FEDERALISM AS PLURALISM

PART 16: LESSONS OF LEGAL POPULISM, THE GRAND FINALE

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

This post brings us to the end of our lengthy series on the lessons of legal pluralism. I can understand if some conclude that it doesn’t really belong as part of that series – much as I excluded the critique of Carl Schmitt on pluralism, just prior to beginning the series – as maybe it leans a little more in the direction of political than legal pluralism. Though, when it comes to matters of federalism, the lines may get a tad blurry. And it does strike me as an appropriate conclusion to a rather scholarly discussion to turn our attention to how some of the lessons learned may be applied in real life, contemporary contexts in which distinguishing the pluralist may be of extraordinary importance.

A couple quick caveats are worth noting; this is an unusually long post, not just by the standards of the recent series, but by those of this Substack. I’d considered breaking it up into more bite-size pieces, but decided it was time to definitively wrap up this series. And I’ll take a bit of breather after this, so there’ll be plenty of time to read it.

Also, I break a bit from standard convention in this post as I venture upon some speculation about normative conditions. This is not, it should be noted, an assertion of my own values, but merely an exploration of the means required to achieve a pre-stipulated end: e.g., pluralist federalism. In that sense, it is an expression of formal, rather than strictly substantive rationality (see here). So, with those caveats in place, let us begin.

In the final part of my recent (must read!) book, A Plea for Time in the Phenotype Wars, I dwell a good deal on unpacking the nature and potential of federalism as a populist means to activate pluralist institutions. All that was toward the end of creating a cushion for the anticipated fallout from the coming arc in the spiral of the phenotype wars. Since then, though, I’ve done additional reading on federalism, its theory and history, and feel like there are some further valuable observations to be made. And this supplementary comment is notably offered in the context of the preceding series on legal pluralism, which has deepened our understanding of pluralist history and society.

In that earlier discussion of federalism within the book, there was some effort to define and parse out different dimensions and kinds of federalism. That parsing particularly can be refined in light of the more recent reading. Though, having said that, I don’t want to dive as deep down the rabbit hole of the ongoing scholarly tussle over nomenclature and taxonomy as have so many commentators on the history and forms of federalism. Indeed, the trouble begins with the very word “federalism.” And while, as just noted, I don’t want to get into the weeds quite as much as so many historians and political philosophers have, it will be important to sort some of this out if we’re to maintain clarity about what kind of federalism would be conducive to a contemporary populist project that resonates with populism’s more temporalist past: i.e., a project that transcends single minded electoralism in its aspiration to regenerate organic community and traditions, while perhaps strategically employing electoralism toward the end of creating the political shelter for such regeneration.

Some historians have sought the fount of federalism in ancient sources, particularly among the Greeks, most notably among the Achaean League. Though some have used Biblical sources to trace the origins of federalism back to the tribes of the Israelites. One scholar claims that several books of the Bible – e.g., Pentateuch, Joshua, Judges, Samuel, and Ezekiel – were the first treatises on federal governance.¹ A distinction which will haunt federalist scholarship over the coming millennia already arose from this ancient period in the parsing of federations as either symmachia or sympoliteia.² The former, literally translated as “fellowship in fighting,” is taken to refer to a federation in which the federated entity is only an expression of its federating units. (I’ll resort, here, back to the handy portmanteau that I coined, in my recent book, of “fedun(s)” as a generic term for the federating units: in the contemporary context, U.S. states, Canadian provinces, German Lander, and Swiss Cantons, would all be examples of feduns.) Symmachia are then primarily, almost exclusively, thought of as military alliances.

Rufus Davis expands on the definition of the counter term:

Sympoliteia, on the other hand, is a more fascinating and difficult term. It is sometimes translated as "fellow citizenship," "membership of one state," "the sharing of citizenship or a common political life," and sometimes as "a union of several states in which there is an exchange of civic rights." Many contemporary scholars, however, for reasons that will become apparent, have simply identified the symmachia as a confederal, and the sympoliteia as a federal, system of government.

