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JASON MAZZONE[*]
What is the value of a federal system of government?[1] Courts and commentators have articulated and debated a number of justifications for federalism. Some arguments focus on the economic and public policy benefits of a system of government in which decisions are made by multiple political units. Among these arguments are better policy outcomes result through the interplay of the national government and the states;[2] competition among the states coupled with the movement of labor and capital produces efficiency;[3] and experimentation at the state level produces innovative policies and programs.[4] Other arguments for federalism emphasise that democracy is enhanced when decision-making occurs at a more local level because elected representatives become more responsive to the needs of individuals[5] and citizens are able to participate more meaningfully in self-governance.[6] Still other arguments in favour of federalism suggest that the states may be better than the national government at protecting individual liberties either because state laws may provide greater protection for rights than federal law,[7] or because the states may have greater resources or otherwise be more effective than the national government in enforcing federal rights.[8]
On the other side of the debate, commentators in favour of a strong national government take issue with all of these claims. These commentators argue that whatever its historical advantages a political system with strong states no longer makes sense from an economic and public policy perspective.[9] On this view, the optimal provision of many goods requires, not competition among states, but regulation at the national level[10] and relying on the mobility of labour and capital is unlikely to produce optimal outcomes.[11] These commentators claim also that a strong national government is crucial for securing individual rights particularly because rights need protecting from the states.[12] Further, federalism is no guarantee of increased citizen participation in government or of government responsiveness because the states have become large political units disconnected from their citizens.[13]
My purpose in this article is not to take issue with any of these arguments in favour of or against a federal system of government. Rather, my goal is to articulate an important aspect of federalism that has so far been overlooked. Federalism, I argue, has important social benefits because it promotes the kinds of social relationships that allow citizens to overcome collective action barriers and to get things done. Or, in the language of this article, federalism has value because it promotes social capital: ‘features of social organisation, such as trust, norms and networks, that can improve the efficiency of society by facilitating coordinated action.’[14]
Much of my argument remains necessarily speculative at this time. Moreover, even if federalism is good for social capital that would hardly be the end of the matter. Whatever the social capital implications of federalism, we would still need to keep in mind other possible arguments in favour of or against a federal system of government and to weigh social capital against competing values and concerns. Nonetheless, in light of a growing body of research demonstrating the substantial benefits of high levels of social capital, it remains significant that federalism may promote it. At the very least, therefore, in debating the continued relevance of a federal system of government we should take into account the social capital implications of more nationalised government.[15]
Part II provides a brief overview of social capital and its importance. Part III sets out my argument as to why federalism should tend to promote social capital more readily than a nationalist form of government. My central claim is that federalism promotes social capital because dividing power between the national government and the states provides greater opportunities for citizen groups to influence politics and for individual citizens to participate in public life. Federalism therefore provides a healthy political environment for social capital. I argue that these social capital benefits of federalism are enhanced by ongoing struggles between the national government and the states as to the appropriate division of political power. Accordingly, the social capital benefits of federalism are benefits not merely of decentralised government, i.e., government in which authority but not power is delegated, but rather of government in which there is a division of actual power. My account suggests also that the states continue to play an important role today because they are likely the only political entities that can engage in the kinds of power struggles with the national government that produce social capital benefits. In addition, my account cautions against shifting (as some commentators advocate) governmental power away from the states to the local level of cities, towns and neighbourhoods, because these entities are likely too weak to compete with the national government over the appropriate division of power. Part IV explores some implications of the social capital argument for federalism and identifies directions for further research. Part V is my conclusion.
Social ties matter. We are fundamentally social creatures: we live beside and among other people in families, neighbourhoods and towns. We work with colleagues and we socialise with friends. Our formative years are spent in schools and in other social activities. In our leisure time we join clubs, play sports, go to bars, museums and the beach, and we talk on the phone. Even in our most individual pursuits – like reading a book or sleeping – we are never very far from other people.
Moreover, a vast range of human activity depends on social ties; there is very little we are able to accomplish entirely alone. While obvious to modern city-dwellers that meeting basic needs – like obtaining food, water, and shelter – requires the assistance of other people, this has long been true of our species. ‘We are . . . unable to live without each other. Even on a practical level, it is probably a million years since any human being was entirely and convincingly self-sufficient: able to survive without trading his skills for those of his fellow humans.’[16] More sophisticated pursuits – like travelling to work or sending an e-mail – are deeply dependent on the contributions of others and we would be unable to do any of these things if we lived in isolation. The social nature of our existence is a striking characteristic of our species and far exceeds that of any other primate:[17] with virtually all of our activities embedded in social relationships we are, according to one zoologist, ‘more like ants or termites.’ [18] In particular, as a large body of work in economic sociology demonstrates, economic activity is highly dependent on social networks: the structure of social relationships among economic actors, including shared understandings and trust, plays a crucial role in economic outcomes.[19] Homo economicus is also very much a social creature.
The quality of our social ties therefore powerfully affects our lives. In the first place, social ties are crucial for the well-being of individuals. Strong social networks confer important economic advantages on their members: a large body of evidence documents the benefits of social ties for obtaining employment, receiving higher compensation, getting promoted, and finding a new job after being laid off.[20] Children also do much better – as measured by their behavioural and emotional problems, their performance in school, and their prospects for the future – when they grow up in families and neighbourhoods characterised by strong social connections.[21] In addition, a striking body of empirical evidence demonstrates that social ties have important health consequences: people embedded in strong social networks are less prone to a variety of physical and mental ailments including heart attacks, strokes, cancer, and depression, and socially-connected people recover faster when they do become ill.[22] Empirical evidence aside, we all know that it is through our social connections with others that we define who we are, we develop and share our beliefs and hopes, and we experience many of the deepest of emotions: social ties are also intrinsically valuable. For these and related reasons, social connections are so significant to human flourishing that a vast body of work in evolutionary psychology and allied fields maintains that dispositions to engage in cooperative interactions with others are fitness-enhancing and much evolved human behaviour may therefore be understood in these terms.[23]
Social ties also often benefit bystanders. When people around me are socially connected, they do better. But the quality of my own life may also improve as a result of connections among a group of people of which I am not myself a part. Communities characterised by strong social ties among their residents experience less crime, poverty, unemployment, welfare dependency, drug use, teenage pregnancy, and juvenile delinquency; these same communities have more productive workers, more effective government, and they enjoy greater economic prosperity than communities with weaker social networks.[24] These things obviously benefit the individuals whose social connections produce all of these effects. At the same time, there are positive externalities: some of the benefits flow to the people who are less connected or hardly connected at all. It is useful to be socially connected. But a person who has few social ties is better off living among people who are socially connected than among other loners.[25]
In seeking to understand these effects, social scientists point to the importance of social capital. By analogy with notions of physical capital and human capital – tools and training that enhance individual productivity – the core idea of social capital theory is that social networks have value. ‘Just as a screwdriver (physical capital) or a college education (human capital) can increase productivity (both individual and collective), so too can social capital affect the productivity of individuals and groups.’[26] According to social capital theory, transactions between and among individuals occur more readily when the individuals are embedded in strong social networks and they can draw upon the norms and trust that result from social ties. It is, for instance, cheaper for me to lend money to somebody I know and trust than to a complete stranger whose background I have to investigate. It is easier if I can find a job through a friend than if I have to use an employment agency. It is more efficient for both of us if we can agree to car pool than if we each drive alone. These are simple examples of the basic point: getting things accomplished takes less time and energy when we know and we can depend on the people with whom we interact.
