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Meaning of American Federalism THE MEANING OF AMERICAN FEDERALISM Mrs. PoweL' Well Doctor what have we got a republic or a monarchy? Dr. Franklin: A republic, ifyou can keep it. September 18,1787, diary ofJames McHenry A publication ofthe Center for Self-Governance THE MEANING OF AMERICAN F]~DERALISM Constituting a Self-Governing Society Vincent Ostrom ICS PRESS Institute for Contemporary Studies San Francisco, California © 1991 Institute for Contemporary Studies This book is a publication of the Center for Self-Governance, which is dedi­ cated to the study of self-governing institutions. The Center is affiliated with the Institute for Contemporary Studies, a nonpartisan, nonprofit public policy research organization. The analyses, conclusions, and opinions expressed in ICS Press publications are those ofthe authors and not necessarily those of the Institute for Contemporary Studies, or of the Institute's officers, directors, or others associated with, or funding, its work. Printed in the United States ofAmerica on acid-free paper. All rights reserved. No part ofthis book may be used or reproduced in any manner without written permission except in the case ofbriefquotations in critical articles and reviews. Inquiries, book orders, and catalog requests should be addressed to ICS Press, 243 Kearny Street, San Francisco, CA 94108. (415) 981-5353. Fax (415) 986­ 4878. For book orders and catalog requests call toll free in the contiguous United States; (800) 326-0263. Distributed to the trade by National Book Network, Lanham, Maryland. Index compiled by Judith Evans. 09876 5 4 3 2 1 Library ofCongress Cataloging-in-Publication Data Ostrom, Vincent, 1919- The meaning ofAmerican federalism; constituting a self-governing society / Vincent Ostrom. p. em. "A publication ofthe Center for Self-Governance." Includes bibliographical references and index. ISBN 1-55815-076-5 1. Federal government-United States. 2. The Federalist. I. Title. JK311.078 1991 321.02'0973-dc20 91-11825 CIP To Elinor in appreciation of the intellectual adventures we have shared CONTENTS Foreword Robert B. Hawkins, fr. Xl Acknowledgments xiii I INTRODUCTION ONE The Meaning ofAmerican Federalism 5 LANGUAGE AND MEANING IN POLITICAL DISCOURSE • TOCQUEVILLE'S ANALYSIS OF THE AMERICAN EXPERIMENT • SOME CONTEMPORARY REFLECTIONS • THE SCOPE OF THIS INQUIRY II CONCEPTUALIZING THE MEANING OF AMERICAN FEDERALISM TWO Hobbes's Leviathan and the Logic of 29 American Federalism HOBBES'S LEVIATHAN· DEMOCRACY; CONSTITUTIONAL RULE, AND FEDERALISM • SOME CONCLUSIONS VB VIll CONTENTS THREE The Covenantal Basis ofAmerican 53 Federalism: Religious Roots AN AFFINITY BETWEEN RELIGION AND PUBLIC OPINION • THE KEY IDEA • PRESUPPOSITIONS • GOD'S LAW AS A METHOD OF NORMATIVE INQUIRY • THE STRUGGLE TO UNDERSTAND • CONCLUSION FOUR The Meaning ofFederalism in The Federalist 69 DIAMOND'S ARGUMENT • THE ARGUMENT IN ESSAY 9 OF THE FEDERALIST: BARRIER TO FACTION AND INSURRECTION • THE ARGUMENT IN ESSAY 39 OF THE FEDERALIST: USING THE LANGUAGE OF THE OPPOSITION • THE ARGUMENT IN ESSAYS 15 AND 16 OF THE FEDERALIST: CONCEPTUAL CLARIFICATION • CONCLUSION FNE Garcia, the Eclipse ofFederalism, and the 99 Central-Government Trap THE BLACKMUN DOCTRINE AND MADISON'S CONJECTURE IN ESSAY 39 OF THE FEDERALIST· ELECTORAL ARRANGEMENTS, MODES OF REPRESENTATION, AND COLLECTIVE DECISIONS • THE STRUCTURE OF GOVERNMENT AND THE RULE OF LAW • THE CENTRAL-GOVERNMENT TRAP • THE LIMITS OF "FEDERAL FORM" CONTENTS IX III SOME EMERGENT PATTERNS OF ORDER SIX The Organization ofGovernment in 137 Metropolitan Areas: A Theoretical Inquiry Vincent Ostrom, Charles M Tiebout, and Robert Wflrren THE NATURE OF PUBLIC GOODS AND SERVICES· SCALE PROBLEMS IN PUBLIC ORGANIZATION • PUBLIC ORGANIZATION IN GARGANTUA • PUBLIC ORGANIZATION IN A POLYCENTRIC POLITICAL SYSTEM SEVEN Public Goods and Public Choices: The 163 Emergence ofPublic Economies and Industry Structures Vincent Ostrom andElinor Ostrom THE NATURE OF PUBLIC GOODS • THE ORGANIZATION OF A PUBLIC ECONOMY • SOME PROBLEMS OF CONSUMPTION AND PRODUCTION IN PUBLIC SERVICE INDUSTRIES • OPPORTUNITIES IN PUBLIC SERVICE INDUSTRIES • ALTERNATIVES AND CHOICES EIGHT Res Publica: The Emergence ofPublic 199 Opinion, Civic Knowledge, and a Culture of Inquiry THE MEANING OF REPUBLIC (RES PUBLICA) • THE CONSTITUTION OF THE OPEN PUBLIC REALM (RES PUBLICA) • THE x CONTENTS OPEN PUBLIC REALM AND THE SCHOOLING OF EXPERIENCE • THE EMERGENCE OF PUBLIC OPINION, CIVIC KNOWLEDGE, AND A CULTURE OF INQUIRY NINE Polycentricity: The Structural Basis of 223 Self-Governing Systems THE CONCEPT OF POLYCENTRICITY • THE EMERGENCE OF PATTERNS OF ORDER IN POLYCENTRIC STRUCTURES • CONCLUSION IV CONCLUSION TEN 1989 and Beyond 249 SOME ESSENTIAL CHARACTERISTICS OF AMERICAN FEDERALISM • THE PROBLEM OF EMBODIED INTELLIGENCE • DOES FEDERALISM HAVE A FUTURE? Notes 273 Bibliography 279 Index 289 About the Author 301 FOREWORD oW can a society so constitute itselfthat its members will be H free participants in a self-governing order and not merely the subjects ofthe state? Through an analysis ofAmerican federalism that returns to the classic sources-The Federalist and the writings of Tocque­ ville-this book explains the conditions necessary for creating and maintaining a self-governing society and describes how such a system works. In a world in which government by central au­ thority has become increasingly discredited, this issue is as im­ portant as it was 150 years ago when Tocqueville observed that American "society governs itself for itself." Federalism is commonly understood as a theory of govern­ ment that uses power to check power amid opposite and rival in­ terests. Authority is limited, and no single body exercises supreme control nor has a monopoly over the use of force in society. But the idea offederalism is rendered trivial when applied only to the coexistence ofstate and national governments. Rather, federalism offers no less than an enabling basis for the development ofself­ organizing and self-governing capabilities under conditions of equal liberty and justice. This book also illuminates the importance of institutional analysis in dealing with problems in the contemporary world. We face a basic challenge in recognizing and understanding the insti­ tutional foundations on which systems of governance and social Xl xu FOREWORD arrangements are established in modern societies. Vincent Os­ trom has previously addressed this challenge in the ICS Press stud­ ies Rethinking Institutional Analysis and Development, edited with David Feeny and Hartmut Picht, and Local Government in the United States, with Robert Bish and Elinor Ostrom, as have John Clark and Aaron Wildavsky in The Moral Collapse ofCommunism, also published by ICS Press. Faith in the reformability ofhuman societies underlies these efforts to understand institutions and to explicate the conceptual foundations ofself-governance. For those who are seriously concerned with understanding the American system ofgovernance and how it can be used to address problems of collective choice and action, whether in neighbor­ hoods or in the international arena, The Meaning ofAmerican Fed­ eralism offers rich rewards. Robert B. Hawkins, Jf., President Institute for Contemporary Studies ACKNOWLEDGMENTS he chapters of this book represent inquiries that have pro­ T ceeded at different levels of analysis over some thirty years. Chapter 6, "The Organization of Government in Metropolitan Areas: A Theoretical Inquiry;" an essay written in collaboration with Charles M. Tiebout and Robert Warren, was originally published in The American Political Science Review 55 (December 1961): 831­ 42. Permission from the American Political Science Association and from Robert Warren to publish here is gratefully acknowledged. Chapter 7 was originally written with Elinor Ostrom in response to an invitation by E. S. Savas for presentation at a colloquium con­ cerned with alternatives for delivering public services, sponsored by the Diebold Institute for Public Policy Studies, Inc. That paper was revised with helpful editorial suggestions by Savas and appeared as "Public Goods and Public Choices" in Alternatives for Delivering Public Services: TOward Improved Performance, edited by E. S. Savas and published in 1977 by Westview Press, Boulder, Colorado. Both presentation ofthe paper and its initial publication were made pos­ sible by a grant from the Diebold Institute for Public Policy Studies, Inc. Permission to publish here is gratefully acknowledged. Over a period of nearly twenty years, I have had occasion to participate in several colloquia and conferences organized by Dan­ iel Elazar and the Center for the Study of Federalism at Temple University. It was in this context that the concept ofcovenant was seriously explored for its religious and political significance and Xl11 XIV ACKNOWLEDGMENTS different conjectures about the meaning ofAmerican federalism were advanced and explored. Earlier versions of Chapters 2, 3, and 4 were published in Publius: The Journal ofFederalism. An early version of Chapter 2 appeared as "Hobbes, Covenant and Constitution," Publius 10 (fall 1980): 83-100. The fall 1980 issue of Publius includes several contributions on the concept ofcove­ nant in a theory offederalism. An initial presentation ofthe issues addressed in Chapter 4 was given in "The Meaning ofFederalism in The Federalist: A Critical Examination of the Diamond The­ ses," Publius 15 (winter 1985): 1-22. This was part of a larger symposium with contributions from Paul Peterson and Jean Yarborough. Some of the issues addressed
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