Worms in the Entrails: Is Federalism Consistent with Kantian Sovereignty?
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| The Neues Palais (New Palace), Potsdam, Germany (AWM) |
Many lesser commonwealths in the bowels of a greater [are] like worms in the entrails of a natural man. – Hobbes, Leviathan[1]
Introduction
Though Kant declares, “The right of nations shall be based on a federalism of free states,”[2] extolling an international federation, he never addresses federalism at the domestic level. Excluding a quick—and critical—reference to the newly-created United States of America,[3] the Metaphysics of Morals never considers the case of a subnational government holding sovereign powers alongside a national government. Despite this omission, we may infer that domestic federalism is incoherent with Kant’s political philosophy. Under federalism, no single level of government may wield unimpeded authority over public policy, a situation that Kant would consider wrong in the highest degree. Equally condemnable is the fact that the sovereigns (national and subnational) face restrictions on their power, thus limiting their ability to maintain a rightful condition in their respective domains. Moreover, a non-rightful situation is created between citizens, as personal rights will vary depending on one’s subnational place of residence. Instead of federalism, Kant arguably would insist that any subnational authority must be fully subservient to the national government and that all citizens answer only to one order of government. By implication, existing federal states are obligated as a matter of right to reform themselves along unitary (i.e., non-federal) lines.
This paper is divided into five parts. Part one examines federalism as described in The Federalist Papers. Part two summarizes Kant’s conception of sovereignty. Part three discusses restrictions the national and subnational sovereigns that federalism entails. Part four explores the status of citizens of the same federal country. Part five discusses Kantian reforms to federal states, and part six concludes. For the sake of clarity, the following pairs of terms will be used: a national government rules a country and a subnational government rules a province (e.g., an American state or a German Land).
1. Defining Federalism
While federalism may take many particular forms, all federal political orders entail a division of sovereignty among multiple levels (or orders) of government, with each possessing particular and differentiated powers. Though federalism’s essential features had been explored by earlier thinkers, the theory was first clearly defined in the eighteenth century.[4] David Hume describes a state with multiple levels of government at the county and parish levels,[5] while Montesquieu endorses a “confederate republic” to ensure security and to prevent tyranny.[6]
In 1788, Alexander Hamilton, James Madison, and John Jay released The Federalist Papers, presenting a complex and sustained argument for a particular form of federalism, summarized thus: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.”[7] Potential tyranny is countered on two separate axes: within government itself—through the three branches endorsed by Montesquieu[8]—and between different levels of government. Whereas the former arrangement characterized, if imperfectly, the institutions of contemporary England,[9] the latter represented a truly novel innovation: citizens would be subject to subnational sovereigns as well as an over-arching national government, with each level independent of the other.
Federalism’s proponents, from Hume to Hamilton, describe its division of power as a liberty-enhancing defense against tyranny. Yet this argument would likely not move Kant, who has a different conception of liberty, derived from the concept of right.
2. Kant’s Conception of Sovereignty
In the Groundwork of the Metaphysics of Morals, Kant argues that morality is based neither in human nature nor in the circumstances of the phenomenal world. Instead, its principles derive from pure reason: “All moral concepts have their seat and origin completely a priori in reason.”[10] Because morality is rational, its principles cannot be derived from experience. Instead, they are synthetic practical propositions that apply to all rational beings.[11] Famously, morality’s purest form is the Categorical Imperative, of which Kant writes, “Here philosophy is to manifest its purity as sustainer of its own laws.”[12] Although the Categorical Imperative is variously defined as the “universal law”, the “law of nature,” and the “formula of humanity as an end in itself,”[13] it is a product of the noumenal realm and thus cannot provide guidance for action in the phenomenal world. As Arthur Ripstein notes, “the embodiment of a plurality of rational beings—that is, the fact that they occupy space—is not contained in the Categorical Imperative.”[14]
If we wish to assess the moral obligations of a common group of real persons—the most fundamental requirement of a political order—the Categorical Imperative must be adapted to the phenomenal realm. As Ripstein contends, “the Categorical Imperative must be brought to bear on embodied rational beings. The only way to extend it is to impose universal laws of freedom on the occupation of space.”[15] Kant does precisely this in the Metaphysics of Morals, presenting the Universal Principle of Right (UPR):
An action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.[16]
Though outwardly like the Categorical Imperative, the UPR instead applies to physical bodies and the objects that we encounter: it deals with actions and choices in the phenomenal world. Whereas the Categorical Imperative relates rational agents to rational law in order to ensure individual freedom and the “autonomy of the will,”[17] the UPR relates embodied agents to the laws that can secure “everyone’s freedom.” In practical terms, the “universal law” of the UPR differs from the “universal law” of the Categorical Imperative in that the UPR applies to phenomenal concerns such as the use of force, property, and contracts.
