnerships, the commonwealth is bound by a compact—the Constitution—that sets the basic terms of the partnership to insure, among other things, the preservation and continued political viability of its basic political units.
The principle of partnership has been extended far beyond its simple sense of a relationship between the federal and state governments. It has come to serve as the guiding principle in most of the political relationships that tie institutions, groups, interests, and individuals together in the American system. The term "partnership" describes a relationship that allows the participants freedom of action while acknowledging the ties that require them to function in partnership.
Partnership implies the distribution of power among several centers that must negotiate cooperative arrangements with one another in order to achieve common goals. Although the basic forms of the partnership are set forth in the United States Constitution, the actual character of the federal system is delineated, maintained, and made functional only partly by constitutional devices. The role of the Constitution (and of its primary interpreters, the courts) should not be minimized; yet equally important is the way in which the institutions and purposes of federalism are maintained through the political process. The political process, as it affects the federal-state-local relationship most directly, is made manifest through four basic political devices: territorial democracy, the dual system of laws and courts, the political party system, and the system of public-private "complexes."
The basic pattern of political organization in the United States is territorial. That is to say, American politics is formally organized around units of territory rather than economic or ethnic groups, social classes, or the like. The nation is divided into states, and the states are divided into counties, and the counties are divided into townships or cities or special districts, and the whole country is divided into election districts of varying sizes. This organization means that people and their interests gain political identity and formal representation through their location in particular places and their ability to capture political control of territorial political units.
A second basic device is the multiple system of laws and courts tied to the federal division of powers. In the nation as a whole, state law is the basic law. Federal law is essentially designed to fill in the gaps left by the existence of fifty different legal systems. Thus both state and federal courts are bound by state-made law unless it is superseded by the Constitution or by federal statutory law. The complexity of this system is compounded by the nature of the dual court structure, with each state and the federal government having its own complete court system. The federal courts have asserted extensive superiority in interpreting the manner in which the United States Constitution protects the rights of American citizens (who, of course, are also citizens of their states). Led by the United States Supreme Court, which is constitutionally placed at the apex of both court systems, the federal courts interpret federal law, review the work of the state courts, and enforce the laws of the states in which they are located in cases that come under federal jurisdiction.
The third basic political channel is the party system. The Democratic and Republican parties represent two broad confederations of otherwise largely independent state party organizations that unite on the national plane primarily to gain public office. Despite the greater public attention given to the national parties, the real centers of party organization, finance, and power are on the state and local planes. This noncentralization of the parties helps to maintain generally noncentralized governments and to perpetuate a high degree of local control even in the face of "big government." Thus the party system is of great importance in maintaining the basic structure of American politics and basic American political values, including those of federalism.
The fourth political device, the system of public-private "complexes," is partly reflected in the character of interest group activity. The partnership system extends outward to include private elements as well as governments—both public nongovernmental bodies, such as civic, philanthropic, educational, health, and welfare associations, and private profit-making bodies. These private associations and bodies often work so closely with their governmental allies that it is difficult to distinguish where the public interest ends and the private interest begins.
As a federation, the United States differs from a confederation of essentially separate political systems where the overarching authority is deliberately weak. At the same time, in the noncentralized American system, there is no central government with absolute authority over the states, but there is a strong national or general government coupled with strong state and local governments that share authority and power, constitutionally and practically.
The first important feature of a federation, following the American pattern, is the fundamental role and importance of the federal constitution as an organic law. The American Constitution reflects a federal approach to political sovereignty, rejecting the idea that states or governments are sovereign as such, and holding that the people are the ultimate repositories of sovereignty and that governments have only "powers," delegated to them by the people. That approach precludes any notion of inherent powers. Under the Constitution, all powers possessed by the federal government are delegated to it by the people. The federal government has no inherent powers, although, as a result of those delegated, it gains some inherent extensions of its power. So, for example, because the people have delegated to the federal government the power to conduct some aspects of foreign affairs, the President is understood to have acquired certain implied powers to negotiate with foreign governments. Once the people delegated the principal power, the implied power flowed automatically, but the second is theoretically dependent upon the first. From time to time, Presidents have claimed that they have inherent powers in the fields of foreign affairs and defense that are not subject to constitutional limitations but, rather, flow from the status of the United States as a sovereign state. Although the United States Supreme Court has recognized the existence of inherent powers, it has clearly limited them. This approach has been possible in the United States because of the dual character of the American founding, which enabled Americans to avoid confronting the issue of sovereignty head on.