Of particular importance is that social networks and other forms of social capital can often solve prisoner’s dilemmas and similar collective action problems that impede cooperation for mutual advantage. It is well known that there are a variety of contexts in which cooperation between and among individuals would make everyone better off but not cooperating is the dominant strategy pursued by self-interested actors. In the classic formulation of this problem, the eighteenth-century philosopher David Hume explained the dilemma confronting two farmers who would each benefit by jointly harvesting each other’s crop:
Your corn is ripe today; mine will be so to-morrow. ‘Tis profitable for us both, that I shou’d labour with you to-day, and that you shou’d aid me to-morrow. I have no kindness for you, and know you have as little for me. I will not, therefore, take any pains upon your account; and should I labour with you upon my own account, in expectation of a return, I know I shou’d be disappointed, and that I shou’d in vain depend upon your gratitude. Here then I leave you to labour alone. You treat me in the same manner. The seasons change; and both of us lose our harvests for want of mutual confidence and security.[27]
Dilemmas of collective action mean that no individual will cooperate unless there can be a reasonable expectation that others will follow in step. Thus, you and I will both benefit if we get together to harvest our crops (or to paint our apartments) but unless I can rely on you to come to my place after I have helped you, I will refuse to cooperate. And you will not cooperate first because you understand that I can then refuse to help you later. Each of us will end up harvesting (or painting) alone, with lower efficiency. Game theorists have several labels for failures of this kind to cooperate for mutual benefit. In the prisoner’s dilemma, two prisoners would be better off if they both refused to confess to a crime but because each is individually better off confessing no matter what the other does, and unable to coordinate their actions, they fail to achieve the optimal outcome.[28] In the tragedy of the commons, each individual has an incentive to maximise her own use of a common resource (e.g. grazing land), but the end result is that the resource disappears to the detriment of everybody.[29] Public goods (e.g. clean air) are goods that can be used by any individual regardless of whether that individual contributes to the provision of the good; as a result, nobody has an incentive to contribute and everybody loses the benefit of the good.[30] In the logic of collective action, individuals do not contribute to collective ends (e.g. labour strikes) because each individual receives only some of the benefit of her contribution and because she can free ride on the contributions of others.[31] In all of these settings, without some guarantee that if I cooperate you will reciprocate, and with the knowledge that once I cooperate you will have an incentive to defect, neither of us will cooperate – even though cooperation would produce a more desirable outcome for us both. In each instance, self-interest works as an impediment to mutually beneficial outcomes.
One solution to these kinds of dilemmas is that offered by Thomas Hobbes in The Leviathan: enforcement by a third-party such as the state.[32] Under this approach a powerful sovereign prevents cheating and therefore harmonises civil life. Thus, we can agree to help each other to harvest (or to paint our respective apartments) by first entering into a duly executed contract. If you fail to live up to the bargain, I can sue you for breach. I will therefore help you because I know you do not want to be sued, and you will reciprocate for the same reason. The threat of sanction imposed by the state works to ensure we both live up to the bargain.
Third-party mechanisms are, however, costly. The expense involved in negotiating and writing up the contract and going to court to have it enforced could easily outweigh the benefit of cooperation. In addition, reliance on a third-party itself presents a collective action problem: the third-party is likely to pursue their own interests once we grant them power. Moreover, because a third-party lacks familiarity with the specific circumstances of a collective action setting, the third-party may not be very good at regulating for optimal results. In this regard, Elinor Ostrom provides striking evidence of the failure of governmental policies to overcome dilemmas of collective action where the government lacks sufficient monitoring capacities and the skills for tailoring policies to the specific circumstances of a particular setting.[33]
Social capital – in the form of social networks and norms – is a
resource that can solve collective action problems, often
more effectively than
any other mechanism. According to Putnam:
Success in overcoming dilemmas of
collective action and the
self-defeating opportunism that they spawn
depends on the broader
social context within which any particular game is
played. Voluntary
cooperation is easier in a community that has inherited a
substantial
stock of social capital.[34]
Social capital facilitates cooperative interactions to overcome collective action dilemmas because it provides information about participants and it helps ensure the enforcement of their commitments. While I may be too suspicious to cooperate with a stranger (because I suspect he may not return the favour), I will cooperate with my friend: I have known her for a long time and I know she is an honest and reliable person, we have done things for each other in the past, and it seems unlikely that she will sacrifice our friendship (or embarrass herself in front of our mutual acquaintances) by cheating. Social capital facilitates the exchange.
These same mechanisms can extend beyond tight personal connections to produce cooperation in broad social settings. It is not simply having lots of close friends that counts. Indeed, personal ties might be too time-consuming to allow for very broad cooperative endeavours. Rather, social capital can exist in the form of more general interlocking networks that provide information about individuals and incentives for compliance, and that monitor and punish defection. Thus, I will be more inclined to cooperate with a stranger who turns out to be a member of my gardening club, or my neighbour’s friend, or if others can vouch for his reputation. My fear that he will defect decreases because of the social context in which the transaction occurs.
We may summarise the ways in which social networks produce cooperation and overcome collective action dilemmas in the following manner. First, social networks increase the costs of defection.[35] An individual who is embedded in a dense network of social relationships has more to lose from defection: defection puts in risk all of the other transactions in which the individual is engaged, as well as the benefits from future transactions.[36] Second, social networks can foster norms of reciprocity.[37] Frequent interactions among individuals produce standards governing acceptable behaviour. These norms can greatly improve the efficiency of transactions because everyone can reasonably anticipate how others will behave – and in particular they can be confident that nobody is going to cheat. Generalised reciprocity, which refers to a general propensity to engage in cooperative behaviour on the condition that others reciprocate but without any specific guarantee of return from any particular individual, is an especially important form of social capital; I discuss it in much greater detail below.[38] Third, social networks provide information and allow for monitoring: cooperators (as well as cheaters) will develop reputations that are relayed to others who can figure them into future transactions.[39] Fourth, social networks provide a template for future cooperation: having collaborated in the past, it will be easier for us to do so again.[40]
There are of course different kinds of social networks: among family members, the members of a club or political party, the participants in a parade, people who go to the same church, residents of the same neighbourhood, circles of friends, and many others. While all of these networks may represent social capital, not all of them are equally useful or equally effective in all settings. I may be able to borrow money, for example, from a family member or friend, but not from somebody marching in the same parade. Size itself, however, may not necessarily determine how useful a social network is: broad ties may be more useful in pursuing certain goals than more intimate networks. If, for instance, our goal is to reduce crime through greater monitoring and reporting of suspicious activities, the occasional involvement of a large number of people may be better than the devoted efforts of just a few. On the other hand, in some settings very close connections will be vital: for example, I am unlikely to share child-minding duties with somebody I hardly know.
Just like other tools, social capital can also be used for malevolent purposes. Social capital may, for instance, be used to identify and weed out government opponents. It may allow certain groups to pursue anti-democratic goals such as the oppression of minorities, violence, or terrorism. Gangs, the Ku Klux Klan, and exclusionary neighbourhoods all put social capital to bad uses. There is always an issue as to the particular purposes social capital serves, just as we should always ask whether knowledge (human capital), corporate profits (financial capital) and other tools are being put to desirable ends.
Nonetheless, the general point remains: social networks serve as a kind of capital that can solve collective action dilemmas by furnishing sufficient guarantees of trust and by tempering self-interested behaviour. Groups that are able to draw upon strong social ties and other forms of social capital can therefore reap the benefits of cooperation in collective action settings and enjoy increased productivity as a result more readily than groups in which social relationships are too weak to overcome suspicion and self-dealing.
The level of social capital available as a resource for individual and group activities is not constant. Some communities embody strong social networks and other rich sources of social capital that facilitate individual and collective endeavours. Other communities are poor in social capital and their members are less able to draw on it as a resource.