Kant maintains that people who interact with each other “need a rightful condition under a will uniting them, a constitution, so that they may enjoy what is laid down as right.”[18] Even so, we can only be held by—and hold others to—liberty-enhancing laws when those laws are upheld by a public authority.[19] Only when all citizens are equally bound by law can a rightful condition be brought about. Hence, each community is obligated to establish a sovereign authority empowered to implement law, as derived from the UPR. The alternative is to remain in a state of nature, which Kant deems wrong in the highest degree:[20] there can be no freedom without a public authority. Even despotism—a corrupted form of sovereignty—is preferable to the state of nature, for whereas a despot will have the power to implement at least some aspects of the UPR (such as preventing foreign invasion), anarchy entails the total absence of public right. As Kant concludes, “Some rightful constitution or other, even if it is only to a small degree in conformity with right, is better than none at all.”[21]
Kant ultimately endorses republicanism as the best way to implement the UPR and to ensure a rightful condition. In the First Definitive Article for Perpetual Peace,[22] he requires all states to adopt a republican form of government. This command is further refined in the Metaphysics of Morals, where Kant specifies that states must “gradually and continually” change their form of government until “it harmonizes in its effect with the only constitution that accords with right, that of a pure republic.”[23] Revealing the influence of Montesquieu,[24] Kant further requires that the republican sovereign be divided into legislative, executive, and judicial branches;[25] indeed, Kant’s very definition of republicanism is a sovereign in which all three branches are distinct.[26]
Kantian sovereignty has at its heart a concern for individual autonomy and freedom, as expressed by the UPR. From this perspective, Kant would accept one of the divisions of the two axes power described in The Federalist Papers (the tripartite sovereign) while rejecting the other (different levels of government)—the core of federalism.
3. Federalism’s Limitations on Kantian Sovereignty
The Impossibility of Complementarity
At first glance, many aspects of federalism meet Kant’s requirements for a rightful condition. Federal systems are fully compatible with republicanism at both the national and subnational levels.[27] Even the requirement that any union between states must be dissoluble[28] may maintain under federalism if there is a constitutional right to secede. (Indeed, Kant’s only mention of the United States in the Metaphysics of Morals is to criticize it for violating this condition.[29])
It might appear that national and subnational sovereigns can maintain separate and complementary rightful conditions, each in their respective areas of jurisdiction, thus ensuring that, in aggregate, all public law is consistent with the UPR. Nevertheless, this division of power will ultimately violate Kant’s requirement that the sovereign must possess unimpeded authority to implement the law. Because a federal national government is constitutionally barred from exercising power in areas of subnational jurisdiction, its sovereign authority to bring about a rightful condition is limited and incomplete; and mirrored restrictions apply to subnational governments. So, in the same way that the Categorical Imperative cannot be restricted to certain portions of the rational law, the UPR cannot be divided between different sovereigns, domain by domain. Rather, a sovereign must maintain full control over all public authority within its area of jurisdiction. Because federalism prevents precisely this, it produces a situation slightly better than the state of nature. These impediments on the ability to establish a rightful condition are manifest at the national and subnational levels, though in slightly different ways.
