Journal of Social Philosophy, EarlyView.

The paper presents a novel take on the character of South Africa’s governance structure. It argues that, insofar as it constitutionally recognises traditional authorities, figures who rule in accordance with idiosyncratic and localised customary laws, as well as instigate a cheek-by-jowl existence of an asymmetrical property law (where in the urban setting land is nominally bought or transferred for sale, but in traditional rural areas granted by the chief), manifest in the differentiated land laws brought about by the Communal Land (...) Rights Act of 2003, is more akin to, and necessitates a definitional alignment with, the federal system of government than a unitary one – or at least a weak “federalism with South African characteristics.”. (shrink)

This paper provides an argument in favour of federal institutional design on the basis that it is more congenial to the preservation and promotion of normatively desirable societal diversity than its unitary alternative. Seeking inspiration in the work of three of the most influential liberal thinkers of the nineteenth century: John Stuart Mill; Alexis de Tocqueville; and Lord Acton, I construct a novel case for federalism that focuses on the inherent benefits of a dual/multi-layered governmental structure. Section one argues (...) for the value of diversity, stating that it can both improve the authenticity of individually exercised autonomy, and improve the quality of individually espoused moral views. Section two considers the potential dangers posed by the unitary state to the flourishing of diversity through the centralisation of key institutions. Section three shows how the federal model sidesteps these pitfalls, and offers a more auspicious environment for the cultivation and enjoyment of diversity. (shrink)

In the nineteenth and twentieth centuries, federations became a widely used constitutional form. They were rare before the nineteenth century and it may be that they will become less attractive in the twenty‐first century. But for now they are well approved. And this is surprising because this era has also been an era of nationalism when the nation‐state, the sovereign political organization of the folk, is also well approved. These two forms are in some ways contradictory: nation‐states derive from, justify (...) and separate out a single ethnic group, while federations may – and often do – bring together political units with different ethnic bases. So a difficult problem for interpreting federalism is to explain the modern approval of this pragmatic, instrumental constitution in an era that embraces simultaneously the emotional and often irrational loyalties of nationalism. (shrink)

Political philosophers often formulate the problem of distributive justice as the problem of how the government ought to distribute different types of goods—for example, income or health care—to its citizens. They therefore presuppose that the government is a unitary agent that governs its citizens directly. However, although a number of governments are unitary in this way, many are federations, exhibiting a division of sovereignty between two or more levels of government having independent grounds of authority. In contrast to unitary states, (...) therefore, within a federation, two or more levels of government directly govern their citizens and are directly accountable to them. Because of the way in which different levels of government in a federation can separately affect the distribution of goods in society, federations face resource allocation problems that are far more complex than those of unitary states. In addition to determining what a just distribution of goods is, federations must also determine (1) whether distributive justice is a shared responsibility amongst different levels of government, and, if so, (2) how this shared responsibility should be allocated between them. (shrink)

In the wake of the Dobbs decision withdrawing federal constitutional protection for reproductive rights, the United States is in the throes of federalist conflicts. Some states are enacting draconian prohibitions of abortion or gender-affirming care, whereas other states are attempting to shield providers and their patients seeking care. This article explores standard arguments supporting federalism, including that it allows for cultural differences to remain along with a structure that provides for the advantages of common security and commerce, that it (...) provides a laboratory for confined experiments, that it is government closer to the people and thus more informed about local needs and preferences, and that it creates layers of government that can constrain one another and thus doubly protect rights. We contend that these arguments do not justify significant differences among states with respect to the recognition of important aspects of well-being; significant injustices among subnational units cannot be justified by federalism. However, as nonideal theorists, we also observe that federalism presents the possibility of some states protecting rights that others do not. Assuming that movement among subnational units is protected, those who are fortunate enough to be able to travel will be able to access rights they cannot access at home. Nonetheless, movement may not be readily available to minors, people without documentation, people with disabilities, people who lack economic resources, or people who have responsibilities that preclude travel. Only rights protection at the federal level will suffice in such cases. (shrink)

Madhav Khosla’s brilliant book, India’s Founding Moment, is self-consciously a work on the history of ideas. Nonetheless, the subtitle of India’s Founding Moment—The Constitution of a Most Surprising Democracy—implies that Khosla draws a connection between the ideas that shaped the creation of constitutional democracy in India and its endurance. In this review, I pose the question of whether the design of the Constitution can be a source of constitutional resilience against the rising threat of authoritarianism and Hindu majoritarianism.

