Ostrom - Meaning fo federalism

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THEMEANING OFAMERICAN FEDERALISM

Mrs. PoweL' Well Doctor what have we got a republic or a monarchy?Dr. Franklin: A republic, ifyou can keep it.September 18,1787, diary ofJames McHenry

A publication of the Center for Self-Governance


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THEMEANING OF


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AMERICANF ] ~ D E R A L I S M

Constituting aSelf-Governing Society

Vincent Ostrom

ICS PRESS

Institute for Contemporary StudiesSan Francisco, California


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1991 Institute for Contemporary StudiesThis book is a publication of the Center for Self-Governance, which is dedicated to the study of self-governing institutions. The Center is affiliated withthe Institute for Contemporary Studies, a nonpartisan, nonprofit public policyresearch organization. The analyses, conclusions, and opinions expressed inICS Press publications are those of the authors and not necessarily those of theInstitute for Contemporary Studies, or of the Institute's officers, directors, orothers associated with, or funding, its work.Printed in the United States ofAmerica on acid-free paper. All rights reserved.No part of this bookmay be used or reproduced in any manner without writtenpermission except in the case of briefquotations in critical articles and reviews.Inquiries, book orders, and catalog requests should be addressed to ICS Press,243 Kearny Street, San Francisco, CA 94108. (415) 981-5353. Fax (415) 9864878. For book orders and catalog requests call toll free in the contiguousUnited States; (800) 326-0263. Distributed to the trade by National BookNetwork, Lanham, Maryland.Index compiled byJudith Evans.09876 5 4 3 2 1Library ofCongress Cataloging-in-Publication DataOstrom, Vincent, 1919-

The meaning ofAmerican federalism; constituting a self-governingsociety / Vincent Ostrom.p. em.

"A publication of the Center for Self-Governance."Includes bibliographical references and index.ISBN 1-55815-076-51. Federal government-United States. 2. The Federalist.I. Title.JK311.078 1991321.02'0973-dc20 91-11825

CIP


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To Elinorin appreciation ofthe intellectualadventures

we have shared


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CONTENTS

Foreword Robert B. Hawkins, fr. XlAcknowledgments xiii

IINTRODUCTIONONE The Meaning ofAmerican Federalism 5

LANGUAGE AND MEANING IN POLITICALDISCOURSE TOCQUEVILLE'S ANALYSISOF THE AMERICAN EXPERIMENT SOMECONTEMPORARY REFLECTIONS THESCOPE OF THIS INQUIRY

IICONCEPTUALIZING THE

MEANING OF AMERICAN FEDERALISMTWO Hobbes's Leviathan and the Logic of 29

American FederalismHOBBES'S LEVIATHAN DEMOCRACY;CONSTITUTIONAL RULE, AND FEDERALISM SOME CONCLUSIONS

VB


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VIll

THREE The Covenantal Basis ofAmericanFederalism: Religious RootsAN AFFINITY BETWEEN RELIGION ANDPUBLIC OPINION THE KEY IDEA PRESUPPOSITIONS GOD'S LAW AS AMETHOD OF NORMATIVE INQUIRY THESTRUGGLE TO UNDERSTAND CONCLUSION

CONTENTS

53

FOUR The Meaning ofFederalism in The Federalist 69DIAMOND'S ARGUMENT THEARGUMENT IN ESSAY 9 OF THEFEDERALIST: BARRIER TO FACTION ANDINSURRECTION THE ARGUMENT INESSAY 39 OF THE FEDERALIST: USING THELANGUAGE OF THE OPPOSITION THEARGUMENT IN ESSAYS 15 AND 16 OF THEFEDERALIST: CONCEPTUAL CLARIFICATION CONCLUSION

FNE Garcia, the Eclipse of Federalism, and theCentral-Government TrapTHE BLACKMUN DOCTRINE ANDMADISON'S CONJECTURE IN ESSAY 39 OFTHE FEDERALIST ELECTORALARRANGEMENTS, MODES OFREPRESENTATION, AND COLLECTIVEDECISIONS THE STRUCTURE OFGOVERNMENT AND THE RULE OF LAW THE CENTRAL-GOVERNMENT TRAP THELIMITS OF "FEDERAL FORM"

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CONTENTS IX

IIISOME EMERGENT PATTERNS OF ORDER

SIX The Organization ofGovernment in 137Metropolitan Areas: A Theoretical InquiryVincent Ostrom, Charles M Tiebout, and RobertWflrrenTHE NATURE OF PUBLIC GOODS ANDSERVICES SCALE PROBLEMS IN PUBLICORGANIZATION PUBLIC ORGANIZATIONIN GARGANTUA PUBLIC ORGANIZATIONIN A POLYCENTRIC POLITICAL SYSTEM

SEVEN Public Goods and Public Choices: The 163Emergence ofPublic Economies andIndustry StructuresVincent Ostrom andElinor OstromTHE NATURE OF PUBLIC GOODS THEORGANIZATION OF A PUBLIC ECONOMY SOME PROBLEMS OF CONSUMPTION ANDPRODUCTION IN PUBLIC SERVICEINDUSTRIES OPPORTUNITIES IN PUBLICSERVICE INDUSTRIES ALTERNATIVESAND CHOICES

EIGHT Res Publica: The Emergence ofPublic 199Opinion, Civic Knowledge, and a Culture ofInquiryTHE MEANING OF REPUBLIC (RESPUBLICA) THE CONSTITUTION OF THEOPEN PUBLIC REALM (RES PUBLICA) THE


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x CONTENTS

OPEN PUBLIC REALM AND THESCHOOLING OF EXPERIENCE THEEMERGENCE OF PUBLIC OPINION, CIVICKNOWLEDGE, AND A CULTURE OFINQUIRY

NINE Polycentricity: The Structural Basis of 223Self-Governing SystemsTHE CONCEPT OF POLYCENTRICITY THE EMERGENCE OF PATTERNS OFORDER IN POLYCENTRIC STRUCTURES CONCLUSION

IVCONCLUSION

TEN 1989 and Beyond 249SOME ESSENTIAL CHARACTERISTICS OFAMERICAN FEDERALISM THE PROBLEMOF EMBODIED INTELLIGENCE DOESFEDERALISM HAVE A FUTURE?

Notes 273Bibliography 279Index 289About the Author 301


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FOREWORD

H oW can a society so constitute itself that its members will befree participants in a self-governing order and not merelythe subjects of the state?

Through an analysis ofAmerican federalism that returns tothe classic sources- The Federalist and the writings of Tocqueville-this book explains the conditions necessary for creatingand maintaining a self-governing society and describes how sucha system works. In a world in which government by central authority has become increasingly discredited, this issue is as important as it was 150 years ago when Tocqueville observed thatAmerican "society governs itself for itself."Federalism is commonly understood as a theory of government that uses power to check power amid opposite and rival interests. Authority is limited, and no single body exercises supremecontrol nor has a monopoly over the use of force in society. Butthe idea of federalism is rendered trivial when applied only to thecoexistence of state and national governments. Rather, federalismoffers no less than an enabling basis for the development of selforganizing and self-governing capabilities under conditions ofequal liberty and justice.

This book also illuminates the importance of institutionalanalysis in dealing with problems in the contemporary world. Weface a basic challenge in recognizing and understanding the institutional foundations on which systems of governance and social

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xu FOREWORD

arrangements are established in modern societies. Vincent Ostrom has previously addressed this challenge in the ICS Press studies Rethinking InstitutionalAnalysis and Development, edited withDavid Feeny and Hartmut Picht, and Local Government in theUnited States, with Robert Bish and Elinor Ostrom, as have JohnClark and Aaron Wildavsky in The Moral Collapse ofCommunism,also published by ICS Press. Faith in the reformability of humansocieties underlies these efforts to understand institutions and toexplicate the conceptual foundations of self-governance.For those who are seriously concerned with understanding theAmerican system ofgovernance and how it can be used to addressproblems of collective choice and action, whether in neighborhoods or in the international arena, The Meaning ofAmerican Fed-eralism offers rich rewards.

Robert B. Hawkins, Jf . , PresidentInstitute for Contemporary Studies


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ACKNOWLEDGMENTS

The chapters of this book represent inquiries that have pro-ceeded at different levels of analysis over some thirty years.Chapter 6, "The Organization of Government in MetropolitanAreas: A Theoretical Inquiry;" an essay written in collaboration withCharles M. Tiebout and RobertWarren, was originally published inThe American Political Science Review 55 (December 1961): 831-42. Permission from theAmerican Political ScienceAssociation andfrom Robert Warren to publish here is gratefully acknowledged.Chapter 7 was originally written with Elinor Ostrom in response toan invitation by E. S. Savas for presentation at a colloquium con-cerned with alternatives for delivering public services, sponsored bythe Diebold Institute for Public Policy Studies, Inc. That paper wasrevised with helpful editorial suggestions by Savas and appeared as"Public Goods and Public Choices" in Alternatives for DeliveringPublic Services: TOward Improved Performance, edited by E. S. Savasand published in 1977 byWestview Press, Boulder, Colorado. Bothpresentation of the paper and its initial publication were made pos-sible by a grant from the Diebold Institute for Public Policy Studies,Inc. Permission to publish here is gratefully acknowledged.