Sympoliteia, then, refers to a situation in which there is something more of a melding of the feduns into a common identity. In some cases, in fact, such as in the Achaean League, there appears to have been a form of what seems like common citizenship acknowledged. Though as even within symmachia it was also necessary to distinguish between confederations which were based upon equality between the feduns, and “hegemonial symmachia,” formed around a hegemon: a member which exercised far more power and influence than the others. In some cases, the confederation was formed out of the diplomatic or even coercive influence of this larger power and ultimately acted to serve its interests. Such hegemonial confederations were intrinsically centripetal and tended over time to consolidate into unitary sovereigns.

So, already with antiquity, we find many of the key, critical dynamics in the parsing of federalism in operation. The next major milestones in the history of federalism, unsurprisingly, appear during the era of the medieval constitution. One of these is the city federations, largely driven by mercantile interests, of which the Hanseatic league is only the most famous. These networks of trade routes and nodes eventually required the formation of military forces to defend the routes and so secure the trade.³ These federations then tended to fall more under the symmachia rubric.

The medieval era’s other major milestone in the history of federalism was the federation of the Swiss cantons and communes. This long, fascinating history spread over some 700 years, during which – responding to a long series of natural, political, and military challenges – the entities that largely compose contemporary Switzerland worked out their communal liberties through a series of evolving confederal and federal solutions. These experiences also came to entail recent history’s most enduring and ambitious experiment in direct, pluralist democracy.⁴

Most modern scholars of federalism, though, seem to consider the high-water mark in the historical evolution of federalism to have been the federation created by the 1787-89 Constitution of the United States of America. This constitutional arrangement is often described as having updated federalism for the modern world. Even Switzerland, with its federal history dating well back into the medieval era, following the 1848 revolutionary mania in Europe, reconstituted its federation along lines clearly styled after the US experiment. While it’s common to observe (though others in the literature contest the degree) that the US founding fathers were aware of historical and ancient sources of federalist history and practice, possibly the most influential source doesn’t get the level of credit he deserves. It was Montesquieu who lit the way for the early Americans with his famous dictum that republics that are too large tend to deteriorate from within, while those that are too small are invaded from without.⁵

Federation was considered the solution to this dilemma, allowing republics to maintain the small size necessary for their internal flourishing, while allowing them to cooperate in manifestations of foreign policy, diplomacy, and defense which might be described as safety in numbers. However, what distinguished this new American federation, and so impressed the modern scholars, was that it was the ultimate sympoliteia. Indeed, it took sympoliteia to the ultimate level. The federal government was not merely the creature of the feduns – as had been the case under the earlier Articles of Confederation – but an independent body, with its own jurisdiction, responsibilities, and privileges, and above all its own direct relationship with the individual citizens of the federation.

In my book, I’ve unpacked why I think this “modern” federation was not quite the celebratory achievement that the modern scholars believe it to be. However, at that time I don’t believe I had yet sufficiently developed the explanation necessary to properly contextualize my criticism. So, that’s what I’d like to provide in the rest of this post. Several distinctions, some already hinted at here, help get us to the perspective on federalism that serves the above-mentioned populist agenda.

The first of these distinctions is the emphasis in modern federalist scholarship upon territoriality as a defining feature. This emphasis is to be distinguished from a civic or demographic sense of federation – which confusingly taps into the American sense of pluralism as diversity (rather than the European emphasis upon pluralism in law and governance institutions) – which was so evident in the notions of federation proposed by Althusius and Proudhon, with their emphases upon federated institutions, such as families and guilds.⁶ In the related literature this kind of social federalism has come to be called consociation. It has a historiography and political theory current all its own.⁷ Though, as might become clearer as we proceed, I would rather align with Althusius and Proudhon on this, maintaining closer kindred between consociational and territorial federalism. Though I’ll concede they may entail different systems or regimes of federation. But wouldn’t that be the very logic of pluralism?

In any event, once consociation is parsed out, the distinctions in relation to strictly territorial federalism in the modernist literature largely parallel those of the ancient history – though maybe with a little shading. The prime distinction in the modernist nomenclature is between what has come to be called federalism/federation and confederalism/confederation. As has been alluded to above, the former entails a direct relationship between the federated government and the citizens or individual members of the federation. While the latter term is taken to imply an arrangement in which the federated (confederated) unit has no sovereignty of governance and is nothing more than the collectivized will of the feduns. In the U.S. context, this nomenclature seems obvious, given the highly centrifugal nature of the original Articles of Confederation and the obviously more centripetal nature of the federation resulting from the 1787-89 constitution.