People who invest in social capital – such as by creating and maintaining social ties with others – can often later use it themselves for their own purposes. Networking, for instance, as evidenced by a fat Rolodex, is a critical tool for success in business. Social reformers can also increase the amount of social capital present in a wider community. Progressive Era reformers, for example, sought to increase social capital (although they did not use that term) in the United States by creating networks of voluntary associations.[41] Governmental structures, including the nature and arrangement of political and legal institutions, can also significantly affect the level of social capital, both by enhancing or undermining existing stocks of social capital and by facilitating or undermining efforts to create social capital. As Richard Pildes demonstrates, our legal structures frequently affect the level of social capital, often in unexpected ways.[42]
This is also a good place to point out that while social capital is a ‘resource’, its supply increases with use.[43] When somebody lives up to their end of the bargain, others will be more willing to cooperate with that person in the future. Similarly, cheating diminishes social capital: cooperation is less likely when commitments were breached in the past. For this reason, ‘we should expect the creation and destruction of social capital to be marked by virtuous and vicious circles.’[44]
Before turning to discuss the relationship between federalism and social capital, it is useful to examine two specific sources (or forms) of social capital that are especially relevant to the discussion: civic networks and norms of generalised reciprocity.
Civic networks are various types of social groups in which individuals are brought together, usually with some shared purpose or interest. Neighbourhood associations, choral societies, sports clubs, religious organisations, and interest groups are examples of civic networks.[45] Civic networks typically link citizens horizontally: they bring together people of similar status and power (as distinguished from vertical networks which are hierarchical links of dependency).[46] Thus, while cat clubs, Rotary, and PTAs represent civic networks, most workplaces, hierarchically arranged, do not.
Civic networks in the United States have a long history. Visiting the United States in the 1830s, Alexis de Tocqueville remarked on the propensity of Americans to join associations. He wrote:
Americans of all ages, all stations in life, and all types of dispositions are forever forming associations. There are not only commercial and industrial associations in which all take part, but others of a thousand different types – religious, moral, serious, futile, very general and very limited, immensely large and very minute.
. . . .
Nothing, in my view, deserves more attention than the intellectual and moral associations in America.[47]
Commentators frequently invoke these words because de Tocqueville’s observation that associations are a central feature of American life remains pertinent today. The United States is a ‘nation of joiners’.[48] Summarising cross-national data, Sidney Verba and his colleagues report ‘associational life in America is probably unparalleled in the number of organisations and the diversity of their concerns. Americans are [also] more likely to be members of voluntary associations . . . than are citizens of other nations.’[49]
Civic networks are especially important for solving dilemmas of collective action because they are more effective at transmitting information and imposing punishments against defectors than hierarchical networks. Hierarchies are characterised by relationships of personal dependency between inferiors and superiors; there are relatively few relationships of mutual dependency between and among similarly situated members. In hierarchies, information usually flows imperfectly because there are incentives for each individual to keep information away from those above and below her (eg managers do not tell employees everything; employees keep secrets from management). In addition, while hierarchies are often very effective at imposing sanctions, such sanctions are only usually imposed by superiors against inferiors.[50] Civic networks, by contrast, exhibit mutual dependencies and more ready flows of information among equally situated members, as well as a common interest among all members in monitoring and punishing defection.[51]
Moreover, civic networks are able to connect broad segments of society thereby greatly expanding the scope of cooperative endeavours.[52] In this manner, civic networks can provide the background conditions for a wide range of citizen activity. Important evidence of this effect is reported in political scientist Robert Putnam’s study, Making Democracy Work. In that study, Putnam sought to explain the substantial variations he observed in the performance of newly formed regional governments in Italy and in particular differences between the North and the South. Some of these new regional governments were inefficient and corrupt; others were highly successful in pursuing programs and creating local prosperity. After eliminating other explanatory factors, Putnam determined that regional differences could only be accounted for by regional variations in civicness – the density of voluntary associations and the degree of citizen participation in public affairs.[53] Northern regions of Italy were characterised by a long tradition of associational life: from twelfth-century guilds and religious organisations to nineteenth-century cooperatives and mutual aid societies to dense modern networks of choral societies, hiking clubs, and the like.[54] The South, by contrast, was characterised by a tradition of small separate family units and passive membership in the Catholic Church.[55] During the several decades of Putnam’s study, the North prospered and local government was effective, while the South was marred by corruption, suspicion, and poverty.[56] Putnam argues that civic culture made all the difference in the North, where networks of associational ties and the norms and trust they sustained overcame collective action problems and made individuals and groups more productive and government more effective.[57] ‘[O]bjective measures of effectiveness and subjective measures of citizen satisfaction concur,’ Putnam concludes, ‘in ranking some regional governments consistently more successful than others. Virtually without exception, the more civic the context, the better the government.’[58] It is worth quoting at length Putnam’s explanation of these important findings:
Some regions of Italy . . . have many active community organisations. Citizens in these regions are engaged by public issues, not patronage. They trust one another to act fairly and obey the law. Leaders in these communities are relatively honest and committed to equality. Social and political networks are organized horizontally, not hierarchically. These “civic communities” value solidarity, civic participation, and integrity. And democracy works.
At the other pole are “uncivic regions” . . . aptly characterized by the French term incivisme. The very concept of citizenship is stunted there. Engagement in social and cultural associations is meager. From the point of view of the inhabitants, public affairs is somebody else’s business – that of i notabili, “the bosses,” “the politicians” – but not theirs. Laws, almost everyone agrees, are made to be broken, but fearing others’ lawlessness, everyone demands sterner discipline. Trapped in these interlocking vicious circles, nearly everyone feels powerless, exploited, and unhappy. It is hardly surprising that representative government here is less effective than in more civic communities.
. . . .
Civic engagement matters on both the demand side and the supply side. On the demand side, citizens in civic communities expect better government, and (in part through their own efforts) they get it. . . . [I]f the decision makers expect citizens to hold them politically accountable, they are more inclined to temper their worst impulses than face public protests. On the supply side, the performance of representative government is facilitated by the social infrastructure of civic communities and by the democratic values of both officials and citizens. . . . When people know one another, interact with one another each week at choir practice or sports matches, and trust one another to behave honorably, they have a model and moral foundation upon which to base further cooperative enterprises. Light-touch government works more efficiently in the presence of social capital.[59]
On this account, social capital embodied in civic networks greatly facilitates the pursuit of a variety of goals: people are able to get things done much more easily and effectively when their activities are immersed in a context of strong civic networks. Of particular significance is that civic networks are not necessarily (or even usually) formed in order to reap the benefits of social capital. People join choral societies because they enjoy music – not because they want to reduce crime and unemployment. People bowl in leagues because they enjoy the game in the company of others– not to make government more effective or to help the economy grow faster. The benefits of civic networks are therefore often the unintended by-products of membership and participation.
Reciprocity refers to the disposition of individuals to engage in cooperation with other citizens. We may usefully distinguish between two types of reciprocity: specific reciprocity and generalised reciprocity. Specific reciprocity (sometimes called particularised reciprocity) is cooperation between two (or perhaps more) identifiable individuals. It occurs when one person does a favour for another – who, either immediately or at some future date, returns the favour to that same person. ‘I’ll scratch your back if you’ll scratch mine’, is an instance of specific reciprocity. By its very nature, specific reciprocity requires trusting that the person to whom the favour is granted will return the favour in the future. Individuals who fail to reciprocate quickly enough or generously enough may therefore be shut out of cooperation in the future.
Specific reciprocity often confers significant benefits on individuals. Individuals who are able to exchange favours with others may hear about job opportunities, have somebody available to mind their children or watch their house, more easily borrow money, or get a ride to work. But the benefits of specific reciprocity are mostly limited to the individuals granting and then receiving favours, with few benefits to the general population. Indeed, this is true by definition: favours are not valuable if they confer substantial benefits on other people because then the benefit is widely available and there would be no need for reciprocity.
