Only at the point where power becomes unconditional — sovereign — does it detach itself from those that brought it into being. In fact, it is all the more noteworthy as Jellinek, even as he introduces the idea of sovereign power, dismisses the mechanism by which Hobbes first brought it into being. A federation cannot have its foundation in contract any more than any other form of polity because power to command cannot rest on assent:.
One cannot, by means of a contract, bring forth a higher will to sit above or an independent will to sit next to one. The repudiation of social contract theory, and with it the idea of representation through authorization, leaves Jellinek without the conventional means of showing how federal power connects to its subjects, which in turn leaves unexplained how a federation could ever compel by command.
It is to address this question that Jellinek turns to American federalism. The point of his very selective appropriation of it is to show that a people can be a federal people without having made itself so.
Federalism need not, in other words, involve agency on the part of the popular sovereign. What acts in the constitution of a federation, Jellinek tells us, is history, not the people. In the first instance, the pre-eminence of history is epistemological. Only by consulting history can we find out if a sense of belonging to a destinal community has built up so as to elevate the federal entity to the status of a federal state, the fulfillment of the national aspirations of a people [17].
It might seem curious that Jellinek should choose the political history of the United States of America, not that of Germany, as the medium of his demonstration. Notwithstanding the paradigmatic status that American federalism had already come to enjoy, we would not expect him to look to it for lessons about how to understand the new constitutional reality of federal Germany. As he notes, deep-seated differences in the social and historical underpinnings of constitutional order militate against transposing theories of American federalism onto the German empire.
Such theories are appropriate for a federal state founded on the sovereignty of the people and the autonomy of its member states, each of which were given sovereignty as « a gift at birth »; they are not appropriate for an empire of predominantly monarchic states whose princes have for centuries been the subjects of a common master [18]. But what Jellinek wants to show is exactly that even in the United States of America where federalism is supposedly just another expression for popular sovereignty, what called the federation into being are in fact forces that transcend the actions of the popular sovereign.
The demonstration, if one can call it that, moves between constitutional law and political history, using the latter to determine the truth of the former. On grounds that are never made clear, Jellinek uses John C. Jellinek is not concerned to refute this dilemma that shows the impossibility, in theory, of a federal state; his point is that the dilemma does not even arise.
The implication is that the constitutional nature of a state, whether it is federal or unitary, is not the result of a determination through political agency simply because there is no political agency at the level of the constitution. The popular sovereign was not the actual agent of the determination that took place on the battlefield, and the moment the popular sovereign did act — the moment of the conclusion of the federal social contract — is not the moment in which the federation was made: « Where a contract has been concluded by the future members of a federal state, it should not be considered as the rightful foundation of the new construct [21] ».
The absence of political agency is mirrored by the non-political nature of the sentiments that the new federal constructs elicits from its subjects. These are sentiments of an intensely personal nature that cannot easily be recovered politically. A need to join with others to survive combined with a « heightened religious sentiment » impelled « a handful of people » to leave behind the « frightful solitude » in which they found themselves in order to found a polity [22].
Working from the idea of a pre-political foundation of the polity, Jellinek forces a convergence between the trajectories of the American and the German federation. So powerful is the determination of constitutional order through history that it obliterates the differences between states constituted in and through acts of the people and states that have come about through constitutional change imposed from above.
In both instances, an old order is swept aside to make room for « something radically new, something that was not there before [23] ». Collapsing the distinction between states whose political history revolves around popular agency and states where the people is only ever the object of action, never the agent, is not quite a demonstration that a federal state is a national enterprise.
What it does is to cancel out a set of intuitions that would make us disinclined to posit the federal state as a national enterprise. Given, on the one hand, that a state cannot come into being by means of a contract and, on the other hand, that its self-affirmation as a nation-state can take place in and through executive action, there is no a priori reason why we should suppose that a federal constitution would lack an existential foundation.
On the contrary, the implication of the argument Jellinek makes is that for a federal state to have any historical reality, it cannot be found wanting in that regard; it must be an object of strong existential commitment. To exist at all, it must exist in full [24]. On both outcomes of the strategies of federalism we have considered — confederation and federal state —, the question of political life is evacuated.
The system of confederal governance outlined by Montesquieu involves the reduction of social life to survival and prosperity, the goods of the state of nature and of market society, leaving no space to articulate a political community.
The federal state, for its part, is led to bracket the question of political life so as to appropriate the mysterious fact of federalism of which it cannot make sense because the being of a state consists in the act of willing itself and it cannot will itself to be anything but one. To negotiate this aporia , Jellinek had to, on the one hand, sever the link that tied public law theory to the idea of sovereign will, which meant leaving the determination of the federation to history, and, on the other hand, engage an intense spiritualization of the new federal construct so as to show that despite not being a creation of its subject, it could still elicit a sense of existential commitment from them.
Integrating the federation completely, doing away with its indeterminacy, thus comes at the price of abandoning the project of political jurisprudence; the ambition of showing the state to be a political community. In the federal state, the indeterminacy that attaches to federalism is neutralized. However, as a state , the federal state can no longer generate commitment by holding out the promise of political liberty.