I’m guessing that it was precisely the U.S. experience that gave rise to and seemed to confirm this bit of semantic distinction, given the influence of U.S. scholars, and the framing of the latter’s later Constitution as the modernized ideal of federalism. However, once one leaves the cozy confines of U.S. history, the nomenclature doesn’t hold up quite as well. The most obvious example being the history of that country’s northern neighbor. Canada, in its 1867 founding document, is explicitly called a Confederation. This, despite the fact, as discussed in A Plea for Time in the Phenotype Wars, that in practice the initial constitution of Canada was a far more centripetal arrangement than the 1787-89 U.S. federal arrangement.

As I also observe in the book, those relations have largely reversed since the 1860s, during which the U.S. federal government has increasingly gained more centralized power, while in Canada the provinces have gained greater jurisdictional sovereignty.⁸ Indeed, that has been so to such an extent that it wouldn’t be unfair to conclude that today Canadian provinces are more sovereign than U.S. states. But, again, all that has been discussed in the recent (must read!) book and won’t be rehearsed here.

Still, notwithstanding the U.S.-centric nature of the nomenclature, and the confusions it can create when applied to historical language used in other contexts, I’ll defer to this federation-confederation distinction – at least for purposes of this discussion. Though, as will be seen momentarily, I also think the forms of this distinction are inadequate both for appreciating the nuanced shading of federal possibilities, and particularly for teasing out the imperatives of a federalism that meets the needs of the aforementioned 21^st century populist agenda.

A common, though I’ll concede not exclusive, emphasis on this distinction has been focused upon sustainability. The common logic has been that confederations are prone to disintegration as conflicts are inclined to eventually arise among the feduns. The more closely bound nature of federation, where the bonds reach over the heads of the feduns, between the federated government and the citizen, create a glue that can hold the federation together, even in the face of conflict between feduns. It is of course an odd claim to make while using the U.S. as one’s normative case, considering even this far more centripetal federation wound up requiring one of the bloodiest wars in recent history to bind its federation over the long term. And of course, it may well be precisely that the fallout from the 1787-89 Constitution has enabled the far more centripetal federation that has developed in the U.S. since the 1860s.

From my perspective though, longevity or sustainability are not the vital standard of the federal ideal. Rather, seen through the lens of the above referenced populist project, the ideal of federalism is precisely one that complements and nurtures pluralism. Now, certainly, by definition, federalism is pluralist. It entails at least two levels of governance, neither of which can claim absolute or undivided sovereignty. That’s inherently pluralist. However, from that truism it does not logically follow that, from the perspective of pluralism, all forms of federalism are created equal.

In fact, I’d go as far as to say that what strikes me of importance in such distinctions is not whether an arrangement is a federation or a confederation but whether it conforms to a description of pluralist federalism rather than mass federalism – a prospect I teased out in an earlier post. If then we begin with that normative priority, the question is rather what makes a federation pluralist, beyond the obvious pluralism inherent in any federation. I’d see the balance lying between two considerations. First, there probably does have to be something like a federated government. In the recent book, I leaned more in the direction of an alliance or league, resembling what we’ve identified in the scholarly nomenclature as a confederation. However, a confederation whose federated governance constituted nothing more than the aggregated will of the feduns wouldn’t properly speaking be pluralist.

Further, this is not a mere matter of semantics or Platonic idealism. There probably is some merit in a certain level of jurisdictional sovereignty on the part of the federated government. Not least because it could protect the federation from the potential destructiveness of feduns free riding and undermining the defensive benefits it provides, in the spirit of Montesquieu. This is a point I’ll have to flesh out further below.

In addition, there can well be other kinds of benefits deriving from a federated government with some jurisdictional sovereignty. An obvious one would be that a common passport may protect individual persons of the federation abroad, where foreign sovereigns who interfere with such passport holders may be more wary of doing so if the force of potential response was more formidable: the representing of the entire federation, rather than just an individual fedun presented instead as a small, independent country. And of course, insofar as a key responsibility for a federated government would be the maintenance of the collective border surrounding the entire federation, it would make sense to have consistent, homogeneous paperwork to manage transactions and travel across that border, which logically suggest the benefit of a common passport.

