#17 - JRL 8413 - JRL Home
From: Ira Straus (IRASTRAUS@aol.com)
Date: Sun, 17 Oct 2004
Subject: Re: 8405 Hahn/Straus/Shenfield/Russian federalism

Dear Dr. Hahn,

Thanks for your thoughtful comments, and for having had the courtesy to send me an advance copy.

I agree with you that it's important to get federalism right. Not only because federalism is valuable for large democracies, but because I think the loudest accusations directed at Mr. Putin at the moment are themselves based on getting federalism wrong. Those accusations -- that the reason his action on appointment of governors is harmful to democracy is because it destroys the balance of power between the provincial and central governments -- are radical, even dangerous in their implications. Taken literally, they would amount for calling for reversion from the modern state to feudal chaos, when there really was a balance of power between central and local authorities. But such disintegration is Russia's greatest nightmare, not something it would ever willingly embrace -- not even if were advocated in the name of democracy and federalism. It is madness for our democratic advice to be put in a form so wrongheaded as to stoke Russia's worst fears about democracy. This is not what we would do if we were trying to get the advice accepted. Yet that is the form President Bush put it in, twice, and he was only repeating what lots of others were saying. Perhaps the most important thing Americans can do for Russia at this time is to understand what is wrong with this. Then the advice to Russia might lose its sometimes noxious quality.

We probably agree that appointment instead of election of governors diminishes democracy, and, by eliminating the autonomous selection of governors on the provincial level, contradicts federalism. These two effects are immediate; they do not depend on any intervening effects or arguments. I think it would be excellent if Western criticism would beat more clearly on this door, instead of diverting itself into radical anti-centralist and anti-governmental arguments.

Since federalism is complex, I hope we can keep in mind the core points at issue:

1. What does federalism mean, as an operational demand -- decentralization of government, strengthening the central government, or both? Some people seem unaware that the second meaning is as valid as the first one, or more so since it is the original meaning. For America's founding Federalist Party, the meaning of federalism was to construct a strong central government. The same holds true for the Union of European Federalists today.

2. Is the greater need of Russia today for strengthening provincial governments vis-a-vis the center, or for strengthening the center vis-a-vis the provinces? Which is better for Russia, irrespective of whether it is called federalism? And to what extent could both levels be reinforced at the same time?

3. Is such a thing as a "balance of power" between central and provincial governments desirable or feasible in the modern world? How can it be distinguished from medieval-style chaos, which was not democratic? If it can't, then why in the world are most Western critics using this as the ground for calling Putin undemocratic, rather than the more immediate ground of the elimination of gubernatorial elections per se? Isn't this counterproductive, since it gives Russians seemingly genuine ground to think our goal isn't to bring them to successful democracy but to tear their country apart? (Sorry if these questions sound rhetorical and the answers obvious, since the obvious answers are opposite to what most American pundits have been saying.)

It seems that item #2 is the main point of difference between the two of us, and the dispute is limited even on it: I get an impression you would recognize a need for strengthening of Federal capabilities for implementing core Federal functions; I in turn agree on a need for decentralization of many functions. The difference is in emphasis and priority.

Of course, it would not be surprising if Russians, faced with severe crises of public order, have different priorities than Western writers, for whom promotion of decentralization has no cost. Western criticism would sometimes be more relevant if it respected their priorities and focused on means of better realizing them.

This brings me to our differences.

a. The initial difference may be a matter of words. When I spoke of the lack of Federal authority under Yeltsin, I meant operative power, not formal constitutional authority. I have no problem with your rejoinder that the formal constitutional authority was not badly lacking under Yeltsin and that Putin's enforcement of it bears this out. Although enforcement still has a way to go, as some of your other articles have pointed out.

But then, it was Putin's enforcement of the constitution, in cases of conflicting laws, that aroused some of your objections. I am left wondering: would it have been better not to enforce the constitution? Perhaps I would be more inclined to agree if it could be demonstrated that the violations of Federal law had done little harm, or that the harmonization of laws has done more harm than good.