To sustain itself, it must tap into non-political sources of commitment. The oscillation between the two prongs of this alternative results from the pre-eminent role of sovereignty in European political jurisprudence.
Seen in this perspective, it is understandable that many believe that the obstacles to the emergence of a truly federal Europe could be cleared if only we could lay to rest the ghost of sovereignty [25]. The emergence, or re-emergence, of sovereignty is not reflective of an excessive attachment to it.
The attempt to elevate the federal entity to a federal state is driven by other considerations, chief among them a fear that predates and has outlived sovereignty, the fear that the people might return to claim the power it had relinquished.
This would bring about the implosion of the world of public law, in theory and in fact [26]. If the notion of sovereignty is used only sparingly in the federalist papers, the source and subject of sovereign power — the people — makes its presence felt throughout. Its consent is the « pure, original fountain of all legitimate authority, » and the « precious blood » that was spilt in making the American Revolution is that of the « people of America [27] ». It is natural to suppose that the sense of the immediate presence of the people that pervades the federalist papers reflects the liberty that a people had claimed and won.
This would commit us to seeing history as the dominant element in the intersection of theory and history that is federalism. We should, however, be wary of supposing that the differences between European and American political jurisprudence can be accounted for solely in terms of the proximity of theory to historico-political action. Theory also has a history which, while it does not unfold in isolation from political history, cannot be reduced to it either.
In order to understand the differences between federalisms, we also have to assess how, and how far, theory has moved between their points of inception. So much so in fact that Hobbes feels called to add that it is the people itself that assembles again, having grown tired of attending the public courts, « dwelling far off » as they do, to institute a restricted form of government so that the burden of exercising the power of which they are the source may be taken from them [28].
If Madison can proclaim it as the novelty of the American form of government that the people « in their collective capacity » be excluded from it [30] , it is paradoxically because the semantic nexus that ties civil authority to the body politic is now so firmly entrenched that its presence within constitutional order need not be invoked at every turn.
The strong presence of the popular sovereign within constitutional order has several important consequences. It means, for one, that the people need not be assigned a specific constitutional locus, in contrast to European public law theory where parliament was the conduit through which the people would establish a presence within constitutional order [31].
In America, each branch of government is seen as an emanation of the people and can claim to speak in its name [32]. So firmly entrenched is the constitutional presence of the popular sovereign that its reach extends beyond the branches of federal government to all the parts of the Union. Depending on context, Madison can thus invoke the people to show the common origin of state and federal government and to disqualify the claims of the former to be sovereign in their own right [33].
A further, essential consequence follows from the strong presence of the popular sovereign within constitutional order. It is essential that theory be situated in space. This is what allows Hobbes to dismiss the claim that political power has a transcendent foundation.
However, the position that theory occupies is underdetermined [34]. Sovereignty is always articulated from somewhere , but that somewhere could be anywhere.
The authors of The Federalist Papers , for their part, articulate their theory of government from a determinate position in space. To this end, they rely on the existence of a given exterior. Their papers abound in references to Europe, seen either as a threat to the Union, directly through intervention or indirectly through instigation, or held up as an exemplar of what the Union would develop into, should it ever become disunited. This is an idea not superficial nor futile, but solid and weighty.
It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial prospects of dangers, real, certain, and formidable [35].
The existence of an immediate threat to the survival of the polity has the effect of suspending the question of the political identity of the people s that make it up. Hamilton and Madison need not require that the states abandon their separate identities. On the contrary, they constantly reaffirm that the natural inclination of the American people is to favour their local government over that of the Union, affection being a function of proximity [36]. What comes to if not take over from then at least supplement the identity of the federal people is the identity of the territory it inhabits.
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Reddit Pocket Flipboard Email. Getty Images The word federalism used to make liberals raise their eyebrows in suspicion and skepticism. There is no standardization One of the biggest challenges we faced while gathering data from all 50 states was figuring out how to depict that information in an accessible and clear way. The Governance Lab , an organization that works to promote the importance of open data as a way to improve governance, outlines six principles that aim to make data more open and easier to use, with the goal of promoting transparency: Open by default Timely and comprehensive Accessible and usable Comparable and interoperable For improved governance and citizen engagement For inclusive development and innovation Throughout our research and data gathering for voting and elections systems, as well as for campaign finance regulation, most states failed to pass the criteria above.
Conflicts between levels of government can increase gridlock The election showcased an interesting juxtaposition: a Republican majority at the federal and state level, accompanied by an increase in support for local, progressive ballot measures like increased gun regulations, legalized marijuana, and higher minimum wages.
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Likewise, state and local officials are closer to the problems of their areas, so it makes sense for them to choose policies to solve those problems. Creates laboratories of democracy: State governments can experiment with policies, and other states and the federal government can learn from their successes and failures. Leads to political stability: By removing the national government from some contentious issue areas, federalism allowed the early U. Encourages pluralism: Federal systems expand government on national, state, and local levels, giving people more access to leaders and opportunities to get involved in their government.
Ensures the separation of powers and prevents tyranny: Even if one person or group took control of all three branches of the federal government, federalism ensures that state governments would still function independently. Leads to a lack of accountability: The overlap of the boundaries among national and state governments makes it tricky to assign blame for failed policies.
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