Additionally, though, something approaching a federal citizenship could be valuable domestically. One benefit frequently cited for federalism is the ability of citizens to move about over a larger common territory in search of a preferable life. I appreciate that some temporalists may not be so keen on that prospect, seeing such mobility as a threat to stronger gemeinschaft. There are certainly trade-offs to consider there. More straightforward, I’d think, would be the benefits of trade – or the ability to move goods of any kind over a larger territory. While temporalists may be reticent about the deterioration of their world into a market society, even temporalists have long welcomed trade, both local and eventually long distance. (Though the long distance trade under the medieval constitution was often mediated by local regulation.) So, given a common commitment to the identity and limited sovereignty of a federated government, such arrangements could benefit the feduns in a manner which was not merely more consistent with pluralism but helped sustain their local communities.

The second consideration, though, in defining a distinctly pluralist federalism, would lean in the other direction. Because granting to a federated government sovereignty in any jurisdiction, but especially in its capacity to raise an army and optimize force of arms, is the danger of a destructive centripetalism that destroys the federation, allowing the federated government to become a hegemon. So, the second key characteristic to emphasize in ensuring a pluralist federalism is that, even while all sovereignty is not located exclusively in the feduns, nonetheless there are structural restraints against the federated government taking on such a hegemon status. Again, I’d point to two dimensions of this challenge which would need to be entailed in such a federation.

The first dimension, as hinted at above, is the necessity of preventing a strong immediate bond between the federated government and the individual persons of the federation. Allowing for a common federated citizenship certainly threatens such a qualification, but I’d think the latter condition could be met without succumbing to the dangers of such a bond. Taking the U.S. as our keystone case, the Constitution certainly gets off to a very bad start by declaring “We the people.” This should have been “We the states.”⁹ Conceptually erasing the states as pluralist intermediaries between the federated government and individual persons of the federation puts the federation at serious risk of devolving into a mass democracy and mass society. To that extent, the seed of the administrative state and its managerial liberalism was already present from the start.

Parenthetically, in an intriguing book that covers this same theoretical terrain, The Confederate Constitution of 1861, Marshall DeRosa notes that it was precisely this “we the people” rhetoric and logic which was leveraged by the likes of Senator Seward to argue against a centrifugal federation, ultimately fueling the energy for eventual secession. And it is noteworthy that in the crafting of its own Constitution, the Confederate States of America quite deliberately corrected this “we the people” reference, making their claim to be the people of the confederated states, rather than to some abstract sense of an American mass federation. This was only one of several repairs that the CSA wrote into its Constitution in an effort to offset the inherent centripetalism of the USA’s 1787-89 Constitution.¹⁰

However, the U.S. federation for a long time mitigated such centripetalism through safeguards against such a direct, mass federalism. The most notable instance of such a safeguard was the presidential electors – the term electoral college does not appear in the Constitution, though the basic notion is implied. Effectively, the Constitution ensures that it is the states, through whichever manner is chosen by their legislatures, who effectively, collectively elect the President. However, the surrender to the ethos of mass democracy instantiated by all the states eventually resorting to popular vote for determining their presidential electors has put such a valuable protection of pluralist federalism at risk. As the federated government endlessly pimps the notion of “our democracy” – meaning of course mass democracy – the relentless emphasis upon the “national”¹¹ popular vote increasingly has legitimized growing calls for the elimination of the electoral college. After all, from the perspective and logic of mass democracy, it is an antiquated obstruction.

This example illustrates to us both the potential for institutional and governance mechanisms that can protect pluralism in a federation, while also alerting us to the way such mechanisms can be counterproductive if misunderstood or improperly applied. As segue into a discussion of what kind of such mechanism I think could help preserve a pluralist federalism, I’ll mention that (very much in contrast to the consensus in the modern scholarship on federalism) as important as is the absence of a direct bond between the federated government and the individual persons in the manner of elections, so is the importance of such absence in the area of taxation. The federated government, if a federation is to be pluralist, must not have the capacity for direct taxation of the federation’s individual persons.

This might seem at first blush anti-pluralist, as clearly the two governance levels are not equal in their capacity to self-finance, which would seem essential for anything resembling sovereignty, however limited their designated jurisdiction. I won’t deny the gist of that accusation; I will though justify it in claiming that the risk to the feduns of a federated government having such taxation power is just too great for pluralist federalism to survive under such conditions. I’ll point to two ways in which that’s true, then conclude this post with some speculation about what a mechanism might look like that resolved the taxation problem in a manner that preserved the pluralism in a federation.