Limits on the National Government
The national legislature is tasked with drafting the laws that the national executive will implement to secure a rightful condition across the entire country. To achieve this, Kant requires that the legislature’s sovereign authority be unimpeded: “A people cannot offer any resistance to the legislative head of a state which would be consistent with right, since a rightful condition is possible only by submission to its general legislative will.”[30] Yet a federal constitution must delimit the range of potential policy areas in which the national legislature can operate, as The Federalist Papers explicitly states:
Local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.[31]
Furthermore, “[the national government’s] jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”[32] By design, and contradicting Kant’s requirements, the federal national legislature and executive may only exercise their powers over a restricted domain. Consequently, the disempowered national sovereign will face unjust limitations on its exercise of power, impeding its ability to ensure the UPR and thus to uphold public right across the entire country. For this reason, Patrick Riley concludes that Kant “would never have set up or countenanced a system of divided sovereignty in which local units could be supreme even within limited spheres.”[33]
(Note that the Federalist Papers only identifies national defense and the judicial branch as domains where the national government is fully sovereign. It respectively declares that defensive power “ought to exist without limitation”[34] and that, judicially, there is “an authority in the federal courts to overrule such [State laws] as might be in manifest contravention of the articles of Union.”[35])
On top of finding domains where it is explicitly powerless, the national sovereign may also face opposition in domains nominally under its control, due to interference from independent subnational sovereigns. It is impossible for any constitution to specify the precise division of powers for every policy domain; some overlap and disagreement will be inevitable in any federal system. (Indeed, such disputes are a regular feature of political life in existing federal states.) Kant holds that no constitution can contain an article that would permit an authority to resist the sovereign: “In that case, however, the supreme commander is not the supreme commander; instead, it is the one who can resist him, and this is self-contradictory.”[36] Common situations when subnational sovereigns compete with or oppose national governments, notably in tax and environmental policy, directly flout Kant’s requirement. By granting (or failing to restrict) such powers to subnational sovereigns, the national sovereign’s ability to uphold the UPR is undermined.
In this regard, Kant reveals the influence of Hobbes, who dismisses the activities of “lesser commonwealths” within greater ones as “worms in the entrails of a natural man.” Hobbes concludes, “For what is it to divide the power of a Commonwealth, but to dissolve it; for powers divided mutually destroy each other.”[37] Kant’s vision of an unopposed national sovereign seems to conclude the same.
Limits at the Subnational Level
Subnational sovereigns face even greater restrictions in their ability to bring about a rightful condition within their respective provinces. Kant’s views on international relations and warfare are instructive in this respect: he regards states as juridically sovereign and holding moral personality, in the form of the three branches of government.[38] Unlike individual persons, states cannot rightfully be forced into a civil condition nor placed under any binding authority. (Katrin Flikschuh adds that this is not even possible voluntarily.[39]) Kant stresses this point in the Perpetual Peace:
As states, they already have a rightful constitution internally and hence have outgrown the constraint of others to bring them under a more extended law-governed constitution in accordance with their concepts of right[40]
He reiterates the same claim in the Metaphysics of Morals, arguing that states do not stand in a relation to one another of superior and inferior.[41] However, federalism violates this condition for subnational sovereigns, in the forms of judicial paramountcy, the powers of taxation, and the treatment of subnational sovereigns as pseudo-citizens. Any sovereign bound in this way is too constrained to oversee a rightful condition.
As was noted above, a national Supreme Court wields review powers over all subnational courts. Yet Kant’s Fifth Preliminary Article for Perpetual Peace explicitly forbids any country to “forcibly interfere in the constitution and government of another state.”[42] For Patrick Capps and Julian Rivers, such interference could be regarded as a violation of the affected state’s ability (indeed, categorical requirement) to ensure the governance of public law.[43] Yet in a federal system, the national Supreme Court is empowered to do precisely this, with deleterious effects for all three branches of the subnational sovereign: the subnational Supreme Court is not truly supreme in matters of law; the subnational legislature is restricted in the rightful laws it can enact, as all laws are subject to review by the court of a different sovereign; and the subnational executive must implement laws that neither reflect the unimpeded will of the subnational legislature nor the unimpeded interpretation of the subnational Supreme Court.
