Federation : Jean L. Cohen


Thomas Bangsted / Anchor Bay, 2006


Federation : Jean L. Cohen

Two developments call for creative thinking about constitutional and political forms.1 The first is the universalization of the political form of the sovereign national state—in the aftermath of formal decolonization and then with the decomposition of the great land based empire of the Soviet Union (post-1989). Norms against conquest and forced annexation and the decline of violent state death seem to indicate that the self-determining sovereign national state with internationally recognized borders, autonomous constitutional and political structures, and international legal standing has become the norm today.2 There are now 192 sovereign states recognized by international law and enjoying U.N. membership, each of which clings tenaciously to its sovereignty. Yet the legitimacy and efficacy of state sovereignty seems to be undermined by undeniable ideological transformations, legal developments, and structural trends.

Indeed, and second, the nation-state and the traditional conception of sovereignty that went with it (absolute, comprehensive, supreme, autonomous, with the jus belli) came under great stress in the same period as its universalization. The ideal of “one nation–one state” linked to the principle of self-determination was already unobtainable for the newly emerging polities in the period of decolonization. The “cleansing” of ethnic/religious/linguistic plurality that would be required to realize this ideal is now deemed unacceptable. Instead of nation states as sovereign “state-nations”: multi-national, multi-linguistic states are the norm today. The homogeneous nation state, always a myth, is clearly an anachronistic and destructive ideal.

From another quarter, the economic and geo-political imperatives of globalization and the pressures of size they generate seem to render the idea of sovereign states (except for great powers or very large polities) as anachronistic today as the city-state became in an earlier period of globalization and state making (the end of the 16th century). The realities of international interdependence, of transnational risks requiring regional or global “governance,” and of ideological challenges to the classic “Westphalian” conception of absolute state sovereignty and exclusive domestic jurisdiction are just a few of the forces one could mention. None of the innovative modes of governance on regional, global, or transnational levels fit the model of the sovereign state “writ large” and many seem to undermine it. From this optic too, the classic ideal of the sovereign state is deemed to be a problematic, and for most states, an unrealizable ideal. Contemporary geo-political and economic pressures of size imply that for a polity to remain autonomous and efficacious it must grow larger or merge with others. However, the idea of creating a world of sovereign regional mega-states (“grossraume,” or new imperial formations), or a world-state is objectionable for normative and pragmatic reasons. Yet the proliferation of concepts like “post-,” “supra-,” or “trans-” national to refer to emergent political formations and talk of regional and global “governance” all lack political-theoretical precision—and give us few clues regarding the question of political and constitutional form for the new political communities and/or proliferating regulatory regimes that are neither states nor simply their creatures.

Two conceptual responses to this conundrum have emerged. One resurrects the discourse of empire as an analytic, a descriptor or prognosis; a second weds the discourse of global governance to various new cosmopolitan theories of a multileveled yet legally integrated world order, to a normative ideal of a cosmopolitan constitution. I propose a third approach: the revival and reconceptualization of the concept of federal union or federation. I find the thesis of post-modern empire in the influential form presented by Hardt and Negri confused and premature.3 But I also find the idea of a cosmopolitan, multileveled world order of constitutional quality (assuming these are not the same as post-modern empire) to be incorrect as an empirical description and infeasible and weirdly apolitical as a project.4 Both of these are too quick to relegate the idea of a plurality of autonomous self-determining and self-governing (sovereign) political communities and international relations among them to the dustbin of history. Both responses to the geopolitical problematic of size and to economic globalization are too totalizing: there is no outside to the world empire or to the global cosmopolitan world order being imagined, and despite disclaimers both are ultimately monist conceptions.

Here’s one way to think about the conundrum we now face: if the political and personal freedoms we associate with constitutional democracies are at risk the greater the size of the polity, then what chance is there for liberal democratic republics—already enlarged through the device of representation—to avoid evisceration by centralizing distant executives and administrations of the now proliferating regional and global institutions? Is there a way to theorize a mode of political integration (growing larger) and a type of polity that is normatively attractive and feasible on the regional or even on the level of functional global governance, to which the discourse of constitutionalization would be analytically adequate? I suggest that there is and that we proceed by rethinking the concept of federation as a type of union of states and peoples, a type of constitutional polity that is not itself a state. Reworking the concept of federation may allow us to construct the appropriate political referent of these processes and thus to address the legitimacy problematic of regional and global “governance” in creative way. The federal principle, appropriately analyzed, can do justice to the dual trends mentioned above. In other words, the concept of a federal union of states (and peoples) involves a way of making the external internal, and allows one to conceive a political structure that enables both self rule and shared rule, autonomy and participation of discrete (even “sovereign”) political entities within an overall polity under its public constitutional law, whose legal and political orders are pluralistic rather than monistic, heterarchical rather than hierarchical.

