Federalism: The Lost Tradition? - Charles S. McCoy

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Federalism:The Lost Tradition?

Charles S. McCoyGraduate Theological Union, BerkeleyIn the late nineteenth and early twentieth centuries, many American historians decided that theaccounts by which people in the United States understood their past were unrealistic, subject to romanticdistortions, and chauvinistic. Even though some stories were well intentioned, they were false and mustbe rejected. One well-known example is Parson Weems'story of George Washington as a boy cutting downthe cherry tree and, when questioned by his father, saying, "I cannot tell a lie." In the process of "realistic"

reinterpretation and muckraking, however, these historians threw out many real babies with the surplusof romantic bath water. A case in point is the tradition of ederalism that sha ped American history,permeated the experience of the men who wrote the United States Constitution, and underlay every facetof our social order. Th e so-called "realists" went too far and tossed out an important part of the realitythat is America. Can the federal tradition be recovered and placed again at the focus of Americanpolitical though t, or is it a lost tradition?T " 11 hrough the efforts of Daniel Elazar and other scholars, 1 the federaltradi tion is gradually re-emerging out of the mists of forgetfulness. Th at isonly a beginnin g. The task of researching, writing about, and pub lishingaccounts of federalism has been ha rd en oug h, bu t even more difficult h asbeen the task of getting the "ro man tic pessimists," now victims of a collectiveamnesia, to recognize, evaluate, and include the federal tradition as a partof the background of the American Constitution and continuing political

order.FADS IN HISTORICAL INTERPRETATION

Forrest McDonald provides an important clue to the loss of the federaltradition that has occurred in this century amon g political historians. Inthe preface to his book on the intellectual origins of the United StatesConstitution, McDonald observes, "Fashions in historical interpretationcome and-go."2 He then procee ds, unintentionally, to illustrate his poi ntby failing to include the federal tradition as prominent throughout thecolonial period, providing the context of political experience for most ofthe members of the Philadelphia Convention of 1787 and clearly to beincluded amo ng the intellectual origins of the Constitution. He goes evenfurther, however, by claiming that the framers of the Constitution "fashioned

'Daniel E lazar was a distinguished professor of political science at Temple University. He foundedand directed the Center for the Study of Federalism at Temple and, through his friendships and throughCenter conferences developed a circle of scholars interested in the federal tradition.Forrest McDonald, Novus Ordo Sechrum: The Intellectual Origins of the Constitution (Lawrence: Universityof Kansas Press, 1985), p. vii. Publius: The Journa l of Federalism 31:2 (Sp ring 2001)

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2 Publius/Spring 2001a frame of gove rnm ent tha t necessitated a redefinition of most of the termsin which the theory and ideology of civic humanism had been discussed.Int o the barg ain, they introduced an entirely new concept to the discourse,that of federalism."3Federalism! New in 1787? Only som eone who has drunk deeply of Lethe'swaters of forgetfulness could make such a statem ent. McDonald along withmany oth er historians of the twentieth century is following one of thefashions that ha s led successively to a focus first on one an d th en on an othe raspect of th e past at the expense of a more complete view, with a resultingamnesia about some of the crucial, and obvious, elements.

McDonald enumerates a procession of fads adopted by historiansinte rpr etin g the makin g of the U.S. Constitution . Among them is CharlesBeard's famous economic interpretation of the motives of the FoundingFathers, followed by the rejection of Beard's thesis as too one-sided andthe n by McD onald's own modification of Beard's interpret ation, placing atthe center "the wheeling and dealing and the interplay between politicsand economics;" this view is succeeded by the fad focusing on the centralrole of ideology, an inte rpretation espoused by Bernard Bailyn and J. G. A.Pocock; then there is Douglass Adair's emphasis on "the passion for fameam ong the fo unders," followed by Louis Hartz, who put forward the thesisnam ing Jo hn Locke as the exclusive source of the political system of th eUnited States. McDonald might also have mentio ned the rebuttal to Hartz'sfantastic view by Garry Wills, who shifts atte ntion to David Hu me , and so onto other fashions.4 Am ong the fads he fails to note, on e to which he adheres,is the strange fashion in historical interp retatio n that produc ed the eclipseof the federal tradition.By con trast with the procession of twentieth century h istoriansunac quai nted with the federal tradition, we find a very different view amonghistorians in the late nineteenth century. The federal elemen t in theherita ge of American politics was rem em bere d quite clearly. In an articleon "The Origins of American Federalism," published in 1895, William C.Morey, a political historian at the University of Rochester, asserted:

The origin of the forms of the federal government presents no greathistorical difficulties to one who has carefully studied the constitutionalhistory of the early States and colonies. He finds that the cen tralgovernment of the United States, in its general structure and its various

'Ibid., p . 262.4See Charles S . Beard , An Economic Interpretation of the Constitution of the United States (New York, 1913);Forres t McDona ld , EPluribus Unum: TheFormation of the American Republic, 1776-1790 (Indianapol i s : L ibe rtyPress , 1979); Berna rd Ba i lyn, The Ideological Origins of the American Revolution (Cambridge : Be lknap Press ,1967 ); J. G. A. Pocock, The Machiavelian Moment: Florentine Political Thought and the Atlantic RepublicanTradition (Princ e ton: Pr ince ton Unive rs i ty Press , 1975); Louis Hartz , The Liberal Tradition in America: AnInterpretation ofAmerican Political Thought Since the Revolution (New York: Harco urt , Brace , and World , 1955);and Garry Wil l s , Explaining America: The Federalist (Gar den Ci ty : Doubleday, 1978).



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Federalism: The Lost Tradition? 3branches, is scarcely more than a reproduction on a higher plane of thegovernmental forms existing in the previous States, and m ore remotely inthe early colonies.5

Most of the authors enu me rated by McDonald share his participation ina widely prevalent style in academia: enchantment with scholarlyspecialization that devotes expert attention to one facet of a subject andthen assumes, overtly or covertly, that this limited focus is adequate todescribe the whole. As a result, many distinguished scholars make n o smallerro rs on the way toward grand fallacies. Enclosed within theirspecialization, they are caught up in something th at is mo re than a fad. Itis mo re like a severe case of constricted focus that leaves them w ith a limitedperspective on the forces shaping the culture and society to which they aredevoting scholarly attention and in which they live.In this era of higher education, scholars cannot avoid some degree ofspecialization. At the same time, however, it is im por tant to scan thesurrounding territory in order to maintain a breadth of perspective andavoid being caught in a fading fashion. My own journey took me into thestudy of federal theology, but I became aware of intriguing relations topolitical federalism. That wider awareness enabled me to appreciate thework of Dan Elazar and have my suspicions confirmed that th ere wereclose relations between federal theology and federal politics as theydeveloped. Whereas Elazar had started from the study of political federalismand discovered theological federalism, I had studied federal theology andethics and learned gradually about its close connections to politicalfederalism.

A JOU RNE Y WITH SURPRISING DISCOVERIESDuring my doctoral work at Yale University, I became interested in thecovenant as a possible center around which to organize my studies intheology and Christian ethics. My main advisors, Professors H. RichardNiebuhr, Robert L. Calhoun, and Roland B ainton, suggested that I explorethe covenant theology of the Reformed trad ition in the seventeenth century.In my research following the lead they had given, I was amazed to discoverthat the period after the main movements of the Reformation until theEnlig htenm ent had bee n largely dismissed by historians of theology. Oneof these scholars characterized the era as a time of "a new Protestantscholasticism, far less imaginative and intellectually curious than its medievalprototype," a time of theology that could be characterized as "obscurantistscholasticism."6 My own research revealed that even a cursory knowledge

5WilIiam C. Morey, "T he S ources of American F ederalism," Th e Annals of he American Academy of Politicaland Social Science (September 1895): 197.6Albert C.Outler, "The Reformation and Classical Protestantism," The Vitality of the Christian Tradition,ed. George F. Thomas (New York: Harper and Bros., 1944), p. 135.



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4 Publius/Spring 2001of Reformed theology between 1550 and 1800 would render such a viewimpo ssible. Much of th e theology was non-scholastic or even anti-scholastic,and some of it was creative and interesting. The greatest mistake, however,had been the neglect of movements in theology and ethics at a time whenthe political and economic patterns of the modern West were taking shape.The most inte resting figure th at I discovered was Joh ann es Cocceius(1603-1669), the greatest of the federal or covenantal theologians, a majorbiblical scholar of the time, an d a foreru nner of the critical u nder stand ingof Scripture. The word "federal", I learned, is derived from the hatin foedus,which m eans covenant. I wrote my doctoral dissertation on Cocceius.7 Inthe process, I studied the development of the federal theology in Europeand America. Th oug h m entioned only briefly in the dissertation, manyconne ctions w ere discovered between theological and political federalism.My further research, aided in part by Daniel Elazar's work, enabled me tolearn just how closely they were intertwined, both in Eu rope and in America.