Over a period of nearly twenty years, I have had occasion toparticipate in several colloquia and conferences organized byDan-iel Elazar and the Center for the Study of Federalism at TempleUniversity. It was in this context that the concept of covenant wasseriously explored for its religious and political significance and

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XIV ACKNOWLEDGMENTS

different conjectures about the meaning ofAmerican federalismwere advanced and explored. Earlier versions of Chapters 2, 3,and 4 were published in Publius: The Journal ofFederalism. Anearly version of Chapter 2 appeared as "Hobbes, Covenant andConstitution," Publius 10 (fall 1980): 83-100. The fall 1980 issueof Publius includes several contributions on the concept of covenant in a theory of federalism. An initial presentation of the issuesaddressed in Chapter 4 was given in "TheMeaning of Federalismin The Federalist: A Critical Examination of the Diamond Theses," Publius 15 (winter 1985): 1-22. This was part of a largersymposium with contributions from Paul Peterson and JeanYarborough. Some of the issues addressed in Chapter 3 were alsopresented in "An Inquiry Concerning Liberty and Equality in theAmerican Constitutional System," Publius 20 (spring 1990): 3352. Permission to publish here is gratefully acknowledged. Anearly version of my efforts to explore generally the meaning ofAmerican federalism appeared in "Can Federalism Make A Difference?" Publius 3 (fall 1973): 197-238.My concerns about the problems ofnormative inquiry have also

been stimulated by colleagues who participated in the research groupon guidance, control, and performance evaluation in the public sec-tor led by Professor Franz-Xavier KaufInann, Center for Interdisciplinary Research, Bielefeld University, Federal Republic ofGermany;a panel organized byMarkSproule-Jones at the 1983 meeting of thePublic Choice Society; and a conference organized by Harold Berman andJohnWitte, "Religious Dimensions ofAmerican Constitutionalism," at the Law School, Emory University, April 7-8, 1988.Chapter 8 benefited from the intellectual exchange occurring in aconference, "Res Publica: East andWest," held in Dubrovnik, Yugoslavia, October 10-14, 1988. I much appreciate the intellectualstimulation from discussions with colleagues on these occasions.Somewhat related essays have been published as "A Fallibilist's Approach to Norms and Criteria of Choice" in F. X. Kaufmann, G.Majone, and V Ostrom, eds., Guidance, Control and Evaluation inthe Public Sector (Berlin and New York: Walter de Gruyter, 1986);"The Meaning of Value Terms," American Behavioral Scientist 28(November/December 1984): 249-62; and "Religion and the Con-


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ACKNOWLEDGMENTS xv

stitution of the American Political System," Emory LawJournal 39(winter 1990): 165-90.

Chapter 5 was originally prepared for presentation at a symposium on the Supreme Court's decision in Garcia v. San AntonioMetropolitan Transit Authority (1985), sponsored by the U.S. Advisory Commission on Intergovernmental Relations, and waspublished in Federalism and the Constitution: A Symposium onGarcia, M152 (Washington, D.C.: ACIR, 1987). Discussionswith Robert Hawkins, Lawrence A. Hunter, Ronald Oakerson,and John Kincaid, both in planning the conference and in revising papers for publication, were most helpful.

My deepest debt is to colleagues at the Workshop in PoliticalTheory and PolicyAnalysis with whom I have maintained continuing conversations about patterns of order and development inhuman societies. American federalism has been a recurrent pointofdeparture for these discussions as the world has become increasingly familiar with such terms as glasnostand perestroika.Works byAntoni Kaminski, Ronald Oakerson, Dele Olowu, Elinor Ostrom, Roger Parks, Amos Sawyer, Branko Smerdel, Mark SprouleJones, Theo Toonen, Susan Wynne, James Wunsch, and T. S.Yang are important complements to my efforts here.

Finally, I much appreciate the concerns of Robert Hawkinsand his colleagues at the Institute for Contemporary Studies forproblems ofself-governance, and I am grateful for their support ofthis publication. I especially appreciate the sympathetic readingand helpful suggestions of J. M. B. Edwards, who as copyeditorcould contest my use of language on behalfof potential readers.


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IINTRODUCTION


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I nstead of presuming that "the state" rules or "the government"governs, can we conceptualize and think about the constitutionof order in human societies that might be self-governing? That isthe core issue being addressed in this volume. The possibility ofsocieties' achieving self-governance depends upon numerous conditions and especially upon the emergence of patterns of polycentricity that might apply to the whole system of human affairs.

We cannot explore these ideas so long as our thinking aboutorder in human societies is dominated entirely by reference to" h "" h " "\VT. dtestate or t e government. we must open our mIn s toother ways of thinking about ourselves, our relationships withothers, and how peoples might constitute patterns of rule-orderedrelationships in their societies. Mypuzzle isyour challenge. Can wedeal with the facts of rule-ordered relationships and contemplatehow a system of such relationships might be constituted without

C "h" "h "h freference to testate or t e government at t e center 0 ourthinking? Can we contemplate societies where people are capablein some meaningful sense ofgoverning their own affairs? Ifwe arewilling to consider that possibility, we may open ourselves to newfrontiers of inquiry and new potentials for development. Such apossibility is of Copernican proportions for the constitution oforder in different societies and of major significance for the contemporary world.

All possibilities are subject to limits. We cannot have the bestof all possible worlds; but our degree of choice always turns uponthe availability of alternatives. Can we help clarify what thesemight be?


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ONE

THE MEANING OF AMERICAN FEDERALISM

O ne of the important puzzles about the governance ofhumansocieties turns upon the relationship of federalism to thewidely held aspirations of people in various parts of the world forsomething called "democracy." The term democracy implies thatpeople govern. "The government," however, is plainly not thepeople. People vote and elect representatives who participate inthe government. Voting is a very slender thread, hardly strongenough to let us presume that people, by electing representatives,govern. The ordinary use of language strongly implies that thegovernment governs. How do we resolve this dilemma?

I doubt that there is any single resolution. If people rely onlyupon the pronouncements of those who aspire to leadership, de-mocracy will be universally proc1aimed-a form of demagoguery,not democracy. To honor democracy by words alone creates falseillusions. If democracy has an essential place in the unfolding ofhuman civilization, the part that people play in the governance ofsocieties must turn upon much more than voting in elections.

In my own efforts to come to terms with what it means to be acitizen in a democratic society, I have come to regard the concept offederalism as of basic importance. My concern is with general

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6 INTRODUCTION

features of a system ofgovernance that would be appropriate to cir-cumstances where people govern rather than presuming that gov-ernments govern. When the problem is posed this way,conceptualization and definition become difficult.

LANGUAGE AND MEANING IN POLITICAL DISCOURSEThe term "federalism" has generally been associated with the de-velopment of the American system of government. Federalismwas the key design concept used in the formulation of the U.S.Constitution of 1789. The explanation of the draft of that consti-tution offered byAlexander Hamilton, John Jay, and James Mad-ison was entitled The Federalist. While federalism was its keydesign concept, the U.S. Constitution established reference toonly one of the constituent elements-a limited national govern-ment-in a more general system of governance.

The critical conceptual difficulty in constituting a federal sys-tem of governance was directly addressed in essays 15 and 16 ofThe Federalist, but serious ambiguities in language still remain.Hamilton argued that an essential attribute of a government is itscapacity to enforce law. A confederation, as traditionally con-ceived, could not meet this defining criterion for a government.The Articles ofConfederation had established an organization ofstates, not a government. The Congress of the United Statesunder the Articles ofConfederation could not enforce its own res-olutions. Hamilton argued that the concept of a confederationhad to be reformulated. In his view, individuals are the basic con-stitutive element in each unit ofgovernment. Each unit ofgovern-ment must be able to articulate the aspirations of people, respondto the demands of individuals, and enforce its resolutions withregard to individuals, not to collectivities as such. Each unitwould be autonomous in itself and have both executive and judi-cial authorities to enforce its resolutions as laws. Hamilton's refor-mulation of the concept of confederation is, in my view, anessential attribute ofwhat has come to be known as a federal sys-tem of government.


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THE MEANING OF AMERICAN FEDERALISM 7

Serious ambiguities continue to exist because both Hamiltonand Madison were not careful to distinguish between "federal"and "confederation" in their discourses. What was proposed bythe Philadelphia Convention of 1787 was variously referred to asa confederation, a federal government, the Union, and the generalgovernment. This conceptual confusion persists today amongscholars and among those who have special responsibility for construing the meaning of the U.S. Constitution.

