Federalism: Political Identity and Tragic Compromise

Introduction: Why We Need a Theory of Federalism

introduction why we need a theory of federalism In the mid-nineteenth century, two-thirds of the world’s landmass was governed by imperial edict. In the early twenty-‹rst century, according to many political theorists, this same proportion of the world is governed by federal arrangement. Indeed, some theorists claim that the proportion could be much higher. Writing in 1994, the late Daniel Elazar estimated that well over 100 of the 180 recognized sovereign states, encompassing some 80 percent of the world’s population, live within polities that either are formally federal or utilize federal arrangements.1 Elazar’s list of federalist countries, moreover, includes many of the world’s most attractive and stable democracies—Switzerland and the United States, two of the oldest political regimes in the world, as well as Canada, Australia, and Germany . In addition, the European Union is often said to be an emerging federal system. Those who write about federalism, moreover, often advance expansive claims about its virtues. Federalism, it is said, serves as a bulwark against tyranny and is essential for the creation and maintenance of democracy in geographically large or ethnically diverse political entities.2 It maximizes the extent to which the political system can re›ect the preferences of the individuals who live within it.3 It produces a political system leading to a higher level of economic ef‹ciency within society than any other system.4 According to Elazar, it is directly ordained by the Almighty.5 In light of its prominence as a governing arrangement and of the many and varied bene‹ts advocates claim for it, one might expect there to be a vast and robust theoretical literature on federalism. Yet there is not. There is certainly no shortage of scholarship about federalism—in fact, there has been a deluge of it in recent decades—but virtually none of it presents a theory of the subject.6 The towering exception is William H. Riker’s classic Federalism: Origin, Operation, Signi‹cance.7 But David McKay has rightly observed, “[N]o one has come up with a theory of federalism that is remotely as ambitious or as powerful. . . . Riker’s theory remains, almost forty years later, the only theoretical perspective on the subject worthy of that name.”8 Of the scholarship that has followed, one part consists of legal analysis that attempts to clarify the division of labor once boundaries have been drawn in particular federal systems or to chart the varying shifts between the center and its constituent parts. Another catalogs the political and economic advantages that result from federal regimes. From here, it is a short step to prescriptive literature that argues in favor of federalism on the basis of these advantages, and with the next short step, one arrives at prescriptive literature that uses the defense of federalism to mask the advocacy of particular substantive goals that in themselves do not ›ow from federalism at all. At all these steps, scholars have claimed a bewildering variety of attributes for federal systems, many of which contradict each other. Some of these claims are stated in the form of general propositions, such as “Federalism protects linguistic minorities,” “Federalism increases political participation ,” or “Federalism fosters economic ef‹ciencies.” But many—if not almost all—of these discussions have only one or two examples in mind. Perhaps Swiss federalism protects linguistic minorities, but American federalism does not. Perhaps Canadian federalism increases political participation , but Australian federalism does not. One problem with such claims is that they are like aphorisms; each is likely to be matched by its opposite. Another problem is that they often spring from vaguely de‹ned emotional attachments. Despite the alleged tough-mindedness of political scientists, U.S. Supreme Court justices, and legal scholars, their treatment of the subject remains mired in sentimental attachment to the idea of federalism, replete with appeals to nostalgia-driven sentiments, the bromides of high school civics, and conceptual confusion. Of course, inventive theorizing is far from absent in discussions of structural arrangements for complex societies—on the contrary, postnationalist scholarship has produced an impressive array of theories about structural arrangements for organizing complex societies. But these theories have tended to focus on structures other than federalism. Rawls begins with a 2 federalism uni‹ed society behind his veil of ignorance and proceeds to discuss constitution making, legislation, and administration from this same perspective.9 Devotees of participatory democracy, such...