Why Federalism: On Citizenship

If, as I argued in the previous entry in this series, federalism must be legitimated to an audience consisting of individual citizens rather than nation-states or national peoples, this raises a key question – what role should the citizens have in a supranational federal republic (SFR)? What political rights must the citizens have, and how are those rights to grounded, both intellectually and institutionally? How are those rights to be instantiated, politically and legally?

For Stephen Tierney, federalism must be understood constitutionally, as a system that presupposes territorial pluralism.[1] On Tierney’s view, different territories have specific conditions, particular to them. Formal procedural mechanisms must be instituted that allows these territories to make and apply policy in ways attentive to those conditions.

To allow for contextual sensitivity, it’s necessary that the constitution be constructed by representatives of the territories. But I notice a potential problem – if those representatives are the leaders of national governments, then the audience for legitimation once again becomes the nation-states. A constitutional convention must include representatives of the federating territories who are non-identical with the national representatives. The national representatives either have to permit this or they have to be overcome in some way.

It is for this reason that federalists tend to tie federation to an ideology of “federalism” or to some “federalist principle.”[2] Commitment to this principle can either induce the national representatives to permit federation or it can motivate the citizens to overcome nationalist opposition. But what then is the content of this federalist principle? Is it simply a commitment to a division of powers between a central government and regional governments?[3] It is hard to see how that could be sufficiently motivating.

There seems to be a need for what I call “legitimating abstractions,” for concepts that are genuinely motivating.[4] Federations are not created simply for the sake of federalism, but for the sake of the human values that seem only realizable through federation. This tends to make federalism a second-choice regime, a system people adopt because they cannot get what they really want some other way. Indeed, the American constitution was arguably a third-choice regime. It was adopted only after the colonists were excluded from representation in the unitary parliament and found confederation inadequate to their needs. And, in Canada, federation was adopted because this was the only way territories as divergent as Quebec and Ontario could remain in political union. The challenge is to make a federation not just a regime of first-choice, but a regime people will actively struggle for, even if this requires exertion and sacrifice.

What about “freedom” or even “sovereignty”? In recent decades, some liberal and libertarian theorists have sought to ground the rights of citizenship in the ontological primacy of the individual.[5] By emphasizing the sovereignty of the individual – rather than the sovereignty of “God,” the “good,” the “state,” “society,” or of an abstract “people” – theorists hope to prevent the individual from being liquidated into a collectivist abstraction that may then impose limitless obligations.

Siegfried Van Duffel divides accounts of individual sovereignty into two types:[6]

1. The right “to choose, within certain limits, what is good or bad.”

2. A “moral right to be immoral,” at least in “certain circumstances” and “within certain limits.”

The first presumes a plurality of viable conceptualizations of the good, leaving individuals free to formulate their own conceptualizations of the good so long as these conceptualizations remain, in some sense, “of the good.” The second account presumes that the good is unitary, but that it might nonetheless be good for individuals to have a right to be bad. The first formulation retains the primacy of the good over the individual – the individual’s freedom to choose is still constrained by what plausibly counts as a conceptualization of the good. But the second formulation elevates the individual above the good itself, so that the good is forced to submit to the individual’s right to deviate from it. On this account, individuality imposes itself upon the good, limiting its application. This is a much thicker kind of sovereignty.

We can also imagine an account that takes this still further:

3. The right to deny, on something approaching nominalist grounds, the existence of the good, as yet one more untrustworthy abstraction that poses a threat to individual freedom.

   
   

This would give us three conceptualizations of individual sovereignty – it can fit within a box delimited by the good, it can act as a constraint upon the reach of the good, or it can be used as platform from which to deny the good as a non-existent abstraction. We can expect deep disagreement among liberals and libertarians as to which of these three accounts is to be preferred. There will also be objections from theorists who tie sovereignty to other abstractions or deny the usefulness of sovereignty as a political concept.[7] For these theorists, it is not obvious that the individual is the preferred ontological unit. The individual might be subordinated to other ontological units. More radically, the individual might itself be an abstraction subject to nominalist critique, or it might be framed as an instantiation of liberal ideology.

