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Sunday, June 5, 2016

Principles of Federalism

Federated principles are concerned with uniting people and getting them to work together in solidarity. Federal Government is general government that spans multiple centers of population and subdivisions and links people who might otherwise be at war with one another. Thus all the principles of Federal Government derive from two basic concepts: "E Pluribus Unum" -- out of many one and the notion that we are stronger when we work together; "United We Stand, Divided We Fall." The notion of "Union" as better than disunion is central to all of them. For a Federation to work it has to recognize the rights and responsibilities of both central authorities and local authorities, subsidiarity and replication of republican forms to the local level.

Traditionally Confederations were easy to form when people were under attack but would break up when the threat was over. A sustained Federation requires embracing additional maxims.

Reasons for the maxims of Successful Federation

The principles of Federalism derive from hard experience, much of it modern with what happens to republics when they are surrounded by larger Governments. Some of what works in a small town or village can't work well in a republic due to scale, Maxims of Democracy are important but not always directly applicable when talking about complexity or masses of people with potentially conflictive needs. A successful republic should embrace the maxims of Democracy and likewise a successful Federation should embrace the maxims of democratic republicanism. A right or valid maxim is as demonstrated by its infringement or violation as by its embrasure.

Requirements of a Successful Confederation

A successful scaled Confederation must be able to

  • balance center and peripheries,
  • moderate centripetal and centrifugal forces
  • and local versus general concerns.
  • create good two way communication across each scale,
  • Balance general and specific Governing structures,

Why Federations and Empires Succeed

A Successful Federation is a Common-wealth of Commonwealths*

A successful Federation is also be a common-wealth of successful Republics, each with commonwealth features* [meaning governments run for the people]. A successful Federation is a commonwealth of commonwealths*. Indeed John Locke translated the word "civitas" into English as Commonwealth. Both are important principles because the English word conveys so much more virtue than the Latin one. It succeeds due to vertical and horizontal integration, collaboration and solidarity between the parts of its government in providing order, services and protection to the people of that Federation.

Successful Federations Replicate and guarantee Democratic-Republican Government

Implementing Federal principles successfully requires guaranteeing Democratic-Republican governments and commonwealth features to the parts. It also involves applying maxims that benefit everyone in the Federation with equity. The United States is the best example of a successful large scale Federation but it itself has not implemented all these principles thoroughly. To the extent that most Federations are imperfect their centripetal and centrifugal forces are imbalanced. And all are works in progress. For the principles to work they have to work equally in every part of the Federation and not just in the centers.

More on Commonwealth:
http://holtesthoughts.blogspot.com/2012/08/the-concept-of-commonwealth-as-antidote.html

Why Federations and Empires Fail

Federations and Empires fail because they become tyrannies and thus fail to balance centripetal and centrifugal forces.

Traditional republics like Rome, and even direct democracies like Athens, when they've tried to scale imposed the tyranny of their own overwhelming and centralizing power on neighbors when they tried to confederate with them. That failed to benefit all (Create Commonwealth). We can learn from failures as much as we learn from successes. Overall the United States of [North] America has been relatively successful because it has discovered and embraced the maxims of successful confederation. Creating an enduring Federated republic and making it a commonwealth of commonwealths* is an exercise in applying these principles to balance the threat of both majoritarian and minoritarian tyranny.

Strategies of Success

To prevent tyranny and address the centrifugal and centripetal forces that tear people apart a successful Republic should rely on the following maxims:

Federal Principle Maxims

  • Scaled Democratic Republican principles
  • Networked communications
    (posts and outposts or "nodes")
  • Centralization of Common Functions
  • General Application of principles of Civitas:
    a general right to citizenship and internal travel and commercial Freedom.
  • Subsidiarity of Governing Functions
    Including:
    • Executive Subsidiarity
    • Judicial Subsidiarity
    • Financial Subsidiarity

Scaling Democratic Republican Principles

Federalist principles start with scaling Republican principles including:

  • separation of powers,
  • Basic rights to Assembly, expression, speech, religion, etc.../li>
  • right to representation
  • right to local self government

Basic civic rights for all citizens, must be guaranteed to the local level at a national level and guaranteed recursively replicated to subdivisions and all its peoples. Recursive self government of subdivisions and their own sub-divisions are a requirement for a sustained functional union. Furthermore these forms, rules and protections must be guaranteed to the citizens as a check on both local tyranny and centralized tyranny. Separation of powers must be guaranteed, not only within government but between these levels of government. And responsibilities must be associated with powers and resources. Without a guarantee of fair availability of resources (equity) conflict over resources is inevitable along with misallocation.