The first consideration, which I also address in A Plea for Time in the Phenotype Wars, is the danger of the federated government developing an out-sized spending power. Such a development has hindered the capacity for a more pluralist federalism in both the U.S. and Canada. It provides the federated government a centralizing influence through the providing of funds to the feduns to cover costs of their more expensive areas of jurisdiction, such as education, health, and welfare. However, since such money needed by the feduns comes through the hands of the federated government the latter has the capacity to attach conditions to such funding, dictated by and in the interest of the federated government, including its interests in a greater centralization of power, and so increase its overall degree of sovereignty within the federation. In my recent book, I compared the dramatic difference in spending power between the federated governments of the U.S. and Switzerland. This makes a big difference in the capacity of a federation to maintain a pluralist character.¹²

Then, in addition to the risk of a centralized spending power, there is also the above-mentioned danger of the federated government developing military and intelligence capacities which it could, if not properly constrained, wield against its own population, including individual feduns, in the interests of those invested in the power of the federated government – be that through surveillance, psy-ops, super-legality¹³, or blunt coercion. The federated government would become a kind of resource which could be captured by factional social interests for purposes of dominating or exploiting other members of the federation. Indeed, if allowed to develop such capacity without corrective mechanisms of constraint, the federated government would be expected to become just such a resource.

I suspect most temporalists, perceiving an unmitigated unleashing of super-legality upon the middle American populist movement and its leadership – e.g., through the barrage of indictments of Trump¹⁴, the prosecution of his lawyers, and the DOJ’s seemingly insatiable appetite for ever more convictions among those in any way related to the events of January 6, 2023 – may conclude that the extant U.S. federalist solution (having a managerial class oligarchy of lawyers interpret a piece of paper) may not have been the most efficacious mechanism for preventing such abuse of power by the federated government.

In light of all these considerations, in current practice and political theory, I’ll conclude with some speculation about the kind of mechanism which could preserve pluralist federalism in the face of the dangers posed by allowing a federated government jurisdiction in the important field of national defense including a monopoly on (or at least privileged possession of) military and intelligence power. Such a mechanism, recall, must not only mitigate the risk of abuse of coercive power, but also the danger to a pluralist federation of the federated government dominating the spending power. To be clear, I don’t presume to be able to delineate the detailed mechanics involved; I only aspire to illustrate how such a mechanism must operate – what it must make possible. I know that I don’t usually resort to normative recommendations but given the importance of these questions to the creation and survival of pluralist federalism, it seems worth making an exception, and having a stab at the matter – however cursorily and provisionally.

My suggestion for such a mechanism to maintain a pluralist federation is that, on the one hand, as already mentioned, the funding of the federated government – given the aforementioned dangers to such a federation of the latter monopolizing the majority of the spending power – has to be achieved through taxing the feduns: not the individual persons of the federation! Among the many reasons for this (beyond the dangers to a pluralist federation of creating a mass society) is that feduns are much more capable of standing up to taxation abuse by the federated government than are individual persons. This greater capability is as much a function of simply more direct political and legal resources as the formal fact of practically possessing aspects of sovereignty within the federation. (As opposed to an individual citizen’s abstract possession of “sovereignty.”)

However, given such a taxation arrangement, it would be naïve to ignore the fact that individual feduns could have the means and motives to free ride upon the taxation payments of other feduns. An obvious contemporary example of this is how so many member countries of NATO have chronically refused to pay their designated share of membership fees to the alliance. Additionally, and I don’t claim to know the truth of the details in this case, but one of the allegations against the initial Articles of Confederation was that some states were shirking their financial obligations to the Confederation. So, the federation, presumably through the federated government, must have some means of imposing penalties – presumably (though not necessarily) financial – upon any feduns that contribute to the weakening of the federation through such free riding.

There are two dimensions to the consideration of such penalties, one of which is more obvious in its contours than is the other. First, the financial value of the penalty must be such that it sufficiently eliminates whatever financial benefit a fedun may gain through such free riding. This is a relatively simple matter of calibrating cost-benefit realities. The trickier dimension of such a penalty is that the federation must have a means of enforcing such a penalty. I think it probably would be self-defeating of the very objective here to allow such enforcement to be exclusively left in the hands of the federated government. Probably some kind of participation by the other feduns – perhaps a super majority vote – must be required to exercise such penalty enforcement. Let’s for now assume that enforcement is not an area of moral hazard: risking the provision of too much power to the federated government.

