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E I G H T Societal Federalism: A Compound Polity of Particular and Universal Citizenship IN ORDER TO APPRECIATEALTHUSIUS' CONTRIBUTION to a general theory of federalism, a distinction must be made between federalism as a general form of social organization and modern federalism—or federation— as a specific type of government.1 Modern federalism is a type of political organization that in its simplest form includes two or more levels of government with divided powers, a constitutional guarantee that such powers cannot be taken away or reallocated without the consent of those holding them, and some arrangement of mutual co-operation in case of conflict resulting from overlapping responsibilities. In a more fundamental sense, it is an important corrective to the majority principle on the basis of individual liberalism, because it acknowledges that the liberty and autonomy of subnational collectivities such as provinces, cantons, or states deserve protection from national majorities and can indeed override such majorities. In this sense, federalism has been an invention of the modern age and, more precisely, a response to the formation of national societies in territorial states. The classical tradition of the modern federal state essentially (but not entirely) goes back to two major theorists of the eighteenth century, the French Baron de Montesquieu, and the American James Madison. Both were aristocrats, one of title, the other of socio-economic status, and both were concerned about the protection of minority rights. Almost at the eve of the French Revolution, Montesquieu recognized the territorial aspirations of a modernizing French bourgeoisie as a threat to traditional privileges . For Madison, popular majority rule was already a political factor to reckon with during the aftermath of the American Revolution. Like Montesquieu, he advanced the idea that minority interests can only be safeguarded by a radical pluralization and separation of powers. 1 Compare Preston King, Federalism and Federation (Baltimore: The Johns Hopkins University Press, 1982). 109 110 EARLY MODERN CONCEPTS FOR A LATE MODERN WORLD Montesquieu's celebrated L'Esprit des Lois is mainly known for its doctrine of power separation or, as the Americans would later call it, checks and balances. That "power should be a check to power"2 was for Montesquieu as much a governmental principle as it was a principle of social stabilization. Well aware of what appeared to him as an irresolvable conflict between king, aristocracy, and people, he suggested moderation in a regime of mixed governance whereby the aristocracy, together with clergy and cities, assumes the role of an "intermediate power."3 Because such moderation or virtue would only be possible in small republics that would in turn lack the strength available only to large states, he finally recommended that the advantages of both ought to be combined in a republique federatif.4 Montesquieu already saw federalism and the division of powers from the perspective of the modern territorial state. He foresaw the dangers for privileged minorities when centralized administration in such states would fall into the hands of popular majorities. He therefore suggested modern governance as a reasonable system of power-sharing among traditional elements of society: monarchy, aristocracy, and bourgeoisie . Although his main interest may well have been the survival of minority interests of privilege and status, he nevertheless recognized federalism as a general governmental principle safeguarding smaller worlds in which social compromise appeared more likely. Madison, who cited Montesquieu repeatedly and approvingly as the "oracle" on the subject of power separation, doubtlessly was the most important among the three authors of the equally celebrated Federalist Papers, a pseudonymously published series of essays in support of the American Constitution drafted by the Philadelphia Convention of 1787 but still awaiting ratification in the states. The primary purpose of these essays was to convince the voters of New York of the need for a strong union government. However, by discussing the federal principle of government in the broadest possible terms, Madison and his co-authors, Alexander Hamilton and John Jay, provided their readers with what is 2 Montesquieu, L'Esprit des Lois [1748], transl. as The Spirit of Laws, first English transl. By Thomas Nugent [1750], reedited by David W. Carrithers (Berkeley: University of California Press, 1977), XI.4 (le pouvoir arrete le pouvoir ). See also Robert Shackleton, Montesquieu: A Critical Biography (London: Oxford University Press, 1961). 3 L'Esprit des Lois II.4 (pouvoir intermediaire). 4 Ibid., IX.1-3. In these chapters, Montesquieu's formulations are almost identical to those of Althusius, and he also refers to the same German, Swiss...

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