Retrieving the Concept (Rettende critique):

For this, federation has to be retrieved and reconceived as a concept, because ever since the sovereign state won out against its competitors in Europe, it has been captured by and studied through the lens of the modern statist paradigm, i.e. as a type of state structure. At the onset of the modern epoch in Europe, federation reappeared—as an alternative to the state-making logic initiated in France and carried out by centralizing monarchies mobilizing for war, territorial conquest, and dominion. The latter involved the expansion of power radiating out from a center and coercively incorporating territories, cities, peoples, and all formerly independent authorities into its structure, annihilating their political and legal autonomy. Once one polity succeeds in such state-making, others have to follow suit to survive geo-politically and to compete economically. The classic state-making logic carried by absolute monarchies in Europe proceeded via mobilization for war, as Tilly has argued, and it seemed to require absolute sovereignty as theorists from Bodin to Hobbes insisted.5 The expansionist logic of this process unleashed the imperative of size and control that had to be faced for all those in proximity, creating a strong incentive to reproduce the political form and regime of the absolutist sovereign state. This logic of annexation, hierarchy, and rule over subject populations was projected outward by each state in their imperialist quest for colonies and rule over subject populations once the system of states established itself on the continent and no one of them could gain imperial control over the others.

But the logic did not go unchallenged. One alternative was to federate: small polities could defend their autonomy if they pooled their resources, acted together for collective security and welfare, and created common institutions for that purpose. Federations did emerge as an alternative to state making in the 18th century—think of the United Provinces of the Netherlands (1759-1795), the old Swiss Confederation (from the later medieval period until 1789 and renewed 1815-1848), the German empire/federation and the United States Federal Union (until 1865).6 Moreover, federation had its own political theorists who challenged the political theology of absolutist sovereignty propounded by advocates of the centralized state form like Bodin and Hobbes. Althusius countered Bodin, Pufendorf challenged Hobbes, opposing the “sovereignty” of the people—the conglomerate of the varied and stratified population of the cities and provinces of the compound polity—to that of the monarch or state and insisting on the possibility of a complex and heterarchical and freedom-preserving union as an alternative to leveling centralized administrative and political forms. Montesquieu proposed federation as a way for republics to grow larger, that is, superior to imperial expansion because it does not involve the sacrifice of the freedom of citizenry. Of course the context and debates surrounding the most enduring experiment in federal union—the American— generated the most innovative theorizing of federal union culminating in the work of John C. Calhoun.7 But the success of the state-making project, first in Europe and then ultimately world wide, is undeniable. The federal alternative seemed to lose out to its statist competitor thanks to the apparently inexorable dynamic of either centralization or dissolution. Non-state federations of states until very recently have been judged to be exceptions and/or unstable, conflict ridden, and transitional political forms, way-stations en route to consolidated federal and/or centralized sovereign statehood.

Even sophisticated analysts of the distinctive constitutional and political features of federalism like Elazar construe federations in terms of the binary: federal vs. unitary states, and thus screen out the idea of federating as a way to grow larger that does not culminate in a mega-state or an empire.8 Most analyses of federalism, in short, operate with two dichotomous frameworks: federal vs. unitary states and confederations of sovereign states vs. federal states.

According to the second binary, confederations are merely treaty organizations in which states remain sovereign. On the statist paradigm, ideal-typically, a confederation is an international law creature—a contractual arrangement whose legal basis is a treaty that does not alter the constitutional structure or international legal standing of the sovereign states that comprise it. Confederation is a way for states to cooperate for limited purposes, it is not meant to be permanent, its jurisdiction is limited and delegated, its legislative/administrative bodies are no more than a board or a congress of the executives of the state parties retaining their international character, rules are enacted on the basis of unanimity and this holds for any alteration of the treaty, the confederation itself not a subject at international law, and its rules do not have direct effect within the member states. Member states remain sovereign subjects of international law. The territories and citizens of the member states do not become the territory or citizenry of the confederation, for the latter has no demos. Relations among the states remain international. Since it is not a permanent arrangement, states can exit at will assuming they fulfill their contractual obligations.