The first general application of the concept of federalism to asystem ofautonomous units ofgovernments occurred in the formulation of the U.S. Constitution. The primary referent, then, was theauthority of a limited national government in its relationship tostate governments. The basic conception is reflected in the name:the United States ofAmerica. One of the attributes used as a standard definition of federalism is a system of government where authority is exercised concurrently byanational government and stateor provincial governments. With such a definition, the focus isupon a two-tiered structure ofgovernment. Thus William Riker, inhis Federalism, explicitly states this definition as follows:

A constitution is federal if (l) two levels ofgovernment rule thesame land and people, (2) each level has at least one area inwhich it is autonomous, and (3) there is some guarantee (eventhough merely a statement in a constitution) of the autonomyof each government in its own sphere. [1964, 11]All f e d ~ r a l systems have reference to multiple units of government, each ofwhich has an autonomous existence. A two-tier ar

rangement might thus qualify as a federal system. It is entirelypossible, however, for a state to draw upon the concept ofa federalsystem in constituting its own internal system of governance asdid the California constitutional convention in 1879. There arethose who refer to federated cities (Zimmerman 1972). Generallaws pertaining to the incorporation ofmunicipalities, where decisions to incorporate are made by local citizens with the authorityto formulate and modify the corporate charters, have all the attributes that I would associate with a federal system of governance.


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8 INTRODUCTION

I see no reason why national governments should represent theultimate achievement among human beings in fashioning systemsof governance. Efforts to deal with standard forms of internationalorganizations are subject to the basic flaw that Hamilton identifiedwith confederation. The United Nations is an organization of na-tion-states, not a government. Hamilton would have considered itabsurd to refer to such an organization as a "government." Yet theefforts of the nations of Western Europe to fashion a EuropeanCommunity are taking on some of these attributes. Since these attributes relate to the standing of individuals and other units ofgovernment, we might begin to think of a federal system ofgovernancebeing fashioned in the European Community. To treatWestern Europe as though itwere constituted only by reference to nation-statesis to misunderstand what is occurring there. Europeans cannotshape the future of their societies only by reference to nation-statesas such. How these arrangements are worked out is a matter ofprofound constitutional significance for the future ofEuropewith considerable bearing upon what is meant by a federal system.

The crucial issue is that the concept of federalism enables people to break out of the conceptual trap inherent in a theory ofsovereignty that presumes there must exist some single center ofsupreme authority that rules over society. If the nations ofEuropeexist as single centers of supreme authority, then there can be noEuropean Community. Conversely, if the European Communitywere organized by reference to a single center of supreme authority, there could be neither national nor local autonomy. So long assuch a concept ofsovereignty is presumed necessary to a system ofgovernment, I cannot imagine how it is possible for democraciesto exist in domains that reach out to continental proportions.

Relying upon mere words in a constitution, as Riker suggests,is a very weak way to characterize a democratic or federal systemof governance. The name Union of Soviet Socialist Republicswould seem to imply a federal system of democratic government.The term "soviet" refers to councils. But anyone who is aware ofthe key concepts that Lenin drew upon to design the Soviet experiment would know that he placed critical emphasis upon strictsecrecy and strict discipline subject to the central leadership of the


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Communist party. Lenin presumed that the whole country couldbe run like the German postal system. Despite the use of suchwords as "union," "soviet," and "republic," the Soviet Union wasnone of these (Kaminski 1992). It was an autocracy run by theCommunist party leadership. It is possible that the Gorbachev re-forms may achieve constitutional alterations consistent with a fed-eral system ofdemocratic government. But thatwould be a systemof government much different from the one conceptualized byLenin and ruled over by Stalin.

Systems of governance have reference to many attributes. At-tributes applicable to the coexistence of entities identified as a na-tional "government" and state or provincial governments againbring us back to the puzzle ofwhether it is governments that gov-ern or whether the existence of democracies implies that peoplegovern in some meaningful sense. This puzzle leads us to a radi-cally different concept embedded in the term "federalism."

In several of his works on federalism, Daniel Elazar points tothe derivation of the word federalism from the Latin term foedus,which means covenant (See, for example, Elazar and Kincaid1980). Foedus has much the same meaning as the Hebrew termb'rit, which is fundamental to biblical traditions pertaining to cov-enantal relationships with God andwith those who choose to gov-ern their relationships with one another by covenant. "Federaltheology" in the sixteenth and seventeenth centuries was a cove-nantal theology developed by some Protestants to conceive a sys-tem of church governance that drew upon Old Testamentconcepts of covenants and New Testament accounts of earlyChristian congregations; it was sharply opposed to the doctrine ofapostolic succession relied upon by the Roman Catholic church inthe constitution of its system ofgovernance. The Puritans ofNewEngland were congregationalists who adhered to federal theology,and in the Mayflower Compact the first Puritans made the com-mitment to covenant with one another in constituting civil bodiespolitic. This commitment can be viewed as a basic precommit-ment to a federal system of governance. It adds an important di-mension to federalism as pertaining to multiple units ofgovernment.


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10 INTRODUCTION

The commitment ofAmerican Puritans to a covenantal approach has an interesting parallel to a seemingly strange use oflanguage in Switzerland. German-speaking Swiss still refer to confederation as Eidgenossenschaft. Genossenschaft means associationor comradeship. Eid refers to oath. An Eidgenossenschaft is an association bound together in a special commitment expressed by reciprocal oaths. A Swiss citizen is referred to as an Eidgenosse, thatis, a covenanter-a comrade bound by oath. The source of authority resides, then, in a covenant that each is bound to upholdin governing relationships with another. Authority grounded incomradeship-collegiality-has quite different connotationsfrom authority viewed as Herrschaft-Iordship-the standardGerman term translated as "authority." It implies domination.Swiss and Dutch confederations existed before the Pilgrims' journey to New England, and the Pilgrim Church still stands inLeiden, giving testimony to the existence of a self-governing congregation nearly four centuries ago.

Once we begin to understand that the way people think andrelate to one another is a most fundamental feature in the governance of human affairs, we can appreciate that "governments" canexercise only a limited role in the governance ofa s o c i e ~ Conceptsofcovenants, constitutions, and multiple units ofgovernment all fittogether in relation to a "federal" system of government. The focuscannot be upon governments alone but needs to include how people th ink and relate to one another and how the whole complexsystem of relationships gets put together. We can then begin to understand how a concept like democracy might be a meaningful one,one that might make us think of people really governing. In short,descriptions ofwhat "governments" do no longer suffice ifwe are tounderstand systems ofgovernance in democratic societies.

The term "federalism" has quite different connotations tothose who associate the French Revolution with their aspirationsfor democracy. During the period of the Convention, which wasdominated by Robespierre and the Jacobin clubs, some of theiropponents called for provincial autonomy in a federal system ofgovernment. During the Terror, federalists were thought of asbetraying the revolution and thus as committing treason against


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the French Republic. From this perspective, federalism has cometo be associated in some French traditions of thought with conservative provincialism opposed to revolutionary progress. TheAmerican Revolution and the French Revolution gave expressionto quite different ways of conceptualizing systems ofgovernance.

In my efforts to understand how a democratic system ofgovernance works, I have found it necessary to reexamine much of theconventional wisdom in contemporary political science. To thisend, I have pursued lines of inquiry into basic issues in politicalphilosophy, political economy, history, epistemology, philosophicalanthropology, analytical jurisprudence, sociology, and cognitivepsychology. Public administration has usually been at the core ofmy concern because the operational context of any system of government turns upon what gets done. To administer implies to bringinto use or operation-to transform concepts and ideas into statesof affairs. What gets done turns upon how institutions as systems ofrule-ordered relationships work. How institutions affect the structure of incentives for people to act is one of the key considerationsin the study ofany system ofgovernance. The constitutional level ofanalysis assumes a special significance in democratic societies because it is in the context of constitutional choice that the terms andconditions ofgovernment get specified as systems ofrules that applyto those who exercise rulership prerogatives.

Ifconstitutions are to be effective-to be more than words onpaper-it is necessary to understand how to design systems ofgovernance for democratic societies in contrast to autocracies.This question, in turn, drives one back to explore basic ideasabout how people think and relate to one another. It is an essentialfeature of a democratic society that people, as they live their livesand shape their aspirations, should think ofand experience themselves in certain ways.

