WHEN GOOD FEDERATIONS GO BAD

THE (ALL TOO) UNITED STATES OF AMERICA/EUROPE

Okay, so right off the bat, let’s refute all those groundless rumors. No, Marjorie Taylor Greene is not my girlfriend. Nor have I been slipping her baksheesh under the table. Though, I do understand the suspicions. How sweet of her to make the question of revitalizing a bottom-up federalism in America a hot talking point, just as my substack is turning in the direction of an extended exploration of those ideas. Sometimes the universe is just in harmony. Or maybe it’s a simulation. In any event, thanks to MTG for making my substack a form of current affairs. And how interesting to see a member of Congress talking the way she has been on Twitter. Not something you see every day. But, now down to work.

The last post briefly reviewed the case for federalism as the soundest governance structure for promoting the communitarian agenda of the new populism (and right socialism) – with the caveat that it would have to be a genuine bottom-up federalism, rather than the intergovernmental arrangement passed off as federalism in the top-down distribution of sovereignty. While it was valuable to acknowledge the importance and opportunity presented by the prospect of such a federal populism, it would be irresponsibly Panglossian to celebrate the merits of this agenda while ignoring the all too disappointing history of promising federations going bad. In this post, we’ll briefly review a couple of cautionary tales in this regard: the United States and the European Union. Next post we’ll look at a couple others, that while still emphasizing the need for caution, offer some grounds for optimism, too: Canada and Switzerland.

Federalism, of one form or another, is an ancient practice: often organized around leagues of cities, from the Hellenistic Delian, to the German Hanseatic, to the Hapsburgian Swabian league. And, though Switzerland has a history of federalism going back 700 years, the United States is probably properly considered the first modern state founded upon federalism. To this day the country’s controversies often revolve around debates over “state’s rights.” The ability for certain states to carve out havens of alternative governance practice amid the recent COVID hysteria was a practical manifestation of that legacy. However, state’s rights have fallen a long way from where they began, even within the compromised constitution of 1787-89.

The 1787-89 constitution, while too centralist with its appeal to the founding people, rather than founding states, still invested a great deal of power in the states — which appointed the senators and presidential college electors. This sovereignty of the states has been gradually eroded by the seventeenth amendment, and the growth of the practice of popular election of the Electoral College. And this is to say nothing of the massive expansion in size, reach and power of the executive branch of the federal state, which has largely become an unelected, unaccountable, unreviewable, power unto itself. That massive expansion of agency power, though, has been continually promoted and buttressed by now nearly a century of collusion on the part of the courts – most particularly the Supreme Court.  

The logic of this outcome was always implicit in the U.S. founding, as mentioned above, with its cryptic democratization, invoked in the premise: “we, the people.” This conceptual opening of a direct line of association between “the people” and the central government, circumventing the ostensibly sovereign states, gives rise to the very “sovereignty pact” (Jouvenel’s alliance of the high and the low), which I discuss at length as a core foundation for the rise to power of the managerial class, in my (must read!) book, The Managerial Class on Trial. Once a grounding was laid for the federal state to appeal to popular sovereignty, transcending the allegedly parochial interests of any individual state, the trend toward top-down federalism was set inexorably in motion. And naturally the managerial class gravitated to this federal state power center, which increasingly provided the means for the implementation of their social engineering and bureaucratic paternalist agenda. However, as sobering a cautionary tale as has been this story, it’s not even the complete tale of U.S. federalist degeneracy.  

Even the 1787-89 compromised constitution was already a terribly federalist degeneracy of the original post-independence U.S. federal constitution, the Articles of Confederation. A brief review of some of the distinguishing features of the original bottom-up Articles federalism, and the booby-trapped to be top-down federalism of 1787-89, will illustrate the point. The following review is cribbed from the detailed discussion of the topic by Mike Klarman, in his article The Constitution as a coup against the public opinion.¹ The 1787-89 constitution gave Congress virtually unlimited taxing power. This was in stark contrast with the Articles of Confederation, under which Congress exercised no coercive taxing power. Instead, Congress was required to requisition funds from the states, a request frequently declined.

Likewise, while 1787-89 provided Congress virtually unlimited powers to raise an army and navy, and to call state militias into federal service, under the Articles, Congress was constrained to requisitioning troops from the states. 1787-89 granted Congress unlimited regulatory power over interstate and foreign commerce. The Articles provided no such power. Arguably, most destructive of genuine bottom-up federalism, 1787-89 vested Congress with implied powers: e.g., the Necessary and Proper Clause, which has been a loophole for all manner of over-reach by the federal state. The Articles explicitly limited Congress to exercising only its “expressly delegated” powers. Also, of relevance to the exploiting of the Necessary and Proper Clause for the growth of a federal state, the Articles did not provide for federal courts of general jurisdiction.