By contrast, a modern (federal) state typically is a sovereign, political, territorial entity that has the internal monopoly of the use of force, a hierarchically supreme coercive and comprehensive domestic constitutional legal order and governing apparatus, no matter how decentralized or delegated some of its competences are, and it has the jus belli, control over armed forces, treaty making power, international legal standing, and full diplomatic power internationally within a system of sovereign states. Thus in a consolidated federal state, as in any state, sovereignty is vested in the center. This means that the state as a whole is sovereign, not its component parts, however decentralized it may be. Unlike a confederation, a federal state has its legal basis in a constitution, not a treaty. It has original, direct, and comprehensive jurisdiction, its own system of courts with direct effect, a real legislative body typically consisting of two houses both proceeding on the basis of majority or in some cases super-majority decision but not unanimity, thus divesting the legislative organ is any international character. Based in a constitution, the federal state is deemed the political expression of a single people to whom the constitution is ascribed, and which the constitution helps construct through its electoral and amendment rules—in other words, it rests on the constitution-making power of one individualized demos. Needless to say, the law of the federal state is supreme, citizenship is nationalized, and the component member states are states in name only. A federal state monopolizes external affairs, and member states typically have no international legal standing, no treaty making powers, no diplomatic capacities, and armed forces are under the command of the federal head of states. No sub-unit has the right to exit even if there once was a confederal origin to a federal state. So, the distinction between a federal and a unitary state, or among different consolidated federal states, is a primarily a matter of the mode of organizing a state.

Clearly this taxonomy screens out the very idea of a composite constitutional non-state federal polity that bridges the domestic/international divide. Yet this is, I argue, a political and constitutional form that is on the agenda for the 21st century. It is time at least for democratic and republican theorists to recuperate insights of the federal vision while freeing it from the statist paradigm, as it may offer a distinctive answer to the problems of size facing states under pressures of globalization and to legitimacy problems created by regional and/or global governance institutions.

 The Non-Statist Conception of Federation

What ideal typically is the non-statist model of a federation? The point is to screen in what statist, cosmopolitan, and imperial approaches to political forms screen out: namely, the idea of a discrete territorially based political and legal community of communities that is neither a state nor a classic international organization, yet which has international legal personality, its own public legal order of constitutional quality, internal legislative capacity, legal autonomy and which is composed of member states with similar characteristics. Non-state federations are unions of states and peoples that are dualistic political formations which bridge the international and the national, the foreign and the domestic, treaty organizations and constitutional polities in ways that require careful conceptual (and normative) analysis. Sovereignty does not describe their internal relations, if by sovereign one means legal hierarchy, supremacy, comprehensive control and political rule by the center. But sovereign states are members of such federations and can remain sovereign with respect to the outside and retain international legal standing: even without this they can resort to the discourse of sovereignty regarding actual or potential conflicts of jurisdiction, over the competence to decide jurisdictional competence, or over the ultimate locus of constitution making power inside the federation. Disputes about the relevance of sovereignty discourse remains today one of the key issues in conceptualizing federal unions. But to grasp what is distinctive ideal-typically to a federal union and the federal principle, one has to eschew the sovereigntist statist frame.

What are the distinctive features of such a polity? I draw on the work of the few theorists who are trying to rethink federation outside statist frame.9

Most of these agree that the point of creating or joining a federal union is to establish a structure in which the independence and political existence of member-states of the federation is maintained yet serves their common goals. The duality of particular and general (community) purposes is characteristic. The idea is to find a form of political association that guarantees the political existence and autonomous status of member states (the particular purpose) by federal law while creating a political entity, a federal union that is able to secure the collective goals of the union, i.e. of its members in their status of forming a community of communities. Thus the autonomy of the federation in relation to the member states must also be institutionalized. The structure of “shared rule and self rule” that ensues involves complex relationships of independence and interdependence of a plurality of political and constitutional legal orders.

Federal unions of states are ideal, typically based on a consensual foedus—a pact or covenant—that articulates the purposes of federating, and which establishes a totality, a polity that has its own distinct representative body and within which each of the member states are represented. This enables the federation to present a common face to the outside, but in so doing a transformation of the external into the internal occurs. By virtue of joining a federal union, international relations among foreign states become internal relations between member states with respect to the relevant purposes of the association.

