Wilfred M. McClay
"The Federal Idea"
The Philadelphia Society Williamsburg Meeting
November 23, 1996
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The concept of federalism has been one of the principal casualties of modern American history. One has to look far and wide to find American historians and political scientists who do not believe, with the smugness and tenacity of dogma, that our federal institutions are lumbering relics of a past we outgrew over a century ago, relics that have been little more than obstacles in the path of racial justice, and in any event have little or no place in a modern consolidated nation-state. Equally indicative of federalism's faded status is the fact that so few average Americans even know what the term means---having been habituated by the endless invocation of the term "Federal government" to regard federalism, if they think of it at all, as the opposite of what it really is.
It has not always been thus. Take, for example, the testimony of Tocqueville, a great admirer of nineteenth-century American federalism. Tocqueville acknowledged, in the first volume of Democracy in America, that federalism is an exceedingly "complicated" system of government which "demands the daily exercise of a considerable share of discretion on the part of those its governs." Indeed, he asserted that the U.S. Constitution itself, which he regarded as "the most perfect federal constitution that ever existed," presupposed an astonishing level of knowledge and discernment in those being governed. Yet it seemed to him that even the humblest Americans of the 1830s had an instinctive grasp of federalism:
I have never been more struck by the good sense and the practical judgment of the Americans than in the manner in which they elude the numberless difficulties resulting from their Federal Constitution. I scarcely ever met with a plain American citizen who could not distinguish with surprising facility the obligations created by the laws of Congress from those created by the laws of his own state, and who, after having discriminated between the matters which come under the cognizance of the Union and those which the local legislature is competent to regulate, could not point out the exact limit of the separate jurisdictions of the Federal courts and the tribunals of the state. [166-67]
In this glowing encomium is also buried a sober warning. Such a complex government would, Tocqueville observed, "be ill adapted to a people which has not been long accustomed to conduct its own affairs," a statement that perhaps begins to convey some of what is at stake in the current efforts to revive federalism in the United States. Certainly there is evidence that the current revival is enjoying some success, and indeed there is even some reason to think that we may be embarked upon the most serious and sustained reconsideration of the federal idea in a century or more. The 1994 elections, the Supreme Court's 1995 Lopez decision, the growing prominence of the nation's state governors, and the 1996 Congressional devolution of social-welfare programs---all betoken the possibility, though still a remote one, that American federalism, as originally envisioned, may yet enjoy a second chance. But Tocqueville's words of warning suggest what may be the greatest obstacle: the American people themselves. An undifferentiated restlessness and antagonism to "government" is a mixed blessing at best, and may not be such a promising seedbed for a revival of federalism. In short, we may no longer be able to presume an American citizenry with the same qualities of character and mind that prevailed 170 years ago. Like any other system of government, a genuine and sustainable federal system must be able to draw on, and in turn reproduce, a certain social character in its citizens. Once that chain of causes and effects has been broken, only a congenital optimist could feel certain that it can be restored.
But one must try, and one modest way of contributing to this difficult undertaking is to change the way we think about the trajectory of modern American history, and thereby restore some sense of the plausibility of "the federal idea." That would involve a dramatic change, for by and large the American story is now told as the steady and inevitable triumph of nationalism---that is, of nationalizing and centralizing forces over local, regional, provincial, or particular concerns. Indeed, even allowing for the increasingly deconstructive effects of multiculturalism, the political history of the United States still continues to be told as a series of such struggles, in which the centralizers generally wear the white hats (or headdresses). In the Founding period, the forward-looking, continental-minded men who proposed the Constitution prevailed over the more backward-looking and localistic anti-Federalists. In the Civil War, a conception of the United States as an indissoluble national union prevailed over the lingering claims of state sovereignty. And so on, to the 14th Amendment, the Progressive movement, the First World War, the New Deal, the postwar civil-rights movement, the Great Society---each a landmark along the broadening path to a more powerful, more comprehensive, more caring, more supervisory, and more beneficent national government. Each was a victory for what Herbert Croly called "the national idea"---the idea that all that is highest and most desirable in our culture is expressed by and in national institutions, and the enlarged sense of community and collective purpose they embody.
