Problems Confronting Contemporary Democracies: Essays in Honor of Alfred Stepan

Chapter 10: Of Swords and Shields

Of Swords and Shields Federalism and Territorial Democratization in the United States Edward L. Gibson Justice Stevens in effect managed to use federalism as a sword rather than a shield. —New York Times, April 3, 2007 Federalism has never been more crucial for the study of democracy and comparative politics. —Alfred Stepan,“Toward a New Comparative Politics of Federalism, Multinationalism, and Democracy” Alfred Stepan has long called for theory building about the relationship between federalism and democracy. As one of the founding fathers of the now-burgeoning field of comparative federalism, Stepan has also generated important theories of his own about this relationship. His insights into how federalism can constrain the weight of democratic majorities at the center in national decision making provided new ways of comparing federal systems. They also revealed that federalism divides countries not only into multiple and overlapping governments but also into multiple and overlapping electorates. How they are structured in 10 273 relation to one another tells us much about power and representation in federal democracies. In this and more recent work, Stepan has revealed the tight institutional interconnections that exist between federalism and democracy, as well as the significance for democratic regimes of how such institutional arrangements are “crafted” by political actors. This chapter is an attempt to respond to Stepan’s call for theoretical development of federalism’s relationship to democracy. It is about how institutional change in federalism is linked to institutional change in democracy. It also focuses on institutional “crafting” by political actors . This crafting is carried out by actors in political conflict, seeking to alter the architecture of federalism over time as a result of continuing conflicts about democracy. As a result, federal institutions are permanent objects of contestation in struggles about democracy (and in struggles about many other things).I explore how actors pursue changes in federalism in order to affect outcomes in the democratic regime. In doing this, I also seek to show that the institutional evolution of federalism in the United States, the world’s oldest federal democracy, has been inextricably tied to conflicts about democracy. Years back, Alfred Stepan asked the question, how does federalism constrain the will and influence of national majorities? Here I ask a different question: how does federalism constrain the expansion of democratic institutions across the subnational jurisdictions of a country? In asking this question I am addressing a dimension of democratization that has been largely neglected in the comparative democratization literatures , the spread (or nonspread) of democratic institutions across territory within the nation-state. I am also focusing on the United States, a country that because of its status as one of the world’s oldest “consolidated” democracies is seldom mined for insights into contemporary democratization problems. However, few countries can illuminate as much about the little-understood process of subnational democratization as the United States. Its conflicts over the democratization of the states were wrenching, massive, and prolonged. Furthermore, these conflicts were inseparable from conflicts about federalism. Would federalism be a sword that could be used against entrenched authoritarian structures in the states, or would it be a shield for local incumbents against democratizing pressures from the center? In essence, this ques274 | Edward L. Gibson tion was about how the territorial organization of the polity would shape the territorial organization of democracy within the country’s borders. The battle to decide this tells us much about why federalism in the United States looks the way it does today. This battle was obviously a very long and complex one, certainly longer and more complex than can be covered in one essay. I will thus focus on one (very revealing) historical instance of this longer struggle: the conflict during the immediate post–Civil War period known as Reconstruction (1866–77), in which institutional crafters fought to answer a fundamental question about U.S. federalism: does the national government have the power to define and enforce a uniform standard of democracy on the states of the federation? “Substantive” Democratization and “Territorial” Democratization “Democratization”is a well-worn concept, yet another conceptual distinction might aid the study of subnational processes of democratization .We can conceive of two distinct patterns of democratization within the nation-state: substantive democratization and territorial democratization . Substantive democratization is the granting of rights that had not been previously granted in the country, either a new concept of rights or the extension of existing rights to new...