On Old and New Federalism: William Penn, Constant, Adam Smith, and Jacob Levy ,
In an important (2007) paper, “Federalism and the old and new liberalisms," Jacob T. Levy centers on a chapter “On Municipal Power, Local Authorities, and a New Kind of Federalism,” from Benjamin Constant’s Principles of Politics Applicable to All Representative Governments, in his interpretation of American federalism. Levy’s paper — retelling of the story of American federalism from the perspective of liberalism — is important because it is directed at “all liberals who understood federalism as a means, and freedom as the end.” (325; emphasis added) I doubt whether for Levy’s intended American target audience Constant has much status. So it may be worth looking at an alternative source.
In an early note Levy quite rightly cites Montesquieu’s The Spirit of the Laws (1748), ed. and trans. Anne Cohler et al. part II, book 9, chaps. 1–3, pp. 131–33, as a relatively slender source for the American political experiments in federalism which Levy presents. As Levy puts it, American federalism “evolved as the unintended result of a series of compromises and power struggles, both among the states and between the states and the center.” (p. 308) Regular readers know that I think there was a much wider eighteenth century discussion that would have been familiar to American politicians.+ Not the least of these are, as regular readers know, Hume’s Idea of of “A Perfect Commonwealth” and Smith’s Wealth of Nations. Smith’s relationship to Constant’s federalism is definitely a topic I wish to return to (since we know that Constant was a very serious reader of Wealth of Nations).
But there is also another more ‘American’ work that may well have inspired Hume and Smith’s ideas on federalism: William Penn’s (1693) “An Essay towards the Present and Future Peace in Europe.” (Because of its title this work is sometimes read and noticed in peace studies and in the pre-history of European union.) As I have noted before Voltaire was a big admirer of Penn and this work, and arguably Penn is the hero of Voltaire’s Philosophical Letters or Letters on the English. And careful readers of Voltaire’s many works will often encounter a passing praise of Penn (recall this post).**
Penn’s proposal echoes Émeric Crucé Le Nouveau Cynée (1623; known as The New Cyneas), which goes unmentioned, and is also clearly inspired by the "Grand Design" of Henry IV (which is mentioned) as articulated by Sully which were well know in the seventeenth century.
The core of Penn’s proposal is mentioned in the subtitle of his work: “the Establishment of a European Dyet, Parliament, Or Estates.” In the work he sometimes calls it a “general Dyet” or “The Soveraign or Imperial Dyet, Parliament, or State of Europe.” In certain respects this is inspired by The Imperial Diet of the Holy Roman Empire, but the whole project is clearly modelled on The Dutch Estates General, which he makes explicit in his conclusion (including a favorable mention of Sir William Temple’s Account of the United Provinces). I return to this below.
Now at first sight Penn’s proposal is an instance of what Constant would call the old federalism. This older federalism “is compatible both with internal despotism and external anarchy.” (This is part of the epigraph that Levy uses.) For in the old federalism, states entered into mutual defense and non-aggression pacts, but did not interfere in each other’s domestic affairs. For, Penn’s proposed European parliament is composed of deputies that represent then existing nations. Most of the sovereigns are monarchs, and many of them having absolutist pretensions and by no means enlightened. In addition, Penn allows that territory can be held through marriage and other dynastic mechanisms.
Before I respond to the worry that Penn is an old federalist, it may be worth mentioning some characteristic features of his plan. The parliament will be composed in proportion to the taxable revenue of the underlying nation. (Adam Smith adopts a similar form of representation in his proposed Parliamentary federal union.) But the relative differences in deputies is fixed. It is worth noting that some of the nations involved (Germany, Italy,) are by no means unified when he is proposing this (in some cases not even informally), so there is an anticipatory element to this scheme. Not unlike Crucé, Penn proposes to include Turkey (then a great power) and Russia in the project.