Generalised reciprocity exists where a favour granted by one person does not depend on any expectation that the recipient will repay it to that person. Instead, the person grants the favour because he or she is part of a community in which it is understood that people do favours for each other. The favour will be ‘returned’ only in the sense that the person giving it will in turn benefit, somewhere down the road, from other favours from other members of the community. Accordingly, generalised reciprocity exists where individuals trust each other generally and exhibit cooperative behaviour with each other even though there is no specific guarantee in any particular instance of a reciprocal exchange.[60]
A growing body of evidence suggests that reciprocity of this nature is an important feature of social life. Research in evolutionary psychology suggests that humans are evolutionarily predisposed to engage in cooperative behaviour.[61] ‘Propensities well coordinated with the propensities of others . . . [are] fitness-enhancing, and so we may view a vast array of human propensities as coordinating devices.’[62] Individuals are not the purely self-interested agents traditional economics imagines them to be; rather, in many instances people are inclined to engage in cooperative endeavours with others even in the absence of immediate material benefits to themselves.[63]
Reciprocal propensities in everyday life – what Blanche DuBois called the kindness of strangers – abound.[64] Thus, for instance, defying economic predictions, people leave tips in restaurants where they never expect to dine again. People contribute to public radio even though they can listen without paying. People vote although they know their vote is unlikely to make a difference to the outcome of an election. Individuals give away all kinds of things to total strangers, including blood and bodily organs, and money to help people in distant lands. Some people risk their lives to save anonymous others, often with little compensation (eg police officers, firefighters), or with none at all. Drivers stop at accident scenes to provide assistance. People ‘lend’ strangers quarters for phone calls and subway tokens to make it across town, and thousands of voluntary associations around the country depend for their very existence on individuals willing to provide services without compensation. The propensity of individuals to engage in cooperative behaviour has also been observed in experimental settings where subjects consistently fail to act in an entirely self-interested fashion.[65]
Generalised reciprocity is an important source of social capital conferring substantial benefits on groups or communities in which it exists. Generalised reciprocity is a normative feature of the social context. As is true with other norms, generalised reciprocity shapes behaviour because failing to abide by the norm results in public disapproval and exclusion from social groups.[66] Moreover, quite practical considerations prevent individuals from breaching a code of reciprocity. Where social ostracism means the disappearance of neighbourly help (no gardening tools, no baby-sitters, no advice or warnings, no consultation) and where other individuals in a community do cooperate for efficiency gains, violating norms of reciprocity can mean deep and long-lasting personal costs. Norms of generalised reciprocity can thus greatly reduce the risk of defection in collective action situations. I will harvest your crop (or paint your apartment) because I am expected to do so and because I can rely on somebody to help me later on; you will help me because you prefer not be shunned by your neighbours and because you also need help from others in the future. As such, generalised reciprocity makes possible cooperation for mutual benefit.[67] On a larger scale, reciprocity may overcome or reduce free-rider barriers to the provision of public goods. Individuals acting reciprocally contribute to public goods even without any specific guarantee that others will also contribute.[68]
More generally, norms of reciprocity reduce a variety of transaction costs. When individuals do not need to check constantly that they are not being taken advantage of but instead may rely on shared cooperative norms, their goals become easier to achieve. It is, for instance, cheaper and easier for me if somebody on the street will lend me a quarter to make a phone call than if I have to use a credit card or call collect. It is easier for me to leave my briefcase at my table when I go to order coffee than to drag it along because I worry it will be stolen. If I may be confident that a salesperson is not cheating me, it is easier for me to buy a car. If I do not need to rely on lengthy legal documents to borrow money, it is cheaper and easier to get a loan. In numerous ways such as these ‘[a] society that relies on generalized reciprocity is more efficient . . . for the same reason that money is more efficient than barter.’[69] Generalised reciprocity serves to ‘lubricate the inevitable frictions of social life.’[70]
So far I have described the nature and importance of social capital. This section sets out the social capital argument for federalism, examining in detail why a federal system of government is likely to promote social capital more readily than a nationalist form of government.
The argument may be summarised in the following way: an important benefit of dividing up authority and decision-making between the national government and the states is that it increases the points of political power at which citizens can seek to exert influence in order to achieve their goals. Rather than facing a single governing entity, under a federal system of government citizen groups that seek to influence political outcomes can direct their resources towards the state government – and within state government to various entities at the local level – or towards the national government, or towards both. An environment in which there are multiple sites for influence promotes social capital because such an environment is conducive to a large number of interest groups in which citizens actively participate. Thus, rather than vast numbers of citizens being passive members of a large national advocacy group which pursues the members’ interests in Washington, federalism provides opportunities for smaller groups of active citizens to organise and pursue their goals in a variety of settings. Federalism can therefore be expected to increase the prevalence of such groups. Put differently, when political power is divided, it is more difficult for any single interest group to capture all politics. Divided political power therefore increases opportunities for engagement by additional groups of citizens, enhancing social capital as a result.
In addition to providing an environment for a greater number of citizen groups to exert influence in political processes, I claim also that federalism enhances social capital by expanding opportunities for individuals to participate directly in politics through such activities as running for public office. Significantly, the social capital benefits of federalism are not merely the benefits of a decentralised system of government where power is delegated by a central authority that remains the ultimate decision-maker. Rather, social capital depends on an actual division of power – a division characteristic of federalism – so that citizen groups have incentives to seek influence at multiple points of politics and not just to sway an ultimate authority. Accordingly, from a social capital perspective, competition between the national government and the states over the appropriate division of power – such as results from constitutional ambiguities – is a healthy feature of federalism. An ongoing struggle over the division of power presents constant opportunities for groups of citizens to pursue their agendas. The struggle promotes social capital as a result.
For the same reason, it is also highly significant that federalism entails a division of power between the national government and the states because the states are likely the only political entities strong enough to engage in political struggles with the national government. Some commentators advocate locating greater political power at a more local level on the view that states have become too large and too distant from their citizens. The social capital argument for federalism suggests by contrast that, given the growth in the size of the nation and in the functions of the national government, the states are today more relevant than ever. Social capital depends on strong states to counteract a strong national authority.
Federalism creates multiple sites of power. Rather than locating power in a single authority, federalism diffuses power among multiple governments. The result of this design is to make it considerably more difficult for any single group of citizens seeking to achieve certain goals to dominate political life. Accordingly, federalism creates opportunities for multiple groups of citizens to pursue their agendas and to influence public policy.
From the perspective of a single group of citizens, a system of government in which power is centralised at the national level means that in order to achieve its goals the group must target as forcefully as possible the responsible national decision-maker.[71] Accordingly, any single group will be in competition with other likeminded groups, each seeking to exert influence at the very same node of power.
Under a nationalist system of government, each group therefore has an incentive both to expand and to deepen its resources at the national level. A larger group will be able to exercise more political influence than a smaller group. Accordingly, in a nationalist system groups will face strong pressures to grow in size, by increasing the number of their members and, perhaps, through combining with other groups. Groups will also tend to deepen their resources at the national level because resource concentration will increase the chances of influencing policy. In a nationalist system of government, groups that are larger and are able effectively to concentrate more resources will tend to exert greater power.[72] Small, less organised groups will be relatively weak and less successful in using political influence to pursue their agendas.
A nationalist system of government is therefore likely to co-exist with large-scale citizen groups that concentrate their resources at the site of national government. Groups like the American Association of Retired Persons (‘AARP’), Greenpeace, and the National Rifle Association (‘NRA’) are likely to predominate in a nationalist system. While some smaller groups of citizens will of course also be found, we should expect them to be less prevalent and to exercise less political influence.