As I traced the d evelopm ent of political and theological federalism fromSwitzerland, Germany, France, the Netherlands, England, and Scodand toPlymo uth Colony, Massachusetts Bay Colony, and others d uring the colonialperiod , I came eventually to Joh n W itherspoon, to his student, JamesMadison, and, of course, to the formation of the Un ited States Constitution.As I explo red the life and work of Madison, one of the greate st shocks of allhit m e. In an article published in 1958 by Ralph K etcham, a University ofChicago professor and authority on Madison and the era of the AmericanRevolution and Constitution, he reported the results of an investigationseeking th e origins of Madison's view of hum an natur e. Ketcham had lookedin many directions-to Locke, to Montesquieu, to Aristotle and Plato, andto Thucy dides -and had com e to the conclusion that we simply do no t knowwhere Madison got his notion of human natu re. It was app aren t thatKetcham was unaware of the strong tradition of federalism in the colonies,nor did it occur to him that Madison might have acquired his view of hum annat ure from his tutors in Virginia and especially from his education at theCollege of New Jersey u nde r W itherspoon, as well as from the prevailingclimate of theo logical and political federalism.8 This experience p reparedme for the sad discovery that most historians of the U . S. Constitution knowlittle of the federal background to the Constitution and to the structure ofAmerican society. For mainline political science, federalism became as mucha lost tradition in political history as in theology and ethics.

Daniel Elazar was an outstand ing exception. Th roug h his own researchand the programs of his Center for the Study of Federalism at TempleUniversity, Elazar and a small network of scholars began to deliver the federal'Charles S. McCoy, The Covenant Theology of Johannes Cocceius (Ph.D. Dissertation: Yale University, 1957;Ann Arbor, 1965)."Ra lph L. Ke lcham , "James Madison and the Na ture of Man," Journal of he History of Ideas XIX (January1958).



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Federalism: The Lost Tradition? 5tradition from obscurity and also from the obscurantism that prevailedam ong political histor ians. Th at latter task has proved to be very difficult.But the price of ignoring the history of federalism has been high.Understanding the way federalism developed throws important light onwhat the men who produced the Constitution brought with them toPhiladelphia from their practical experience in a federal political orderand what they knew about the strengths and weaknesses of previouscomm onwealths with different forms of confed eration . Not only doesknowledge of the federal tradition help explain how the work required tohammer out the Constitution could be completed in so short a time, but italso demon strates why their work has proved dur able. They had alreadythe exper ience of organizing the states on th e basis of the inherit ed federalpattern and operating under the flawed federalism of the Articles ofConfederation and th e Continen tal Congress. They were heirs of 180 yearsof federalism through the colonial period, and some of them studied thelonger federal tradition and the many forms of compact governmentincluded in the tradition. It was not the newness of their insights but theirwisdom and experience in drawing on the diverse federal tradition thatgave this society and its constitution their stability and strength.A stubborn core of constitutional scholars denies that there is a federaltradition a nd refuses to make use of the literature a bou t that political streameme rging from the research of Elazar and his colleagues. A similar conditionof invincible igno ran ce prevails in the fields of theology and e thics.FAD OR POLITICAL MENTALITYReflecting on the strange absence of the federal tradition in most Americanscholarship related to the U. S. Constitution, it seems more than a passingfashion and m ore of a pervasive attitude . Academics in the Unite d Stateshave acquired the habit of looking to Europe in order to understand whatis goin g on in Am erica. In theology, in literary values, in th e social sciences,and in historical perspectives, the views of European scholars are givenpriority and are quoted as validating authorities, while the traditions andthe views of Americans are often neglected. This peculiar phen om eno n Icall the "the colonial mentality," a cultural inferiority complex that pervad esmuch scholarly work in America.In Ch ristian theology a nd biblical studies since World War II, for example,American scholars in those fields have more often divided themselves intocamps representing one or another German scholar rather than learningalso from the creative work of theologians in the United States andelsewhere. Th e religious situation in the U nited States is often interp retedfrom the perspectives of Europeans. As a conseq uence, views applicable toEurope are accepted as describing what is taking place in America. Thedichotomy between theory and practice, dominant in continental thought,



