Martin Luther King's Civil Disobedience and the American Covenant Tradition

Daniel J. Elazar introduced the covenant idea to political sciencein his four-volume work, The Covenant Tradition in Politics.As he showed, American government and society are indebted tocovenant ways of New England Puritans and their doctrine, "federaltheology". Puritan covenants fostered polities whose framesof government and patterns of civil order established a federalmatrix antecedent to modern American federalism. The moral orientationof covenant has also influenced modern American political thought,as evidenced by the public philosophy articulated by the Rev.Dr. Martin Luther King, Jr. during the Civil Rights Movement(1954–1968). In such works as "The Letter from the BirminghamCity Jail," King challenged his contemporaries' ideas aboutlaw and justice, Americans with an opportunity to examine moderncovenant practice.     

Federalism at the American Founding: In Defense of the Diamond Theses

Vincent Ostrom's analysis of The Federalist's understandingof federalism fails to consider the historical and theoreticalcontext of The Federalist's arguments. Ostrom takes certainrhetorical devices of The Federalist too much at face value.He correctly sees that the authors of The Federalist view eighteenth-centuryfederalism as bad government. He incorrectly concludes thatsince it is bad government, that understanding could not havebeen the true meaning of federalism. The Federalist understandseighteenth-century federalism to be "the true meaning" of federalismas established by the political discourse of the times. TheConstitution departs radically from eighteenth-century federalism,but The Federalist seeks to conceal how radical the departureis, in part, by offering a looser definition of federalism thatwill allow the Constitution to be characterized as a federalsystem. A consideration of the writings of the opponents tothe Constitution suggests the limited success of this attemptat redefinition.     

The Covenantal Basis for the Development of Swiss Political Federalism: 1291-1848

This study argues that the modern political philosophy of federalismis directly linked to the Swiss Reformed idea of religious covenant,which was first formulated in the 1520s and 1530s by HeinrichBullinger in Zürich. Bullinger's concept of religious covenanthad roots both in the Old Testament and in the early federalideal and reality that had come out of the Swiss Middle Ages;it therefore had important social and political implicationsas well as theological meaning. During the sixteenth and earlyseventeenth centuries, this theological idea of federalism fedinto and helped to create the modern political concept of federalism,especially in the thought of Philippe Duplessis-Mornay and JohannesAlthusius. Political federalism became a reality in the Constitutionof the United States in the late eighteenth century. The Swissfederal Constitution of 1848 was instructed by the mature conceptof political federalism, by the Constitution of the United States,and by the long tradition of Swiss federalism. All of theseinfluences had some basis in the uniquely Swiss idea of religiouscovenant.     

The Declaration of Independence As Part of an American National Compact

The Declaration of Independence is an efficient, abstractedsummary of the eighteenth-century American mind. Viewed in thiscontext, the Declaration is not only an efficient summary ofAmerican political thought, but also a careful rhetorical balancingof contending views. The document could be read with approvalby students of Whig political thought, or the Enlightenment;rationalists, or the deeply religious; those jealous of statepower, or nationalists. Indeed, the manner in which state andnational perspectives are balanced make this the first nationaldocument to lay out federalism as a central aspect of Americanpolitical thought. The document also turns out to be part ofa political covenant of the kind long used in America, and originallyderived from covenant theology. Political covenants, calledcompacts in their secular form, would have had the Declarationserve as a preamble and bill of rights to a constitution. Asit turns out, the Declaration of Independence serves preciselysuch a role with respect to the United States Constitution,and is thus part of a national covenant/compact.     

Federalism and Compounded Representation: Key Concepts and Project Overview

Interested in bringing together federalism and political representationas two distinct areas of research in comparative politics, thisedition of Publius: The Journal of Federalism introduces a collaborativeresearch project that raised questions about the impact of institutionalarrangements on strategies for political representation. Definitionsof the project's two key concepts of federalism and compoundedrepresentation are briefly addressed initially. Summaries arepresented of how these two concepts are empirically appliedin the studies by the five scholars presented in this volume.     

The Meaning of Federalism in The Federalist: A Critical Examiniation of the Diamond Theses

Language poses a serious problem in political discourse whenterms like federalism come to mean anything, everything, andnothing. An issue of some importance is how "confederation"was conceptualized in The Federalist, how that conceptualizationwas subject to critical analysis, especially in Federalist 15and 16, and how the resolution of that critique contributedto the conceptualization of a federal system of governance.This essay was written in response to a re-reading of MartinDiamon's essay on "The Federalist's View of Federalism." Theposition taken is that the theory of constitutional choice usedto articulate the arguments in The Federalist provides the appropriatelogic for construing the meaning of federalism despite the ambiguitiesof language contained in The Federalist.     