In addition, in a nationalist system the groups that do exist will tend to be organised along single issues (eg ‘abortion’ or ‘gun control’ or ‘gay rights’) that are able to capture the support of large sections of the population. Alternatively, these groups will tend to unite members of some well-defined segment of the population (eg ‘retirees,’ ‘gays and lesbians,’ or ‘teachers’) but with broader and more ambiguous political goals (eg ‘protection of the interests of gays and lesbians’ or ‘promoting the needs of retirees’). Multi-issue groups and groups cutting across very diverse segments of the population without a coherent focus will tend to be less common in a nationalist system because it will be harder to organise large numbers of individuals into the membership ranks of such groups.
From the perspective of citizen groups, things look quite different in a federalist system in which power is divided. Under a federal system of government, a group’s expansion and concentration of its resources at the national level of government will not necessarily make sense. Instead, any single group will face choices: whether to pursue the group’s agenda by seeking to influence policy at the national level or at the state level or both. That decision will influence the form the group takes and the activities it pursues. Some groups will forego opportunities at one level of government and concentrate their resources entirely at the other. A group might, for example, pursue goals only in the halls of state government and be quite inactive on the national political stage. Alternatively, a group may concentrate its efforts in Washington and forego opportunities in the states. Further, a group might seek influence in some states but not others and so will need to decide which states to target. Other groups will perceive too much risk in putting their eggs into just one basket and so will instead divide their resources between the federal and state levels. Still other groups may aim for some mix of breadth and depth, perhaps even structuring their organisation in the very same way as the federal system of government with chapters organised at the state level (seeking influence there) united under a national organisational body (seeking influence in national politics).
The result of organisations choosing where to seek political influence is that in a federal system of government there will be additional opportunities for more groups to influence policy than exist in a nationalist system of government. Under a federal system, it is unlikely that any single group will be organised enough or large enough to capture all or even most political power at both the state and the national level. All groups, however strong, will need to make decisions about where to focus their resources. Accordingly, federalism will provide opportunities for political influence to groups that would likely be very weak under a nationalist system.
By requiring even the most powerful groups to forego influence over some sites of political power, federalism opens up opportunities for smaller, weaker organisations to compete for influence and pursue their agendas. These smaller groups will find it easier to exercise influence in a federal system because political power is not all concentrated at the national level. In other words, in a federalist system it will be easier for smaller organisations to mount opposition to even powerful groups because their resources will tend to be more diffused.
An example illustrates the point. Consider for instance that gun control is a divisive political issue. In a nationalist political system a group seeking to exert influence (in favour of or in opposition to gun regulation) will need to direct its resources towards the national government. Other groups seeking influence will do the same. Groups that are able to marshal greater numbers of supporters in favour of their position and draw on larger resources will be more successful in promoting their agendas. Small groups with few members and few resources will tend to have less impact.
By contrast, under a federal system of government, influencing national policy will be only one of the routes available to a group for promoting its agenda because the group can also seek influence at the state level. Any single group will need to decide whether it is better to focus its efforts at the national government, at the state government – and if so whether to direct its efforts at all of the states or just some – or at both the national government and at the states. If large powerful groups decide to focus their efforts at the national government, opportunities will arise at the state level for other smaller groups to exert influence. If instead large powerful groups decide to focus some efforts at the national level and some efforts at the state level, smaller groups will still more readily be able to compete at the national level. In either instance, there will be additional opportunities for other groups to enter the political arena. In short, whereas a nationalist system of government is likely to co-exist with a small number of large groups, federalism provides a healthy environment for a large number of smaller groups to proliferate.
More significantly, the types of citizen groups that federalism promotes will also be more likely to embody high levels of social capital than will the groups that emerge in a nationalist system of government. This is made clear by returning to the two forms of social capital we discussed earlier: civic networks and generalised reciprocity.
Smaller groups seeking to exert influence at multiple sites of governmental power are likely to represent stronger civic networks than bigger groups focusing their resources at the national level. A large number of smaller organisations embodies significantly more active citizen participation than a small number of centrally organised groups.
In smaller groups citizens are likely to be more actively involved in a personal capacity in the group’s functions: attending meetings, organising activities, recruiting members, or holding office. Where, on the other hand, associational life is dominated by a small number of mass-membership organisations, citizen activity is likely to be much more limited – perhaps not extending beyond making a financial contribution. Instead of citizens overseeing activities, the operation of large organisations will tend to be guided by a cadre of professional managers.
To be sure, the mass-membership organisations that exist in a nationalist system of government will often depend very heavily on their members for financial support. In turn, these groups may be highly effective in getting things done on their members’ behalf. But from a social capital perspective the kinds of organisations nationalist government will tend to encourage will be less significant than the organisations with more active citizen involvement that will flourish under federalism.[73]
Small-scale associations with active participants represent strong civic networks (and therefore an important form of social capital) because these associations broaden the sphere of interest and concern of their members, bring members into contact with diverse people, and provide unique channels through which to act.[74] As de Tocqueville explained in discussing the small civic associations that prevailed in the United States in the 1830s, these associations draw individuals out of their world of private self-interest and teach them habits of cooperation, solidarity, and other civic skills.[75] Such associations therefore serve as a check on the tendency of anonymity in an egalitarian society.[76]
Verba et al illustrate the variation in citizen activity among different kinds of organisations. They report the results of a national survey of citizen participation in a wide variety of associations.[77] The survey asked respondents about the nature and extent of their involvement in the following categories of organisations: service clubs or fraternal organisations such as Lions or Kiwanis; veterans’ organisations; religious groups such as the Knights of Columbus; ethnic groups such as the NAACP; senior citizens’ groups; women’s groups such as labour unions; business or professional organisations; issue-specific groups such as gun control or environmental groups; general civic organisations such as the League of Women voters; organisations supporting liberal or conservative causes such as the Conservative Caucus; candidate or party organisations; youth groups such as the Girl Scouts; literary, art or study groups; hobby, sport or leisure groups; neighbourhood or homeowners’ groups; charitable or service organisations such as the Salvation Army; educational organisations like the PTA; and cultural organisations such as a museum group.[78]
According to the results of this survey, 79 percent of respondents were involved in one or more of these types of associations either as members or by making financial contributions; 41 percent of respondents had four or more such affiliations.[79] Among those reporting affiliation with at least one association, 65 percent reported that they had attended a meeting of the association within the past year; 42 percent reported active membership such as service on a committee; and 28 percent reported that they have served as a board member or officer.[80] Different types of associations, however, showed quite different degrees of participation. The largest portion of respondents (44%) indicated affiliation with a large charitable or social service organisation.[81] But almost 80 percent of the members in these organisations simply made a financial contribution and did not even attend meetings.[82] Participation in large cultural organisations (13% of respondents), veterans’ groups (16% of respondents), and liberal or conservative groups (1% of respondents) was also mostly limited to giving money.[83] But of the respondents involved in the smaller service or fraternal groups (18%), religious groups (12%), educational groups (25%), literary, art or discussion groups (6%), hobby, sports or leisure groups (21%), business or professional groups (23%), unions (12%), and neighbourhood or homeowners’ groups (12%), at least half reported regularly attending group meetings.[84]
Externally, then, the small-scale associations federalism is likely to allow individuals to express their interests and demands on government.[85] These associations aggregate political power: they allow individuals who would otherwise be politically weak to join together to express their views and advance their interests.[86] But internally these small-scale associations bring people together and teach them organising skills that are useful in advancing political agendas: how to develop programs, write letters, run meetings, recruit associates, negotiate with others, and the like.[87]
Verba et al explain how these kinds of ‘civic skills’ acquired in the setting of small-scale organisations are important resources for political activity:
Civic skills, the communications and organisational abilities that allow citizens to use time and money effectively in political life, constitute a . . . resource for politics. Citizens who can speak or write well or who are comfortable organizing and taking part in meetings are likely to be more effective when they get involved in politics. Those who possess civic skills should find political activity less daunting and costly and, therefore, should be more likely to take part. Furthermore, those capacities allow participants to use inputs of time and money more effectively, making them more productive when they are active.[88]
Such civic skills are often acquired early in life, especially through education; hence, education is positively correlated with political activity.[89] In adult life, active participation in associations (and in church and workplace activities) provides additional opportunities for acquiring and practising these civic skills.[90]
These non-political settings provide exposure to political stimuli. People engage in informal political discussions in these settings. In addition, the agenda of a meeting of even a non-political organisation may include consideration of political issues. . . . Not only do these settings provide exposure to political messages but . . . they are frequently the locus of political recruitment of citizen activists.