Accordingly, as andrew c. mclaughlin suggested, the American federal system was designed to provide for the government of a large civil society without reliance upon hierarchical principles. In its original form, the American political system was designed as a matrix of polities, an indefinite number of structured political arenas linked to one another within the framework provided by the national and state constitutions. These arenas were to be distinguished from one another not on the basis of being "higher" or "lower" in importance but on the basis of the relative size of the constituencies they served. It was further assumed that the arenas were essentially equal, because size, of itself, was no measure of importance. Tasks were designed to be assumed or shared within the matrix on the assumption that sometimes a smaller arena is more appropriate than a larger one and that sometimes the reverse is true. The federal government was constitutionally mandated to serve the largest arena and to maintain the entire structure by assuring the continuity of the matrix itself. The role of the state governments in serving the basic divisions in the matrix was affirmed in the constitutional arrangement, and the states established local governments to serve the smallest arenas. Today the matrix consists of thousands of local arenas within the national framework, divided into fifty basic units—the states of the federal Union.
The American system has increasingly emphasized co-operative federalism rather than dual federalism as the basis of its operations. The American pattern of federalism has been cooperative since its beginnings, because since its inception most powers and competences have been treated as concurrent, shared by the various planes of government. In Morton Grodzins's terms, it is not a layer cake but a marble cake. Therefore, in the American polity, it is especially difficult to define what is exclusively in the federal sphere of competence, or in the state sphere, or in the local sphere.
The American federal system is at once extraordinarily simple and unusually complex. The simplicity of the federal system lies in a formal structure of federal, state, and local governments and in the outline of formal relationships between them. The complexity of the system lies in the myriad relationships that have developed between the governments and those who make them work. People often tend to take it for granted that national problems are handled in Washington; state problems in the state capital; and local problems at city hall or in the county courthouse. But, although it is easy to say that this is how things should be, it is well-nigh impossible to take a specific issue or function and to determine that it is exclusively national, state, or local.
The constitutional place of the states in the federal system is determined by four elements: the provisions in the federal and state constitutions that either limit or guarantee the powers of the states vis-à-vis the federal government; the provisions in the federal Constitution that give the states a role in the composition of the national government; the subsequent interpretations of both sets of provisions by the courts (particularly the United States Supreme Court); and the unwritten constitutional traditions that have evolved informally and have only later been formally recognized through the first three, directly or indirectly. The federal constitutional provisions outlining the general position of the states must always be taken into consideration even if some of them can be transcended through politics in specific situations. The specific limitations and guarantees of state powers fall into four basic categories: general concern for the integrity of the states as well as their subordination to the Union; some brief provisions ensuring the states a role in the common defense; a delineation of the role of the states in the two central areas of positive governmental activity at home, management of commerce and raising of revenues; and a description of state responsibilities in the administration of justice.
The procedure by which the basic status of the Union may be revised is found in Article V of the United States Constitution.
Similar procedures are found in most federal constitutions in the world. They underline one of the paramount characteristics of a federation: the revision of the basic status of the union is not totally dependent on the member states. Individual states have no right to veto changes adopted through the accepted procedure. When they oppose an amendment to the constitution—or demand an amendment—they are not sure to win.
One of the most important features of American federalism lies in the impossibility of the member states to abandon the federation. As the Civil War dramatically affirmed, there is no right of secession. The United States Supreme Court, responding to that war, set down the accepted definition of the American federation in texas v. white (1869): "The Constitution in all its provisions, looks to an indestructible Union, composed of indestructible States."
Another characteristic of federalism in the United States is the existence of federal norms, whether legal, administrative, or judicial, that bear directly upon the federation citizens, without any need of intervention of the member states. The architects of the American system recognized that a successful federal system, something more than a loose confederation of states, required that both the national and the state governments be given substantial autonomy. They also recognized that each had to have some way to influence the other from within as well as through direct negotiation. The federal government has the power to deal directly with the public, that is to say, with the citizenry of the states. The states, in turn, have a major role in determining the composition of the federal government and the selection of those who make it work.
Daniel J. Elazar
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