The difficulty is that ontological claims are every bit as controversial as other kinds of claims. It is no easier to generate an ontological consensus than it is to generate a consensus on theology or metaphysics. And, what’s more, if we were to adopt the position that a theory of individual sovereignty is the theory that one ought to affirm, we might, in making this claim, be drawing on a conceptualization of the good that individual sovereignty would itself circumscribe or thwart.

The claim that it is good to affirm individual sovereignty would imply at minimum that others have a sovereign right to nonetheless adopt inferior ontologies – they would nonetheless have “a moral right to be immoral.” More radically, it might imply that others have a right to decide for themselves what ontology they consider to be good, even if this ontology isn’t individualist. Most radically, individual sovereignty’s reliance on a notion of the good could make it an instance of submission to an abstraction. So, to try to build a politics on the basis of individual sovereignty might even be self-violating.

If we really believe – for whatever reason – that people ought to be free to develop their own ontologies and conceptualizations of the good, this means that supranational federalism can only come into being if is compelling from a plurality of points of view. This plurality will not merely involve a variety of conceptualizations of the good, it will also involve a variety of ontologies, and that means a variety of views regarding the primacy or role of the good and of the individual in belief systems. To respect the freedom of these individuals, it is necessary to permit their non-belief in individualism. Beyond this, it is necessary to formulate a federalism that remains compelling even from outside individualist frameworks. A very muscular kind of pluralism is required. This “suprapluralism” is not merely a liberal pluralism of the kind we might associate with John Rawls.[8] It’s a pluralism that takes the abstractions people affirm seriously, a pluralism that makes a real effort to communicate in their terms. It goes above and beyond liberalism, creating meaningful social and civic ties with people who come from other political, intellectual, and spiritual traditions.

Suprapluralism is itself implied by any theory of individual sovereignty, in so far as any theory of individual sovereignty requires a recognition of the right of individuals to reject theories of individual sovereignty. But it can also be reached by other routes. Apophatic theology holds that it is not possible for us, as persons separated into different bodies, to grasp in toto the nature of God, or of other abstractions.[9] These abstractions can only be known partially, in incomplete ways. Such a view compels us to have epistemic humility about how we conceptualize and apply abstract terms. While we inevitably do offer preliminary definitions of abstractions for the purposes of applying them to discrete situations and contexts – we are forced to make cataphatic claims – we can nonetheless return to an abstraction in its pre-conceptualized form through something akin to the Socratic elenchus. In doing this, we do not simply arrive at the abstraction’s true meaning. Rather, we arrive at the truth that we cannot possess the abstraction outright. We have to continue to think about it, together with others, to do the best we can to apply the abstraction in our daily lives.

This side of religion is too often forgotten and neglected. It’s highly compatible with liberal thinking because it also stems from claims about the separation of persons and the epistemic consequences of those claims. The separation of persons from God or from the totality has many analogous effects to the separation of persons from one another. It causes us to take more seriously what seems to be true or good from the perspective of the whole or of the other, since the whole and the other have standpoints that cannot entirely be our own.

So, in this piece, I’ll advance a conceptualization of the citizen that cannot be reduced to a sovereign individual nor a seeker after abstractions. Instead, I’ll treat the notion of the “citizen” itself as a site upon which sovereignty is exercised by whomever or whatever is deemed to possess it.  The “citizen” is an abstract notion that must be held open and continuously re-explored. It can be approached both from within the individualist ontology and from outside it, so that citizenship is genuinely open to people who approach life from within divergent ontological schemes.

Any plausible federal system would require a recognition of plurality at the level of the constitutional procedures. It would have to allow for itself to be arrived at from within a variety of distinct contexts. So, a federal principle would require a recognition of a plurality of federalist principles, a plurality of sources of motivation for federating. Any particular, specific federalist principle – any particular account of motivation – would struggle to attain sufficiently wide purchase across diverse contexts. The “federal principle” is thus a principle that there is a plurality of federalist principles, i.e., that there are a variety of reasons people arrive at federation, and that this plurality should be reflected in the constitutional scheme. This shared commitment to reflecting the plurality of principles – rather than demanding the parties federate for a single, unitary reason – allows the federation to incorporate the plurality it purports to incorporate in a genuine way.