The Reconstitution of American Federalism? The Rehnquist Court and Federal-State Relations, 1991-1997

This article surveys the U.S. Supreme Court justices' recentopinions on federal-state relations with a special focus theCourt's 1996 term. Contrary to some claims, the Rehnquist Courtis not reconstituting definitions of American federalism orthe function of the Court in defining federal-state relations.What has occurred is a revitalization of a long-standing interpretiveconflict about the deployment of government power within a legallyconstituted regime. Therefore, the debate in such cases as Printzv. United States, Camps New found/Owatonna v. Town of Harrison,City of Boerne v. Flores, and Idaho v. Coeur d'Alene Tribe isabout how the political principles contained in the nation'sfoundational legal and historical texts, such as The Federalistand other records of the American Founders, ought to be interpretedby the justices. However, despite the limited focus on interpretativetechnique, the justices' debate about federalism still has importantpolitical consequences that will affect future discussions aboutcongressional and state government power.     

Pragmatic Federalism: Australian Federalism from Hawke to Howard

The article explores the nature of Australian federalism by examining four major themes in the period from Hawke to Howard. The investigation of these themes – Australian conceptions of federalism; the role of party in shaping federalism; the way problems and politics have influenced policy‐making and thereby federalism; and the nature of federal judicial review – suggests that Australian federalism can most accurately be characterised as pragmatic. It appears as a federalism shaped by pressing problems, specific policy agendas and the prevailing political dynamic, rather than by overarching conceptions of federalism derived from political theory or articulated in party ideology. This pragmatic federalism explains important aspects of Australian federalism, especially the trend towards centralisation of authority.     

Federalism in the 101st Congress

This article identifies important congressional roll-call votes,calculates a federalism score similar to that reported previouslyin Publius, and through factor analysis, examines the underlyingdimensions offederalism voting. The resulting federalism indicatorsare analyzed to determine their relationship to partisan andideological variables. Finally, the federalism orientation ofthe 101st Senate is compared with that of the 101st House ofRepresentatives as well as that of the 97th Senate.     

Daniel J. Elazar: Comparative Federalism and Post-Statism

Daniel J. Elazar made an enormous contribution to the comparativestudy of federalism both by his encouragement of internationalcollaboration among scholars and by the prolific number of hewrote or edited and articles he produced which analyzed theconceptual foundations for federalism internationally. An importantcontribution was the distinction he drew between as a broadgeneric term and the variety of its specific forms such as federations,confederations, federacies. A dominant theme in his recent workwas the notion that in the contemporary world, we seeing a paradigmshift from a world of nation-states to a world of reduced statesovereignty and constitutionalized linkages of a federal orconfederal character.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.     

Canadian Federalism, The Charter of Rights, and the 1984 Election

The federal election of 1984 may prove to be a critical eventin the evolution of Canadian federalism. The election createda political climate favorable to a restructuring of the Canadianpolitical agenda away from the "territorial politics" that hasdominated it for several decades, toward a politics of national,non territorial issues. Such a transformation of the politicalagenda had been sought by the Liberal government of Pierre Trudeau,which saw the new Charter of Human Rights and Freedoms as amechanism for promoting a more national politics. The climateof intergovernmental confrontation that characterized the Trudeauera, however, may very well have undermined the Charter's nationalunity potential. Ironically, that potential is more likely tobe realized under the Mulroney Conservatives than it would havebeen under a continuation of the Trudeau regime.     

Challenges to Authority that are Significant, But Fall Short of Being Federal or Constitutional

Dan Elazar was overly generous with respect to claims of constitutionalism,republicanism, and federalism in the Hebrew Bible, and too freewith the term "federalism" for post-biblical Jewish polities.Yet numerous politically relevant episodes in the Bible indicatethat the regimes of ancient Israel were something other thanpurely authoritarian, and modem Israel, though highly centralizedin its formal arrangements, tolerates substantial give and takein the operations of national and local authorities.     