. . . .
These non-political institutions [also] offer many opportunities to acquire, or improve, organisational or communications skills in the context of activities that have nothing to do with politics. Managing the firm’s move to new quarters, coordinating the volunteers for the Heart Fund drive, or arranging the details for a tour by the church children’s choir . . . represent opportunities in non-political settings to learn, maintain, or refine civic skills. In short, those who develop skills in an environment removed from politics are likely to become politically competent.[91]
For Black citizens, small-scale associations including church groups are particularly important sites for acquiring civic skills. In the workplace educated White citizens disproportionately occupy the high-level positions – such as teaching and the legal profession – that impart civic skills.[92] In small civic associations, by contrast, Black citizens have about the same opportunities as do White citizens to develop and practice civic skills.[93] In church groups in particular, Black citizens (and citizens of other minority groups) on average are able to practice civic skills more frequently than White citizens.[94] Accordingly, ‘[c]hurches . . . are one of the few vital institutions left in which low-income, minority, and disadvantaged citizens of all races can learn politically relevant skills and be recruited into political action.’[95]
In understanding the role of federalism in providing additional opportunities for the members of small, social capital intensive organisations to exert political influence, it is important to recognise that much collective activity occurs in and through organisations that are not identifiably political. As Verba and his colleagues report, ‘[t]he boundary between political and non-political activity is by no means clear, an aspect of political and social life in America that complicates the analysis of political and non-political participation.’[96] According to these researchers, even associational activity that appears to lie outside the political domain intersects with politics in important ways. Associational participation is in many important respects a ‘politicising experience.’[97] Echoing de Tocqueville’s observations in the 1830s, Verba et al find that
undertaking activities that themselves have nothing to do with politics – for example, running the PTA fund drive or managing the church soup kitchen – can develop organisational and communications skills that are transferable to politics. In addition, these non-political institutions can act as the locus of attempts at political recruitment: church and organisation members make social contacts and, thus, become part of networks through which requests for participation in politics are mediated. Moreover, those who take part in religious or organisational activity are exposed to political cues and messages – as when a minister gives a sermon on a political topic or when organisation members chat informally about politics at a meeting.[98]
An association does not, in other words, have to exist for a specific political purpose in order to allow and encourage its members to engage in political activities and to exert political influence. Accordingly, there are many historical instances of small-scale associations organised ostensibly for social or other non-political reasons that ended up encouraging their members to exert political influence.[99] This is particularly true for groups of citizens excluded from other political opportunities. In the 1860s, for instance, women in the United States, excluded from voting, holding office, or serving on juries, nonetheless exercised political influence through religious organisations.[100] In the 1870s the Woman’s Christian Temperance Union immersed its members in prison reform, youth advocacy, and labour issues.[101] In the 1890s women’s reading groups turned their attention away from books to advocating various kinds of political reforms, including legal protections for women and children.[102] Historically, religious and civic associations have also played an important role for the political activities of African-Americans excluded from other opportunities.[103] Indeed, it was precisely because these associations of otherwise excluded citizens represented a political threat that hostile governments have sought to prohibit them.[104]
To summarise, federalism encourages the activities of a wide variety of small-scale associations. These small-scale associations represent strong civic networks because through them citizens come together, develop collective interests, define their agendas, and learn skills that enable them to pursue their goals. While mass-membership organisations may exercise considerable power on behalf of their members, such organisations do not represent strong civic networks because the members in these associations are likely to be relatively inactive.
The types of citizen groups that federalism promotes will also embody strong norms of generalised reciprocity. Individuals who are actively involved in the small-scale associations of federalism will be more trusting of others and more likely to engage in reciprocal behaviour.[105]
There are several reasons for this effect. The first is closely related to the ways in which federalism promotes civic networks. When they engage in activities that allow them to acquire civic skills, citizens also develop norms of reciprocity. Through participation in civic networks, individuals learn to listen carefully to the viewpoints of others, to reserve judgment until appropriate, and to provide feedback. Individuals learn the importance of negotiation and compromise, of patience and control, and how to manage division and to obtain consensus. They learn to respect others and their views despite differences of opinion and they discover ways to maintain civility despite disagreement. These are habits of reciprocity taught through participation. Such habits may often promote reciprocal behaviour in other settings with other individuals. So, for example, a person who, by virtue of participation in civic networks, is accustomed to negotiation and compromise may be less demanding and less selfish in her daily transactions with others than somebody who has never learned similar cooperative habits.
Second, participation in the small-scale associations of federalism is likely to promote reciprocity by identifying citizens with each other and increasing their sense of solidarity. Research demonstrates that interacting with other people promotes the sense that individuals are part of a collective with shared interests.[106] Sense of membership in a common group significantly increases cooperative behaviour.[107] This identification that results from group membership is not necessarily limited to the specific members of the group with whom one interacts. Rather, by virtue of participation with some citizens we may come to see our common links with all citizens.[108]
Some associations have deliberate mechanisms for increasing identification and solidarity among their members: pledges, songs, initiation procedures, uniforms, and the like. But the reciprocity benefits of shared membership may to a large degree lie in the informal greetings and other rituals participation in the group entails. Members of a common group engage in various kinds of verbal and non-verbal communication that signal their shared ties and their willingness to engage in cooperative behaviour. As Iris Marion Young puts it, these rituals promote solidarity because they bring parties to ‘recognize one another in their particularity.’[109] Through greetings such as handshakes, hugs, or saying ‘Good evening’ and ‘Welcome’ in sharing refreshments, by listening to what other participants are saying, and through forms of speech that keep discussion going such as occasional flattery or deference, parties establish a level of trust and respect.[110] Rituals such as these promote reciprocity by establishing and reinforcing the good faith of the parties involved and their commitment to a shared baseline of cooperative behavior and respect.[111]
In this regard, it is useful to note that social capital theorists distinguish between two overall varieties of social capital: ‘bonding’ social capital which is ‘inward looking and tend[s] to reinforce exclusive identities and homogeneous groups’, and ‘bridging’ social capital which is ‘outward looking and encompass[es] people across diverse social capital cleavages.’[112] Or, to put the distinction more vividly, ‘[b]onding social capital constitutes a kind of sociological superglue, whereas bridging social capital provides a sociological WD-40.’[113] Of particular importance to generalised reciprocity in a diverse society such as the United States, participation in small-scale associations may serve to bring together in networks of solidarity individuals who would not otherwise interact. In this way, participation can perform a ‘bridging’ function, creating cooperation among socially diverse individuals.[114] Social distance, the extent to which individuals are demographically similar, has a profound effect on the extent to which they will cooperate with each other.[115] Active participation in civic networks may reduce social distance by bringing together members of different social groups to pursue issues of common concern. Shared activities within these associations will generate experience and skills with dealing with diverse members of a community, thereby reducing the sense of difference. Such participation may also identify and clarify interests and needs that were previously unappreciated and it may personalise issues so that the full impact of behaviour towards others is understood. Common membership may in this way reduce social separation and facilitate broad reciprocal norms.