TOCQUEVILLE'S ANALYSIS OF THE AMERICAN EXPERIMENTI consider Tocqueville's Democracy in America to be the singlemost important study of a democratic society. In his analysis, he


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12 INTRODUCTION

considers three types of factors to be important in understandinghow a society functions. The first factor he identifies as "the pecu-liar and accidental situation in which Providence" places people(Tocqueville [1835] 1945, 1: 288). I construe this category torefer to "the environmental and material conditions that are avail-able to people in fashioning their lives. The second factor is "thelaws," which I construe broadly to refer to institutions-theworking rules of going concerns (Commons [1924] 1968). Thethird factor is the "manners and customs of the people." In dis-cussing this factor, Tocqueville refers to "the habits of the heart'(his emphasis) and to "the mass of those ideas which shape theircharacter of mind" ([1835] 1945, 1: 299). I therefore construemanners and customs to include habits of thought-cognition.We might think of people as having characteristic habits of theheart and mind that get linked in shaping human activities.

In assessing the relative importance of these factors in his con-cluding assessment of the"causes which tend to maintain democ-racy in America," Tocqueville gives first priority to the habits ofthe hearts and minds ofAmericans. Relating to one another byconvenantal methods might then be construed to be the most im-portant factor in conceptualizing a federal system of governance.The laws, or institutions, are identified as the second of the mostimportant factors contributing to the maintenance of democracyin America. Among these factors Tocqueville gives priority tothree:

The first is that federal form of government which the Ameri-cans have adopted, and which enables the Union to combinepowers of a great republic with the security of a small one.

The second consists of those township institutions whichlimit the despotism of the majority and at the same time impartto the people a taste for freedom and the art ofbeing free.The third is to be found in the constitution of the judicialpower. I have shown how the courts of justice serve to repressthe excesses of democracy, and how they check and direct theimpulses of the majority without stopping its activity. [Ibid.,299]


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Human societies and their systems of governance, drawingupon Tocqueville, can be thought of as complex configurations ofrelationships, including the natural endowments reflected in the"peculiar and accidental situation" in which people find them-selves, the institutions that structure patterns of relationshipsamong people, and the habits of the heart and mind that shapethe ways people think and feel about themselves and about theirrelationships with others. It is in such a context that the meaningof federalism needs to be examined if we are to understand therelationship of federalism to democracy.

The impulse to unravel such strands of inquiry is usually pro-voked by puzzles that lead one deeply into a subject. The work ofAlexis de Tocqueville, more than anyone else's, has continued toprovoke my inquiries. In Democracy in America ([1835] 1945, 1:89) he observes that "the appearance ofdisorder which prevails onthe surface leads one to imagine that society is in a state of anar-chy; nor does one perceive one's mistake until one has gone deeperinto the subject." These words have provided me with a basic ruleof thumb: Be skeptical of surface appearances-and be preparedto go deeper into the subject. Assertions about "chaos" usuallyimply that some deeper pattern of order prevails, different fromthat anticipated by an observer (Huckfeldt 1990).

The paragraph with which Tocqueville concludes his firstchapter on the geography of North America has provoked me toconjecture that the theory of American federalism was ofCopernican proportions in the development of political theory.

In that land the great experiment of the attempt to constructsociety upon a new basis was to be made by civilized man; andit was there, for the first time, that theories hitherto unknown,or deemed impracticable, were to exhibit a spectacle for whichthe world had not been prepared by the history of the past.[(1835) 1945, 1: 25]

Such an observation implies that the essays byAlexander Hamilton,John Jay, and James Madison published as The Federalistwere morethan propaganda published in the course ofa political campaign and


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14 INTRODUCTION

deserve to be treated as a serious contribution to political theory. Theassertion in Harold Lasswell's and Abraham Kaplan's Power andSoci-erythatTocqueville comes "dangerously close" to "brute empiricism"(1950, x) suggests to me that they did not understand the magnitudeof the revolution in political theory that had taken place. In ThePolitical Theory ofa Compound Republic (1987), I have attempted toexpound the theory used by Hamilton and Madison in their effortto explain the U.S. Constitution. It is somewhat surprising to findhow few major works in modern political theory give serious attention to the work ofHamilton, Madison, or Tocqueville.

In opening his discussion of the administration of government in New England, Tocqueville offers a comment that is achallenge to any serious student of political theory, political economy, or public administration.

Nothing is more striking to a European traveler in the UnitedStates than the absence ofwhat we term the government, or theadministration. Written laws exist in America, and one sees thedaily execution of them; but although everything moves regularly, the mover can nowhere be discovered. The hand that directs the social machinery is invisible. [(1835) 1945, 1: 70]

Since Adam Smith, economists have viewed competitive marketsas achieving an ordering of relationships as if an invisible handwere at work. Most contemporary scholars assume tha t " the government" exercises a highly visible hand in the administration ofsociety. Tocqueville recognized that the highly centralized systemof French administration exercised a clearly visible hand in maintaining tutelage over French society. Instead of an overarching sys-tem of bureaucratic administration, the American system ofoverlapping jurisdictions and fragmentation of authority comesmuch closer to meeting the criteria Max Weber identified withdemocratic administration (Rheinstein 1954, 330-34). In TheIntellectual Crisis inAmerican Public Administration (1989), I haveargued that an institutionally rich federal system of governmentyields a different system of public administration, functioning


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T H E MEANING OF AMERICAN FEDERALISM 15

more as an open, competitive public economy, from what onewould expect under a bureaucratic system of administration.

In the concluding paragraph of a chapter called "The Principles of Sovereignty of the People," Tocqueville also observes that"in some countries a power exists which, though it is in a degreeforeign to the social body; directs it and forces it to pursue a certain track. In others the ruling force is divided, being partlywithinand partly without the ranks of the people" ([1835] 1945,1: 57).I construe these references to imply that the first type of countryis an autocracy, where a state rules over society, and that the second type includes representative institutions, as with a king-inparliament. Tocqueville, however, goes on to observe: "Butnothing of the kind is to be seen in the United States; there societygoverns itself for itself" (ibid., 57).

Ifa "state" is conceived as a monopoly ofauthority relationshipsand the coercive use of force in a society, then a society governed bya great multitude of governments, many ofwhich have their ownpolice, cannot be conceptualized as a state. I prefer to think of suchan arrangement as a "system ofgovernance" or simply as a "politicalsystem," recognizing that the feature ofbeing a monopoly need notapply to all systems of governance. Madison, in essay 39 of TheFederalist, makes an important allusion when he refers to "that honorable determination which animates every votary of freedom, torest all our political experiments on the capacity of mankind forself-government" (Hamilton, Jay, and Madison [1788] n.d., 243).If a federal system of government entails a great multitude of governments, each organized on principles of self-government, wemight view such an arrangement as constituting a self-governingsociety where"society governs itselffor itsel"

SOME CONTEMPORARY REFLECTIONSIn The Political Theory ofa Compound Republic (1987, 25), I havesuggested that federalism can be characterized as "constitutionalchoice reiterated to apply to many different units of government


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16 INTRODUCTION

where each is bound by enforceable rules of constitutional law."This is consistent with a view ofAmerican federalism as the constitution of order for a self-governing society. Alternatively andequivalently, such a society might be conceived as a constitutionalpolitical economy for a self-governing society.

The term "constitutional political economy" comes fromthe work of James M. Buchanan, the economist who wasawarded the Nobel Prize in economics for his work at the constitutionallevel of analysis. Most of this work has addressed itselfto government as a single entity (see, for example, Buchanan1975). Here I am concerned with federalism as a system of governance composed ofmany units of government. This approachopens new horizons of inquiry because important processesoccur at both the intraorganizational and the interorganizationallevels of analysis.

Economists recognize the importance of the interorganizationallevel with reference to markets. But surprisingly few economists have focused upon the interorganizational level withreference to public economies as distinguished from market economies. Highly federalized systems of government permit theemergence of quasi-market conditions in public economies, andthese conditions have important implications for the public quality oflife. Invisible-hand effects can be expected to occur in publiceconomies concerned with the production and use of publicgoods and services as well as in market economies concerned withthe production and distribution of private ones.

Further, a system of government organized on principles ofseparation ofpowers with checks and balances implies a sharing ofpower among independent decision structures. Using power tocheck power amid opposite and rival interests (to combine phrasesfrom Montesquieu and Madison) implies that such a system ofgovernment will have equilibrating tendencies. When veto conditions are met, power is shared within constraints that more closelyapproximate agreement and consensus than majority rule. In suchcircumstances law acquires a publicness ofmeaning that comes toapply alike to those formulating law, those using law, those enforcing law, and those judging the application of law.


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In a society that works under such contingencies, it is moreappropriate to presume that policies emerge from the interactiono f multiple centers o f authority than to presume that they aremade by some single center of ultimate authority. Words on paperenacted by legislatures need not meet constitutional and jurispru-dential standards o f valid legislation. In a democratic society, leg-islative enactments are deserving o f critical scrutiny and areappropriately challenged in alternative decision structures. Validpolicies emerge from diverse processes o fdue deliberation. Collec-tive actions, as distinguished from collective decisions, dependu po n w ha t people do in responding to the opportunities and exi-gencies o f life. If there is a shared community o f understandingand a reasonable level o fconsensus about how to address commonproblems, people will exercise a significant influence in monitor-ing, facilitating, and constraining one another's behavior ratherthan presuming that it is only governments that govern.