A parallel concern arises in the domain of taxation. Kant derives the right to tax from the sovereign’s status as supreme proprietor of the land and guarantor of property and order. As such, the supreme commander has the indirect “right to impose taxes on the people for its own preservation,” for example, “to support organizations providing for the poor.”[44] As noted above, The Federalist Papers grants the national government the sole responsibility for defense, implying that it is the supreme proprietor of property and order across the country. As they consequently are not supreme proprietors, subnational governments cannot be permitted to impose taxes of their own. This leads to two unpalatable options: either subnational governments cannot raise funds and thus cannot carry out any functions, or they must be funded entirely by transfers from the national government. While the latter option is more realistic, it is nonetheless unrightful: the sovereign subnational government would thus become a supplicant, dependent on the charity of the national sovereign. For the same reason that Kant forbids individuals from standing in this relation to each other, neither can sovereign governments rightfully act in this way: a supplicant is subject to the donor’s private will[45] and thus loses autonomy and freedom. Hence, Kant leaves no space for subnational powers of taxation or even for federal subsidies.
Further injustices are associated with the numerous ways in which subnational governments are treated like individual subjects of the national government. This is seen in the original conception of the Senate[46] outlined in The Federalist Papers: the subnational (state) governments are made “constituent parts of the national sovereignty, by allowing them a direct representation in the Senate.”[47] The explicit parallel with the House of Representatives is telling: the former “will derive its powers from the people,” while the Senate “will derive its powers from the States [i.e., subnational governments] as political and coequal societies.”[48] Hence, in the American Senate, subnational governments originally held a status similar to individual citizens (i.e., as electors), something Kant would regard as fundamentally inappropriate. The same issue arises with respect to the powers of subnational governments as legal subjects. The Federalist Papers specifies that the Supreme Court is “to be invested with original jurisdiction only ‘in cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party.’”[49] By the latter phrase, subnational sovereigns are treated like individual litigants before a nationally-appointed judge; once more, Kant forbids states to be treated like subjects.
A final example arises in the realm of international affairs, which Madison calls “an obvious and essential branch of federal [i.e., national] administration.”[50] Flowing from the national government’s authority over the military, subnational governments can neither represent themselves internationally nor engage in any aspect of war. None of these situations is consistent with Kant’s requirement that sovereigns be unbound and never made subject to one another. He holds that sovereigns “already have a rightful constitution internally and hence have outgrown the constraint of others to bring them under…their concepts of right.”[51] Subnational sovereigns’ inability to represent themselves internationally impairs their ability to ensure the UPR within their own (subnational) domains. Of note, it is for this very reason that Kant attacks the nascent United States. He requires that any federation of sovereign states be “voluntary” and capable of being “dissolved at any time, not a federation (like that of the American states), which is based on a constitution and therefore cannot be dissolved.”[52] As the Civil War would later show, American states lack the authority to secede and act as sovereigns in the international realm.
Ultimately, federalism fails to grant any public authority—national or subnational—sufficient power to bring about a rightful condition. The national government, though the “supreme proprietor” of the land, is limited in the scope of its legislative and executive powers; and the subnational governments face even greater restrictions, on top of being treated as subjects and not as sovereigns by the national government. Because no level of government can implement the UPR on its own, a federal system essentially resembles the state of nature: when there is no unimpeded public authority, a rightful condition is unachievable.[53]
4. Unjust Relations among Citizens
Federalism leads to further injustices in the interpersonal realm, as different subnational laws lead to different legal rights among citizens of the same country. Furthermore, Kant’s theory of Cosmopolitan Right is inconsistent with the free movement generally permitted between the provinces of a single federal republic.