A third reason that active participation in the small-scale associations of federalism will tend to promote generalised reciprocity results from the important effects of face-to-face communication. A large body of research demonstrates that individuals who communicate are more likely to trust each other and therefore more likely to engage in cooperative behaviour.[116] In addition, research shows that individuals who communicate are more trusting of other people with whom they do not themselves communicate.[117]
Researchers offer several reasons to explain why communication increases trust. Individuals who communicate with each other often become more trusting because communication allows them to reach agreements for mutual benefit. In this sense, communication directly facilitates cooperation. Communication also allows for the discovery of benevolent characteristics and it produces empathy. If repeated, communication improves the chances of monitoring behaviour and detecting and sanctioning cheating.[118] Communication increases trust towards other individuals (not communicated with) because it enhances a sense of membership and the recognition that there are other people out there who may be affected by one’s own conduct.[119] It also seems reasonable to suppose that some of the effects of face-to-face communication may simply spill-over to influence communications with others: the experience of communicating with somebody, for instance, may make us less distrustful of strangers in general.
In addition, participation in the kinds of small-scale associations that federalism will promote will frequently require individuals to engage in public-regarding discourse and behaviour. In the course of active membership in a small-scale citizen group, individuals must frame their views in terms that reflect the interests of the collective rather than in purely self-interested terms.[120] As Jon Elster explains,
there are certain arguments that simply cannot be stated publicly. In a political debate it is pragmatically impossible to argue that a given solution should be chosen just because it is good for oneself. By the very act of engaging in a public debate – by arguing rather than bargaining – one has ruled out the possibility of invoking such reasons.[121]
Interaction with other members of a small group deters purely self-interested ideas and proposals. When communicated to others in a small group setting, private preferences must be presented as concerns for the interests of the group or for the broader social whole. The very nature of conversation may be altered when it is characterised by appeals to a more general welfare. A conversation is likely, to put it simply, to be more civil when it is based on persuading others than when it involves blatant assertions of purely private interests.[122] What is sometimes called the ‘civilising force of hypocrisy’ may have important reciprocity benefits just by keeping tempers in check, reducing acrimony, and promoting respect.[123] Civil communication that avoids self-interested pronouncements may in turn have spill-over effects, altering the ways in which individuals communicate and conduct themselves in other realms of social life.
As a result of these effects of communication, participation in the small-scale associations of federalism may even influence the private preferences of individuals. Group-based communication often serves to weed out certain kinds of purely private preferences, those lacking any plausible collective benefit.[124] Cass Sunstein argues, for instance, that certain types of prejudice are ‘laundered’ by collective discourse.[125] As a result, frequent communication in a small group setting may tilt us towards collective ends as a matter of personal preference. In addition, communication with others in the context of small-scale associations may even change an individual’s preferences, instilling a taste for reciprocal behaviour. Individuals who speak in public-regarding terms as a result of group affiliation may over time adopt those preferences as their own.[126] In each of these ways related to the effects of face-to-face communication, we should expect participation in the small-scale associations of federalism to promote reciprocal norms.
The fourth reason that the associations federalism promotes will enhance norms of generalised reciprocity is that active participation by large numbers of citizens in associations sends an important message: citizens can be trusted to work to influence politics and to pursue their own agendas. ‘Civic virtue is bolstered if the public laws convey the notion that citizens are trusted . . .. Such trust is reflected in extensive rights and participation possibilities.’[127] For this reason, trust among citizens is generally much higher in democratic societies where citizens are treated as responsible agents who participate in political processes than in authoritarian regimes where citizens are passive subjects ruled by a central authority.[128] Accordingly, the involvement of a large number of citizens in activities that often have political significance will enhance generalised reciprocity by promoting a general understanding that citizens are trustworthy.
My focus so far in this article has been the ways in which federalism promotes social capital by expanding the opportunities for citizen groups to exert political influence. Federalism, I have argued, creates a healthy environment for the emergence of small-scale organisations with active members and this is good for social capital. A further way in which federalism should tend to promote social capital merits brief discussion. In addition to promoting the activities of small-scale citizen groups, federalism will tend to increase the opportunities for direct forms of individual participation in public life.
There are a variety of ways in which citizens participate directly in public life. These include: attending public meetings; making a speech; organizing a petition drive; running for public office; serving on a jury; voting; writing to a member of Congress; and attending a rally. Just as participation in a civic network represents social capital, direct participation may also have important social capital benefits by bringing together people in common activities and facilitating the development of shared norms that enable cooperative endeavours. Thus, regular meetings among the members of a group with a shared interest build social capital – but so do attending a town hall meeting, serving on a jury, and helping out in a petition drive. The mechanisms in each instance are similar: people who come together with some shared interest or concern or to perform some shared activity develop social connections and common norms that allow them to pursue various goals.
Some of these forms of direct participation are obviously more social capital intensive than others. Voting, for instance, is usually a relatively weak basis for producing social capital because (aside perhaps from waiting in line at the polling station) it is a very solitary and occasional act. We are unlikely to imagine ourselves to be deeply connected with or trusting of other people simply because they voted beside us. Rallies, on the other hand, may be quite intense forms of social capital although their benefits might be quite short-term. Running for public office can be an important basis for creating social capital with long-lasting effects but the social capital might be of a spoke and wheel variety: the person seeking election will develop lots of connections but the people she connects with are less likely to be connected to each other. Some forms of public participation will be mostly about bonding social capital: rallies or marches focused on specific issues, for example, will tend to attract similarly-situated individuals. Other instances of public participation will involve more bridging social capital. The Civil Rights movement, for instance, was an example of bridging social capital.[129]
Historically, voting, the militia and jury service represented significant forms of direct public participation.[130] In the early years of the Republic, voting was a very public affair. Voters, who often travelled together to the polling place, mingled throughout the day with other citizens and with party officials.[131] To election reformers at the end of the nineteenth century, this social capital involved in voting facilitated corruption: personal contact allowed for voters to be bullied and threatened or paid to vote in a particular way.[132] The militia was in the early Republic ‘a local institution, bringing together representative citizens to preserve popular values of their society.’[133] Men served in the militia with other members of their community, reinforcing shared values and interests and building and sustaining an important basis for collective action.[134]
Juries are an especially interesting case of direct public participation, still highly significant from a social capital perspective. In a very real sense a jury is a form of collective activity. Jury service is one of the few instances in which citizens are required to come together with other members of their community to deliberate and decide an issue of considerable public importance. Jurors must discuss and debate the issues before them in a civil manner; take into account the views of all of the members of their panel; determine together how the evidence presented should be understood and weighed; and reach a result that they collectively (and in the case of criminal trials unanimously) believe is just. Jury service often performs an important bridging function by bringing together individuals from different backgrounds who would not normally interact and promoting a sense of commonality among them. Few other occasions provide the opportunity for citizens to learn these kinds of cooperative skills.
The social capital juries embody is also of considerable political importance for two reasons. Alexander Hamilton identified both in Federalist No. 83 in describing the unanimous support at the Constitutional Convention[135] for preserving the right to jury trial:
The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.
First, juries of local citizens in criminal trials safeguard liberty because they can refuse to convict defendants. They thereby serve as a check on the power of the government. At the Founding, there were dramatic examples of colonial juries resisting British authority in trials such as that of John Peter Zenger on charges of seditious libel.[136] Juries continue to play a checking role today because they can acquit criminal defendants, for whatever reason, and their decisions are unreviewable.[137] Second, juries represent an important form of political participation by citizens: by serving on juries, citizens learn and practice the art of government.[138] De Tocqueville was talking about this value of juries when he observed in the 1830s that ‘[t]he jury is both the most effective way of establishing the people’s rule and the most efficient way of teaching them how to rule.’[139] According to de Tocqueville, ‘juries . . . instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.’[140] Indeed, in the early years of the Republic jurors looked much more like judges than they do today: instead of simply deciding well-defined issues of fact, early juries also interpreted and applied the law.[141]
Just as it provides more opportunities for citizens to influence politics through small-scale associations, federalism also increases the opportunities for citizens to participate directly in public life. Dividing power between governments expands the number of public offices for which individuals can run. It increases the amount of legislation proposed and passed and therefore the opportunities to influence laws. It increases the potential targets of rallying, campaigning, petitioning and letter-writing. Thus, in a federal political system like the United States people can run for office in national government or they can run for office in one of the states. We vote in national as well as in state elections. We serve on federal and state juries and as federal and state judges. We petition and write letters to our national representatives as well as to our state officials. We attend rallies in Washington as well as in Albany and Sacramento. Federalism promotes social capital by providing opportunities for more people to play direct roles in public life.