Ideal-typically, a federal union is meant to be a permanent albeit initially voluntary association. By federating, states enter into (and willingly construct) a new and autonomous constitutional legal and political community. Entry into a federation thus entails a change of every member state’s constitution irrespective of whether or not any word is altered. The states become transformed into members of a new political totality but they remain, nonetheless, states in the full sense of the word. Federation is a way of growing larger that involves extension through iteration if we think of republican federations or federations of constitutional democracies, what this means is that unlike the statist imperial or imperialist logic of expansion through domination and centralized rule, the federal principle involves a process of inclusion without annexation, iteration of the republican or democratic constitutional form as a condition of entry but without leveling diversity in other respects, with guarantees of autonomy and equality within that constitute a non-centralized or poly-centric matrix structure quite distinct from the sovereign state form. But this is also distinct, pace Hardt and Negri, from empires past and present that always have center/peripheries and violent or coerced alliances and annexations. In this sense, federation is the alternative route (to empire) for a republic to grow larger while retaining its constitutionalist and republican or democratic freedoms.

To see what is distinctive here, one has to grasp the special dualist nature of the federal pact. The federal pact is a “constitutional treaty” or contract that creates a unique order which accommodates a dual set of goals characteristic of every federation of states: to maintain the political existence and legal autonomy of its members while creating a new political unity with its own political existence and purposes.10 The duality is evident in the terms: contract and constitutional. The contractual (treaty) dimension pertains to the voluntary decision of each state to join and become a member of the federation. This is the international law component. The constitutional dimension refers to the product—the treaty is the federation’s constitution along with the institutions and new relations it establishes, i.e. to the fact that once they join up, states are integrated into a politically comprehensive structure/polity with respect to general purposes. This is why their sovereign decision to join entails domestic constitutional change. This dimension escapes the “free contract” aspect, for the pact does not simply regulate discrete and definable individual relations as per ordinary international treaties. The constitutional contract is thus an “interstate status contract” since it changes the status of states into member states. This is the internal public constitutional law component. We will see soon that the constitutional component also refers to a compound constituent power or a special type of demos as its referent.

The constitutional contract constructs an autonomous, constitutional, legal, and institutional order for the organized federal polity such that conflicts over jurisdictions, competencies etc., must now be resolved through law. The law (and relations) of the federation are internal, public, domestic, and constitutional, not external, international or foreign. Its legal order is autonomous, supreme in its specified functional domains, endowed with the competence to use its powers enumerated in the constitutional treaty and the member states are bound by its decisions. Federation law has direct effect. Indeed the federation constitution is a component of each member state’s constitution! Moreover, the federation may intervene in member states to enforce its law with regard to its specific functions. In this respect the internal orders of the member states is no longer impermeable as they are in a treaty organization. Yet the constitutional orders of the states and of the federation are not merged: instead there is a composite constitutional pluralist arrangement that links them while leaving their autonomy intact.

The federation also has a dual institutional make up. As a political unity the federation must be represented. Representation is no insignificant matter. The federal political community thereby attains a political existence internally and externally. Furthermore the federation must have a territory, consisting of the territories of the member states and also, within or alongside these, its own territorial possessions involving at the very least, the seat of government. This means that the institutions and being of the federation exist alongside those of the member states.

One of the prime purposes in federating and hence a key goal of a federation is to guarantee the political existence of each member state and to provide internal peace, welfare, and in many but not all cases to protect members against the outside. The federation can obtain the jus belli via the federal pact (but need not, think of the EU if it had passed the constitution in 2004). Internally the federation ensures civil peace: federation members permanently give up self-help and the jusbelli, vis-à-vis one another, and war may not take place between federation members otherwise the federation is destroyed. Internally there is only federal enforcement action or execution of federal law against a recalcitrant state: that is partly what I mean by saying former external international relations among member states thereby become internal. Insofar as the federation acquires the jus belli, it has an obvious independent political existence and is a subject at international law. But, even if a federation has a jus belli, this need not mean that it has an exclusive jus belli, vis-à-vis the outside. In other words, this does not preclude the possibility that member states retain the jus belli, vis-à-vis non-members alongside that of the federation.