Additionally, 1787-89 provided opportunities for the central power to block state legislation. Also, the Articles’ strict restriction of legislators to annual terms was overturned by 1787-89, radically expanding terms: i.e., the presently familiar two years for the House, four for presidents, and six for senators. Tellingly, accountability mechanisms which have been a mainstay of the demands of populists over the last century and a half in North America were part of the Articles: i.e., instruction, recall, and mandatory rotation in office. Quoting Klarman:

“Instruction” enabled constituents to instruct their representatives on how to vote on particular issues being debated in the legislature (on pain of being forced to resign for violating instructions). “Recall” enabled, for example, state legislatures under the Articles to remove from office their congressional representatives even before their term in office had expired. “Mandatory rotation” imposed term limits for legislators and governors. For example, under the Articles, congressional delegates could serve only three out of every six years. The [1787-89] Constitution omitted each of these democracy-enhancing mechanisms, which were featured in many state constitutions and the Articles of Confederation.

All of this provided the emergent federalist state the tools to sabotage the original federal populism of the Articles of Confederation. There’s of course a major debate in U.S. constitutional historiography about the legitimacy and imperative of making these changes. I’m not sufficiently informed about the empirical facts to adjudicate these arguments. Though, it is of interest that critics from both democratic and libertarian normative stances have characterized 1787-89 as a coup (or counter-revolution) against the U.S. founding and prevailing popular opinion.² And, it’s always a valid point to remember who is talking when considering such constitutional arguments. One observer’s claim that “the Articles” left the federation “too weak and inefficient,” may well be the mirror image of another’s claim that “the Articles” defended the states against those who would wield the greater centralized power of a federal state to usurp the sovereignty of the founding states.

However you cut it, clearly, the shift to 1787-89 from the Articles constituted a reversal of the original founding from a genuine, bottom-up federation into an effectively top-down federal state. And given our purposes in examining federalism on this substack, Robert Hoffert, in his book A Politics of Tensions³, engages in an intriguing thought experiment. He asks, given the nature of the Articles, what might be teased out as the underlying assumptions about the political communities being constituted. Some of his conclusions from this thought experiment are intriguing and worth quoting at some length.

I propose that the key to this riddle is a particular set of understandings about community. The Articles of Confederation implicitly expresses its political concerns in terms of groups of people or communities. It reflects life in communities, not the anxious press of individualists. Thus, the Articles resonates more with the assumptions of covenanted communities than with those of self-interested competitors driven to contract for protection and stability.

The Articles' sense of community is reflected in different forms. Primary or foundational communities are represented by the states. A state is portrayed as the maximal level of meaningful, direct self-definition, and it must be protected as a primary communal form.

states represent the practical limits of coercive authority and formal structures. They are invested with coercive authority not because they are the most extensive community but because building a democratic community requires limits of coercion.

organic order is assumed to underlie the orders of history, civilization, and human contrivance.

The Articles of Confederation creates a political environment dominated by an important form of egalitarianism. It is not an equality of individuals that is directly expressed but an equality of primary communities.

the defense against the political abuses of power by individual representatives is an attentive, remedial community. The model of representation encouraged by these short reins is a representation closely tied to, strongly reflective of, and immediately responsive to the life and perspectives of the constituent community.

the Articles assumes that a vital community will provide a continuing supply of able citizen/delegates who have been nurtured by this parenting source. The exceptional contributions of individuals uncommitted to the community are feared and discouraged. Trust is in the large and self-replenishing stock of persons rooted in and nurtured by a wholesome and purposeful community.

Articles does not center its attention on autonomous individuals. This is not to suggest that it does not care about liberty. On the contrary, the Articles specifically mentions the securing of liberties as one of the primary purposes of the confederated league. The liberty it wishes to secure, however, is that of the states-or, more precisely, that of the primary communities, which are the states.

the Articles pursues traditions of liberty that are available to persons as a consequence of their membership in a larger, particular community. The Articles does not reflect a tradition that conceives of liberty as belonging to individuals qua individuals without regard to their social affiliations.

the Articles of Confederation is not a project dependent on humanity's political inventions. It is better read as an attempt to establish an environment within which the authentic order of nature can be reestablished and expressed. It offers a political framework that puts its citizens in touch with one another rather than contriving an endless array of isolating and fragmenting contexts for both social and personal life. It is more hopeful than fearful. It anticipates the revitalization of a natural order; it does not manufacture an order that will either stabilize naturally destabilizing factors or compensate for natural deficiencies or inconveniences.

The Articles' underlying orientation encourages confidence in the ordering possibilities of the intrinsic and spontaneous structures and processes of human life in community.

Considering then that my argument has been that it is federalism which provides the governance structures necessary to produce the political space required for the recovery of the kind of organic community that Piccone argued was the necessary condition for a populism relevant to today – one that stood in an intrinsically friend-enemy, existential tension with the social engineering and bureaucratic paternalist agenda of managerial liberalism – Hoffert’s analysis suggests that the original U.S. constitution, the Articles of Confederation, was not only precisely such a structure and space, but likely intended as such.

The legacy of bottom-up federalism in the U.S. wasn’t helped much by the – allegedly deliberate – confusion of banners under which the two sides continued to battle, over the 1787-89 constitution. The more famous – no doubt because victorious – “Federalists,” with their famous Federalist Papers, were in reality the anti-Federalists, with their scheme to impose a top-down federal state, rigged to lean eventually toward a national government. In contrast, it was those who no doubt felt a knee-jerk need to distinguish themselves from those they opposed who took on the name “anti-federalists,” who were in reality the real federalist, as measured by the long history of federalist theory and practice.

