Nr. 2 – Klinkers, August 2012

This Paper deals with the question what belongs to the essence of a federal organization. Klinkers describes this on the basis of what he has learned over the years by Tombeur. He raises a number of questions with the intention to get his thoughts about federalism improved or supplemented by Tombeur.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

What then, esteemed Tombeur, is a Federation? On that subject, I have learned a lot from you. Let me summarize what, in your view, are the constituent components of the federal concept. In the following I will state in my own words what you have written over the years relating to the essence of a federal organization. You have also taught me not to speak of a federal Government or of a federal State, but of a federal Organization. In your opinion one does not need a State, with an army and a police force, when speaking about Federalization. In essence, we should speak of a federation as a specific organizational form of cooperation. I would like you to explain this, because the average reader will easily associate the concept of federalization with the concept of State. When thinking of a federal Europe he or she will associate this with the United States of Europe. Not with the United Organization of Europe.

In the same manner as I drew from the 1648-peace of Westphalia as the basic form of the legal concept of 'sovereignty', you draw from the 17th century, in order to sketch the first contours of federalism.

You regard Johannes Althusius (1557-1638) or Althaus as the founder of the federalist theory. Are you alone in this point of view or do others share this opinion? His work of 1612 describes the foundations of society, consisting of individuals and groups living together on the basis of formal and informal contracts: co-existence and cooperation, with respect for the identity and autonomy of each group. A Contract is different from a Covenant. A Covenant implies a compromise. That is typical of what would become a primary feature of a Confederation. Living together on the basis of a Contract implies having a vision of that society in the context of a State that guarantees coherence among, and sovereignty of subgroups.

Then you state that Ludolph Hugo, with his writings 'De statu regorum Germania' (1661), is in line with Althusius. Hugo distinguishes three types of States: Confederations (thus autonomous States act communally in some areas on the basis of a Treaty), decentralized States (States that decentralize their authority to lower communities, which is the case with the provinces and municipalities in the Netherlands since 1850/1851), and Federal States. From everything I have read about federalism, I deduce that the two most characteristic aspects of a federal system are: governance and sovereignty of both the whole and its parts. Although 'double' governance presupposes a hierarchy between the two levels, this is not the case in a Federation – in this it is different from a decentralized Unitarian State such as the Netherlands. In a Federation the federal Government possesses statewide powers. The component States have powers that apply only to their State. And those powers do not compete with each other, nor do they exclude one another.

This resembles what we know in the Netherlands as the Association of Owners for residents of an apartment building, a condominium. Every resident is, within his own house, sovereign with respect to the way in which he or she wishes to live: with or without a carpet, with a couch or camping furniture, sleeping until noon each day, deciding on whether or not to follow a vegetarian diet, whether or not to give the children a Christian education et cetera. However, the care of the roof of the building, the maintenance of the elevators, the heating, the water and the cleaning of the stairwell, are all matters of common interest. The individual occupant cannot and is not expected to deal with these common aspects. For the costs of these, an amount (service costs) is charged, managed by a board, elected by all owners, deciding on the implementation of the common interests. The same is true of any changes in the set of powers of that board. No hierarchy: the board has nothing to do with what you do within your own home. In essence, this reflects a federal organization.

On the other hand, the intergovernmental system is hierarchical. That system prescribes – so to speak – that everyone should have a shower at 08.00 o’clock, for no longer than five minutes, and have a vegetarian meal every Monday. It is precisely this top-down hierarchical nature of intergovernmentalism that provokes the type of resistance against Europe that we have seen growing over the last ten years. And because hardly anyone knows what a Federation really is – at this point there is a bewildering amount of misinformation and nonsense on the subject – it takes only one incompetent politician/professor/journalist to associate ‘Federation’ with ‘Superstate’, for the trouble to start.

Finally, you mentioned that the American political scientist Preston King cultivates these basic characteristics of a federal administrative organization or Federation, in other words, a structured application of the concept of federalism. King defines federalism as a constitutional agreement that takes the form of a sovereign State, differing from other States due to its sovereign central administration involving regional units in the sovereign decision-making process on a constitutional basis. According to him, the constitutional basis of the whole (the Federation), the autonomy of its constituent parts (territorial or functional) with their own decision-making power (self rule) and the participation of those parts in the decision-making process for the whole (shared rule), are the essential characteristics of a federal administration.

Therefore, I would like to adopt the following as distinctive elements of a Federation. A Federation represents:
a. autonomy in the sense of sovereignty of the whole, the Federation as such;
b. autonomy in the sense of sovereignty of the parts making up the Federation, the Member States;
c. the competence of the whole, the Federation, to take common interest decisions applying to everyone, so for all the inhabitants of the Federation;
d. the competence of each of the constituent parts (the Member States) to take decisions applicable only within that part of the Federation;
e. the self-evidence that one Member State may decide something entirely different from another Member State – we see that, for example, in the United States, where in addition to the federal tax system the States can levy their own taxes, and in Germany, where every State (the Länder) has its own education system;
f. a decision-making attitude that starts at the basis of society. This implies a continuous effort towards a small, not dominant, centralizing Government with strong Member States; this always creates tension, especially if, when circumstances change, federal Government tends to usurp more powers as seems to be happening in the United States at the moment;
g. the same institutional structure applies to both the whole and the constituent parts, with each their own Parliament, their own Government, their own Judiciary. The constituent parts, the Member States, have influence within the central Parliament, but not vice versa.