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6 Publius/Spring 2001has been widely accepted among American thinkers, while the strongerviews of American pragmatists were ignored until a German philosopher,Karl O tto Apel, discovered C harles Sanders Peirce and inform ed Americansthat he was worth studying. Tom Wolfe has insisted that the acceptance ofEuro pean values in architecture and literature has unde rmi ned the strengthof Am erican design, poetry, and the novel. The colonial mentality hasbecome deeply ingrained in American patterns of thought and has beenaround over a long period of time.For example, William Gladstone, British prime minister, called theConstitution of the U nited States "the most wonderful work ever struck offat a given time by the brain and purpose of man." Americans usually regardthis as praise for the ingenuity of the Found ing Fathers and fail to note thatthe English statesman was actually contrasting the gradual emergence ofthe "constitution" of Great Britain with the sudden production of theAmerican document. Gladstone was suggesting that Britain has history andtradition, while the United States has neither.9Like many Europ eans, Gladstone misunderstood America. The Britishcolonists were heirs of the same history and traditions as those who stayedbehind in Europe, but with the difference and addition of 180 years ofexperience in the New Wo rid prior to 1787. Those Americans who gatheredin Philadelphia brought the rich traditions of the colonial past in additionto the heritage from Europe and from Hebraic-Hellenist-Roman cultures.Th e rela tion of Am ericans to the past in the period 1776 to 1787 was in noway a blank slate, nor was it shaped exclusively by European thought orpractice. While it is true that the Constitution was composed between lateMay and mid- September, 1787, the members of the Convention weredrawing on traditions reaching back through the colonial period and Europeto the ancient world. The most important element in their perspective wastheir experience and practice of the federal tradition as shaped in thecolonial period and in the states during the pre-constitutional era.

During the decades prior to the American Revolution and leading up to1787, there was what on e writer calls a "great debate over liberty and orde r"in the public arena.10 No one was a more industrious and informedpartic ipant in this discussion than Jame s M adison, especially conc erningthe federal tra dition . Madison atten ded the College of New Jersey (nowPr inc eto n University) from 1768 to 1772, studying th ere with Jo hnWitherspoon, president of the college, learned federalist in theology andpolitical philosophy, and ardent advocate of freedom from Britain. In 1775,Horace Walpole wrote, "Cousin America has eloped with a Presbyterianparson."11 Cousin America was the British colonies, and the Presbyterian

'William E. Gladstone, "Kin Beyond the Sea," The North American Review 127 (September 1878): 185.'"Henry F. May, The Enlightenment in America (New York: Oxford University Press, 1976), p. 88."Qu oted in Martha Lou L emmon Stohlman.yoftn Witherspoon: Parson, Politician, Patriot (Philadelphia:Westminster Press, 1976), p. 15.



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Federalism: The Lost Tradition? 7parson was Joh n W itherspoon, who traveled through the colonies urgingfreedom from Britain.After Madison returned to Virginia from Princeton, he continued hisstudies of theology and political thought as he began his career in publiclife. His study and experience led him to be very critical of the Articles ofConfederation and to seek a convention to revise that constitution . In themon ths before going to Philadelphia in May 1787, he gave careful attentionto confederations of the past that are part of the federal tradition, seekingto discover their strengths an d weaknesses. He had Jefferson send himbooks from Paris, and he went by Princeton on his way to Philadelphia toget Withers poon 's advice. Madison illustrates and confirms the view of CarlVan Doren: "The delegates both from former habits and present reasonspreferred a federated republic to a consolidated nation."12 The results ofthe "great debate over liberty and order," as it isunde rstood by Madison inTh e Federalist,13 is that, given the realities of human nature, liberty willinevitably lead to factions seeking their own interests and can be dealt withonly by abolishing liberty or controlling the factions (see Federalist 10). InFederalists, he holds that a strong governm ent can control factions, ind eed,any power, by checking them throu gh "opposite and rival interests," that is,"by a judiciou s modification and mixtu re of the federal principle."14