Crucially, member states retain their autonomous legal and political existence. It is the express purpose and constitutive nature of a federation that it preserves and respects their political self-determination, constitutional legal autonomy, and territory. Accordingly, from their own point of view, the member states’ political existence does not derive from, nor does the validity of their legal systems and constitutions inhere in, the federal constitutional contract. The latter is not in a hierarchical relation to the former despite its supremacy with respect to law making within its constitutionally specified domain, and despite having direct effect and even implied powers. Disputes over the scope of that domain are hence possible and likely. Within the federation, the political status quo must be guaranteed, meaning the guarantee of territorial integrity of each member state: no federation member can have a part of its territory taken, nor its political existence, nor its voice in the federal organ eliminated without its consent. This is evidence of the contractual dimension of a federal constitutional order. These guarantees stem from the goal of self-preservation and the concept of duration (permanence) that is essential to a federal union.

This is so irrespective of the fact that there can be no federation without involvement in the affairs of member states. Indeed, precisely because the federation has a political existence it must have a “right of supervision” and a right to intervene. Conflicts over competences, over implied powers, over jurisdictions are inevitable, including conflicts over the competence to decide upon competence.

It would thus seem logical that the ideal-typical amendment rule of a federation should reflect its position between a confederation and a federal state. Whereas for a confederation the amending powers, the states, are outside the treaty and classically, amending the treaty requires unanimity, in the case of a federal state, the ‘states’ are within the constitution and can be treated as organs of the federal union with respect to the federal constitution. Thus an ideal-typical federal state constitutional amendment rule could involve the use of a federal senate, but its ratification would rely on individual voters of the federal state. For a federation of states, the amendment rule, as for a confederation, would have to maintain the states as the sources of fundamental legal change (the treaty component), but the constitutional dimension of the pact would have to entail that a qualified majority of these formally equal states (one state one vote) would be able to bind the minority. This is a way of bringing all the states into the constitution while ensuring that they remain in some sense the authors of it.

So what about sovereignty? What about constitutent power? If sovereignty is indivisible, entails autonomy vis-à-vis the outside, and supremacy is on the inside and pertains to the self-determination of a political community, a state, how can one account for such dualisms of political existence within a polity? Foreigners cannot determine the regime or law of a sovereign state, but membership in a federation renders the external internal, the foreigner into the friend. Yet sovereignty cannot be divided or shared. We face the old Calhounian dilemma: mustn’t sovereignty be located either in the member states or in the Union? Sovereignty, as I said, does not describe the internal relations of a federation: these are characterized by heterarchy not hierarchy, by non-centration, not decentralized or delegated rule. Nevertheless, it is not a solution to try to banish the issue of sovereignty as irrelevant to a federation because, thanks to its dualistic structure, sovereignty discourse and fundamental conflicts remain possible. In a genuine federation, “sovereignty is not absent”, instead the locus of sovereignty remains undecided.11 So long as the federation is a general federal union rather than a consolidated state, so long as the member states and the federation exist alongside one another, i.e. in a non-hierarchical relationship the sovereignty question is permanently deferred. The practice of constitutional pluralism and the efforts to resolve conflicts by law mean a commitment to the federal polity by all parties such that “neither the federation in regard to the member states nor the member state in regard to the federation plays the sovereign.”12

This brings me to the final and most crucial issue: namely, whether a federation has a demos and how to conceptualize it. To whom is the constituent power that pertains to the constitutional (status altering) dimension of the constitutional compact to be ascribed? I want to argue that there is a federal demos, but it is a compound one. A federation is a union of states and peoples. The duality of political existences means the doubling of the referent: “the people,” such that the demos must mean something different than what it means in a state. In the latter it is a unity of individuals, in the former “the people”, the federal demos, is a composite: the federal “people” is composed of peoples in the plural—it is a demos of demoi. Thus the peoples of the member states (the citizens) can exercise a constituent power on the level of the member-state by giving themselves a constitution or by changing it, but they can also do so on the federal level, by participating in the formation of the federal constitution through ratification of the federal pact as citizens of member co-states and hence as co-constituents. The constituent power then of the federation must be postulated as a composite or compound political community of political communities.

Hence the typical paradox inherent in every federation: namely, that the federated peoples protect their political existence by creating or joining a federal polity and participating in the exercise of federal constituent (as well as constituted) power. The constitution-making power of a federation is thus a mediated one: it is as members of a compound demos that they participate in constitution making and in constitutional change.

