McClay – The Federal Idea

Wilfred M. McClay

Tulane University

"The Federal Idea"

The Philadelphia Society Williamsburg Meeting

November 23, 1996

(Permission to quote this speech must be granted by the Author:

a full text version of this article will be published by Continuity)

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.