In principle the parliament can rotate among its members. (“The Place of their First Session should be Central, as much as is possible, afterwards as they agree.”) This also anticipates Smith (who thought the imperial parliament could rotate toward the areas that contribute most.) Echoing ideas we find in Spinoza (who, as I have noted, also proposes a federal peace plan in his posthumous Political Treatise), Penn proposes a large number of parliamentarians and super majority voting so as to make corruption rather expensive. He also proposes a secret ballot modelled on Venetian voting rules with urns. This mechanism was popular in English republican circles during the seventeenth century as Zera S. Fink has shown in the classic, The classical republicans: an essay on the recovery of a pattern of thought in seventeenth-century England. (Penn’s essay appears after the peak of such republicanism.)
That there is a republican strain in Penn’s pamphlet alerts us to the fact that consent is crucial to his account. To quote the concluding slogan of the second chapter, “Thus Peace is maintain’d by Justice, which is a Fruit of Government, as Government, is from Society, and Society from Consent.” The argument in this chapter is clearly Lockean in character (in the sense that (recall) Blackstone and Kendall understood him). And so while Penn allows all monarchs to maintain the form of their rule, a number of them are ‘invited’ to transform themselves into constitutional monarchs of a certain type. (Penn offers an argument that this is also in the personal, psychological interest of the monarch.)
For, in fact, the federal parliament is thought to have the power to “compel” participation of even the strongest and most powerful monarchs into joining the federal parliament. (Section IX.) Earlier he was even more explicit that “if any of the Soveraignties that Constitute these Imperial States, shall refuse to submit their Claim or Pretensions to them, or to abide and perform the Judgment thereof, and seek their Remedy by Arms, or delay their Compliance beyond the Time prefixt in their Resolutions, all the other Soveraignties, United as One Strength, shall compel the Submission and Performance of the Sentence, with Damages to the Suffering Party, and Charges to the Soveraignties that obliged their Submission.” (Sect. IV). That is to say, unlike the old federalism, this is meant to have a political center that can impose unity where needed.
Above I noted that Penn is inspired by Temple’s account of the Dutch united provinces. A key feature is that in its federal structure is that sovereignty is not unified, but fractured. I quote Penn:
In the Dutch system, the provinces and states general mimicked each other in political structure. This anticipates what Constant calls the new federalism. The anticipation is partial because Dutch cities need not be democratic or representative in character (although they all had ruling councils drawn from eminent citizens). In Hume’s “Idea of a Perfect Commonwealth,” he notes in discussing one of his own improvements over the Dutch practice, that he corrects “the unlimited power of the burgomasters in the towns, which forms a perfect aristocracy in the Dutch commonwealth…by a well-tempered democracy, in giving to the people the annual election of the county representatives.”
As I have indicated, Hume and Smith echo some crucial features of Penn’s proposal. Smith’s language even echoes Penn’s when he calls his own proposal the "States General of the British Empire." (WN 5.3.68, 933)
I have not found eighteenth century discussions of Penn’s pamphlet. However the Albany plan of 1754 (usually seen as the origin of American federalism) adopts some of its features: including the provision for rotation of the “grand council;” the proportionate representation in terms of a province’s tax power; the fixing of minimum and maximum number of deputies; and “they have power to make laws, and lay and levy such general duties, imposts, or taxes, as to them shall appear most equal and just (considering the ability and other circumstances of the inhabitants in the several Colonies)” to achieve the goals of the union. The author of this plan was a famous son of Pennsylvania, Benjamin Franklin.
* Burke, is more critical of Penn’s writings, but also highly praises Penn’s legislative achievements, highly in his An Account of the European Settlement in America (1757.) As an aside, back in 1974-5 Patrick Riley quite rightly noted that Voltaire was a fierce critic of Saint-Pierre’s peace plan. But as Riley notes, Voltaire granted that “the establishment of a European Diet could be very useful!" And as Riley goes on to summarize Voltaire’s views he notes that such a Diet could have powers for “settling commercial questions, in resolving conflicts between different national laws in international dealings; he even granted that princes could be persuaded to allow arbitration of disputes by such a Diet, since it is possible to convince a ruler that "it is not in his interest to defend his rights or his pretensions by force." This is very much in the spirit of Penn!
+My own view is that in these chapters Montesquieu is rather indebted to Spinoza’s Political Treatise. But about that some other time more.