Government in a democratic society, then, is not simply amatter o f c om ma nd a nd control but of providing multiple struc-tures that have reference to diverse methods o f problem solving.Together, these methods enable people to process conflict inpeaceful and constructive ways and to search out more effectiveways of achieving resolutions. People have diverse interests butthey work out effective complementarities o f interest to achieveinterdependent communities o f interest. Processes of contentionand adjustment occur as though an invisible hand were at work,rather than a visible hand exercising command and control over asociety (Lindblom 1965).

I viewAmerican federalism as a system ofgovernment in whicha serious effort has been made to come to terms with the possibilitythat people might, in some significant sense, "govern" and to avoidpresuming that "the government" governs. The American federalsystem obviously has reference to multitudes of governments-anational government, fifty state governments, at least 80,000 unitsof local government, and great numbers of corporations, coopera-tives, unions, clubs, families and kinships, and other forms of vol-untary associations governed in accordance with their own charters,bylaws, and mutual understandings. "Governments" govern in a


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18 INTRODUCTION

limited sense. But in this configuration of relationships, people havea decisive place in governing affairs. People coordinate complex patterns of interaction with one another while taking account of diverse communities of relationships. So people too govern. Theconstitution of order in a self-governing society turns upon howthose configurations of relationships get put together.

This collection of essays reflects my efforts to come to termswith the meaning ofAmerican federalism with reference to its implications for the constitution of order in democratic societies. Ibelieve that 1989 was a decisive juncture -in the unfolding ofhuman civilization. Ifwhat emerges serves to advance human civilization, it will be because people come to appreciate the creativepotential of self-organizing and self-governing arrangements.Something like federal systems of governance-we should notpresume thatAmerican federalism is the onlyway-will be of decisive significance. There is something to be learned from whatTocqueville referred to as "the great experiment . . . to constructsociety upon a new basis."

Viewed from other places in the contemporary world, American government is apt to be seen as American national government or even as "presidential government." These are seriouserrors. There may be expedient reasons whyMrican heads of statechose to rely upon a metaphor of presidential government. In theSoviet Union, autocratic rule-dictatorship-is now called "presidential rule." IfMricans were to concern themselves more withcovenanting with one another to form civil bodies politic, theywould appreciate that Mrican peoples draw upon diverse ways ofconceptualizing patterns of order in their societies. There is asmuch to be learned from stateless societies as from those thatemerged as "kingdoms" and "empires" before the intrusion ofEuropean empires. Modern democratic societies cannot be imposedfrom the top. They emerge as people learn to cope with the problems of collective organization associated with their shared interdependencies.

Some of the same problems exist among the nations extending from the Baltic to the Mediterranean in what is variously referred to as Middle or Eastern Europe. Relying upon national


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governments to govern is only one element that needs to be addressed. The constitutional foundation for people's assuming responsibility for governing their own affairs in the context of bothmarkets and public economies requires diverse types of institutional arrangements. Further, the place of diverse ethnolinguisticcommunities in Eastern Europe and the relationship of their nation-states to one another depend upon multinational structuresof relationships having the characteristics of federative arrangements. American federalism may be instructive about some ofthese possibilities.Americans themselves may also have a great deal to learn fromreconsidering the relationship of federalism to something called"democracy." An affliction, which might be called "political modernism," has plagued much of the world since the late nineteenthcentury. Both Bentham and Marx presumed to know the naturallaws ofhuman societies. BothWalter Bagehot andWoodrowWilson presumed that they could see social "reality" without drawingupon ideas or conjectures to inform their observations. The ideathat commonwealths or human societies are fashioned by humanbeings who draw upon concepts and aspirations to create theirsocial reality was neglected. It was as though knowing nothingwere a virtue, ensuring an open-mindedness in the study ofhuman affairs. Induction was presumed to be the basis for thediscovery of behavioral regularities. Social theory might then bedeveloped by aggregating inductive generalizations in a behavioralscience of society. The challenge of the scientific enterprise waspresumed to lie in the future. What lay in the past was mythology,misunderstanding, and error.

Too many American scholars have turned their backs on theroots of their own civilization without understanding how to appreciate the way that other civilizations are constituted or theplace of ideas in the continuing emergence ofWestern civilization. Reading Tocqueville for them is like reading a political travelogue. I make these comments because they are autobiographicalobservations about the perspectives I earlier held in my life as ascholar, before I came to appreciate the role of ideas and languagein human cultural evolution and in all forms of artisanship


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20 INTRODUCTION

reflected in human actions. It was in that interval that my relearning began with an appreciation that we as individuals always function in a c ul tu ra l m il ie u constituted by semiautonomouscognitive systems that come to us from the past and give us capabilities for facing the future. We may contribute new ideas in theemergence of new knowledge, technologies, and patterns of socialorganization, but whether we do so will depend upon communication with and acceptance by others of ideas that are ways of realizing our mutual aspirations.

Habits of thought may be transformed over time. What people see as the challenge of a new era may lead them to take muchfor granted and neglect the essential requisites for life in humancommunities. It is possible for civilizations to advance and todecline.

THE SCOPE OF THIS INQUIRYThe following essays, written over a period of thirty years, represent my effort to rethink and extend the frontiers of my conjectures about the place o f federalism in t he c on st it ut io n o fAmerican democracy. Chapter 6, "The Organization of Government in Metropolitan Areas," which was written with CharlesTiebout and RobertWarren, is the earliest; "Res Publica" (Chapter8) and "The Covenantal Basis ofAmerican Federalism" (Chapter3) are more recent. They fall into different sections in this presentation but complement one another.

Part II is concerned with the meaning ofAmerican federalismand some of the implications that follow from its conceptual attributes. Here, I am concerned with concepts and the computational logics that are associated with concepts. I proceed on anassumption that human thought has its representational characteristics, associated with conceptualizations, as well as its computational characteristics, associated with logical reasoning. Thus,we think by reference to conceptual-computational logics.

The conceptual-computational logic of Hobbes's theory ofsovereignty is quite different from that appropriate to the organi-


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zation of a democratic society of continental proportions. Whatwe today call federalism is a fundamental part of the computa-tionallogic appropriate to a compound republic as conceptualizedby Montesquieu and reformulated by Hamilton and Madison.These issues are addressed in Chapter 2.

There are, however, deeper roots at the foundation of bothHobbes's theory of sovereignty and the theory ofAmerican feder-alism. These roots have borne fruit in the way Americans expresstheir commitments to one another and their aspirations for thefuture. Concepts from the very depths of the Jewish and Christianreligious traditions are drawn upon-concepts implying a com-putationallogic that can be used both as a method of normativei nq ui ry and in fashioning patterns o f mutual understandingamong human beings. These matters are pursued in Chapter 3.

Chapter 4 is concerned with construing the meaning of "fed-eralism" in The Federalist. The issue was earlier engaged byMartinDiamond, a distinguished scholar ofAmerican constitutional his-tory. My reading of The Federalist is quite different from ProfessorDiamond's, and the differences in our respective interpretationsare ofconsiderable importance for an understanding of federalismand democratic theory.

Chapter 5 is a critique of the way that Justice Harry A. Black-mun has construed the meaning of federal form with reference toAmerican federalism. Federal form, in his interpretation, impliesthe eclipse of federalism and the nationalization of the Americansystem ofgovernment. This essay presents my critique of contem-porary developments in American society that place American de-mocracy at risk.

Part III shifts away from conceptualizing a federal system ofgovernance as such and turns to features that have become impor-tant in the unfolding of the American federal system of gover-nance at work. Important conceptual problems are still involved,but the relevant concepts apply to what emerges from the patternsof interaction at an interorganizationallevel ofanalysis with refer-ence to multiorganizational arrangements. The reference in Chap-ter 6 is to the organization of government in metropolitan areas,where that system of governance is viewed as a polycentric order.


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22 INTRODUCTION

I view these patterns of relationships as emergent properties of afederal system because I agree with the authors ofan address to thecitizens ofCalifornia that federal principles can apply to a systemofgovernancewithin a state as readily as they can be applied to theUnited States.

Chapter 7 is an essay, originally entitled "Public Goods andPublic Choices," that I wrote with my wife and colleague, ElinorOstrom. This essay is concerned more with how federal systems ofgovernance contribute to the emergence of public economies andindustry structures with different structural characteristics thanwith either market economies or systems ofadministration relyingupon principles of bureaucratic organization to achieve commandand control over public affairs. Chapter 7, "Public Goods andPublic Choices," goes beyond Chapter 6 in more fully elaboratinga theory ofgoods and in extending the implications of a theory offederalism arising from the organization ofopen and competitivepublic economies. Both chapters apply economic reasoning topublic-sector problems in the context ofwhat might be called political economy, narrowly construed.