Along these lines, I mean to take up critically what Rufus Davis says here:

“A conclusion such as this does not render the idea of a ‘federal’ union either meaningless or vague. On the contrary, the desire to create such a state is simply a desire to engage in a particular form of union, structurally and legally distinct from all other modes of union. Yet while this activity is related to a conventional form and a stereotype set of purposes, it is no more possible to predicate the precise motives, postulates, and understandings, or predict the life which will ensue from the choice of this form of union than one can predicate the motives which lead to marriage or to predict the relationship which will ensue from the form in which the union is legally consummated. It is scarcely conceivable that all parties to the federal bargain at all times and in all places seek the same things, in the same proportions, for the same reasons; or that the intensity of the preferences among those who seek just that much more strength for the national government, or for the regions, should be the same. The various lengths of the documents, the various clauses, the use of different safeguards, the institutional innovations, suggest only faintly the complex of interests at work. At best the federal compact can only be a formalised transaction of a moment in the history of a particular community.”[10]

Davis is right to emphasize that a federal system can only be built upon a plurality of “motives, postulates, and understandings,” but he is wrong to think that these motivations cannot be predicated. To generate motivation to construct a federal system it is necessary to do precisely this – to connect a plurality of human motivations to the federal project in a thick, electrifying way. To produce a commitment to a single federal principle, it is necessary to elucidate a diversity of federalist principles. In sum, E pluribus unum – out of many federalist principles, one federal principle. We must always proceed in that order, from many toward one, because the commitment to the one is generated precisely by a plurality of prior commitments.

Deep Pluralism and Suprapluralism

A suprapluralist approach to the category of the citizen is necessitated by a kind of deep pluralism that has established itself not just at the international level, but within the liberal democracies themselves.[11] There is much more disagreement within these societies than there used to be in the past. This is not merely to say that there is more polarization or extremism – rather, there is now disagreement in areas of social life on which there used to be consensus. Citizens disagree with each other sharply about epistemology and ontology. They disagree with each other about the role experts and technocrats ought to play in political life. This has produced deep, intractable disagreements about political institutions.

We are witnessing this in the United States. The Republicans are increasingly skeptical of the epistemic credentials of the technocrats who work for the federal government. They want to increase the power of elected officials to fire or discipline the permanent civil service. Conversely, the Democrats are increasingly wary of elected officials intervening on sensitive, complex issues on which they lack the relevant expertise. Does winning the election imply that an elected official acts on the basis of epistemic credentials of the demos? Or does the demos suffer from a variety of epistemic maladies, such that winning an election ought to confer a much more delimited authority to make binding decisions?

Is a citizen a knower who contributes their knowledge to political decision-making via the vote, or do citizens have to earn this status by pursuing the kind of education that would qualify them to contribute to decisions? Democratic theorists increasingly struggle to answer these questions, often claiming both that citizens should be involved in democratic deliberations but also that those deliberations should be “informed” by experts whose education qualifies them to determine what counts as “information.”[12]

Neither conceptualization of the citizen commands sufficient support. In the absence of a consensus on this question, elected officials, judges, and permanent civil servants repeatedly obstruct one another, corroding state capacity and preventing the political system from qualifying commercial logics in a manner that permits forms of cooperation that the commercial logic forecloses.[13] This has become a major problem even for the regulation of interstate commerce within the United States, let alone for the regulation of international trade. Without adequate conditions for cooperation, political actors increasingly pursue unilateral strategies abroad that increase the likelihood of war and unnecessarily damage economies.

This deep pluralism has further roots in the structure of American society. Between 1960 and 2020, the percentage of Americans with a university degree increased from less than 8% to more than 35%.[14] This enormous increase in the number of people who deliberately and purposefully acquired a degree so as to be recognized for having expertise in a given field has created a sizable, non-trivial constituency for the view that citizens can and should demonstrate expertise or defer to those in possession of it.

As the share of Americans with degrees increases, degrees confer more limited economic advantages. There is, therefore, a desire for these degrees to have non-material social, political or cultural advantages – for them to confer status or respect in the public sphere.[15] At the same time, those without degrees understandably resent this demand that they subordinate themselves to the graduates. Yet their exclusion is, even at the level of electoral politics, in once sense largely a fait accompli. Today, 96% of members of congress have a college degree.[16] So, when the Republicans in congress attack the technocrats, they do so not as true outsiders but as avatars for a constituency of which they themselves are not members.

