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 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.     

Madison on the Meaning of the "General Welfare," the "Purpose" of Enumerated Powers, and the "Definition" of Constitutional Government

According to James Madison, "the most important and fundamentalquestion" he ever addressed was the meaning of and relationbetween the general welfare clause and the enumeration of particularpowers. This question is the most "fundamental" because theanswer determines the very "idea" or "nature" of the U.S. Constitution.Commentators virtually agree on the answer Madison proposedand defended in Federalist 41, namely, that the general welfareclause is neither a statement of ends nor a substantive grantof power. It is a mere "synonym" for the enumeration of particularpowers, which are limited and wholly define its content. Fromthis answer, it follows that the primary meaning of the nationaldimension of the federal Constitution is limited government,understood as a government with a limited number of powers ormeans. The thesis of this essay, however, is that, contraryto the commentators' claims, Madison argued that the clausewas a substantive grant of power for the generally stated endand that the primary purpose of the ensuing enumeration wasto define more particularly the ends alluded to by the phrase"general welfare." Hence, the meaning of the general constitutionalgovernment in the American federal system is a government orientedto a limited number of limited ends.     

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.     

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.     

German Federalism After Unification: The Legal/Constitutional Response

The collapse of communism in East Germany and the resultingGerman unification produced a new focus on the operation offederalism in a unified Germany and on certain reforms concerningfiscal federalism and various constitutional amendments. Theinitial decisions about financing the new Länder in theEast soon proved to be inadequate, and after much controversya new "solidarity pact" was concluded between the federal andLand governments in March 1993. To counter recent trends towardincreasing centralization, a constitutional commission proposeda number of amendments, now under consideration by the federalparliament, which would strengthen the Länder vis-à-visthe federal government. The Länder have also been concernedabout the growing interference by Brussels in their affairs.As a result of recent changes in the Basic Law, they have strengthenedtheir position in relationship to the federal government andthe European Union.     

Forty Years of German Federalism: Past Trends and New Developments

This article traces the major developments in German federalismfrom 1949 to the present. From a system based on a concept of"dual federalism," which was different in important ways fromthe American system, German federalism became somewhat morelike the postwar American cooperative federalism. Criticismof this system in the 1970s led to various reform efforts, whichmade little headway until the 1980s and the formation of a CDU/CSU-FDPcoalition government under Chancellor Helmut Kohl. The "turnabout"promised by this government and carried out to some extent includedplans and policies to strengthen the Länder by some sortingout of functions. These efforts were successful at first, butthe federal government has oriented its policies more towardthe national arena. Financial constraints, the nationalizationof basic rights, technological concerns, and pressures by theEC have led to new tendencies toward intergovernmentalizingand centralizing the relations between the federation and Landgovernments.     

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.     

The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

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.     

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.     

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.     

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.     

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.     

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.     

Faces of Federalism: From Bullinger to Jefferson

This study argues that the eighteenth-century political philosophyof federalism found its roots in covenant theology of earlyReformed Protestantism in Zurich. It contends that there wasa progression covenant or federal thought from the first publishedarticulation of the theological covenant by Bullinger in 1534,through the use of the covenant notion in defense of tyrannicideby Philippe Mornay, to Johannes Althusius's political philosophyof federalism, as well as the political theories Thomas Hobbesand John Locke, to the Declaration of Independence and the Constitutionof the United States. These different faces or variations offederalism shared several common elements over the 250-yearspan.     

Federalism and Democratic Transitions: The "New" Politics of the Governors in Brazil

Although federalism is a potentially important variable in democratization,few studies explore its impact in democratic transitions andconsolidation. Scholars generally agree that federalism is quitestrong in contemporary Brazil. This study examines how and whystrong federalism reemerged in Brazil following twenty yearsof centralizing military rule. In brief, the 1964–1985military regime tried but failed to transform the state-basedorganizational structure and power base of Brazil's traditionalpolitical elite; Brazil's "transitional" electoral cycle alsoreinforced the strength of state governors. Examples are providedof how subnational actors influenced the transition processin the national government and how state based actors and interestschallenge Brazil's efforts to consolidate its democracy.     

Liberalism and Political Allegiance in Anti-Federalist Political Thought

Disagreement between Federalists and Anti-Federalists over theConstitution hinged largely on empirical expectations regardingthe ability of the proposed system of government to promotecivic allegiance. I examine the views of allegiance offeredby major Anti-Federalists and the political psychology on whichthey are based. I conclude, first, that Anti-Federalist politicalpsychology is flawed, leaving the Constitution's opponents vulnerableto charges made by the authors of The Federalist, among others,that sound functioning and durability of government, ratherthan size, are sufficient to generate civic allegiance. Second,the Anti-Federalists' positions on allegiance are grounded inliberal first principles of government. The arguments offeredare not those one would expect if the Anti-Federalists adheredstrongly to the tenets of civic humanism.     

Perceptions of Federal Aid Impacts on State Agencies: Patterns, Trends, and Variations Across the 20th Century

American federalism is a dynamic process involving the viewsand interactions among state and national officials. Based onmultiple mail surveys of state agency heads across 75 years,this article traces the perspectives of state executives towarda core component of state–national relationships—federalaid. The time frame dates from the 1920s and covers a periodin which federal aid programs to the states grew enormously,as did state administrative establishments. There was a long-termrise in the perceived intrusiveness of federal aid as well asincreased policy distortion effects. Despite substantial fluctuationsin perceived aid impacts, there was a four-decade consistencyin the penetration of federal aid into and across the existing3,000 state agencies. Furthermore, when perceptions of nationalinfluence are combined in an index of perceived national fiscalinfluence, there was a roller coaster effect with an overallsecular "decline" in national influence since 1974.