It seems we agree that Yeltsin's starting point was a chaotic one, in which bad bargains were better than war or collapse. Yeltsin brought Russia back partway from the brink, but not the full way. With the governors' centrifugal responses to the ruble crisis of 1998, the abyss seemed nearer again. This set the stage for Putin, after the 1999 elections, to bring Russia back farther from the brink. How much he has done so wisely is another question. My disagreement is with those whose answer is uniformly negative, and for whom the negativity flows from an a priori preference for less central authority.

b. On the question of the divisibility of sovereignty, you have very eloquently stated a widespread but, I think, fallacious view. There is certainly not a consensus that sovereignty can be or ordinarily is divided in a significant way, as distinct from marginal ways and from unstable transitional situations. And as distinct from redefining sovereignty, cutting out its indivisible core, and then noting that the residue is divisible.

Sure, if we redefine sovereignty as merely irrevocable jurisdiction over some functions (or jurisdiction that cannot be revoked by ordinary legislation, only by judicial interpretation or by constitutional amendment), as in your comment, then it becomes easy to prove that sovereignty, i.e. functions, can be divided. However, this definition is an inadequate one for sovereignty, which is a complex phenomenon, at once a reality, an ideal, an indispensable public norm, a virtue, and sometimes a monstrosity, but in none of these aspects insignificant or redefinable at convenience.

Why are the reductive and divisible definitions of sovereignty popular? -- and I can agree with you that they are academically popular, even though far from a consensus. It does not seem entirely for rational reasons. Some interests are served. There is an interest in quantitative analysis. The traditional conception of sovereignty, which treats of an ultimate political authority whose power pervades the realm and is connected to the overall public order and its prospects -- and therewith an aspect of "totality" with all its logical paradoxes -- is far beyond the powers of quantitative analysis. This does not make it less relevant; rather, it makes quantitative analysis less relevant. Also there is an ideological interest in deprecating central sovereignty on the part of anti-governmental schools of thought.

The strength of this interest flows from the long-standing gap between America's rhetorical self-image and its actual political structures. One might call it the gap between Jeffersonian rhetoric and Hamiltonian reality; or the gap between our Revolutionary rhetoric and our institutional realities. In rhetoric, American democracy was created out of 1776, the Declaration of Independence draws the line between good democrats and bad authoritarians, and the struggle against central imperial sovereignty is the defining mark of good democrats. In reality, our institutions of representative government go back centuries earlier, they grew up in the Renaissance era together with central and even imperial sovereignty, and they are compatible with -- perhaps dependent upon, as many have argued -- various portions of the traditional social and political spectrum that tend to be excluded by Revolutionary ideology.

The distortion of self-consciousness is deeply rooted; our post-1776 regime has long felt dependent on it for legitimation. The fight for an effective, sovereign Federal Government in 1780s was nearly defeated by the false consciousness. Fortunately Hamiltonian elites have usually been able, from 1787 to at least 1960-something, to adapt the national self-consciousness and correct partway for its distortions.

The deconstructive view of sovereignty is favored by the Jeffersonian rhetoric and its post-1960s accentuation and expansion in academe (where in earlier decades one might have looked for a corrective Hamiltonianism). It would be circular to cite the popularity of this view of sovereignty as a reason for accepting it, much less for applying it on Russia. What Russia needs, as Chaadaev argued, is to absorb the underlying realities of Western society, not the latest fashions. The transference onto Russia of the recent rhetorical fashions from our national self-image is part of the problem, not part of the solution (if I may borrow a '60s phrase).

The problem will persist as long as most Americans are unaware of the gap between rhetoric and reality. It leaves us with the happy illusion that what we are tranfering with our rhetoric is the same as America's own institutional foundations for success. What Russia would actually be receiving, if it were demoralized enough to accept this kind of advice, would be a prescription for disaster: the attitudes of Calhoun, or of Jefferson in his nullificationist period, which led not to success but to civil war and ruin.

c. The example you give of divided sovereignty -- the European Union -- makes my point that such division cannot serve as a positive norm for state structure. The EU is not a finished Union but a highly transitional system. For all its five decades it has lived with an extraordinary level of internal tension -- an existential tension so to speak, with life-and-death political infighting practically every year over the very nature and future of the Union. This is tolerated only qua transition: because it is a union-in-formation and is moving in the right direction (please note that "the right direction" is understood to be further centralization, although contemporary rhetoric makes it harder to say this than in the 1950s and this is a source of some of the EU's troubles). It is regularly worried that if it were to stop moving forward, it would not settle down but collapse. Also, no better option is considered available: it seems utopian to move directly to a clear, consistent joint European sovereignty, but after an earlier half-century of life-and-death wars across Europe, than which almost nothing else could be worse, the EU's partial, self-contradictory abrogation of national sovereignty is seen as a vastly preferable alternative. In other words, the contradictions of divided sovereignty have been preferable to the earlier contradictions of separate sovereignties. Fortunately, the transition was sheltered, during its most vulnerable decades, by a hegemonic American sponsor.