The substantive exclusion of the 65% of Americans who do not hold degrees from high office contributes to their estrangement from the political process.[17] These citizens are less ideologically prejudiced than degree holders, focusing more on practical results.[18] They’re more interested in economic performance, in the maintenance of peace, and in the quality of public order. In so far as they are neglected, these values, too, are also neglected.

The implication of both individual sovereignty and apophatic theology is that we cannot be sure these citizens and their materialist abstractions can be put to one side. Despite attempts by “postmaterialist” theorists to frame these citizens as demographically destined for the dustbin, it remains the case that large blocs of citizens come from this type of background and have these orientations.[19] These citizens have the right to be bad, or to conceptualize the good in terms of materialist values, or to reject abstractions in favor of more concrete, immediately cognizable benefits. It is extraordinarily prideful to claim on the basis of our educational backgrounds that we know the things they care about have been superseded.

And yet, at the same time, we cannot on this basis simply take their side, either. The emerging educated class cannot be expected to defer. Its members worked hard for their degrees, on the basis of promises that these degrees would be meaningful. The failure to keep these promises to the graduates is a kind of betrayal, one that understandably elicits heartfelt resentment. Rather, what’s needed is a political system that incorporates both the claim that university education confers real, politically obligating expertise and the claim that any expertise university education confers ought to carry no additional political weight. Such a system takes both perspectives seriously, instead of attempting to impose a prefigured epistemology that cannot possibly command sufficient political support.

Procedurally Instantiating Suprapluralism

Recall the SFR’s primary function – it creates the cataracts that allow for the qualification of the competitive, commercial logic.[20] These cataracts raise revenues that are then distributed to the free cities, equipping the free cities with the resources necessary to support cooperative modes of life that would not be successful if those modes were subjected to the competitive, commercial logic. In this way, the SFR supports a supraplurality of modes of life. It will not be able to do this if it relies on an exclusive, dogmatic conceptualization of citizenship of whatever kind. If citizenship requires pre-commitments to particular ontologies, value systems, or worldviews, the SFR will not regard the various cooperative modes the free cities pursue with a sufficiently inclusive attitude. It will instead evaluate those cooperative modes from a concrete standpoint. In this way, the experiments of the free cities will be pre-judged. Altering the pre-judgement by changing the criteria does not overcome this problem. It simply restates the problem in new terms.

There are two ways of dealing with this. One echoes traditional federalist thinking – the free cities must enjoy substantial formal constitutional rights guaranteeing their right to dispose of SFR revenues in a plurality of ways and via a plurality of procedural routes. The right of a free city to use its revenue for specific purposes entails the right to refuse to use that revenue for other purposes. Such a right can only be sustained if individual citizens have substantial movement rights. They must not be stuck as residents of a city that is inhospitable to the cooperative projects in which they wish to participate.

But there is also a need to ensure the SFR itself contains an adequate plurality within it, so that it does not look to subvert the rights of those free cities that attempt to realize projects that are esoteric, that are difficult for outsiders to understand or to sympathize with. Formal rights for the free cities are not sufficient – the SFR must itself be structured in a way that increases its commitment to the maintenance of the rights.

It's for this reason that I propose that the SFR include both technocratic and non-technocratic institutional elements. The function of the non-technocratic element is not to preclude the claims of expertise, but to compel these claims to be in dialogue with their denial. And the same can be said of the technocratic element – its function is not to mandate expertise, but to compel those who do not claim expertise to be in dialogue with those who do.

What might this look like in practice? The SFR would create the cataracts through legislation. This legislation could be enacted by a bicameral legislature divided into two distinct houses:

1. The Chamber of Labor

2. The Chamber of Status

Both chambers would be elected, but by distinct electorates. The Chamber of Labor would be elected by those citizens who are employed (or self-employed) and who possess a level of education achieved by at least two-thirds of the population of the country of origin. In most developed countries, this would currently include those who have completed secondary education but have not received a tertiary degree. Conversely, the Chamber of Status would be elected by those citizens who possess a level of education achieved by less than two-thirds of the population of the country of origin, regardless of employment status or labor force participation.