An interesting additional wrinkle, then, is that while the calibration of the penalty must be such that it offsets the potential financial benefits of free riding, that penalty must also be calibrated for consideration of another eventuality. What if a fedun concludes that the federated government is acting unconstitutionally – violating the very terms of federation? Abusing its control of military and intelligence resources to impost a centralist sovereignty upon the feduns? While the penalty for free riding must be high enough to offset potential financial gains from such shirking, it cannot be so high as to prevent a fedun from willingly accepting such high costs if it believes that defunding the federated government is essential for counteracting an existential threat to the federation (or its own sovereignty).

To draw a somewhat reductio ad absurdum example, a penalty of genocidal extermination of a fedun’s entire population which failed to pay its federal taxes probably would pretty much prevent all taxation free riding. It would not though provide the cost-benefit calculation allowing a fedun to absorb the entailed cost of defunding a corrupt or tyrannical federated government. Indeed, such a cost on tax defiant feduns might well be expected to encourage such a renegade federated government. Surely the cost of a fedun refusing to pay its taxes must be high, but it cannot be so high as to cause such payments to become an instrument of effective domination. Hence, the mechanism that would best address these multiple challenges would be the one that was appropriately calibrated to hit this sweet spot.

To repeat, I’m not claiming to know exactly how the mechanics here would work. What exactly would be the penalty; what would be an appropriate, federation sustaining, method for enforcing such a penalty. These details would need to be worked out, and it’s likely that experience would be a valuable instructor in such determinations – more customary law than social engineering. Such experience though could only avoid becoming the handmaiden of tyranny if there was a sufficiently pluralist, temporalist culture informing a common aspiration to find such a sweet spot. All I’m saying is that it seems to me, based upon my reading and reflection on this topic, some such mechanism would be essential for maintaining a federation as an expression of pluralist legal and political institutions. Maybe not sufficient, but certainly necessary.

And so, on that sobering and modest normative declaration, our quite extensive series on the lessons of legal pluralism comes to a close. I’ll continue unpacking insights into pluralism (and federalism), but it feels like we’re now beginning to strain the limits of what might be precisely identified as strictly legal pluralism. So this most ambitious series comes to an official conclusion. There obviously has been the seeds of a new book in all this historical precedent of pluralism stuff, going back to Walker’s book on the German hometowns. Yet, lots of details remain to be filled out. And that’s what we’ll be getting up to in the months ahead.

For those of you who have been closely following along through this series, thanks so much for your interest and feedback. It’s been appreciated and valuable. What lies ahead you might ask. I actually have several different lines of inquiry in mind, but at the time of writing these remarks haven’t settled on a specifically delineated path. There will be some discussion of the roles played by pluralism, federalism, and populism in the history of the U.S. founding, as seen through the lens of the phenotype wars. It turns out to be an intriguingly subtle and nuanced story. I also want to reconsider the legacy of early 20^th century guild socialism. It’s a fascinating story, if ultimately a paradoxically flawed aspiration for the recovery of temporalist institutions. And I’ve a couple other things up my sleeve.

So, if you want to be up to date as those discussions unfold, and haven’t yet, please…

And, as ever, if you know other folks who’d be keen to participate in our explorations here, please…

Meanwhile: be seeing you!

1. Daniel J. Elazar, Exploring Federalism (Tuscaloosa, Ala.: University Alabama Press, 1987).

2. Rufus S. Davis, The Federal Principle: A Journey Through Time in Quest of Meaning, 1st edition (University of California Press, 2023). See also Edward Augustus Freeman, History of Federal Government in Greece and Italy (Legare Street Press, 2022). The term (and concept?) of sympoliteia appears two to three centuries on the heels of the popularity of the term symmachia.

3. Maude Violet Clarke, Mediaeval City State: An Essay on Tyranny and Federation in the Later Middle Ages (New York: Routledge Revivals, 1926).