So what are the gains of this political reconceptualization? Federation of the sort I imagine has the advantage of a way of growing larger that delivers on the pragmatic reasons as to why independent polities would seek to unite: security, defense, and welfare. But there are also normative justifications: arguments from constitutionalist principles, from freedom (republican/democratic), the argument from peace, and the argument from diversity and from legitimacy. Constitutionalist principles entail that public powers must be under public law—if regional associations were to federate, their executives would be inside the constitution unlike treaty organizations where they remain outside. A constitution-making process would certainly enhance legitimacy and open up the possibility for democratic participation and reform internally. Inflexibility of unanimity requirements for treaty change would be replaced by a more flexible amendment rule also facilitating reform when necessary. The internal plural non- hierarchical relations pertain to the argument from republican freedom. A federal constitutional treaty can provide for individual rights protections, stipulate a republican or democratic form of constitutionalist government for members and for itself, protect minorities, and militate against parochialism. But the plural matrix structure of a federation would allow for democratic experimentalism on the state level and for compounding majorities, i.e., more consensual majorities on the federal level. The argument from diversity is interesting too: unlike status based legal pluralism typical of empire, and unlike con-sociational arrangements, “coming together” in federation accommodates diversity without freezing identities, without freezing private hierarchies or elite forms of rule on the local level or reproducing them on the federal level, and without reifying the cleavages that may involve language, culture, ethnicity because in a federal system individuals can vote with their feet.

It would be absurd to argue that federations are intrinsically liberal, democratic, republican, tolerant of diversity, respectful of rights or that all of these must go together. There have been monarchical federations, imperial and imperialist federations, illiberal and undemocratic republican federations, hegemonic federations, asymmetrical federations and polities that are federal in form only such as “grossraume” or empires with a paper federal constitution. Elites in member states may choose to federate and create institutional rules in order to entrench their local powers, hegemony and local tyrannies. The point is not that federal unions of states are necessarily superior to large centralized states along these normative dimensions. Rather, my point is that they can involve a mode of growing larger: of structuring institutions and power relations among parts that avoids the problems of top down hierarchical rule and reified group identities, while creating a federal constitutional polity that hews to democratic and liberal constitutional principles and insists on these as conditions for membership in the effort to preserve diversity while also creating or enabling commonalities and transnational solidarities, remaining true to the principles of human rights and democratic participation.

*

Jean L. Cohen is the Nell and Edward Singer Professor of Contemporary Civilization and Political Theory, in the Department of Political Science at Columbia University.


1. This article is a part of a larger forthcoming work: Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press, 2012).

2. Tanisha Fazal, State Death: The Politics of Geography of Conquest, Occupation, and Annexation (Princeton: Princeton University Press, 2007).

3. See Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University Press, 2000).

4. For the best version, see Mattias Kumm, “Who is the Final Arbiter of Constitutionality in Europe?” Common Market Law Review 36 (1999): 351–386.

5. Charles Tilly, The Formation of the National States in Western Europe (Princeton: Princeton University Press, 1975).

6. Montesquieu, The Spirit of the Laws, chap. IX.

7. Jean Bodin’s Six Books of the Commonwealth, originally published in 1576, is the classic source, along with Hobbes Leviathan (1651), of the absolutist concept of sovereignty attached to the developing theory of the state, first in France then in England. Johannes Althusius’ Politics, originally published in 1603, is the source of the constitutionalist theory of (popular) sovereignty and the beginning of a line of federal thinking which was developed more consistently and systematically by Pufendorf in a body of works culminating in The Law of Nature and Nations (1729), which may be said to be the first sustained theoretical analysis of the nature of a confederation of states. See Murray Greensmith Forsyth, Unions of States: The Theory and Practice of Federation (Leicester: Leicester University Press, 1981): pp. 74-85. See also John C. Calhoun’s Union and Liberty for a full fledged theory of confederal union of independent polities that creates a polity, rests on a constitutional contract yet does not create a nation. Finally, see also Carl Schmitt, Constitutional Theory (Durham: Duke University Press, 2008). Part IV of Schmitt’s work has been highly influential. Needless to say, we do not embrace either Calhoun’s pro-slavery anti-nationalist motivations, or the contemporary states’ rights revival of much of his rhetoric on the part of the American “Tea Party,” or for that matter, Schmitt’s disparaging assessment of the federal unions and his preference for “grossraume” in order to benefit from their theoretical insights.

8. Daniel Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987).

9. For the best jurisprudential reworking of the concept see Olivier Beaud, Théorie de la Fédération (Paris: PUF, 2007) and Forsyth, Union of States.

10. The idea of a federation as based in a constitutional contract comes from Calhoun and is adopted by Schmitt. See n.6 above.

11. See Schmitt, Constitutional Theory, p. 389.

12. Schmitt, Constitutional Theory, p. 389.