Each of the two chambers would nominate a candidate for President of the Republic. The Chamber of Labor would nominate a Tribune, while the Chamber of Status would nominate a First Citizen. The Tribune and the First Citizen would then contest the presidency before an electorate inclusive of the entire population, including both legislative electorates and those who are unemployed and do not have high-status degrees. This final electorate would possess the right to vote in the presidential election not based on their labor or their status, but on the basis of a shared humanity. As fellow human beings living alongside us, their perspectives must carry some weight, even if we have struggled to fully integrate them into our economy and society.

The winner of the presidential election would become the president, while the loser would be tasked with leading the opposition. The president would have to work with this opposition leader to make policy acceptable to both houses, and thus to citizens with different attitudes to expertise. These citizens would be free to bring their convictions with them, both as voters and as representatives in their respective houses. They would not have to sign on to any particular philosophical view. For the SFR to thrive, it cannot exclude, a priori, the concepts of those it aims to serve. Nor can it mandate that these citizens express themselves in any particular terms.

Over time, rates of educational attainment may shift, such that Associate’s or even Bachelor’s degrees are possessed by two-thirds of the population. At that point, these degree holders would cease to participate in the Chamber of Status and would be integrated into the Chamber of Labor. Conversely, there may come a time when a much smaller portion of the population is employed and educational institutions lose their connection to the labor market. As higher education becomes less instrumental, a larger number of more specialized forms of education might arise. This might permit larger parts of the population to be integrated into the Chamber of Status, with the Chamber of Labor shrinking in size over time. Either of these possibilities – or both of them at different points – would be permitted by the structure of the SFR.

These two chambers would only need to exist as separate and distinct legislative entities as long as there remains a sharp division between the technocratic and non-technocratic parts of the population. This division consists in there being a rough parity between the two parts. Certainly, the federation cannot function without either part – neither part can govern without the cooperation of the other. But this could change. If either chamber were to come to represent a very small slice of the population – perhaps less than a quarter – this rough parity would no longer obtain. Without rough parity, the persistence of the smaller chamber would come to be perceived as a great unfairness. At that stage, the chambers could be merged into a single parliament, elected by the whole population regardless of employment status or education level. The purpose is not to erect a permanent barrier, to reify or fetishize a contingent division between the technocratic and non-technocratic parts – it is to recognize the need for plurality at the level of the constitutional procedures and to take this up in a manner that permits the division to change, evolve, or even dissolve over time.

The aim here is for the SFR to retain an active interest in a very wide array of cooperative modes. It should not simply be a globalist mechanism by which educated technocrats would impose a prefigured vision of life on a plebeian mass. The rights of those who do not possess degrees should be explicitly recognized, at the level of the formal procedures. They should not be forced to put their values into other people’s terms as a prerequisite for making themselves heard. At the same time, they should not be able to govern in splendid isolation from expert discourses. And, by the same token, those who do possess degrees should be able to articulate their values in their terms, but they should not be permitted to govern on the basis of opaque, inaccessible pretensions.

To secure this, it is necessary to permit the two chambers to have an equal say, but to represent parts of the population that are not precisely equal in size. In the United States, judicial review is often appealed to as a mechanism for protecting minorities. But an appeal to judicial review does not adequately address this particular instantiation of the problem, because judges are themselves technocrats in possession of highly specialized education. They therefore cannot be entrusted with the protection of laborers who have common levels of education. Rather than rely on judicial mechanisms, there needs to be a legislative mechanism that preserves the political input of the non-technocratic part of the population even if this part of the population is gradually reduced in size or becomes inconsistent in its frequency or intensity of political participation.

Only when there are real alternative modes of life widely available to very nearly all of these laborers can they be represented by a chamber that includes highly educated specialists.

By taking the epistemologies and ontologies of ordinary workers seriously alongside those of highly educated specialists, this federal system would really offer hope to people from a very wide range of positions. It would not simply assert the primacy of the individual ontologically or morally. It would support a real plurality of modes of life. In doing this, it would be more concretely committed to the freedom of the individual than many theories that prefigure the centrality of the individual at the level of doctrine, but neglect individuality in practice.

[1] Stephen Tierney, The Federal Contract: A Constitutional Theory of Federalism (Oxford: Oxford University Press, 2022).