That, as I have suggested, may have begun to change. The persuasiveness of this model of American history has clearly begun to erode, both on the left and the right ends of the political spectrum. But the imprecise concept of "devolution," though it may have certain short-term tactical uses for political conservatives, will not be sufficient to fill the intellectual and organizational vacuum left by the erosion of the "national idea." In fact, in so far as it merely envisions "devolution" as a way of downsizing government at all levels, it really does not challenge the dominance of the national idea at all. It does not seek to augment or protect the independent authority of state and local political institutions, or to equip states and localities to contend with, and act as a check upon, national power---something that single individuals are singularly unequipped to do. Hence it is not only "devolution," but a more complex idea of the meaning of the national union, that we need to develop.
And this complexity is precisely the genius of federalism---and of American federalism in particular. It divides political power between and among units of government---central and local, higher and lower---in such a way that all retain certain elements of autonomy and self-governance. Federalism thereby offers the prospect of reconciling the advantages of independence with the advantages of combination, the cohesiveness and diversity of smaller-scale local organization with the material resources and external security provided by a unified nation-state. It need hardly be added, however, that for such a system to preserve its character, it must find clear and consistent ways of strictly limiting the powers of the central authority, and protecting the autonomy of the local and provincial governments. This can best be done through a written constitution, of precisely the sort that the Framers provided. Whatever else one may say about Madison's intentions in helping frame this unique "composition" of federal and national systems, he most emphatically did not offer the Constitution as a blueprint for a consolidated government that would completely supersede the separate authority of the states, or reduce them to mere administrative units at best.
The federal idea, then, is an attempt to reconcile opposites, to find a balance between nationalism and localism without having to choose finally between one or the other. Contrary to familiar caricatures of the federal idea as a form of hidebound legalism, such a system, properly understood, is necessarily fluid and dynamic, even ambivalent in its sense of political life's proper ends. It is not, and cannot be, a closed and finished product. Rather, it is splendidly fitted to a broadly liberal understanding of political life, especially the sort of liberal pluralism one associates with a figure like Isaiah Berlin, that envisions human existence as a Whiggish struggle between and among many different expressions of human good and human perfection, rather than as a struggle between darkness and light, grounded in the illusion of an eventual all-encompassing harmonious fulfillment and resolution of those conflicts. This is one reason why the tendency of historians to reduce the Constitution to a compromise-ridden political deal is so misconceived; for the reconciling of opposites, the reconciling of the claims of conflicting goods, was one of the Constitution's substantive goals.
The federal idea, then, was not somehow incidental to the Framer's intentions. It was absolutely essential, and we need to remember why. There are, roughly speaking, two reasons; and it is in keeping with my allusion to Isaiah Berlin that one of them is negative, the other positive. First the negative one. The Framers distrusted power, distrusted government, distrusted majorities, distrusted human nature. They believed in "the necessity of auxiliary precautions" to guard against the abuses of power to which popular governments are prone. Hence the need to devise a government that deliberately set up "opposite and rival interests" that could check and balance one another, using "ambition...to counteract ambition." Federalism was a crucial part of this arrangement. The separation of national and state governments, in tandem with the separation of powers within each level of government, provided "a double security" for the people's rights, through the effective dispersion of power.
That, then, is the negative function of federalism. But it is complemented by an equally important positive function, one that gets far less attention than it deserves. Federalism, properly conceived, makes it possible to preserve the integrity and vitality of smaller-scale forms of political organization and association. A federal regime, properly constituted, should offer a multitude for arenas for meaningful acts of citizenship, the kind of acts that elevate and deepen human beings, while binding them more closely and affectionately to their locale, and through their locale, to the nation.
This perspective on citizenship is reflected with especial prominence in the classical-republican strains of eighteenth- and nineteenth-century Anglo-American political thought and ideology. The older classical understanding of "virtue" stressed that the individual could not realize his human nature in its fullness without involvement in public life---and that a strong republic depended upon a preponderance of such independent, public-spirited individuals for its very existence. Virtue, to paraphrase Randolph Bourne, was the health of the state, no less than of the energetic citizen. This vision has attracted the interest of a number of present-day liberal communitarians, like Michael Sandel, as an alternative source of social solidarity in a post-Marxian and post-nationalist era.
There actually is a good deal to be said for such a reappropriation of republican ideology, and for a recovery of the exalted idea of citizenship and public life that it entails. Rough and tumble as it is, and always has been, public life in a democracy can and should function as a kind of school of the soul. Local and smaller-scale institutions are clearly better situated, in many respects, to play such an educative role, precisely because they offer more opportunities for meaningful acts of citizenship. But such neo-republican writers need to remember that there is always a less attractive side to republicanism. John Pocock himself has observed that idea of virtue is "highly compulsive," for it "demands of the individual, under threat to his moral being, that he participate in the res publica." If one really takes it seriously, republicanism makes virtuous political activity the alpha and omega of existence---a thoroughly dismal prospect, in many ways, of which it can truly be said that it is a cure worse than the disease. There is a danger that, in too zealously combating the "unencumbered self," to use Sandel's term, we end up falling into the arms of an unencumbered polity.