The EU is perhaps a model, as it likes to believe, for formation of other new international unions, in a world where interdependence keeps deepening and the contradictions of separate national sovereignty keep growing more painful. It is not a model for decentralizing an existing sovereign state which has a strong, long-established national identity of its own.

No sovereign state with a strong national identity, if putting itself through decentralization, would tolerate ending up with the EU's level of chaos, tension, and danger of collapse. It would immediately scrap the process of decentralization, which after all is something of a luxury, rather than continue with such a mortal risk.

Russia is such an existing sovereign state, with 400-500-year identity as a union of (most of) its territory.

It would be one thing to say the CIS should go the way of the EU; it would be a very different thing to say the Russian Federation should. The former would be perhaps too idealistic, the latter simply destructive.

Russians also would not welcome the idea of divided political identity, at least not among the ethnically Russian subjects of the Federation, and would rightly view it as a matter of creating unnecessary risk of ruin; although, as practical heirs to an empire, they tend to accept it as an inevitability in the ethnic regions. Shall we advocate imposing it on them more broadly, on the ground that it is viewed in some circles nowadays as a proper theoretical norm? It is certainly not the norm in the USA, where the old member state-based identity has disappeared as a factor of any significance, and the U.S. is better off for that fact. It is true and inevitable that multiple identities exist in some general cultural sense, but not multiple core political identities, in the specific sense of political loyalty and political-legal obligation. In the US, if the State and Federal Governments conflict, the definitive obligation of each State official, by oath of office, is to Federal Constitution, nothing in State laws and constitutions notwithstanding. That flows from the Supremacy clause of the Constitution, also sometimes known as the Sovereignty clause, and is enforceable on individuals thanks to the fact that each State militia can be federalized at any time at the President's discretion. Thereby the Constitution establishes a unified, though not unitary, field of law and public order across the entire US.

d. Sovereignty was indeed divided under the Articles of Confederation. While you're clearly right that there were many who held that the States kept all the sovereignty, there was also another view. The Federalists argued that the States never held sovereignty under the Articles by right, only exercised large parts of it illegally by usurpation or practical necessity in face of chaos and the inadequacy of Federal power. James Wilson held at the Constitutional Convention that sovereignty had passed from the Crown to the U.S. Congress as a whole when the Congress made the declaration of independence in 1776; and that the Articles confirmed this by denying the States the key powers of sovereignty. This rendered the States, as Rufus King said the same day, "deaf" and "dumb" as political beings: "they did not possess the peculiar features of sovereignty, they could not make war, nor peace, nor alliances nor treaties", nor could they even communicate officially with foreign sovereigns. This theory of Federal sovereignty was expounded in the midst of the crucial debates of June 1787, and Wilson's speech on it was endorsed by Hamilton. If, thus, Hamilton believed the States juridically lacked sovereignty even under the Articles, surely he believed this also under the Constitution, no matter how cheerfully he may have used other formulas about divided sovereignty in The Federalist Papers for the sake of reasssurances to the States.

Reality lay in-between the two opposite theories, in a space where sovereignty was genuinely divided during the period of the Articles. And this division was one of the things that made the period transitional. Had there been no significant element of Federal sovereignty before 1787, the Constitution would have been impossible.