I would like to hear from you whether this is true. Is this sufficient, or should there be more? Can it be better formulated in a different way? In this initial stage of our dialogue, we must be clear about definitions and descriptions. What still puzzles me, among other things, is the question whether the idea of Althusius, namely a Contract of society as the basis for a federal system, is in line with the contemporary view that a Constitution, not a Contract, is the connecting element for a Federation. For a Confederation this is a Treaty. While the binding of States within. Or should I not take (the difference between) those words too seriously?

On point e) we must return to later, because if there is one misunderstanding about a federal Europe, it is the assumption that in the event of a federal organization everything in every European State must be the same. This is absolute nonsense. It is precisely the intergovernmental decision-making that creates centrally imposed uniformity. Doing this so powerfully that the so-called principle of ‘subsidiarity’ (EU-measures should be taken only if the Member States cannot regulate something themselves) is reduced to almost zero. I think that this explains why the United Kingdom is still not entirely connected to the European Union. That country attaches great value to having and keeping its own peculiar habits. The current intergovernmental approach forces them to keep the European Union at arm’s length. And unfortunately many Brits believe that this will get worse with a federal Europe. This is an incorrect viewpoint. If there is one thing that proves the power of a federal organization, it is the possibility of granting coexisting powers to its constituent parts and to the composite whole. Thus, a member State in a federal form can have its own tax system, its own education system, its own environmental system, et cetera. This guarantees entirely the preservation of the individuality of each society with its own legal and organizational frameworks.

With respect to point f) you understand that I feel completely at ease since the first part of my trilogy on result-oriented policy making, carries the title ‘Policy-making starts with society’. However, if we look at the Federation of federations, the United States of America, it seems as though there is a growing tension between thinking and acting from the basis of society versus the rising power from the federal top. Am I right to think that since the Depression of the late 1920s a need arose – right or wrong – for a stronger central Government in Washington? And that – as some authors write on the causes of the banking crisis, or credit crisis – an increasing influence of the central Government has led to interventions in the financial market which damaged the balance of the financial system? If central Government in the context of poverty reduction creates organizations that provide mortgages for poor people who cannot pay off their debts, stimulating those financial institutions to conceal the debts and resell them to others, isn’t it only a matter of time before that balloon is popped? Doesn’t a pyramid game, because that is what it was, always end badly? You can blame the banks for that, but strictly speaking it seems a wrong socially motivated corrective intervention by the central Government in the autonomous housing policy ('right or wrong') of the Member States.

Is this one of the examples why Obama – at the moment of writing – is this time round having a much harder election campaign than last time? Romney promises time and again a smaller central Government while Obama, especially with his health-care reform (hardly an issue for Europeans but for many citizens of the United States nothing less than a central Government intervention, that for this reason alone, independently of the content, evokes resistance) gives the impression of wanting central Government to grow. In other words: if the viability of a Federal system stands or falls with the principle that the power must remain with the constituent parts, how great then is the risk that the United States will lose its vitality, as power shifts to the federal Government surreptitiously? Is this not then contrary to the characteristics of a federal system that no hierarchy between the two levels of Government may exist?

Imagine that this reasoning is correct, namely that a shift in power from the basic parts of a federal State towards the central part of that federal State is detrimental to the relations between the Federal part and the State-parts, how then should we arrange the jump from the current European intergovernmental decision-making process to a federal decision-making system? The present error of errors by ‘Brussels’ to persist in imposing even more centralized uniformity, is probably the error that will eventually lead to the intergovernmental breakdown. And so (probably and hopefully) the last crisis needed before the inevitable decision to create a federal system is taken. In that respect I am cynical: the bigger the mess they make now, the faster the realization dawns that rescue lies in federalization. But then what? How do you get ‘Brussels’, that is wallowing in centralized power, to turn off the button of intergovernmental decision-making in favor of constitutional and institutional federalization in such a way that the predominant powers shift back to the participating countries and their populations? What must happen? How can this be realized?

Incidentally, I hope you're not nervous of language with words such as nonsense and mess. In that respect, the authors of The Federalist Papers went much further. Hamilton writes in Paper no. 15 on "The imbecility of our government....." Clear language. Henri Poincaré, quoted earlier, would have condoned an expression such as this. In a following paper I will also dwell on the words of the other co-author of the American ‘Federalist Papers’, James Madison. Because I believe his words are instructive for the Europe of today, more than two hundred years after being written down.