Splitting the Atom of Sovereignty: Term Limits, Inc.'s Conflicting Views of Popular Autonomy in a Federal Republic

In his concurrence to U.S. Term Limits, Inc. v. Thorton, JusticeAnthony Kennedy described federalism as an attempt to "splitthe atom of sovereignty." As Term Limits demonstrates, the taskis an incredibly difficult one, which deeply rends the Court.One block, currently composed of Justices John Paul Stevens,David Souter, Ruth Baider Ginsburg, and Stephen Breyer, viewthe source of constitutional authority as residing in the peopleof the nation as a whole; the other block, made up of ChiefJustice William Rehnquist and Justices Sandra Day O'Connor,Antonin Scalia, and Clarence Thomas, argue that the constitutionalwellspring is the people of each individual state. Justice Kennedy,now occupying the Court's middle ground, stresses the "dualcharacter" of federal government. The debate is much morethanacademic. Depending on how it is played out, the argument mayhave profound implications for the understanding and practiceof U.S. federalism.     

State Merit Amicus Participation and Federalism Outcomes in the U.S. Supreme Court

Research suggests that merit amicus curiae participation correlateswith Supreme Court decision making and that states make frequentand effective use of this tool. To date, however, no study hasadequately examined the relationship between state amicus participationand the federalism values reflected in the Court's decisions.This article dev"Lelops and finds evidence for the assertionthat, when they cooperate in the amicus process, state participationis associated with an increase in the likelihood of rulingsfavoring state rather than national government power.     

Föderalismus, Dezentralisierung und Performanz. Eine makroquantitative Analyse der Leistungsfähigkeit territorialer Politikorganisation in entwickelten Demokratien

Does federalism matter? We develop a theoretical model on the causal relationships between federalism, decentralization and system performance by merging the two literatures on political and fiscal federalism. The model is then tested in a quantitative analysis, including the OECD countries. We find that, consistent with our model, federalism and decentralization are different dimensions of the territorial organization of politics. Decentralization has positive effects; federalism tends to result in either no or a negative performance effect.     

An Intellectual Crisis in American Federalism: The Meaning of Garcia

In National League of Cities v. Usery (1976), the U.S. SupremeCourt found that the Tenth Amendment requires the existenceof a set of essential state powers that remains beyond the reachof congressional regulation or preemption. The Court reverseditself in Garcia v. San Antonio Metropolitan Transit Authority(1985), holding that the Tenth Amendment provides the Courtno basis on which to limit the Congress in the exercise of itscommerce powers. We argue that, although contradictory, bothholdings can be inferred validly from the U.S. Constitution.This absurd result reveals profound inconsistencies in the constitutionaldesign of federalism, requiring a constitutional solution. Thearticle concludes with a discussion of a variety of constitutionalremedies, including constitutional amendments.     

Montesquieu on Federalism and Anglo-Gothic Constitutionalism

The common perception that Montesquieu is not a major theoristof federalism is due both to the peripheral nature of his accountof confederate republics and his praise of the unitary BritishConstitution in the Spirit of the Laws. This study challengesthis view by arguing that, despite his endorsement of the separationof powers, Montesquieu had serious reservations about England'shighly centralized system of parliamentary sovereignty. Moreover,his most significant reflections on federalism were not containedin his brief treatment of confederate republics, but ratherin his lengthy consideration of Gothic constitutionalism. Iconclude that Montesquieu's complex constitutional theory involvestwo distinct dimensions including both the separation of powersexemplified in England and the federal principles in the decentralizedGothic system of medieval France.     

Guess What Happened on the Way to Revolution? Precursors to the Supreme Court's Federalism Revolution

In recent years, the Rehnquist Court has been accused of usheringin a "federalism revolution." The Court's decisions have beencontentious and often viewed as assertions of the Court's anti-majoritarianpower. However, these assessments misunderstand the role ofthe Court in the American political system. Not only are theCourt's recent decisions relatively modest departures from existingconstitutional doctrine, but its rediscovery of federalism follows,rather than leads, developments in the elected branches. Effortsto rehabilitate federalism as a political value began in theelected branches as early as the 1960s. By 1980, federalismhad become an important cleavage issue between the parties;Republicans advocated a form of "fixed federalism" while Democratsadvocated a form of "flexible federalism." Despite the desireof the Reagan and Bush administrations to use the judiciaryto advance the GOP's view of federalism, confirmation hearingsfor members of the Rehnquist Court demonstrate that Democratsin Congress paid little attention to federalism. Attitudes aboutfederalism thus made their way onto the Court without noticeand without challenge, and the sharp disagreements that emergedon the Court during the late-1990s mirror the same party cleavagesthat developed much earlier in the elected branches.