Kant writes that in a commonwealth, “all are united through their common interest in being in a rightful condition” and “those who are coordinate with one another must for this very reason consider themselves equals since they are subject to common laws.”[54] This condition maintains within each province of a federal country, as provincial citizens have equal rights and responsibilities with respect to the national and the subnational governments. However, the requirement fails once we cross provincial lines: nationally-determined rights and duties will remain identical while subnationally-determined ones will differ.[55] For example, different provinces may adopt different forms of law (civil or common[56]), operate using different languages, and even vary in their application of capital punishment.
For Kant, public right requires that “each decides the same thing for all and all for each” and that no one has “the moral capacity to bind [another] as a matter of right in a way that he could not bind the other.”[57] This cannot hold if citizens of the same country are subject to different subnational laws. In contrast, The Federalist Papers insists that “the powers reserved to the several States will extend to all the objects which…concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”[58] Permitting such broad differences in public authority within the same country strikes at the heart of Kant’s ideal of equal citizenship.
Interprovincial migration presents a related problem. At the international level, Kant’s Cosmopolitan Right (which also forms the Third Definitive Article of Perpetual Peace) grants non-citizens the right to visit and to make a community with local citizens, even as it excludes the right to “make a settlement on the land of another nation.”[59] Yet in a federal republic, citizens of one province generally have an automatic right to settle in another one, thereby obtaining the full benefits of subnational citizenship (including legislative representation) that Kant withholds from international migrants. Kant’s Cosmopolitan Right is intended to establish the sovereign’s rights with regard to non-citizens, an aspect of the former’s role as guarantor of public order—but because the restrictions imposed by Cosmopolitan Right do not apply domestically, subnational sovereigns cannot ensure this essential aspect of Kant’s rightful condition.
Just as federalism introduces unjust relations between the general and subnational sovereigns, so too it creates injustices between citizens. Indeed, Patrick Riley concludes, “it is extremely doubtful that [Kant] would or could have advocated federalism in the interior structure of any particular state.”[60] Yet even though federalism presents serious problems to the Kantian conception of sovereignty, there is a model of inter-governmental relations that does meet Kant’s requirements.
5. Implications
The Municipal Model
The delegation of power between municipalities and higher levels of government is generally consistent with the UPR. Cities may adopt a republican form of government, with elected legislatures (councils) and executives (mayors); and they may have substantial powers, including the ability to impose taxes or fees and to implement regulations and bylaws. Yet crucially, all these powers are delegated by a higher-level sovereign (whether national or subnational), a feature of municipal government that neutralizes many of Kant’s critiques of federalism. (For example, a higher and sovereign level of government can strike down a municipal law it finds offensive or over-reaching—for better or for worse.) Furthermore, municipalities lack the power to challenge or undermine the sovereign’s authority. Because of their non-sovereign legal status, in a Kantian sense, municipal governments may rightfully be treated as subservient to a higher sovereign, and there are no concerns regarding cities’ limited taxation powers or restrictions on municipal self-representation.[61] This feature of municipal government is noted both in The Federalist Papers (“all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure”[62], [63]) and by Hobbes, who warns that “immoderately great” towns are a threat to the sovereign.[64] At the interpersonal level, though residents of different municipalities within the same province might face different bylaws, this poses no threat to a rightful condition,[65] as any municipally-granted right is grounded in the law of a higher sovereign. For these reasons, well-managed municipal governments pose no impediment to the sovereign’s duty of ensuring the UPR.
However, the very features of municipal government that are consistent with Kant’s requirements ensure that this intergovernmental relationship is incompatible with a federal system. Federalism requires sovereign and independent levels of government, not a delegated authority that may be revoked. Instead, municipal governments represent a sophisticated form of unitary republicanism—the system that Kant deems best.