4. For a great introduction to all this, see Benjamin R. Barber, The Death of Communal Liberty: A History of Freedom in a Swiss Mountain Canton (Princeton University Press, 2016). Also of interest is the final section in Clarke, Mediaeval City State: An Essay on Tyranny and Federation in the Later Middle Ages.

5. While Montesquieu gets credit for his division of powers insights, his federalist insights and contributions are less widely credited. And parenthetically, it is quite remarkable, considering that France has never been formally a federal country, that some of the most profound federalist thinkers have been French – or at least wrote in French. See Ralph Nelson, “The Federal Idea in French Political Thought,” Publius 5, no. 3 (1975): 7–62.

6. Yet another reminder of the peculiarly influential contribution to federalist theory of the distinctly unfederalist French. See Nelson above.

7. Kenneth D. McRae, Consociational Democracy: Political Accomodation in Segmented Societies (Toronto: McClelland and Stewart, 1974); Michaelina Jakala, Durukan Kuzu, and Matt Qvortrup, eds., Consociationalism and Power-Sharing in Europe: Arend Lijphart’s Theory of Political Accommodation, 1st ed. 2018 edition (Palgrave Macmillan, 2017). Belgium is often held up as the preeminent example of consociation, though it has recently begun to manifest its consociation traditions in the form of territorial federalism. Canada, too, may be cited as an example moving in the other direction. Though it began as a territorial federation, there have been increasing moves toward consociation. The bilingualist policies under Pierre Trudeau, requiring federated government officials across the country to be bilingual has a clear consociationalist dimension to it.

8. There are those theorists who argue that sovereignty is incompatible with federalism. Certainly sovereignty becomes a complication if one adopts a Schmittian absolutist definition. However if we use the term in keeping with its simple semantics, It merely identifies the entity with the legitimacy to make or makeover the law. (This of course is in a positive law context.) If interpreted that way, it's unproblematic to acknowledge sovereignty as divided between different jurisdictions. That designation doesn't solve the hypothetical Schmittian crisis, but it works for the normal condition, and as I’ve discussed elsewhere, Schmitt himself came to realize that that was the more important condition to emphasize and theorize.

9. In fairness, my understanding is that an earlier draft of the Constitution started with “We the people of…” and went on to itemize all the participating states. So, in that case, the identification of “the people” was not so subject to being confused as an appeal to mass federalism or mass democracy, but seemed more clearly an acknowledgment that the people were represented through the states. Apparently, this wording was abandoned since it could not be assumed that all the states would approve the new Constitution. I can understand why that discursive strategy was a problem. Resolving that problem though doesn’t seem to dictate in response the inelegant and self-defeating resolution they ultimately settled upon.

10. Marshall L. DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism, First edition (University of Missouri, 1991).

11. Surely, to this readership, I do not have to explain that the U.S. is not a nation in any sense which doesn’t rely upon preposterous contortions of mental gymnastics.

12. How this concentration of spending power arises, I expect differs from one context to another. If there’s a centralist will, there no doubt will be a centralist way – provided there isn’t a sufficient mechanism for offsetting or constraining that centralist will. In the case of Canada, it has its roots in the fact that upon “confederation” in the 1860s tariffs were the main source of taxation and, so the argument commonly goes, it was determined by the founding fathers that collection of this tax would be most effectively conducted by the federated government. Though, I don’t really see why that should be so. Why would it be less efficient for the provinces to collect the taxes, then pass on to the federated government its proper proportion? Sounds to me like a bit of self-serving logic, thoroughly in keeping with the centripetal conception of federalism imagined by Canada’s founding fathers, as mentioned earlier in this post. For more on the debates surrounding the founding of the Canadian federation, see: Edwin R. Black, Divided Loyalties: Canadian Concepts of Federalism (Montreal: McGill-Queen’s University Press, 1975); Ed Whitcomb, Rivals for Power: Ottawa and the Provinces: The Contentious History of the Canadian Federation (Toronto: Lorimer, 2017).

13. A concept borrowed from Carl Schmitt, discussed at some length in A Plea for time in the Phenotype Wars.

14. In addition to the formally federal indictments of Trump, there’s grounds to suspect that even state indictments against Trump were at least coordinated with, if not driven by, the federated government of the United States. This includes peculiar White House meetings with Georgia prosecutors and the seconding of top DOJ personnel to the relevant New York District Attorney’s office.