Federalism as an institutional doctrine

Federalism is, minimally, a method of allocating final decision-making authority over subjects (e.g., crime, healthcare, and immigration) in a governance unit (e.g., country). Faced with questions of the form “who can decide what when,” federal bodies, like the United States., Canada, Australia, and Germany, provide at least two entities (federal governments, provinces, cities, etc.) with final decision-making “powers” over at least one subject. No other entity is morally permitted to directly interfere (substitute decisions, fine, etc.) with the authority's decision-making regarding those subject(s). This is distinct from the unitary or centralized governance of, for example, France and Israel whereby one central entity possesses all final decision-making authority.1 Beyond these basics, the meaning of and criteria for evaluating claims about federalism remain contested in law and political science.2 The broader debates are then oft-ignored in mainstream political philosophy, resulting in conceptual confusion with important practical results discussed below.3 The following argues for adopting an “institutional” approach to federalism, rather than more common “ideological” approaches.4 A long tradition equates federalism with the US Founding Fathers' institutional proposals (Publius, 1788/1987). Yet, partly due to empirical developments, the dominant account outside philosophy now holds that federalism is a normative doctrine promoting a secure political organization combining “shared[-]rule and self-rule” and separates this federal “idea” from institutional forms that may realize it (Elazar, 1987; Watts, 2008). Philosophers often begin by accepting this ideological approach (as I discuss further in Da Silva, 2022).5 Popelier (2021, p. 33) even suggests “all” scholars view this combination as federalism's “normative core.” But philosophical strictures and practical realities demand a more circumscribed approach. The dominant ideological approach is too broad to be a distinct normative doctrine or cannot even apply to many paradigmatic federal bodies. Institutional approaches defining federalism by advocacy for the adoption of federations (defined below) for authority allocation are preferable. To establish this, I first detail and defend criteria for evaluating philosophical accounts of federalism. I then elaborate the distinction between ideological and institutional approaches and apply the criteria to the dominant ideological approach and a new specification of an institutional approach inspired by Wheare (1946/1953, p. 11)'s classic, oft-critiqued account. I thereby demonstrate that ideological accounts fail to fulfill many normative adequacy criteria for a philosophical account of federalism and one can articulate a more action-guiding institutional account that avoids common critiques. I finally explain how this exemplary application grounds a broader case for institutional approaches to federalism and address pressing objections. The result is deceptively radical as it weakens a decades-old stark contrast between “federalism” and “federation.” The broader arguments challenge several orthodox positions in the study of federalism. However, the balance of reasons supports an institutional approach to federalism. My arguments are conceptual and normative. I aim to clarify the concept of federalism in a way that maintains it as a distinct, action-guiding contribution to moral ontology. Rather than offer an alternative to leading accounts of why one should adopt federalism (e.g., Bellamy, 1996; Levy, 2007; Norman, 2006), I identify and specify the institutional normative concept they may support. I do not seek to defend all federations over other forms of governance. I instead demonstrate that advocacy for that institutional form is a normative doctrine one can justifiably adopt, albeit one with fewer necessary conceptual commitments than many claim. The concept is sufficiently distinct and compelling to warrant closer scrutiny if it does not best fit the “federalism” description. The concept matters, not the word. But findings below explain why one would adopt the institutional concept, why it deserves the label “federalism,” and other commitments a federalist should make. They thereby provide ample guidance for ongoing debates about the merits of federalism vis-à-vis other systems. The argument for institutionalism succeeds even if my specification is problematic. If, in turn, the general argument for institutionalism (rather than my neo-Whearean specification) fails, my analysis at least identifies burdens ideological accounts must meet and demonstrates that the dominant example does not meet them. Existing practices and scholarship provide criteria for judging theories of federalism. 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