This “history,” imbibed from an early age, has contributed to most Americans thinking that federalism is reducible to something-like what “we have here.” This fact leaves an agenda for federal populism with a challenging uphill battle to wage. Realizing these truths about the history of U.S. federalism is discouraging, when we reflect upon what has been lost – for failure of vigilance and understanding – but hopefully that history may likewise serve as a remnant of encouragement, recognizing that the spirit of communitarian populism has already succeeded in giving rise to the kind of federalism necessary to sustain organic community.

Having dissected this arc in U.S. constitutional history, I’m spared a lot of time in running through the foibles of federalism underpinning the European Union. For, the original idea of European union, even as it took shape still in the midst of World War II, was deliberately, self-consciously modelled on an idealized vision of the U.S. federation, so that many of its early visionaries explicitly spoke of a United States of Europe.⁴ ⁵ And such characterization remained common right through into the 21st century.

Unfortunately, those early modelers, and so many who followed them, while well steeped in federalist theory, weren’t so sensitive to the practical political realities of institutionalized governance. So, it’s hardly surprising to discover that their aspirational “American model” was not the Articles, but of course the 1787-89 constitution. This was so much so that a key figure in the early United States of Europe movement, Altiero Spinelli, signed his articles as “Publius”: the same name famously adopted by Hamilton, Madison, and Jay in the Federalist Papers. Consequently, this early European federalist dream has been allowed to deteriorate into today’s federalist Frankenstein, managerial liberal techno-state. As one keen observer of European union has observed, the determination to impose a federal state upon the unwilling European nationalities has resulted in what he called a “cryptofederalism,” which has resulted in a politically debilitating “democracy deficit” crisis for the EU.⁶

The slow motion corrosion of bottom-up federalism in the US, given the Europeans' failure of critical theoretical sophistication, has effectively taken the EU down with the US ship. The difference is that the US has a bottom-up federalist tradition that can be revived from within its own history and political culture. The EU has never had such a reservoir of authentic federalism to draw upon.⁷ Consequently, its cryptofederalism is the only arrow in its quiver. While US federalism may be revived from within its traditions, European federalism, if it is to have a serious chance of success, probably has to go back to the drawing board.

But, as observed at the start of this post, while these are cautionary tales, there are some others which give us more optimism for the prospect of a federal populism. We’ll be looking at those in the weeks to come.

So, if you haven’t yet, please…

And if you know others who might be interested in these topics, please…

1. Michael J. Klarman, “The Constitution As a Coup Against Public Opinion,” William & Mary Law Review, May 2019, https://doi.org/10.2139/ssrn.3370359.

2. Jeffrey Rogers Hummel and William F Marina, “Did the Constitution Betray the Revolution?,” The Independent Institute, January 1, 1981, https://www.independent.org/news/article.asp?id=1400; Murray N. Rothbard, Conceived in Liberty, Volume 5: The New Republic, ed. Patrick Newman (Auburn, AL: Ludwig von Mises Institute, 2019); Klarman, “The Constitution As a Coup Against Public Opinion.”

3. Robert W. Hoffert, A Politics of Tensions: The Articles of Confederation and American Political Ideas, First Edition (Niwot, Colorado: University Press of Colorado, 1992).

4. Marco Patriarca, “What Happened to Europe’s Federalism?,” TelosScope, May 9, 2016, https://www.telospress.com/what-happened-to-europes-federalism/; Altiero Spinelli, Problemi Della Federazione Europea (Movimento Italiano per la Federazione Europea, 1944).

5. Fascinating side note for those interested in such things: the earliest reference I found to the idea of a United States of Europe was in a so-named publication of an interview with Nicholas Murray Butler, a U.S. academic and diplomat, who lived from 1862 to 1947. A former president of Columbia University and recipient of the Nobel Peace Prize, who was Taft’s running mate for the 1912 presidential campaign. The interesting part, though (especially considering the arguments in my [must read!] book, The Managerial Class on Trial – read it, or be square), is that Butler was not only a keen enthusiast of Mussolini all through the 20s, favorably comparing him to Oliver Cromwell, but a supporter of the Nazis well into the 30s. If you don’t understand the true nature of left and right, and the nature of the managerial class, such things will be confusing and unsettling. But not if you do.

6. Marco Patriarca, cited above. Though a bit technocratic in his analyses, Giandomenico Majone has been particularly insightful in his dissections of the ills afflicting European Union. It’s from him I borrowed the phrase “cryptofederalism.” He’s written loads of interesting stuff on the topic. An excellent place to start exploring his ideas is, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (Oxford: Oxford University Press, 2005).

7. Though, it’s worth observing that Europe certainly does have such federalist traditions to draw upon. The EU project would have been well advised to build out from those indigenous traditions rather than trying to take a plug-and-play model of US federalism, generated from a very different history and culture.