Chapter 8 opens an area of inquiry concerned with the meaning of the term "republic." I cannot accept the presuppositionthat republican government is representative government. Elections and representation may be essential features of republicangovernment, but the Latin term res publica implies something likean open public realm. I pursue the implications of such a conception so that we can see public opinion, civic knowledge, and aculture of inquiry as emergent properties arising from the constitutional features ofAmerican federalism.

In Chapter 9, "Polycentricity," I am concerned with the waythat the structural characteristics of a political system, wherepower is used to check power amid opposite and rival interests,give expression to processes for resolving conflicts and achievingorder in self-governing societies. The American federal systemprovides the structural conditions for processes that contribute toproblem-solving capabilities. Patterns of order and rivalries go together in a dynamic system of governance. These structures andprocesses elucidate information, articulate alternative ways to ad-


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dress problems, stimulate innovation, and facilitate the emergenceof arrangements to address problems in new ways by changes ofpolicy, changes in institutional arrangements, or both. These arethe dynamics of a polycentric system of order grounded in selforganizing and self-governing capabilities in contrast to acommand-and-control system directed from the top.

Finally, in Chapter 10, I draw some conclusions from this inquiry and conjecture about their implications for the contemporary world. I view the several essays as an inquiry about theconstitution of order in democratic societies. I do not look uponthe American experiment as the only way to deal with the constitution of order in democratic societies or my own formulations asbeing the definitive exposition. We can learn only as we sympathetically engage one another in light of people's efforts in diversesocieties to organize their own social realities while striving to improve human potentials.

The thrust of the argument in this volume pertains to theconceptions and structural characteristics of a federal system ofgovernance as a particular regime-type that is highly pluralistic inits structure. I have not been concerned with detailed descriptionsof particular structures. I assume that these are relatively wellknown. My concern is with howAmerican federalism can be conceptualized as a regime that enables people to be first their owngovernors; to exercise substantial latitude in associating with others; to share in the exercise of legislative, executive, and judicialprerogatives; and to exercise the basic prerogatives of constitutional choice in setting, maintaining, and altering the terms andconditions ofgovernance. Minimal emphasis is placed upon command and control. Primary attention is given to the way that thestructures serve to process conflict and achieve conflict resolution.Process is the key to the way the system works. Contestation is theactivating force that drives the system. The method of normativeinquiry inherent in the Golden Rule is the method that makes itwork successfully in achieving conflict resolution. Through it, diverse interests achieve complementarities with one another incommunities of relationships marked by innovation, reciprocity,and productivity.


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24 INTRODUCTION

The regime-type characteristic of American federalism, inturn, can be contrasted with other regime-types. The questions ofhow those are conceptualized, structured, and work to achieve results need to be on the larger agenda of inquiry, so that people indiverse societies may learn from one another's experience. HaroldBerman's Law andRevolution (1983), Ray Huang's 1587:A :rear ofNo Significance (1981), Antoni Kaminski's Institutional Order ofCommunist Regimes (1992), Richard Pipes's Russia under the OldRegime (1974), Alexis de Tocqueville's Democracy in America([1835] 1945) and The Old Regime and the French Revolution([1856] 1955), and Amos Sawyer's Emergence ofAutocracy in Libe-ria (1992) provide us with important points of departure.


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IICONCEPTUALIZINGTHE MEANING OF

AMERICAN FEDERALISM


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I f, as Tocqueville did in Democracy in America, we view theUnited States ofAmerica as a great experiment to construct society upon a new basis, we are required to consider the theory thatinformed the experiment.

Every experiment, in contrast to blind trial and error, is basedupon certain conceptions that get expressed in the design of thatexperiment. Ifwe are to understand the meaning ofAmerican federalism, it is important to view those conceptions or ideas in lightof people's approach to designing institutions of government.Chapter 2 contrasts the conceptions and computations inherentin a theory of sovereignty with the conceptual-computationallogic inherent in American federalism. Chapter 3 explores thebasic metaphysical (religious) and epistemological presuppositions that provide the foundation for the American theory of federalism. Chapter 4 examines the meaning of federalism asaddressed by arguments advanced by Alexander Hamilton andJames Madison in The Federalist. At issue are the contrasting interpretations ofMartin Diamond and myself in reading The Fed-eralist. Critical readers need to check both interpretations againsttheir own reading of the relevant texts. Chapter 5 is a critical as-sessment ofwhat can be expected to occur as a general theory oflimited constitutions in a federal system of government is abandoned for a presupposition that the American national government is competent to decide on all matters of government inAmerican society.


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TWO

HOBBES'S LEVIATHANANDTHE LOGIC OF AMERICAN FEDERALISM

T hose of us who are concerned with the study of federal sys-tems of governance confront some fundamental method-ological problems in deciding how to proceed with our inquiries.By fundamental methodological problems, I mean the basic con-ceptions and computations that are used to frame our inquiries.We are required to confront this issue as we raise questions aboutthe nature of political and social phenomena. If human beings, atleast in part, create their own social realities, we need to clarifywhether there are alternative ways to create such realities.

To the degree to which choice is possible and alternative pos-sibilities are available, we might anticipate that different concep-tions may be used to design, create, and maintain different socialrealities. This principle applies to all forms of artisanship. Differ-ent conceptualizations can be used by architects, for example, todesign and construct various types of buildings. Different types ofarchitecture depend upon both different conceptualizations anddifferent computational logics for putting together different typesof structures. Knowledgeable architects presumably use a lan-guage that enables them to communicate in a coherent way about

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30 CONCEPTUALIZING FEDERALISM

the conceptual-computational logics that are an essential part of atheory of architecture.

In exploring the question ofwhether the conceptual-computationallogic associated with federal systems of government differs from that associated with unitary systems of government, weneed to take a step backward to view our problem in the contextof the constitutional era of the seventeenth and eighteenth centuries. Thomas Hobbes, in De Cive ([1642] 1949) and Leviathan([1651] 1960), addressed the constitutional level of analysis during the era ofCromwell's effort to constitute a commonwealth asan alternative to the English monarchy. The central thrust ofHobbes's analysis is that a unity of power is the only way to createa stable commonwealth. John Locke challenged Hobbes with reference to a separation of powers, 'and the Baron de Montesquieuproposed confederation as the basis for a viable republican systemof governance. Alexander Hamilton and James Madison addressed themselves to the failure of confederation and to the conditions for a viable federal system of governance.

The analyses offered byWalter Bagehot in The English Consti-tution ([1865-1867] 1964) and by WoodrowWilson in Congres-sional Government ([1885] 1956) and his essay "The Study ofAdministration" (1887) have dominated political analysis in thetwentieth century. Bagehot's theses about parliamentary government and Wilson's thesis about bureaucratic administration as theprinciple of good administration that applies to all governmentsalike have left us with an intellectual heritage where a combination of parliamentary government and bureaucratic administration are presumed to be the appropriate form for any modernsystem of democratic government. In that formulation no justification exists for a federal system of governance.

It is only as we step back to the seventeenth and eighteenthcenturies that we can recapture the structure of the contendingarguments and account for differences in the computational logicsthat are inherent in unitary and federal systems of governance.The computational logic associated with a unitary system of government is best represented in the theory of sovereignty formulated in Hobbes's L e v i a ~ h a n . The computational logic appropriate


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HOBBES AND AMERICAN FEDERALISM 31

to republican or democratic institutions in a federal system ofgovernance is best represented by the efforts of Montesquieu,Hamilton, Madison, and Tocqueville. The latter provided us withthe computational logic ofAmerican federalism.

HOBBES'S LEVIATHANHobbes's Leviathan represents a remarkable achievement in layingout a computational logic that applies to the constitution of a sys-tem of governance in human societies. I refer to the structuralcharacteristics of this system of government as "Leviathan"-Hobbes's mortal god. There are at least six sets ofcomputations inHobbes's analysis: (1) the initial statement of his methodologicalpresuppositions, (2) his exposition of the computations that arecharacteristic of human choice, (3) his analysis ofman in a "stateof nature," (4) his formulation of the articles of peace that lay thefoundations for human community, (5) his theory of sovereignty(that is, his Leviathan), and (6) his specification of a sovereign'saccountability to God and the natural punishments that followfrom errors of judgment.Hobbes presumes that commonwealths are human anifacts-human creations to serve human purposes. As nature is God's cre-ation, commonwealths or, more broadly, patterns of order inhuman societies are human creations. These artifacts are a distinctclass in the world ofartifacts because human beings both make upthe matter (constituent elements) of commonwealths and serve asthe designers or "artificers" of commonwealths. Human societiesare artifacts that contain their own artisans (Greene 1978).Human nature, then, is deserving of special attention for the sakeof understanding both human beings as the basic constituent ele-ments of commonwealths (societies) and the artisanship requiredto create commonwealths.