The federal idea represents a genuine answer to this dilemma. It offers a way of allowing adequate scope to healthy individualism, to the satisfactions of private life, to the "bourgeois virtues" of a liberal democracy, while respecting and upholding the role that acts of citizenship, and republican notions of public life in general, play in the deepening and elevation of the soul. Here, again, Tocqueville's view of the matter is illuminating. Fearing the disintegrative effects of individualism in a liberal social order, Tocqueville sought to tame the engine of self-interest so that it would serve in the stead of virtue. He recognized that there must be an institutional framework to support such an endeavor, and he credited the Framers with having devised one. They had deliberately sought, he said, to "infuse political life into each portion of the territory in order to multiply to an infinite extent opportunities of acting in concert for all the members of the community."
In other words, Tocqueville saw in the federal idea a way Americans could retain the spirit of republican citizenship even when accepting the self-interested dynamism of liberal individualism. If this is right, then it can be argued that American federalism was, in effect, an effort to retain and reconcile the essential principles of both classical and modern political thought. This does not mean that Tocqueville believed Americans should be committed in perpetuity to a particular way of dividing authority, or that he was opposed to a powerful national government. But it did mean that they should be committed to the idea that political communities, if they are to have any real moral vitality, must find ways to spur their inhabitants on to the fullest development of their natures. It must permit them---and require them---to be citizens.
This does not mean, of course, that the federal idea has much in common with the growing plebiscitary tendency in present-day American politics, epitomized by the horrors of computerized direct democracy. On the contrary, it favors the careful discrimination of appropriate spheres of responsibility, and esteems solid "local knowledge" over pseudo-cosmopolitan "public opinion," particularly of the sort generated by mass media and measured by pollsters. By permitting citizens maximum feasible authority in the administration of minor and local affairs, the federal idea draws them into public life by giving them a palpable stake in the issues being deliberated upon. Far from undermining their attachment to the nation, the federal idea promises to strengthens their affection for the nation, and their confidence in the efficacy of national government, precisely by limiting the scope of national institutions, and readily drawing the energies of citizens' most proximate or primal attachments into affirmation of larger affiliations---a nationalism fed, one might say, by patriotism.
Madison well understood most, or all, of this. Despite his famous argument for the "extended republic" as a check upon faction, he also insisted that the jurisdiction of the central government be restricted to "certain enumerated objects," with the states and localities retaining "their due authority and activity." He did no assume that a large and diverse nation could offer the same sense of moral community as a small and relatively homogeneous republic (though he did assume that the national perspective would generally be the more elevated one). Rather, he assumed that "a judicious modification and mixture of the federal principle could combine the advantages of both.
For today's politicians to fulfill the spirit of these words, then, they will need to move in the opposite direction from that of the past century---away from the relentless centralizing trends of the past, and toward institutional arrangements that seek to multiply the opportunities for public association. The challenge is to find ways of restoring the sense of accountability and belonging offered by smaller, more human-scale institutions which can serve as schools of citizenship, while retaining the inestimable advantages of national government. This is the holy grail sought by so many of the political thinkers of our era, from Dewey to Sandel; but they generally have failed to noticed that this is precisely the promise of the federal idea. The federal idea does not require us to renounce a national government---only to specify and enforce its limits. And it does so not only to limit the power of the national government, but to preserve kinds of association, and qualities of soul, that are beyond the power of nationalism to sustain. We have been too easily convinced, I think, by the reflexive argument that the federal idea is useless to us today, because we cannot return to nineteenth-century institutions. This is to mistake one expression of the federal idea for the idea itself, and to imagine that the federal principle cannot permit growth or development, or find expression in other ways. It is to forget the fact, to repeat, that federalism is not a closed, finished system, but is by its very nature dynamic and adaptive. If we can begin to understand this sense of federalism, as an idea rather than a fixed set of immutable relations, and moreover as an idea that is designed to balance and reconcile the competing claims of competing goods, then our debates over the promise of federalism may take on a new vitality and plausibility. The federal idea may then win more general acceptance as an idea whose time has come---again.