For more on Democratic Republican Principles see Definition of Democratic Republican Principles
Inductive, Deductive Processes Democracy and Good government (wonky)

Civitas, Commonwealth Creating a Common Market And Common Citizenship

In addition a successful Federation links all of its parts into a common market, guarantees common citizenship to all its people's and protects the rights of all its people across its boundaries. This requires investment in effective communications and transport infrastructure. The Roman Republic and Empire are still famous for their roads for good reason. To the extent that this is done justly and fairly all the members of a Federation prosper equally. A successful Federation generates the attributes of equity to all the people in its borders. This is the application of the principle of Civitas. To the extent that some within a Federation are "more equal" (or privileged) than others Federations fail.

  • Common Markets
  • Common Citizenship
  • Quality Communications and Transportation

Networked Communications

The key for a functional confederation between neighbors is good communications. As I wrote back in 2013, referring to the Book "The Kings Best Highway":

"the Post Office was the organizing principle around which the initial British Colonies organized themselves. The mission of the Post office was originally to provide communication between all the outposts of the British Empire and it's relations. As a result when one hears "post office" one should think about more than mail delivery, because the post office is - and should be - also an "outpost", "branch", "office" of the Government."

Importance of Networked Communications

When people can communicate it makes it easier for them to work together and to avoid misunderstandings and resolve conflicts. The USA was created via an informal alternative post office that functioned like the internet does now to give activist alternative communications channels to the official ones.

Discussion on Networking the Post Office
Organizing Communities around the Post Office

The importance of Subsidiarity in Federation

Edward Minton claims that Subsidiarity means:

" “Subsidiarity” is the name given to the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level."

Central Authorities should have a Support Role

According to this conservative Catholic principle, Central Authorities should have a support function, providing oversight protections for civil rights, providing appellate functions and enable people to handle their own local issues. However, the true meaning of this principle is a maxim that Central Authorities need to reserve appellate, oversight, guidance and advisory functions and not over-rule local decisions arbitrarily.

Subsidiarity implies replication of Republican Forms

Subsidiarity is an important principle of Good Federation. In a Republican and Federal Context, that Republican forms need to be replicated to local subdivisions and able to be autonomous in enforcing order locally. It also is related to Elinor Ostrom's principles 2 and 7 that government should reflect local conditions and that local people can manage local resources better that they have a stake in.

Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority.

Subsidiarity is a Universal Notion

The idea may have originated in Catholic Thinking, but any valid principle is also a universal one and doesn't belong to it's originators but to mankind.

"nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. In other words, any activity which can be performed by a more decentralized entity should be. This principle is a bulwark of limited government and personal freedom. It conflicts with the passion for centralization and bureaucracy characteristic of the Welfare State."

Resourcing Local Government decisions

The problem comes when smaller and simpler organizations don't have the resources to do what is tasked to them. Which is why this "conservative" principle is usually misapplied by the Cons. Making Subsidiarity work, is, ironically, the task of a successful Federated Government. The irony of state tyranny is that left to themselves both states and local governments tend to ignore principles of commonwealth and democratic maxims and serve the few. Misuse of the concept occurs because sometimes the Confederation has to resource that "smallest, lowest and least centralized competent authority. More importantly the application of democratic republican principles is necessary to successfully and adequately determine who that competent authority is. Usually it is (or should be) a local authority elected by the people in the location or some person or group who that power is delegated to by elected authority.

Risks

Subsidiarity has risks, especially when used as an excuse to deny a role to centralized general deliberative officers or to give that role to local tyrants. Subsidiarity in the hands of tyrants (or libertarians) is a means to give tyrant powers to local magistrates; like CEOs, Branch Managers, plantation owners, Party Officials or similar. It also has a risk when the most local authority is not competent. These can be mitigated by the aforementioned replication of Republican forms. And also by providing Central Education, Training and Guidance functions using a Joint Staff Approach similar to the one employed by militaries.