The Ideal of a Unitary Republic
As noted above, the Metaphysics of Morals requires the public authority to “change the kind of government gradually and continually so that it harmonizes in its effect with the only constitution that accords with right, that of a pure republic.”[66] Based on the analysis above, a “pure republic” capable of ensuring the UPR could never be federal. Moreover, Kant would require existing federal states to reform themselves along unitary lines. He writes, “When you cannot avoid living side by side with others, you ought to leave the state of nature and proceed with them into a rightful condition.”[67] By implication, citizens of the various provinces of a federal state would be obligated to ensure that their national government can implement the UPR across the country—something that can only be achieved through the creation of a single, unitary, and republican public authority.
6. Conclusion
Kant famously warns against theorizing about existing constitutional arrangements: “For a people already subject to civil law these subtle reasonings are altogether pointless and, moreover, threaten a state with danger.”[68] Nevertheless, his political theory is sufficiently rich that it can provide insight into federal systems, a political structure that was essentially unpractised before his lifetime. Ultimately, Kant would reject federalism on two major grounds: it places severe limitations on the sovereign, eroding the power of the public authority to maintain a rightful condition; and it introduces differences between citizens that are not rightful. Instead, existing federal states should transform themselves into unitary republics, and it is municipal governance, not federalism, that represents a rightful intergovernmental relationship.
Kant’s difficulties with federalism arise from his deep concern that a sovereign is essential in ensuring “everyone’s freedom in accordance with a universal law.”[69] Though the Federalist Papers should be lauded for its aim of promoting liberty, Kant would regard its division of powers as undermining the very thing it aims to secure. In its opening paragraph, The Federalist Papers asks, “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”[70] Though Kant would agree with Hamilton, Madison, and Jay’s optimistic answer, he would not accept the form of their solution.
Works Cited
Capps, Patrick and Rivers, Julian, “Kant’s Concept of International Law,” Legal Theory, Vol. 16 (2010), p. 229-257.
Follesdal, Andreas, “Federalism,” The Stanford Encyclopedia of Philosophy, (Summer 2018 Edition), edited by Edward N. Zalta. Accessed November 24, 2018.
https://plato.stanford.edu/archives/sum2018/entries/federalism/
Flikschuh, Katrin, “Kant’s Sovereignty Dilemma: A Contemporary Analysis,” The Journal of Political Philosophy, Vol. 18 (2010), No. 4, p. 469-493.
Hamilton, Alexander, Jay, John, and Madison, James, The Federalist Papers [1788], New York: Signet Classics, 1961.
Hobbes, Thomas, Leviathan [1651], Oxford: Oxford World’s Classics, 1998.
Hume, David, “Idea of a Perfect Commonwealth” [1777], in Political Writings, edited by Warner, Stuart and Livingston, Donald, Indianapolis: Hackett, 1994, p. 240-252.
Kant, Immanuel, Practical Philosophy, edited and translated by Gregor, Mary J., Cambridge: Cambridge University Press, 1996.
GW: Groundwork of The Metaphysics of Morals [1785], p. 37-109;
PP: Toward Perpetual Peace [1795], p. 311-352;
MM: The Metaphysics of Morals [1797], p. 353-604.
Charles de Secondat, baron de Montesquieu, The Spirit of the Laws [1748], edited and translated by Cohler, Anne et. al., Cambridge: Cambridge University Press, 1989.
Riley, Patrick, “Federalism in Kant’s Political Philosophy,” Publius, Vol. 9 (1979), No. 4, p. 43-64.
Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge, MA: Harvard University Press, 2009.
[1] Hobbes, Chapter 29.21/ p. 174.
[2] Kant, PP 8:354
[3] Kant, MM 6:351.
[4] Follesdal.
[5] Hume, “Idea of a Perfect Commonwealth,” p. 240-52.
[6] Montesquieu, The Spirit of the Laws, Book 9, Chapters 1-3 / p. 131-133.
[7] Federalist No. 51 [Madison], p. 320.