The article analyzes the specifics of the COVID-19 crisis and its impact on the public finance system, taking into account the key problems of the theory of fiscal federalism. The purpose of this article is to examine the impact of the pandemic crisis on the fiscal relations taking place between different levels of public authority (intergovernmental relations – IGR), considered in the context of the decentralization of the public finance system and the associated distribution of public functions and resources. (...) The article refers to the model features of these relationships, as defined in the theory of fiscal federalism. It also examined the responses of European countries to the negative effects of the COVID-19 crisis, taken within the framework of the IGR, in order to limit the negative effects of the pandemic at different stages. An attempt was also made to answer the question of how the current pandemic crisis may change the multilevel governance (MLG) patterns set forth in the doctrine. The Polish public finance system was used as an example for detailed analysis in this regard. (shrink)

Amid undulating conceptions of the role and prowess of federalism emerges its central constitutional role: protecting American liberties against unwarranted governmental intrusions. To the extent that federalism is used as a guise for withdrawing fundamental rights to abortion by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, individual rights are sacrificed in contravention of constitutional structural norms.

The Quebec government recently (May 2021) announced that it wants to amend the Canadian constitution so that Quebec will be recognized as a nation. This is a bad idea.

Philosophy Compass, Volume 17, Issue 4, April 2022.

As the United States emerges from the worst public health threat it has ever experienced, the Supreme Court is poised to reconsider constitutional principles from bygone eras. Judicial proposals to roll back rights under a federalism infrastructure grounded in states’ interests threaten the nation’s legal fabric at a precarious time. This column explores judicial shifts in 3 key public health contexts — reproductive rights, vaccinations, and national security — and their repercussions.

This book addresses the democratic accommodation of national pluralism through federal rules. The key question is: can federalism be a fair and workable way of articulating multinational societies according to revised liberal-democratic patterns? In recent years, scholarly discussion on this issue has undergone a change. Nowadays, the answer to this question is much more complex than the one that traditional political liberalism and federalism used to give us. In the past, these two political approaches usually addressed the question (...) of political pluralism without seriously including national pluralism in the discussion, a theoretical attitude that has often misrepresented and impoverished the moral discussions and the institutional practices of multinational democratic federations. _Multinational Federalism and Value Pluralism_ has been awarded the prize for the best book in 2005 by the Spanish Political Science Association. (shrink)

This paper explores the relationship between federalism and individual liberty. It is shown that a complete treatment of the relationship between federalism and individual liberty should consider two countervailing effects. On the one hand, a federalist structure enhances individual liberty by enlarging the choice set of the citizens. On the other hand, however, a federalist system leads to institutional diversity, a fact that per se leads to higher exit costs, which a citizen must bear if he or she (...) decides to change jurisdictions. This effect on individual liberty is a negative one, since a consequence of every increase in the exit costs is a decrease of individual liberty. The optimum range of diversity of jurisdictions is shown to lie where the two effects counterbalance each other. (shrink)

For Hannah Arendt, the federal system is an effective mode of organizing different sources of power while avoiding sovereign politics. This article aims to contribute two specific claims to the burgeoning scholarship on Arendt's international federalism. First, Arendt's international thoughts call for balancing two demands: the domestic need for human greatness and flourishing and the international demand for regulation and cooperation. Second, her reflections on council-based federalism offer a nuanced position that views the dual elements of equality in (...) politics (intra-state and interstate equality) as neither contradictory nor reconciliatory but rather as ideal types along a continuum. This study shows that, through the unique form of federalism emphasizing the need to balance two demands of free politics with a clear acknowledgement of its precariousness, Arendt's thinking adds much-needed sensitivity to international discourse. (shrink)

The transition from a relatively federal to a relatively centralized constitutional structure in the United States has often been identified with the shift from classical to welfare liberalism as a matter of public philosophy. This article argues against that distinction. The liberal argument for federalism is a contingent one, built on approximations, counterbalancing, and political power. A more federalist constitution is not automatically a freer one on classical liberal understandings of freedom. Neither is a more centralized constitution automatically a (...) better match with the ideals of welfare liberalism. The article sketches a constitutional history of federalism from the founding, through an era in which centralization was aligned with skepticism about liberal constitutionalism (for both meanings of liberal), to an era in which centralization was aligned with increases in liberal freedom (for both meanings of liberal). (shrink)

Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism (...) as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore can play no identifiable analytic role in either conceptualizing or resolving federalist conflicts. The failure of federalism as balance to be an analytically sound element in understanding federalism is an additional reason for reexamining the political safeguards argument for enforcing federalism. Without sufficient analytic content, federalism as balance is merely a rhetorical device which legislators can use just as well or as poorly as judges. (shrink)

The Patient Protection and Affordable Care Act represents the most significant reform of the United States health care system in decades. ACA also substantially amplifies the federal role in health care regulation. Among other provisions, ACA expands government health care programs, imposes detailed federal standards for commercial health insurance policies, creates national requirements on employers and individuals, and enlists state administrative capacity to implement various federal reforms. In response, a persistent voice in the protracted, contentious debate surrounding ACA was, and (...) continues to be, resistance from states. The rhetoric of federalism — states’ rights, reserved powers, state sovereignty, limited government, and local diversity — resonates deeply even around provisions of ACA that do not specifically implicate state interests. For example, the loudest and most persistent state objections target the new mandate that individuals maintain health insurance, a requirement imposed by ACA and enforced through federal tax penalties. (shrink)

The Patient Protection and Affordable Care Act represents the most significant reform of the United States health care system in decades. ACA also substantially amplifies the federal role in health care regulation. Among other provisions, ACA expands government health care programs, imposes detailed federal standards for commercial health insurance policies, creates national requirements on employers and individuals, and enlists state administrative capacity to implement various federal reforms. In response, a persistent voice in the protracted, contentious debate surrounding ACA was, and (...) continues to be, resistance from states. The rhetoric of federalism — states’ rights, reserved powers, state sovereignty, limited government, and local diversity — resonates deeply even around provisions of ACA that do not specifically implicate state interests. For example, the loudest and most persistent state objections target the new mandate that individuals maintain health insurance, a requirement imposed by ACA and enforced through federal tax penalties. (shrink)

In this article, German federalism is analyzed through its implications for public spending and for public revenue. The structure of government spending and taxation has evolved in the direction of greater centralisation. This tendency reveals itself in the constitutional changes with regard to taxation, the major territorial reforms and in the increased influence of the federal state on the public spending of inferior levels of government. The evening out between authorities is too egalitarian and the effects on economic development (...) are nefarious. In contrast to a unitary system with a powerful central government, this cooperative federation suffers from a drawback, namely, that the federal state can often not make decisions without the agreement of member states. The consequence is that some reforms are hindered. It is in this way that the need of a fiscal competition between member states in order to better economic policy in Germany makes it felt.Dans cet article, le fédéralisme allemand est analysé à travers ses implications pour les dépenses publiques et pour les recettes publiques. L’évolution des compétences en matière d’imposition et de dépenses indique une tendance à la centralisation. Celle-ci apparaît dans les changements constitutionnels relatifs aux impôts, dans les grandes réformes territoriales, et dans l’augmentation de l’influence de l’État fédéral sur les dépenses publiques des autres niveaux gouvernementaux. La péréquation entre les collectivités est trop égalitaire et les effets sur le développement économique sont néfastes. Comparé à un système unitaire avec un puissant gouvernement central, ce fédéralisme coopératif a le désavantage d’un État fédéral qui ne peut pas souvent prendre une décision sans l’accord des états fédérés. Par conséquent, quelques réformes sont bloquées. C’est ainsi que se fait sentir un besoin de concurrence fiscale entre les fédérés afin d’améliorer a politique économique en Allemagne. (shrink)

Western democracies have developed a number of effective models for accommodating ethnocultural diversity. One of these involves the use of federal or quasi-federal forms of territorial autonomy to enable self-government for national minorities and indigenous peoples. These forms of territorial autonomy are in general a success. The merits of these models have been underestimated because many people measure success by an inappropriate criterion: namely, the absence of secessionist mobilization. This cannot be the correct standard for evaluating democratic multination states. The (...) success of a common Western approach to territorial autonomy is related, in a complex way, to a particular view about the legitimacy and perhaps even inevitability of secessionist mobilization. (shrink)