[2] For discussion of this, see Michael Burgess, Comparative Federalism: Theory and Practice (New York: Routledge, 2006).

[3] Kenneth Wheare, Federal Government (Oxford: Oxford University Press, 1964).

[4] Benjamin M. Studebaker, Legitimacy in Liberal Democracies (Edinburgh: Edinburgh University Press, 2024).

[5] For a discussion of the role separation of persons plays in liberal theories, see Matt Zwolinski, “The Separateness of Persons and Liberal Theory,” The Journal of Value Inquiry 42 (2008): 147-165. For contrasting accounts that treat this in terms of property rights and self-ownership, see Eric Mack, “Self-Ownership and the Right of Property,” The Monist 73.4 (1990): 519-543 and G.A. Cohen, Self-Ownership, Freedom and Equality (Cambridge: Cambridge University Press, 2009). Consider also the role this thinking plays in contemporary theories of consent, e.g., Heidi M. Hurd, “The Moral Magic of Consent,” Legal Theory 2.2 (1996): 121-146. For an example of individual sovereignty applied to federalist debates, see James M. Buchanan, “Federalism and Individual Sovereignty,” Cato Journal 15.2-3 (1996): 259-268.

[6] Siegfried Van Duffel, “Natural Rights and Individual Sovereignty,” Journal of Political Philosophy 12.2 (2004): 147-162

[7] Consider, e.g., Iris Murdoch, The Sovereignty of Good (London: Routledge, 2013) or Siegfried Van Duffel, “Sovereignty as a Religious Concept,” The Monist 90.1 (2007): 126-143.

[8] John Rawls, Political Liberalism (New York: Columbia University Press, 2005).

[9] Consider for instance the works of Plato (especially the Parmenides), Philo of Alexandria, Pseudo-Dionysius, or even Augustine, who, in Sermon 117, said “Si comprehendis non est Deus,” i.e., “That which you understand is not God.” Similar positions have been taken and developed by theologians from other religious backgrounds.

[10] Rufus Davis, “The ‘Federal Principle’ Reconsidered,” Australian Journal of Politics & History 1.2 (1956): 223-244.

[11] For further discussion of the concept of “deep pluralism,” see Benjamin Studebaker, Legitimacy in Liberal Democracies (Edinburgh: Edinburgh University Press, 2024), pp. 9-10, 12-16, 20, 32, 34, 37-9, 50, 54-7, 66, 73, 142, 151.

[12] For more discussion of this problem and other related issues with deliberative democratic theory, see e.g., Joshua Cohen, “Reflections on Deliberative Democracy,” in T. Christiano & J. Christman (eds.), Contemporary Debates in Political Philosophy (Oxford: Blackwell, 2009).

[13] For an extended discussion of the problems with unchecked competitive and commercial logics, see the first entry in this series.

[14] https://www.statista.com/statistics/184260/educational-attainment-in-the-us

[15] See the discussion of rump and fallen professionals in my first book, The Chronic Crisis of American Democracy: The Way is Shut (Cham: Palgrave, 2023), pp. 11-12, 23, 34-5, 140, 146, 149.

[16] https://crsreports.congress.gov/product/pdf/R/R47470

[17] For discussion of additional social factors that may play a role in driving down participation rates among these voters, see e.g., Eric R. Hansen & Andrew Tyner, “Educational Attainment and Social Norms of Voting,” Political Behavior 43 (2021): 711-735.

[18] See e.g., PJ Henry and Jaime L. Napier, “Education is Related to Greater Ideological Prejudice,” Public Opinion Quarterly 81.4 (2017): 930-942 and William E. Carroll, “Far Right Parties and Movements in Europe, Japan, and the Tea Party in the US: A Comparative Analysis,” Journal of Power, Politics & Governance 2.2 (2014): 205-222.

[19] For an example of a “postmaterialist” theory, see Ronald Inglehart, The Silent Revolution: Changing Values and Political Styles Among Western Publics (Princeton: Princeton University Press, 1977). Notice the influence of this on left populism in subsequent decades, especially on e.g., Chantal Mouffe & Ernesto Laclau, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985).

[20] These cataracts are discussed at greater length in the second post in this series.