Hobbes's methodological plea to his readers is to use their ownresources as human beings to derive an understanding both ofhuman nature and of the science that is applicable to the creation ofcommonwealths. He presumes that a common biological heritage is


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the source of a basic "similitude" of thoughts and passions thatcharacterizes all mankind. What is variable among human beings islargely derived from the accumulated learning that accrues as a cultural heritage overlaying the common biological heritage.1t is possible, then, for anyone to use his or her resources as a human beingto come to an appreciative understanding of the rudimentary foundations of human nature and of how others think and feel. Thisrequires a studied effort to cross the thresholds of languages andcultures. As a result, the task facing the student of commonwealthsis "harder than to learn any language or science," but Hobbes's ef-fort to cover this ground will presumably reduce "the pains left toanother" (Hobbes [1651] 1960,6). The ultimate key to politicalunderstanding lies in the resources that each of us can mobilize asindividual human beings to understand other human beings and inestimating the consequences that follow as human beings choose toact in hypothetical situations. This use of our resources is what Iunderstand "methodological individualism" to mean-to use individuals as the basic unit of analysis in the social sciences.

In part 1, "OfMan," Hobbes seeks to clarifY the basic attributes of human nature. Hobbes turns first to cognitive processesthat are characteristic of both man and beast. Perceptions of theexternal world are acquired through the senses and are transformed into images by the central nervous system. An associationof images enables creatures, which learn, to develop foresight presuming something like cause-and-effect relationships. Reflectingupon images to engender new associated relationships is thesource, then, of the imagination with which human beings are sorichly endowed. The imagination is the source of new ideas, potential advances in knowledge, and innovations.

The distinctive characteristic of human beings is speech (language) "consisting of names or appellations, and their connexions;whereby men register their thoughts; recall themwhen they are past;and also declare them to one another for mutual utility and conversation" (Hobbes [1651] 1960, 18). It is this factor that is decisive inthe constitution ofhuman societies, "without which, there had beenamong men neither commonwealth, nor society nor contract, norpeace, no more than amongst lions, bears, and wolves" (ibid.).


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It is language, then, that enables human beings to use symbolsto represent events and relationships. Events and relationships aresymbolized by the assignment ofnames. Human beings transformtrains of thoughts (associations of ilnages) into trains of wordsthat can be used in a computational logic to develop science as a"knowledge of consequences" (ibid., 29), derived from the depen-dence of symbols and their connections to one another in waysthat reflect named events and relationships. Reason derives fromlanguage (names and connections worked out in a computationallogic). Children do not learn to reason, Hobbes argues, "till theyhave attained the use of speech" (ibid.).

All voluntary action is thus based in thought amplifiedthrough human capabilities to reason and thus to estimate theconsequences associated with alternative forms of action. Theother form of computation made in taking voluntary action hasreference to internal indicators that reflect human feelings, senti-ments, or passions. These can be characterized as appetites andaversions. These internal indicators are an initial ground for dis-tinguishing good (for which one has appetites) and evil (for whichone has aversions). Deliberation, then, involves two sets of com-putations: first, the calculations associated with consequences ofalternatives and, second, the weighing ofalternatives in relation topreferences (appetites and aversions or benefits and costs). Choicethus involves conjectures, deliberation, and selection.The two sets of computations are interactive. Human beingscan learn of consequences that flow from acting upon a passion:"Passions unguided are for the most part mere madness" (ibid.,48). They can also acquire appetites or aversions derived from ex-perience. Human beings, then, acquire a cumulative skill in ob-taining "those things which a man from time to time desireth"(ibid., 39). This Hobbes calls felicity, and I construe to be equiv-alent to "the pursuit of happiness." It is a cumulative conditionthat accrues with maturation.

His summation of the "general inclination of all mankind" isthat each individual has"a perpetual and restless desire for powerafter power, that ceaseth only in death" (ibid., 64). The "power"of a man is defined as "his present means to obtain some future


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good" (ibid., 56). I construe his postulate to mean that humanbeings continually strive to use present means to achieve some future apparent good that unfolds in a succession, one activity afteranother, that ceases only in death. There is a continual striving forsomething better, whether as manifest in the saint who seeks tobring him- or herselfcloser to God or in the despot who aspires togain dominance over others. All human beings have a capacity tothink for themselves, and their choices will reflect their own computation of the alternatives they consider to be available. Peopleare never perfectly obedient automata; they always strive to betterthemselves. This is the source of all political contingencies.

Hobbes's analysis ofman in a state of nature I construe to bea mental experiment to establish a zero base for political analysis.His state of nature is devoid of any political conditions or constraints. There is no law, no authority, no "mine" or "thine," noneof the arts grounded in words, and everyone is free to take whatone can get and defend what one has got (ibid., 83). Each individual is essentially equal to each other individual and is motivated toseek his or her own good. Conditions of scarcity are presumed toprevail. In such circumstances Hobbes infers that conflict willoccur and that conflict, in the absence of any political constraint,will escalate to a point where people end up fighting with oneanother-a state ofwar of each against every other individual.

The computational conclusion of this thought-experiment iscounterintentional. Each individual sought his or her own good butrealized misery instead. The argument can be viewed as offering aproofof the insufficiency of the pursuit ofunconstrained self-interest in the constitution of human societies. An unconstrained pursuit of self-interest will yield to human propensities to fight ratherthan to pursue peaceful and mutually productive relationships.

Hobbes's analysis ofman in a state of nature, other than as ahypothetical thought-experiment, is seriously flawed because itneglects the distinctly human capability for speech and the opportunity that speech would afford human beings to address themselves to the puzzle that those who sought their own good realizedmisery instead. Given human capabilities for communicationthrough speech, we might expect them to communicate with each


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other and derive ways to avoid fighting and develop more constructive ways of relating to one another. This is what Hobbesdoes in the next step in his analysis-to establish the conditionsfor peace as an alternative to war.

In chapters 14 and 15 ofLeviathan, Hobbes specifies some nineteen rules that he refers to as "natural laws" (or "dictates of reason")for establishing the conditions for peace as an alternative to war.These"articles of peace"-all based upon presumptions of equalityin interpersonal relationships-are summarized as I have come tounderstand them in Table 1. The basic computational logic in eachof these rules, Hobbes tells the reader, can be understood by reference to a single rule: "Do not that to another, which thou wouldst nothave done to thyself" (ibid., 103, his emphasis). TheGolden Rule, forHobbes, provides a method of normative inquiry that is characterized by a fundamental symmetry in computing the basic structure oforder in human societies: I act in relation to others as I would haveothers act in relation to me. The rule may be generalized if I putmyself in the place of others and others in my place so that our re-spective "passions" and "self-love" add nothing to the weight. Thenwe can understand the grounds for establishing peaceful communities of relationships among individuals who consider themselves tobe free and equal (see Chapter 3 for further elaboration).

The articles of peace, however, are insufficient for the organization of human societies. They are but rules-words-and rulesare not self-formulating, self-maintaining, or self-enforcing. Theypersuade in the sense ofobliging one's conscience, but they do notnecessarily compel or control one's actions. In human actions,temptations arise and reign. Unless rules can be enforced theycannot be made binding in human relationships even when theyappeal to one's reason and one's conscience. Without enforceablerules, some will be tempted to act at variance with the rules; andmen who act in accordance with their conscience may then become the "prey" to others (ibid.). Hobbes's theory of sovereignty,then, is addressed to the problem ofhow to make rules binding inhuman relationships. The basic symmetry in the rules that areconstitutive ofHobbes's state of peace yields to basic asymmetriesin rule-ruler-ruled relationships.


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TABLE 1Article 1:

Article 2:

Article 3:Article 4:

Article 5:

Article 6:

Article 7:

Article 8:Article 9:

Article 10:

Article 11:

Hobbes's Articles of PeaceThat one seek peace and follow it, but be preparedto defend oneselfThat one be willing, in the quest for peace, whenothers are willing, to lay down one's right to allthings and be content with so much libertyagainst others as one would allow others againstoneself.That individuals perform their covenants made.That one act in relation to others so theywill haveno cause for regret.That everyone strive to accommodate oneself tothe rest.That upon caution of future time, a person oughtto pardon the offenses past of them that, repent-ing, desire it.That in retribution of evil for evil, persons looknot at the greatness of the evil past but at thegreatness of the good to follow.That no one by deed, word, countenance, or ges-ture declare hatred or contempt of others.That everyone acknowledge another as one's equalby nature.That at the entrance into the conditions of peace,no one reserve to oneself any right which one isnot content should be reserved to everyone of therest.That if one be trusted to judge between one per-son and another, one deal equally between them.

continuedon nextpage


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TABLE 1 continuedArticle 12: That such things as cannot be divided, be enjoyedin common, if it can be, and if the quantity of the

thing permit, without stint, otherwise propor-tional to the number of them that have right.