This article closely examines the way in which Thomas Aquinas understood the relationship between the various forms of human community. The article focuses on Aquinas's theory of law and politics and, in particular, on his use of political categories, such as city, province and empire, together with the associated concepts of kingdom and nation, as well as various social groupings, such as household, clan and village, alongside of the distinctly ecclesiastical categories of parish, diocese and universal church. The analysis of (...) these categories is used in the article to help explain Aquinas's role in the development of theories about subsidiarity, federalism and mixed constitutionalism. In the first place, it is argued that a close inquiry into Aquinas's discussion of the many and various forms of human community sheds light on the origins and development of the idea of subsidiarity within Catholic social teaching. Second, while Aquinas certainly did not advance a theory of federalism as that idea is presently understood, it is argued that recovering what Aquinas had to say about the categories of human community helps us to understand the origin and later development of federal ideas. Finally, it is argued that far from endorsing a system of absolute monarchy as is sometimes alleged, when understood in this way, Aquinas supported a particular kind of mixed constitution in which monarchy is tempered by a variety of constitutional constraints founded upon a conception of the body politic as itself constructed out of a plurality of smaller, intermediate corporations and communities of a political, ecclesiastical and social character. Keywords: Thomas Aquinas, political theory, subsidiarity, federalism, mixed constitution, absolute monarchy, civitas, provincia, imperium, regnum, gens, natural law . (shrink)

This article provides a theoretical framework to help us understand the controversies between the federalist and anti-federalists in the early history of the United States of America during the Federal Convention in 1787 as a conflict of two political philosophical traditions. The sources of these opposed traditions may be traced back to the disputes in ancient Greek philosophy, in thinkers such as Plato and Aristotle who defined politics in different ways. Plato grounds his definition of politics in epistêmê, which means (...) that society should be ruled by the wisest. The federalist argued the best form of government is one where the people could avoid decision-making and leave the wisest representatives to handle politics. In opposition to this, Aristotle believes that politics should be inspired by the notion of phrônesis, which means that decisions should be considered collectively. Similarly, the anti-federalist believed that the government tends to be corrupted, and citizens should be suspicious of the government. They believed the ideal way to govern society is to have everyone involved in decision-making. (shrink)

Homer's Iliad, the epic poem of warfare, honour and suffering that stands at the beginning of the Western tradition, has traditionally been read as 'pre-political' and hence neglected as a substantial work of political thought. This essay argues that a close reading of the opening scenes in the Iliad reveals an exchange of public speeches which, if taken together, constitute a field of genuine political activity wherein rival claims about justice and right, as well as honour, are intensely disputed and (...) negotiated. Furthermore, this contest between 'the best of the Achaeans' is firmly situated within a framework of authority and legitimacy expressing in nascent form an essentially federal character. Thus the terms and ground of the quarrel between Agamemnon and Achilles - - and of the crisis occasioned by their political rivalry -- invite and sustain theoretical reflection upon the inherent weaknesses and strengths of federalism itself as a political form. (shrink)

Three distinctive dynamics may be identified in the post-war developmentsof territorial and minority rights polities in Italy. The first focuses on recession attempts in peripheral areas in the aftermath of the world war, and on their interplay with the regional reform. The second peaks in the late '60s-early '70s, and relates territorial minorities' demands for recognition to broader protest movements and 'internal colonialism 'perspectives. The third consists of the recent success of regional Leagues in the North, and largely reverses previous (...) approaches to territorial issues. Autonomy is still emphasized here, yet disconnected from, and often in explicit opposition to, social equality ideas. 'Minority rights' are largely replaced with a peculiar version of territorial populist politics. (shrink)

Abstract:The new push to move political issue activity from the federal to the state and local levels—a new New Federalism—has implications for the ethical and political legitimacy of business political activity. While business political activity at the federal level may be both less costly and less risky than when action shifts to states or localities, at the state or local level it is likely to be more visible, and individual firms may be perceived to have more power. Increased corporate (...) power raises questions about the legitimacy of firm involvement in the political process at the state and local levels. The issue of legitimacy is viewed in the context of the literature on political subcultures being used to study state economic development. (shrink)

Bioethicists are often interested mostly in national standards and institutions, but state governments have historically overseen a wide range of bioethical issues and share responsibility with the federal government for still others. States ought to have an important role. By allowing for multiple outcomes, the American federal system allows a better fit between public opinion and public policies.