Self-government and Federalism
Federalism can be conceptualized as an extended system of self-government among overlapping human communities. This implies features of a common civilization and of rule-ordered relationships grounded in similar principles of moral judgment. The word “federal” derives from the Latin term foedus, meaning “covenant.” The covenantal theory of the Old Testament was reinforced by extension of that to all humankind by those who accept the teachings of Jesus of Nazareth. The key concept articulated in the teachings of Abraham is adherence to a covenant with God, the Creator. The teachings of Moses, Jesus, and Mohammed derive from the Abrahamic tradition. Faith grounded in a quest for enlightenment stands in contrast to faith grounded in obedience.
Federalism is grounded in a quest for enlightenment. In the opening paragraph of the first essay published in The Federalist Papers, Alexander Hamilton raised a critical question about human potentials. Transposed from an indirect to a direct question, the issue can be stated in the following way: “Are societies of men really capable or not of establishing good government from reflection and choice, or are they forever destined to depend for their political constitutions on accident and force?” If human beings can establish something called “good government” by reflection and choice, such a possibility implies that societies of people have the potential for functioning as artisans capable of creating systems of order as artifactual constructions. This would imply potentials for the exercise of self-governing capabilities among a people who seek to establish and bring to realization the constitution of “good government” from reflection, choice, and critical scrutiny.
The first order of inquiry in The Federalist Papers was a diagnostic assessment of what was viewed as the failure of the government created under the Articles of Confederation. Such a diagnostic assessment was necessary for conceptualizing the remedial efforts that would need to be taken to achieve good government from reflection and choice. That diagnostic assessment was undertaken by Alexander Hamilton, who identified the constituent units as residing in the states. This implied that failure to address enactments of the Congress of the United States to achieve enforcement would require the application of sanctions to a state in its collective capacity. The application of collective action against a state failed to discriminate against wrongdoers as contrasted to innocent bystanders. Justice could not be achieved under such circumstances.
The new Constitution in its preamble begins with a declaration of “WE THE PEOPLE of the United States.” The debate over ratification among the people of the several states focused on the failure of the Philadelphia Convention to address the standing of individuals as persons, resulting in their adoption of the first ten amendments as a Bill of Rights to be adopted before the ratification of the Constitution had been fully achieved by the last of the states to complete the ratification process.
Federal systems of governance involve concurrent jurisdictions exercising limited authority in which persons and citizens have standing in establishing and delimiting the authority of officials capable of taxing and enforcing collective decisions. The initial focus on constitutions implies that processes of constitutional decision making are available to people in their exercise of self-governing capabilities. Constitutional decision making involves the choice of rules rather than the expenditures of funds or the choice of individuals to exercise governmental prerogatives. When choices are confined to rules, incentives exist not to win and dominate the exercise of power and the expenditure of funds but to establish the rules of a fair game in relation to whomever is elected and will expend funds. The effort to establish the rules of a fair game implies that constitutional decision making, when appropriately exercised, strives to achieve general agreement among the community of people seeking to establish “good government” by “reflection and choice,” to use Hamilton’s phrases. Such choices move toward unanimity—shared communities of understanding—rather than partisan pluralities, as James Buchanan and Gordon Tullock recognize in The Calculus of Consent (1962).
The constitutional remedies sought in the era of machine politics and boss rule became the object of constitutional revisions associated with the Progressive reform movement from the 1870's to World War I. Constitutional conventions and processes of constitutional amendment by popular processes of initiatives and referenda transformed and extended democratic political processes to include local governments organized by home rule charters enacted by citizens of local communities. Similar arrangements were devised for creating the charter of private corporations and the bylaws of voluntary associations, as demonstrated by John R. Commons in Legal Foundations of Capitalism ( 1968).
Principles of federalism have facilitated the extension of self-governing capabilities from local communities to the states and federations of continental proportions. The interlude of the twentieth century, with its extension of some European states into worldwide empires, Marxist-Leninist revolutionary movements to create “socialist” autocracies of global proportions, and reliance on “sovereign” nation-states to liberate the peoples of the Third World, again raises the question of whether societies of people are capable of creating general government from reflection and choice, or whether humankind is forever dependent upon accident and force in establishing systems of order.
Both the League of Nations and the United Nations might be viewed as confederations or as associations whose members are collectivities, that is, nation-states. Where do we begin our diagnostic assessment of self-governing capabilities to develop federal systems of governance appropriate to the global realities of the twenty-first century and beyond?
The essential constituent reality is not sovereign national states but individuals who hold the promise of being autonomous, self-governing persons and citizens capable of exercising reflection and choice about the constitution of order in federal systems of governance. What are the patterns of enlightenment necessary to formulate “good government” as against a reign of pillage and plunder? The association of covenant, foedus, federal theology, and federalism means that we need to engage in serious reflections about the meaning of the Abrahamic religions and the other teachings that are the foundations of major human civilizations. The essential characteristic of Abraham and his successors was to identify the source of creation with a divine spirit alluded to as God, Allah, or the Holy Spirit.
Harold J. Berman in Law and Revolution (1983) identifies the foundations for jurisprudential reasoning with the papal dictate of Pope Gregory VII in 1075 and a tradition of contestation about the meaning and codification of law. Traditions of canon law and of royal law were complemented by traditions of urban law and merchant law all grounded in the covenantal theology of the Abrahamic religions. Berman’s Law and Revolution II (2003) extends these to the Lutheran and Calvinist traditions of German and English legal traditions.
Urban law was created by the Free Cities of Europe reaching from Novgorod in Russia to Belfast in Ireland and from the North Sea and the Baltic to the Mediterranean. Hundreds of Free Cities grounded in charters governed by public assemblies and patterns of commerce among merchants trading in open markets based upon a common merchant law created among the peoples of Europe shared communities of understanding in a covenantal tradition. The Holy Roman Empire of the German Nation created collegia applicable to an “empire” that was confederal in nature. The quest for autocratic empires by Napoleon Bonaparte of France and Otto von Bismarck of Prussia dominated the history of Europe through the nineteenth century and first half of the twentieth century.
A new Europe, drawing upon earlier covenantal traditions, is moving beyond multilateral treaties to fashioning a European Union of federal proportions. A quest for enlightenment holds the promise—given the similitude of thought and sentiments that Thomas Hobbes attributes to all humankind—that self-government, federalism, and democracy will become essential features of human civilization. This is the message conveyed by Alexis de Tocqueville in Democracy in America ([1835–40] 1945) to his French readers.
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983); Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Belknap Press of Harvard University Press, 2003); James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1962); John R. Commons, Legal Foundations of Capitalism (Madison: University of Wisconsin Press,  1968); Alexander Hamilton, John Jay, and James Madison, The Federalist, ed. Edward M. Earle (New York: Modern Library,  n.d.); Vincent Ostrom, The Meaning of Democracy and the Vulnerability of Democracies: A Response to Tocqueville’s Challenge (Ann Arbor: University of Michigan Press, 1997); and Alexis de Tocqueville, Democracy in America, 2 vols., ed. Phillips Bradley (New York: Alfred A. Knopf, [1835–40] 1945).
Last Updated: 2006