Subsidiarity additional reading:
http://www.acton.org/pub/religion-liberty/volume-6-number-4/principle-subsidiarity
[Subsidiarity and Fascism]
George Will: [Restoring Commonwealth Requires Republican Corporations]
Subsidiarity Distributism and Social Credit or Three Acres and a Cow

Subsidiarity as a balance to Centralization

Justifying the principle that Democratic principles should be replicated to the local level is that local authorities are best at handling local issues. Certainly even Cities are too centralized for the kinds of community policing that most neighborhoods need. Local affairs are best handled locally. More importantly, the right to self rule is a right and a democratic principle as well. When legislation is bottom up, it also can be tailored to the conditions and needs of location before being generalized across a general landscape. When locals have control over thier own affairs, then tyrannical decisions from central authorities are harder to enact and enforce.

Centralization has the benefits of:

  • economies of scale,
  • concentrated power,
  • Specialization of expertize
  • knowledge.

Thus central authorities are good for enforcing general principles, using institutional knowledge to regulate and guide local action, and to come to the aid of the distressed or bring in additional resources when resources are lacking.

Executive Subsidiarity

So the maxim of subsidiarity has to balance the maxims that make for top down Government. A successful Federation protects local government against centralizing forces and enables it. This is also an antidote to too much bureaucracy. Bureaucrats always think that their judgment is superior to locals. Which is why this principle must be enshrined in law.

Collaborative Subsidiarity

A successful Federation requires collaboration and solidarity between people across an area of responsibility. In a successful federation, even the bureaucrats have to work with local representatives. Executive subsidiarity is also about having local say in central decisions. Governors councils enable local issues to be considered when a General Government creates a set of policies or instructions. Subsidiarity means that bottom up legislative principles also have to be embodied in regulation, requirements and policy making. It means that collaboration has to be enforced by right. This also creates solidarity and better decision making. This principle maps to principle #3 in Elinor Ostrom's findings.

Judicial Subsidiarity

The founders of this country, especially the anti-Federalists who were suspicious of the Federalist version of the Constitution and the authors of the Declaration of Independence, wanted to extend common law rules including access to jury trials and basic rights, to all judicial type decisions. They got part of what they wanted in the Seventh Amendment, though under Justice Story's interpretation Equity courts such as Admiralty courts managed to be excluded in practice from those provisions. But the concept of Judicial Subsidiarity is that even the most complex legal or scientific decisions should be put to deliberative bodies (juries and jury like organizations).

Equal Protection & Application of the Law

In a successful Federation nobody is above the law in principle, and means is found to ensure that even violence is regulated. To do that no person who is an executive should be allowed to also be a judge. The Maxim that no one person should be Judge, jury and executioner is something that has to be enshrined in law. And someone with general authority should act as a judge of decision making and make final decisions, but someone else should always be involved in those decisions and yet another person carry them out.

When judicial functions are centralized the possibility and threat of mischief is amplified. When executives also are judges, even more so. So Several principles of common law need to be applied to make our legal system more just:

  • Ordinary Courts
  • Use of Juries and jury like structures.
  • Enforcing Transparency and Accountability

They need to be resuscitated and restored. Especially the use of Juries.

Ordinary Courts

An ordinary court is a judge, jury, executive and recording officers and counsel. The USA makes artificial distinctions between State, County, Federal and Administrative Courts. But when the framers were talking about common law courts they, at least some of them, envisioned using ordinary courts for most matters. Separating judicial functions probably should have been explicitly in the constitution. But not all the framers agreed and the move to common law was bottom up not top down. Planters and wealthy individuals liked courts. They often would manage to get themselves appointed as the judges.

Accountability and Transparency: Dokimasia and Euthune

Especially we need to bring back two Greek principles as modernized Maxims for judging the function of the Government at all levels. These are Dokimasia and Euthune (“scrutiny” and “the act of setting straight”) While subsidiarity provides one kind of check on centralizing government. All government requires quality oversight. And the Athenians had a formal structure for enforcing both accountability and transparency on Government.

Dokimasia

Jury like Structures (yes select them from the jury pool or pool of registered voters) should interview examine candidates fitness for office before they take office. And for elective office this should occur as a condition for running for office with the results published.

Euthune

Jury like structures should also conduct audits the performance of all officials in office. The military does something like this when the do a before action briefing and an after action debriefing. This should be standard and replicated at all levels of government.

Jury like structures should also be used as commissions, to weigh in on issues, and to review most regulations and laws before they get signed by an executive.