SOURCES OF FEDERALISMPolitical order that is founded on covenants has a long, interesting, anddiverse lineage going back even beyond the covenants binding togetherthe Hebrew tribes from the time of Moses to the fall of the mon archies, tothe Athenian Confederacy, and to the tho ugh t of Augustine, who held thata commonwealth was bound together by a common love rather than beingdefined byjustice as taught byRoman philosophers. Throughout the MiddleAges, Roman law replaced, and obscured, these examples of federalismfrom the ancient world, though the practices of the German tribes, thecompacts found in the Hanseatic League, and the Swiss Confederation of1291 show that elements of federalism were present within feudal society.15Modern federalism emerged in Switzerland as the recovery of the Biblewith its emphasis on covenant was combined with the political practicederived from Teutonic tribal covenants. The first treatise com biningtheological and political federalism came from Heinrich B ullinger of Zurich

I2 Carl Van Doren, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of theUnited States (New York: Viking Press, 1948), p. 70.l3Th e Federalist Papers by Alexander Hamilton, James Madison, and John Jay, With an in t roduc t ion andcomm entary by Garry Wills (NewYork: Bantam Books, 1982)."Ibid., pp . 263,265. In Federalist 18-20, Madison reports the results of his study of previous governm entsin the federal tradition and gives the reason for his research: "I make no apology for having dwelt so longon the contemplation of these federal precede nts. Experience is the oracle of truth" (p. 98).15See Dan iel J. Elazar, From Biblical Covenant to Modem Federalism: The Federal Theological Bridge (Philadelphia:The Center for the Study of Federalism, 1980), passim; Daniel J. Elazar and John Kincaid, eds., The CovenantConnection: From Federal Theology to Modern Federalism (Lantham , MD: Lexington B ooks , 2000).



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8 Publius/Spring 2001(1534), which initiated a tradition spreadin g from Switzerland to Germany,France, the Netherlands, Scotland, England, and America, with elementsgradually appearing elsewhere.10The federal form of government was bro ug ht first to the British coloniesby the Pilgrims, who established the governm ent of Plymouth by means ofthe Mayflower Co mp act. It came over with the Puri tans, whose federalismwas the basis of the Massachusetts Bay colony an d spread rapidly th rou gho utNew Eng land. Scottish settlers brough t federalism over to New Jersey andthe mid dle colonies, and John Locke infused compact tho ught into thecharter of the Carolinas. The federalism that came from Europe wasprobably reinforced by the tribal confederations the settlers found amongthe native Americans they sometimes worked with and sometimes fought.Political ord er as rooted in covenants (re mem ber that the word "federal" isderived from the Latin foedus, meaning covenant) received one of its mostdistinctive forms in the U. S. Constitution of 1787.

Th e strong tradition of colonial federalism as the most immediate sourceof Am erican federalism was obvious to political scientists of the nine teen thcentu ry like William Morey, as noted above, but was forgotten by the scholarsof the twentieth century. When one considers this strong federal heritageand the prominence Alexis de Tocqueville gives to federalism in Democracyin America11 as one of the most striking characteristics of the United States,it seems strange how litde attention many historians of the U. S.Constitutiondevote to its roots in the federalism of the colonial period and to the strongfederalism em bod ied in the Reformed tradition in Eur ope. Even mo re,Carl J. F riedric h called federalism the fastest growing political system in thetwentieth century.18The eclipse of the federal tradition among scholars of the Constitutionmay, in the e nd, be no t so much intellectual fads or forgetfulness or a colonialmentality as it is that federalism is the societal atm osphere which Americansbreathe. Asfishare unlikely to n otice the water in which they are imm ersed,so Am ericans do no t notice the federal medium of their existence. Or again,federalism for Americans is like a pair of spectacles through which theyview everything; they see things through their federal heritage but may notsee it.Although the notion of federalism dominated the experience of

American leaders in the era of the Articles of Confederation and the federal16See Charles S. McCoy and J. Wayne Baker, Fountainhead of Federalism: Heinrich Bullinger and theCovenantal Tradition (Louisville, KY: Westm inster/John Knox Press, 1991), for a translation of Bullinger'ssemin al treatise, a brief history of the developmen t of federalism in the sixteenth, seventeenth, andeighteenth centuries, and a bibliography on the federal tradition."See, for example, Delba Winthrop, "Tocqueville on Federalism," Publius: TheJournal of Federalism 6(Summer 1976): 93, where the author writes, "it does not seem strange to Americans that any bookconcerning American democracy should be addressed extensively to the phenomenon of federalism.But one such book, frequently cited as authoritative, is, on reflection, somewhat strange in its extensivetreatment of federalism-Tocqueville's Democracy in America."18CarlJ. Friedrich, Trends of Federalism in Theory an d Practice (New York: Frederick A. Praeger, 1968), p. 14.