The Constitutional Convention was called in order -- as the convening resolutions of the Congress and of each State said -- to render the Federal Government and its Constitution adequate to the exigencies of government. It is a phrase that is tantalizingly close to Madison's later formulation that the Constitution simply gave the Government the means to carry out its existing functions; and also to the idea of rendering it adequate to managing the exigencies of sovereignty (as "THE government" does, in Dahl's heuristic synonym for the sovereign state). The output of the Convention retained this thought from the input: Congress was delegated many specific powers, plus those "necessary and proper" for the exigencies of carrying them out. This "elastic" clause, much deplored by the Antifederalists and subsequently by Jeffersonian "strict constructionists" and by secessionists, was essential to the coherence of the Federal Constitutional order. Together with the Supremacy clause and the power of the Supreme Court as the final court of appeal in maintaining the unity of the legal order throughout the United States, it made for genuine legal sovereignty for the Federal Government, above not coequal to the functional jurisdiction of the States. (This underlying Federal supremacy is what makes it possible for the two jurisdictions in ordinary conditions to proceed calmly in parallel as if coequal.) The combined effect, while not identical to the plenary power that Dr. Hahn finds and criticizes in Russia for Federal law to override provincial law, has more in common with it than we might like to imagine.

Antifederalists and extreme Jeffersonians considered the elastic and supremacy clauses incompatible with the purported irrevocability of the jurisdiction and rights of the States. It took many years, and a civil war unfortunately, to sort it out and get the States accustomed to accommodating Federal supremacy and settling down into their only quasi-irrevocable legislative autonomy.

It should be no surprise that there is much to be sorted out in Russia as well. There the starting point was a massive overlap of sovereignty titles and functional spheres of authority handed out to federal and provincial governments in the rhetorical idealism of Soviet constitutions. The pathways of sorting it out are bound to be messy, but hopefully can avoid the kind of central civil war the US suffered. I can agree with your criticism of the pathway in the Yeltsin Constitution insofar as it provides for supremacy of Federal law in all spheres; what I'm less sure of is whether it makes sense to blame Putin for enforcing this. It can be helpful to specify Constitutional revisions and clearer delimitations of competences that would be workable at this stage; it is indispensable -- if we really are trying to convince Russians to do this -- to avoid speaking of it loosely as if it were a division of sovereignty

e. Why all this debate about American federalist norms and history? Because America is giving Russia considerable advice based on a popular reading, or misreading, of its own history. We need to where our reality diverges from our popular rhetoric about it. And unfortunately the gap has been growing, making it increasingly difficult for America to understand itself in a way that would enable it to give useful lessons to others.

I am constantly reminded since 1991 of a formulation in Vekhi nearly a century ago: that Western societies, with their deeply rooted, solid stable institutions, are usually able to live with the ideological excesses of their intelligentsia and even turn them to good use as a spur for constructive reforms of the very institutions that seem to be despised in the rhetoric; whereas Russia, with its far weaker and less developed institutions, and its far less rooted intelligentsia, is prone to take the rhetoric at face value and go off the deep end, destroying the very institutions that it needs to develop. Today again, Russia still this kind of vulnerability to Western rhetoric; I can only hope we will not take advantage of it.

More precisely: we need to make an effort to stop taking advantage of it -- unconscious and unintended though the advantage-taking is in most case -- and to provide Russians with deliberate reassurances that we are not taking advantage. It is the only way to keep Russia receptive to legitimate Western advice and assistance.

There is a lot of the latter, and Russia needs it sorely, but Russia sometimes has been prone to close itself off in order to protect from the viruses that seem to come with it. This, too, does not work. There is no way to set up a perfect autoimmune system that distinguishes between helpful and dangerous advices. So, should all outside organic influences be suppressed? It may seem feasible, but only temporarily, and is even more dangerous. Should the West, then, itself distinguish between its helpful and harmful advice? Sure it should, but it is often unwilling or unable. The only, quite inadequate, option that seems to remain is for us all on both sides to keep trying to get it right; and for us on the Western side of the fence to recognize that Russians themselves will in the end have to consciously sort out the advice and adapt it to their needs and conditions, and give them some space and margin of respect as they go about it.

Dr. Hahn accuses Mr. Putin of destroying important and necessary, if nascent, political institutions of democracy, meaning that Russia may have to create them all over again, at great cost and risk. I agree with Hahn on this. Meanwhile Mr. Bush and a host of other Westerners give Putin advice that, if taken literally, would destroy even more: it would destroy the fundamental institution built up in the course of centuries of Russian history, namely, a central government with real sovereignty. It also goes a long way toward destroying, inter alia, the credibility of Western influence in Russia. An influence which I would like to see stronger, not weaker.