More on Jury Trials and Jury Structures:
Jury Trials, Judicial Tyranny and the Seventh Amendment
The Campaign against the 7th Amendment right to trial by Jury

Obstacles to Judicial Subsidiarity

Historically attempts to use "ordinary courts" to put a check on centralized tyranny have been defeated by application of the supremacy clause, which in many cases has has been used to undermine local authority where it counts most. Or they've been defeated by Justice Story's interpretation of what common law means and his limiting it's applicability to the kinds of courts and legal decision making where it applied in Britain. Which was ironic since it was the denial of access to "ordinary courts" that sparked our revolution in the first place. My interpretation here may seem novel. But it's not. Our political classes misuse centralization and the supremacy clause and also misuse rights intended to protect us from State Tyranny. Hence the need for judicial Subsidiarity. And hence my coining of the expression as a countervailing maxim.

Financial Centralization

Another area where centralizing forces, world wide!, are vacuuming resources is in the financial arena. Most of our current forces in society are centralizing. Conservatives claim to champion the principle of subsidiarity, but abandon it when it comes to private actors and their privateering activities and institutions.

Privateering!

Privateering is the usurpation of local democratic powers to local tyrants and of centralizing powers to central based "sea dogs" alike. In the old days it was a letter that allowed individuals to make private war on the enemies of a state. However during the British Colonial period companies like the British (or Dutch) East India Company found that they could privateer governing functions such as tax collection and loot entire empires like that of the Moguls in India perfectly legally. And so the term applies to extreme versions of privatization and private government alike; especially when that private government results in centralization and remote exercise of power. Privateering usually winds up infringing on the maxims of subsidiarity or granting power to local authorities to loot with impunity.

Modern Privateers

Modern privateers are using government derived powers, such as the power to issue notes of indebtedness in the governments name to seize control over Government and private assets alike in the name of privateering banking. The result is central authorities vacuuming business, taxes, bank deposits and other revenues and sources of currency and exchange to central locations, and weakening the power of local authorities over their own resources. The power to lend is the power to seize assets when the vagaries of weather and fortune make it hard for local authorities to pay back debts incurred from the need to acquire money to circulate and tax.

Financial Subsidiarity

The antidote to privateering centralization is financial subsidiarity. Personally I don't care if it's done through the Post Office acting as Agent for the Federal Treasury (or the IMF or the Feds) or through some other means. In fact I wouldn't care if we made all the local landlords barons and the ones who own counties, Counts or Earls, just so long as the power was subject to democratic controls and exercised locally under higher level supervision.

Subsidiarity must be Resourced

Financial Subsidiarity is based on the reality that if you want to have local fire and rescue, disaster response and infrastructure then you need to resource it. And if you want all that to integrate seamlessly the locals should have local control over local resources and delegated powers to issue such currency as they need to fund socially necessary work and production. It is a requirement of good government that if you want decision making decentralized to the "smallest, lowest, or least centralized competent authority" then in order for that authority to be competent it needs;

  • Control over Local Resources
  • To have been well educated and trained
  • To have guidance and oversight from central authorities
  • To have defined boundaries between local decision making and central decision making (Elinor Ostrom Principle #1)
  • The Right to sufficient resources to carry out local (approved) decisions and acquisitions

Subsidiarity in the Money Power

To do that requires financial subsidiarity. And since the money power is the power to issue notes of indebtedness (money) against some asset (or coin) without necessarily being charged interest. The Federal government should be supporting local government as Government and not treating it as an inferior form of corporation to the New Jersey Corporations that seem to dominate our present government. But I'm not talking about just the United States. Though I am talking about constitutional principles and concepts that could be implemented perfectly constitutionally. Instead of letting banks privateer on the Federal Money power and usurp State and local power in the process. The Federal Government should recognize local authorities and fund local projects through some arrangement with local post officers and treasury agents on the spot to make sure that the local projects are financially and engineering sound and will generate enough revenue to pay themselves back either directly or indirectly.

Benefits of Financial Subsidiarity

Financial Subsidiarity can flatten the pyramids of power that are concentrating wealth and power in fewer and fewer hands. It can reduce the misallocation and misuse of resources that not only transfers wealth from rural America to State Capitals and cities, but also makes most cities drive by territory with underserved and unemployed youth dominating them.