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Federalism: The Lost Tradition? 9Constitution, it is so much a part of the climate of opinion then and nowthat historians for the most part presup pose it rathe r that "seeing" it. Manyhistorians of the era regard it as the name of a political party or the erasurrounding the making of the Constitution, not the name of a traditionfrom which the era and the party drew its nam e. They lack the richness ofthe federal tradition as an interpretive tool for the Constitution and thesociety shaped by that document.

LOOK ING FO R WHAT HAS ALREADY BEEN F OU ND :THE KANGAROO SYNDROMEAmong the puzzles today, one co ncern is why many scholars, who in recen tdecades have written about the creation of the American Constitution andgovernment, have ignored the origins of federalism, and have failed evento mention the extensive literature about the development of the federaltradition. For those of us who watch children's programs on television, itmight rem ind us of the episode in "Captain Kangaroo" in which the Captainhas lost his watch. While the Captain searches furiously in every possibleplace, Dancing Bear has already found the watch and is holding it up infront of the Cap tain's face. He , however, is too busy looking for what is lostto notice that it has been found.Once the federal tradition had become lost, questions arose about theorigins of the federalism permeating the era when the U.S. Constitutionemerged . Some scholars denied that a problem existed and said thatfederalism was the "necessary" solution for the thirtee n colonies, a blackbox answer that requires the furth er quest ion, "Why was federalismnecessary?" A few scholars, with Elazar among the most pr om ine nt andprolific, began the research th at uncovered the fascinating dev elopm ent oftheological and political federalism and made it clear that the federalismof the constitutional era was necessary because it was already built into thegovernments, the cultural mind set, and the experience of people andleaders.Oth er historians of the Constitution have wondered abou t the origins offederalism. They have, however, neither done the research to answer thequestion of origins with accuracy and comprehensiveness nor b othe red tolisten to those who have done the research and published their findings.This group illustrates the "Captain Kangaroo" syndrome-looking forsomething that is dangling in front of their noses. Ralph Ketcham, as not edabove, exemplified this syndrome in his frustrated search for the sources ofMadison's understanding of human nature .Other illustrations of this phenomenon appear in three volumes ofpolitical history dealing with the United States Constitution of 1787: (1)Alfred H. Kelly and Winfred A. Harbison, Th e American Constitution: Its Origins



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10 Publius/Spring 2001and Development;19 (2) Gordon S. Wood, Th e Creation of the American Republic,1776-1787,20 and (3) Samuel H. Beer, To Make a Nation: The Rediscovery ofAmerican Federalism.2*Althoug h each book exhibits diligent scholarship in most areas covered,all three treatm ents seem unaware of the literature describing and exploringthe federalism underlying and informing the discussions and negotiationsfrom which the C onstitution of 1787 em erged . All three assume or stateexplicitly that the U. S. Constitution provides a new understanding ofpolitical order that is without precedent, though not in quite the extremeform affirmed by Forest McD onald. Th e central role of Madison isrecognized, b ut the authors seem as ill equippe d as Ketcham to unde rstan dthe sources of Madison's views. Strangest of all, none of these aut horsexhibits interes t in how the term "federal" could so dom inate the views ofall participan ts as to give the nam e to the en tire era. They are, indeed, fishunaware of the waters of federalism in which they live today and in whichthe American leaders of the 1780s lived.

Th e detail with which Kelly and Harbison describe the emergence of theConstitution from the colonial period through the adoption of stateconstitutions and the Articles of Confederation to the actions of theConvention of 1787 in Philadelphia is impressive. Th e interpretation given,however, makes it clear that the authors see the leaders moving through athicket of detailed decisions with accumulating precedents toward a newpolitical order. A larger historical frame in which the origins anddevelopment of federalism, and some of its continuing implications, arelacking.Though the cover promises to describe the "origins and development"of the Constitution and give an "account of the developm ent of the AmericanCon stitution and of American Con stitutionalism from its origins in Englan d,Europe, [sic] and the colonies to our time," little is said of sources incon tinen tal E uro pe. At the same time, even the sources in England ar elimited to the joint-stock companies and compacts without recognition thatthese sources are not accidental and isolated but are part of a federaltrad ition with roots in Switzerland, Germany, France, the Nether lands, an dBri tain. It is as tho ugh the major source of Am erican federalism was thecomm ercial practices of early settlers.Go rdo n W ood is even mo re explicit on the issue of newness. "Theapproach of many historians to the American Revolution, it seemed, hadtoo often been deeply ahistorical," but this means for Wood that "there hadbe en too little sense of die irretrievability and differentness of die eightee nth-century world." He himself seems ahistorical by not inquiring very far in to"New York:W. W. Norton & Company, 5th ed., 1976."New York:W. W. Norton & Company, 1972."Cambridge, MA: The Belknap Press of Harvard University Press, 1993.