[8] Montesquieu, The Spirit of the Laws, Book 11, Chapter 6 / p. 156-157.
[9] Federalist No. 39 [Madison], p. 237.
[10] Kant, GW 4:411.
[11] Kant, GW 4:420-21.
[12] Kant, GW 4:425.
[13] Kant, GW 4:402, 4:421 & 4:429.
[14] Ripstein, p. 387.
[15] Ripstein, p. 387.
[16] Kant, MM 6:231.
[17] Kant, GW 4:440.
[18] Kant, MM 6:311.
[19] Ripstein, p. 380.
[20] Kant, MM 6:307.
[21] Kant, PP 8:373.
[22] Kant, PP 8:349.
[23] Kant, MM 6:340.
[24] Montesquieu, The Spirit of the Laws, Book 11, Chapter 6 / p. 156-157.
[25] Kant, MM 6:313.
[26] Kant, MM 6:316-18.
[27] Indeed, the United States Constitution formally requires state governments to be republican (Article IV.4.1).
[28] Kant, MM 6:344.
[29] Kant, MM 6:351.
[30] Kant, MM 6:320.
[31] Federalist No. 39 [Madison], p. 241.
[32] Federalist No. 39 [Madison], p. 242.
[33] Riley, p. 61.
[34] Federalist No. 23 [Hamilton], p. 149.
[35] Federalist No. 80 [Hamilton], p. 474-75; also see the “Supremacy Clause” of the United States Constitution (Article VI.2).
[36] Kant, MM 6:319.
[37] Hobbes, Chapter 29.21/ p. 174 & 29.12 / p. 170.
[38] Kant, MM 6:316 & PP 8:344.
[39] Flikschuh, p. 487.
[40] Kant, PP 8:355-56.
[41] Kant, MM 6:347.
[42] Kant, PP 8:346.
[43] Capps and Rivers, p. 249.
[44] Kant, MM 6:325-26.
[45] Kant, MM 6:327.
[46] In 1913, the Seventeenth Amendment to the United States Constitution established popular election of Senators.
[47] Federalist No. 9 [Hamilton], p. 71.
[48] Federalist No. 39 [Madison], p. 240.
[49] Federalist No. 81 [Hamilton], p. 486, quoting in part the United States Constitution (Article III.2.1).
[50] Federalist No. 42 [Madison], p. 260.
[51] Kant, PP 8:355-56.
[52] Kant, MM 6:351.
[53] Kant, MM 6:307.
[54] Kant, MM 6:311 & 6:307.
[55] The theoretical exception would be a country in which all subnational laws were identical—though this could hardly be considered true federalism.
[56] For example, Louisiana and Quebec.
[57] Kant, MM 6:314.
[58] Federalist No. 45 [Madison], p. 289.
[59] Kant, MM 6:352-53.
[60] Riley, p. 60-61.
[61] For example, Quebec’s Act Respecting the Ministère du Conseil Exécutif (M-30, English version) states, “Except to the extent expressly provided for by law, no municipal body or school body may, without the prior authorization of the Government [of Quebec], enter into any agreement with another government in Canada or one of its departments or government agencies, or with a federal public agency.” (3.11)
[62] Federalist No. 39 [Madison], p. 241.
[63] Also see John Forrest Dillon’s famous remark, “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy.” City of Clinton v. Cedar Rapids and Missouri River Railroad Company, 24 Iowa (1868), p. 465; reproduced in Zimmerman, Joseph, State-Local Relations: A Partnership Approach, 2nd Ed., Westport: Praeger Publishers, 1995, p. 19.
[64] Hobbes, Chapter 29.21/ p. 174.
[65] The problem does remain when comparing cities in different provinces, as subnational rights will still differ.
[66] Kant, MM 6:340.
[67] Kant, MM 6:307.
[68] Kant, MM 6:318.
[69] Kant, MM 6:231.
[70] Federalist No. 1 [Hamilton], p. 27.