Democratic Subsidiarity as an Antidote to Tyranny

Together these maxims of Bottom up Government, Executive, judicial and financial subsidiarity, Collaboration and Equity form a powerful check on the forces of Centralization that drive the centrifugal and centripetal forces that threaten the long term survival of people divided by class, location and access to resources. They can mitigate, along with the principles of civic virtue and checks and balances the harm done by the development of oligarchy and plutocracy. They can reduce and heal the inequity that makes "union" a cruel joke for those not benefiting from it and make our unions commonwealths. Applying these principles and maxims of good union government make an antidote to all levels of tyranny.

Implications of Confederate Principles

One thing that gets left out of most libertarian and leftist discussion is the necessity of collaboration and confederation in creating good government. This is because many of the avatars of leftist and "conservative" thinking are fine with centralization and authoritarianism as long as it serves their "greater purpose" and most libertarians have not thought through the principles of Federation and Union and seem to be hostile to the very idea. Tyranny can be localized or central, and every advance in technology or strategy that gives power tends to centralize power. Since such centralization doesn't scale well without employing confederation principles, tyranny scales but escalates itself. Monopoly is a form of tyranny. Plantation/Factory systems also represent scaled tyranny. None of them work because they violate the principles of functional confederation. Replicating Republican principles and combining them with principles of Democratic Republican Subsidiarity can check these other forces.

Historic Antecedents

Successful large scale governments have embodied at least some of these principles since Egypt was United by the Pharaohs and Hammurabi created his code to unite the peoples of the Two rivers in what is now Iraq. To the extent these principles are embodied governments are successful. To the extent they are ignored, infringed or violated, governments fail.

Appendix One: Elinor Ostrom's 8 maxims

The source for some of the principles here is Elinor Ostrom's work in Developing Companies. For more see: http://holtesthoughts.blogspot.com/2014/11/elinor-ostrom-and-her-8-principles-of.html

Ostrom Principle:The principles restated:
Principle 1:  Well-defined boundaries
Judicial Subsidiarity
Principle 2:  Congruence between appropriation and provision rules and local conditions (Judicial Subsidiarity)
Republican Principles
Principle 3:  Collective-choice arrangements: Representation and Participation in rules and decision making (Republican Principles)
Executive Subsidiarity
Principle 4:  Locally representative Monitoring Officers (Executive Subsidiarity)
Judicial Subsidiarity
Principle 5:  Graduated sanctions; measured and just sanctions for misbehavior
Principle 6:  Conflict-resolution mechanisms; informal adjudication locally and formal adjudication of disputes available
Principle 7:  Recognition of rights; those involved in managing something have a stake in it that needs to be respected. And people have a right to self government.
Executive Subsidiarity
Principle 8: Nested enterprises
Source:http://www.ecologyandsociety.org/vol15/iss4/art38/main.html

The real glue that makes a society work, "keeps an institution alive over time are the social mechanisms, i.e., trust, legitimacy, and transparency." And the key to establishing them is to constitute government that respects and nurtures people; and gives them a voice in their own affairs

For more on this see my post Elinor Ostrom and her 8 principles of Managing A Commons or the articles I cite here or in that post
Footnotes
* I don't use commonwealth as the crown uses the word, but more as John Locke uses it as a translation of "Res Publica" and a government that has the properties of common laws, common sense, common decency, common courts, where the commons are owned by and run for the common good. Making Commonwealth a synonym for a King who happens to be saddled with a parliament to me is a misuse of the term. I'm using the word as a term for governments that have those attributes.
Further Reading:
Post Office
http://holtesthoughts.blogspot.com/2013/12/organizing-communities-around-post.html
Thoughts on Defending Democracy and Second Amendment
Elinor Ostrom and her 8 principles of Managing A Commons [http://holtesthoughts.blogspot.com/2014/11/elinor-ostrom-and-her-8-principles-of.html]
http://holtesthoughts.blogspot.com/2015/03/subsidiarity-and-fascism.html
http://www.socred.org/index.php/blogs/view/subsidiarity-distributism-and-social-credit-or-three-acres-and-a-cow
Jury trials:
http://holtesthoughts.blogspot.com/2015/07/jury-trials-judicial-tyranny-and.html
http://holtesthoughts.blogspot.com/2015/07/the-campaign-against-7th-amendment.html

Note, this has been in draft too long so I'm putting out in less than polished format.

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