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Federalism: The Lost Tradition? 11the sources of the differences. "The Am ericans of the Revo lutionarygeneration had constructed not simply new forms of government, but anentirely new conception of politics .... By the 1780's the way was prepared. . . for a new political dieory."22 His open ing ch apter on "The Whig Scienceof Politics,"23 by referring only to England, seems, on the one hand,inadequ ate to explain the sources of what was taking place in the coloniesand, on the other hand, denies its newness by rooting it in English tradition.Wood fails to explain the s trong federal convictions underlyingdevelopmen ts in the Revolutionary period nor does he recognize that whatemerged in the Constitution was not a "new" politics but r ath er a distinctiveform of the long federal tradition, influenced by Whig politics in E ngland,which was itself heir to the Cromwellian Comm onwealth an d the Reformedfederal tradition in Scotland and England.For Samuel Beer, ther e is a triple newness in his rediscovery of Americanfederalism. First, Am erican federalism is a new political form. Second, it isa political form, the m ean ing of which need s to be newly discovered. Thi rd,its unknown backgrou nd needs to be discovered anew. Beer, along withthe other authors discussed here, assumes that American federalism is anew political form, though not without historical background. The meaningof this new political form n eeds new interpr etation . Beer's considerableinsight into the nature of American federalism as exhibited in theConstitution and the political system based upon it is the strength of thebook. When it comes to the origins of American federalism, it becomesclear that, for Beer, the federal tradition was a lost tradition which he hasnow rediscovered.After coming to an interest in federalism in the 1960s in the latter partof a career in political science devoted mainly to "political theory andcomparative government, especially the government and politics of GreatBritain," he interprets federalism as descending "largely from the failed[sic] democra t ic revo lu t ion of the seven teen th cen tury , theCommonwealth."24 He sees federalism as "shaped by the Western world'srejection of and escape from the Middle Ages" and "the source of this breakfrom the Western tr adi tion . . . no t in the Ren aissance b ut in theReformation."25 It seems strange, as even h e adm its, that th e first chapterof his historical section is then devoted to Thomas Aquinas, followed bychapters on Joh n Milton and James Harrington.26 In these chapters andwhat follows, Beer exhibits little acquaintance with the scholarly literaturedescribing the sources and develop ment of federalism. Stranger still, there

22Wood, viii-x.Mpp . 3-45"Beer, vii-ix25Ibid ., xiv-xv.26Ibid., 27-132. Part On e: From Hierarchy to Republicanism. 1. The Rule of the Wise and the H oly:Thomas Aquinas. 2. The Idea of the National Republic: John Milton. 3. A Constitution for the NationalRepublic: James Harrington.



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12 Publius/Spring 2001is no evidence that he attem pted to discover whether such sources existed.The impact of the recovery of the notion in the Bible of the covenantbetween God and humanity and among humans is not explored as a majorsource of political federalism. A reading of Elazar's work alone would havegiven him access to the extensive literature a nd provided a comprehensiveund ersta ndin g of the development of federalism as well as illumining issuesthat Beer discusses with reference to the writing and m eaning of the federalConstitution.

CONCLUSIONAfter reading and learning from the work of these and other scholars whohave devoted themselves to the constitutional era, I cannot escape theconviction that their books would show greater depth of interpretation iftheir perspective had been informed byknowledge of the federal tradition.Without going into detail, several areas might have been improved if theautho rs ha d n ot be en victims of the loss of the federal tradition .First, Beer's "rediscovery" of federalism would show more breadth andbe more accurate if he had discovered and made use of the publishedinformation on the federal tradition. Charles Beard's brilliant explorationof the economic interests of the Founding Fathers could have illustratedthe realistic understanding of human nature in federalism, rather thanappe aring to be a crypto-Marxist bit of muckraking. Forrest M cDonaldwould have inclu ded a crucial elem ent in his study of the intellectual originsof the Constitution had he not belonged to an academic enclave for whichthe federal tradition did not exist in any substantive way. Had Berna rdBailyn an d J.G. A. Pocock no t been limited by their specialized attention towhat McDonald calls a fashion in historical interpre tation , they might haveshown how the federal tradition gradually made room for differingideologies a nd eventually even made a virtue of societal plurality of religious,political, and ec onom ic views. Louis Hartz might have learne d fromawareness of the diverse elements in the federal tradition that the UnitedStates is a federal republic rather than a liberal democracy; instead, hereduces federalism to its Hobbesian right-wing variety. And so on.