Article 13: That such things as cannot be divided or enjoyedin common require that the entire right to thewhole thing, or else, making the use alternative,be determined by lot.

Article 14: That distribution by lot be determined by anagreement among the competitors or by first sei-zure.

Article 15: That all who mediate peace be allowed safe con-duct.

Article 16: That they that are at controversy submit theirright to the judgment of an arbitrator.

Article 17: That no one is a fit arbitrator of one's own causein relation to the interest of another.

Article 18: That no one in any cause ought to be received forarbitrator to whom greater profit or honor orpleasure apparently arises out of the victory ofoneparty rather than another.

Article 19: That in controversies of fact those who judgeshould give no more credit to one witness than toanother but should call additional witnesses untilthe question is decided by the weight of evidence.

Summary Rule: Do not that to another, which thou wouldst not havedone to thyselfSOURCE: Hobbes, Leviathan, chs. 14, 15.

Hobbes's resolution of this problem is based upon a presupposi-tion that a unity of power is necessary to the unity of law and that


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the unity ofpower and oflaw are necessary to the peace and concordof commonwealths. He expresses his presumption in this way: "Forit is the unity of the representer [ruler], not the unity of the represented [ruled], that maketh the person [that is, commonwealth as apersonated aggregate of individuals] one' (ibid., 107). The unity ofthe commonwealth depends upon a unity ofpower. This is the basicpresupposition that applies to unitary systems ofgovernance.

Hobbes's theory of sovereignty is an articulation of the basiccomputations that follow from the unity of power. A unity ofpower entails a monopoly over the powers of governance, including the powers of the sword, that are necessary to the maintenanceand enforcement of rules of law and the defense of a common-wealth. Such a conception necessarily implies that rulers are thesource of law; as such they are above the laws that they promulgate; and rulers cannot themselves be held accountable to a rule oflaw by other human beings in a commonwealth. From this formulation it follows that the prerogatives of rulers are unlimited,inalienable, absolute, and indivisible. These are the basic attributes of sovereignty that apply to the internal structure of a commonwealth; and these apply in any organization of authorityrelationships that has the necessity of being a monopoly. When-ever we define a state as a monopoly of the legitimate exercise offorce in a society, Hobbes's attributes ofsovereign authority necessarily apply as a manifestation of monopoly. Unity of power implies a monopoly of authority relationships in a society.

Rule-ruler-ruled relationships create the most profound tensions in human societies. The power of the sword (of instrumentsof coercion, in other words), is necessary to derive the advantagesof rule-ordered relationships: "And covenants, without the sword,are but words, and of no strength to secure a man at all" (ibid.,109). Instruments of evil, symbolized by the sword, are necessaryto derive the common good of peaceful relationships. Human societies, as a consequence, can be viewed as Faustian bargains: people must learn how to live with the use of instruments of evil to dogood. It is easy for those with the best of intentions to become thesource of the greatest evils. This tension is always present in allsocieties and can never be ignored.


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chain there are linked together both pleasing and unpleasingevents, in such manner as he that will do anything for his pleasure must engage himself to suffer all the pains annexed to it;and these pains are the natural punishments of those actionswhich are the beginning ofmore harm than good. And herebyit comes to pass that intemperance is naturally punished withdiseases, rashness with mischances, injustice with the violenceof enemies, pride with ruin, cowardice with oppression, negligent government of princes with rebellion, and rebellion withslaughter. For seeing punishments are consequent to the breachof laws, natural punishments must be naturally consequent tothe breach of the laws of nature, and therefore follow them astheir natural, not arbitrary, effects. [Ibid., 240-41]The association of the negligent government of princes with

rebellion and rebellion with slaughter occurs because successfulrebels find it necessary to use the sword as their instrument ofgovernance; rebels create their own autocracy to exercise the prerogatives of rulership. Rulers change, but the patterns of rulershipremain the same.

Lawviewed as the command of a sovereign is a precarious wayto constitute patterns of order in human societies. There are noeffective ways to challenge the arbitrary exercise of public authority by a sovereign and no effective ways to deliberate about theconstitution and reconstitution of systems of governance inhuman societies. These are the counterintuitive implications ofpresuming that there must be some single ultimate center of authority in the governance of each society: the more authority isunified, the more irresponsible it becomes.

In presenting his theory of sovereignty, Hobbes characterizeshis formulation as "the only way" (ibid., 112) to constitute a commanding power sufficient to maintain order and security in acommonwealth. There can, then, only be unitary states. He recognizes that the forms of government may vary among monarchies, aristocracies, and democracies. But, in the case of ademocracy, it too would be a unitary state where only one assembly of all citizens would exercise the prerogatives of government.Citizens in this case would be both rulers and subjects, but the


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unity of power would be preserved by having but one assemblywhere binding decisions could be made by a plurality of votes. Amajority, in such circumstances, would be the smallest plurality toyield an exclusive decision. It is in the working out of the relation-ship of democracy to constitutional rule and to federalism thatMontesquieu and the American authors of The Federalist provideus with an alternative to Hobbes's theory of sovereignty.

DEMOCRACY; CONSTITUTIONAL RULE, AND FEDERALISMHobbes's characterization of democracies as rule by assemblies ofall citizens who will come together neglects a crucial consider-ation: in order to have rule by assemblies, it is logically necessary tohave a shared community of understanding and agreement aboutthe rules ofassembly and what it means to govern by assembly.There are sets ofcalculations ofwhat it means to govern byassem-bly that must be taken into account in the organization of an as-sembly and in the conduct of its proceedings. In establishing theterms and conditions of governance in an assembly, these requirestipulation in much the same way that the articles of peace mightbe specified as the basis for organizing relationships among indi-viduals. We might then distinguish between rules that apply tothe terms and conditions of assembly and rules enacted by an as-sembly to apply to the ordinary exigencies of life. The formerwould be constitutional in character and, if enforceable with re-gard to the exercise of governmental prerogatives, might be re-garded as constitutional law. The latter might be characterized asordinary law, or laws that apply to citizens as subjects of law.

Government by assembl)T, then, necessarily depends upon gen-erally accepted rules of assembly. Hobbes presumes that it is theunity of the representer, not the unity ofthe represented, that makesthe commonwealth one. His view is open to serious objection. Inthe case of rule by a democratic assembly, the representer (the as-sembly) and the represented (the citizens) are the same people. Ademocracy cannot be achieved until there is sufficient unity of therepresenter and/or represented to specify the terms and conditions


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sembly beyond a very limited size depend upon the exercise ofleadership prerogatives to set the agenda, recognize speakers, andorder the proceedings. As assemblies increase in size, the preroga-tives of the leadership become increasingly dominant and thevoice of the ordinary member becomes more and more attenu-ated. There comes a point, probably confined to a very few hun-dred participants, where coherent debate is difficult; and theprerogatives of the leadership predominate. This problem can bealleviated somewhat by moving to representative institutions, butproblems of size still pose difficulties. This problem is resolved inthe British House ofCommons, for example, by confining debatelargely to those who exercise leadership positions among the twomajor parties. The back benches form the cheering sections, anddeliberation becomes a form of public theater. The rules allocat-ing debate to each member for a fixed number ofminutes in theu.s. House of Representatives means that debate there is of lim-ited coherence. The U.S. Senate, as the smaller body; conducts themore coherent debate. These oligarchical tendencies inherent indeliberative assemblies are counterintentional, operating withoutregard to the intentions and character of the participants, and alsocounterintuitive for those who believe that elections and decisionsby majority vote are sufficient to sustain a democracy.

Simple, direct democracies, then, were always exposed to insti-tutional failures arising from the usurpation of authority by thosewho exercised leadership prerogatives and agency relationships. Ifthe people acquiesce in the usurpation of authority by a dominantleader, Hobbes argues in De Cive, the death of democracy occurs([1642] 1949, 97). A democracy survives only so long as the rule ofassembly is maintained with effective limits upon those who exer-cise leadership prerogatives and serve as agents of the assembly.

Limits upon size also carry a correlative vulnerability to ag-gression by powerful neighbors. Montesquieu recognized thisbasic relationship when he observed: "If a republic be small, it isdestroyed by foreign force; if it be large, it is ruined by internalimperfection" ([1748] 1966, 181). If both small and large repub-lics are destined to failure, the viability of democratic republics isseverely limited.


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Montesquieu suggested that confederation would be a way ofresolving this problem. Small republics might joi

Ostrom - Meaning fo federalism

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