Second , unders tand ing of the federa l t rad i t ion would makecontemporary interpreters of the U.S. Constitution more generally awareof federalism as a social and political order based on m ultiple, i nterre latedcovenants, rather than being defined as the division of sovereignty betw eenstate and n ational governm ents. Further, the covenants making up a federalord er are con stantly in process of being rene gotiated. Federalism thus is adynamic o rder, not one that is rigid and static, making it, as Madison said,capable of meeting the changes that the ages will bring.Thi rd, the troublesom e issue of sovereignty is better understood if tracedback thro ugh the federal tradition to Joh ann es Althusius, the first person



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Federalism: The Lost Tradition? 13to formulate and publish a federal political philosophy, the first edition ofwhich appe are d in 1603. At that tim e, Althusius was a professor at th eHe rbo rn A cademy, founded in 1584 by Jo hn of Nassau-O range tocommemorate the winning of Dutch freedom under the leadership ofWilliam Orange an d the found ing of the United Provinces, the Dutch federalrepublic. He rbor n was also a center of federal theological and politicalthoug ht. Soon after his Politics was published, Althusius was called to beSyndic of Emd en, a post he he ld u ntil his death in 1636.Althusius directly opposed the then dominant u nderstand ing of sovereigntyheld by Jean Bodin that the rights of sovereignty belong exclusively to theprince or suprem e magistrate and that no view of sovereignty is possible th atdoes not vest it in a single central authority. He held instead that "the rightsof sovereignty" belong to "the realm, or to th e commonwealth and peop le" ina covenanted order, and that the "supreme magistrate is the steward,administrator, and overseer of these rights" as granted by covenant. He can,therefore, be deposed.27 This view of sovereignty comes to permeate thecommunities with federal forms of government.An example of this federal view in operation is reflected in JohnWinthrop's "Speech to the General Court" in 1645.28 As a magistrate in theMassachusetts Bay Colony, Winthrop was impeached by the lower house ofthe General Court for having violated the basic covenant of thecomm onwealth. He was acquitted and delivered an address that makes itclear that the people in covenant have a right to remove him if he breaksthe covenant, but the people have a covenant to obey the magistrate if hekeeps the covenant. In the speech, he m akes a distinction between naturalliberty, which is the corrupted liberty humans have by nature, and civil orfederal liberty, which is liberty within covenant.Fourth, to understand both the distinctiveness of the U. S. Constitutionas well as its contin uity with the past, acquaintance is needed with the stron gcovenantal/federal tradition that permeates the colonial period and theera of the formation of the Uni ted State Constitution of 1787. The membersof the convention were experienced in that tradition in the late colonialperiod and during the Revolution when the states were organized underthe Contin ental C ongress and the Articles of Confederation. They were allfederalists in that Age of Federalism but had differing opinions of the exactform the federal order they were forming should take. The federalism ofthe Constitution of 1787 was a new configuration within the long federaltradition, which continues in varied forms today.

27The Politics of Joh ann es Akhus ius, translated and with an Introductio n by Frederick S. Carney(Boston: Beacon Press, 1964), pp.4-5. This discussion appea rs in the "Preface to the First Edition" (1603 ).Althusius, a part of the federal stream of theology and politics within the Reformed tradition , was the firstperson to formulate a federal political philosophy. See also, Thomas O. H ueglin, Early Modem Concepts ara Late Modern World: AUhuius on Community and Federalism (Waterloo, Canada: Wilfrid Laurier Press, 1999).^Perry Miller, ed. , The American Puritans: Their Poetry an d Prose (Gard en Ci ty, NY: Doubleday An cho rBooks, 1956), pp. 89-93.



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Federalism: The Lost Tradition? - Charles S. McCoy

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