Arguments in favour of federalism frequently focus on the policy benefits of competition among the states.[142] The social capital argument for federalism points instead to the importance of competition between the national government and the states over the appropriate division of governmental power.
Ongoing power struggles between the national government and the governments of the states provide constant opportunities for citizen groups to exert influence. When the division of power is clearly defined and stable, citizen groups seeking to pursue their agendas are able to direct their resources and energies at the appropriate target. But an ambiguous division of power coupled with jostling between governing authorities creates uncertainty as to which government – national or state – will end up making the decisions on a particular matter. This ambiguity in turn casts doubt on the merits of pursuing one avenue of influence rather than another, an uncertainty that citizen groups otherwise excluded from political influence can exploit.
Thus, for example, if it is clear that the national government and not the states has absolute power to regulate all firearms, interest groups seeking to affect legislation on gun issues will wisely direct their resources to decision-makers at the national level. There will be little point in other groups trying to influence the states to enact favourable gun control legislation because where the division of power is settled such lobbying efforts will be meaningless. The end result will be that a small number of successful groups will succeed at the national level in influencing legislation that applies to the entire country.
If, on the other hand, it is unclear whether the power to regulate firearms rests with the national government or with the states, concentrating efforts at the national level becomes a much less certain strategy. Large powerful groups that would succeed where the division of power is clear will need to decide whether to concentrate their efforts at the national level – a potentially disastrous option if it turns out the states have more power in this policy area – or else spread their resources between the national government and the states. Even if large powerful interest groups capture influence over the national government, smaller groups can persuade the states to enact legislation, arguing to them, for example, that gun control is properly a matter of state law. If powerful interest groups spread their resources between the national government and the states (and even among the states) smaller citizen groups will still be able to compete more effectively with them because of reduced resources directed at any one site of government. In either instance, groups that might otherwise be too small to compete for political influence will find opportunities to pursue their agendas.
For this reason, what may appear to be ceaseless bickering between the states and the national government produced by an imprecise constitutional division of legislative powers may be quite healthy from a social capital perspective. When the national government and the states struggle over the appropriate division of governing authority and when the courts draw and redraw the constitutional divisions, new opportunities for citizens continually emerge. Under the mechanisms I have explored, these opportunities are good for social capital.
Federalism differs from decentralisation. Decentralisation exists when authority is delegated. A nationalist system of government might be decentralised: the national government might decide to delegate decision-making authority to local officials. With federalism, by contrast, actual power is located as a structural matter at a more local level (i.e. the states) and the national government cannot, as it can in a nationalist system, decide to take that power away. A nationalist system is not necessarily more centralised than a federal system of government because in a federal system the states might not themselves delegate anything more locally and the nationalist government might delegate extensively. The key point, however, is that power is structured differently under federalism.
Recognising this distinction between federalism and decentralisation, some commentators have criticised arguments made in favour of federalism as more properly arguments in favour of decentralisation.[143] On this view, because there is no necessary correlation between federalism and decentralisation we should focus instead on the appropriate degree to which it makes sense to delegate authority and not on whether power should be localised as a structural matter.[144]
The social capital argument, however, highlights an important advantage of federalism over mere decentralisation. Social capital is enhanced, I have claimed in this article, when there are multiple sites of political power that promote the political activities of a large number of citizen groups and provide greater opportunities for direct forms of participation in public life. Decentralisation increases the sites of political decision-making and so it may also increase opportunities for citizens to exert influence at multiple sites. But in a decentralised system power ultimately rests in the central authority. Accordingly, there remain strong incentives for citizen groups to seek influence by increasing and deepening their resources at the national level. There is, in other words, less need to spread out resources when, at the end of the day, power rests at the centre.
In a federal system by contrast, consolidating resources at the national level may have very little impact on politics at the state level because power, and not merely decision-making authority, is dispersed. In a federal system citizens cannot depend on the national government to intervene on their behalf in the states. Rather, influence over state policies requires directing resources towards state government because it is the ultimate decision-maker.[145]
Some commentators view the states as distant from their citizens and advocate increased governmental power at the more local level of cities, towns, and even neighbourhoods.[146] I do not dispute that there may be important benefits, including social capital benefits, from more localised political power. But the argument I have presented in this article suggests that there is also an important benefit from a division of power between the national government and the states and therefore significance in the continued existence of strong states.
An ongoing struggle over governmental powers promotes social capital, I have claimed, by providing new opportunities for citizens to influence politics. While the states may today be so large that they seem removed from the lives of their citizens, the states may also be the only entities sufficiently large to engage in the kinds of power struggles with the national government I have described. Cities, towns, and neighbourhoods will often lack the resources or the political will to battle with the national government over the division of authority. Relocating power from the states to the local level might diminish these power struggles, create more securely defined political divisions, and in the process undermine an important condition for social capital. Whatever the advantages of localism, the social capital argument for federalism therefore suggests that strong states may nonetheless have continued benefits.
According to the social capital argument for federalism there are important social benefits to a political system in which power (and not just decision-making) is divided between the national government and the states. In this section I briefly explore some implications of the argument and I identify some directions for further research.
The argument I have presented cautions against abandoning or weakening our federal system of government. Whatever the benefits from increased national power and decision-making at the national level, the social capital argument suggests that there is importance to modern federalism. Federalism, I have argued, creates a healthy environment for the growth of social capital and this has important collective benefits. At the very least, the argument presented in this article suggests that we should take into account the social capital benefits of modern federalism.
My purpose in this article has been to inform ongoing debates over the value of a federal system of government by identifying an aspect of federalism that has so far been overlooked. The social capital argument for federalism is not, however, meant to be conclusive. Rather, the argument is designed to initiate and enhance dialogue rather than foreclose it. In particular, even if, as I have claimed, social capital is an important value of federalism, it is surely not the only relevant consideration.
Social capital plays a substantial role in social and economic life and it powerfully contributes to the health of our communities and the well-being of citizens. Social capital allows individuals to get things done, often enabling people to overcome collective action problems resistant to other mechanisms. But other things matter also: equality, efficiency, and fairness, for example. Promoting social capital may be compatible with these other values. But it may also be inconsistent with some of them. In evaluating the social capital argument for federalism, we should always weigh the benefits of social capital against other values and considerations.
I have suggested that social capital is an important value of federalism that has thus far been overlooked. There may be reasons that in efforts to understand federalism and in debates over the usefulness of a federal design, the importance of social capital has been neglected. Social capital is difficult to measure; its relationship to federalism is complex and in many ways uncertain, and the benefits of social capital may often be long-term and diffuse.
The social capital argument serves, then, as a reminder that our knowledge about the ways in which political structures translate into measurable outcomes – how these structures work or fail, benefit us or undermine our well-being, facilitate our goals or thwart them – are likely difficult to identify. Evaluating federalism is therefore a complicated task that, in place of definitive theories, requires attention to discreet, modest issues investigated with careful research. Rather than speaking abstractly about such things as ‘competition’ or ‘efficiency’ or ‘liberty,’ in evaluating federalism we need a much more detailed account of what these things mean and how the choice of a form of government may influence them. In short, evaluating the benefits of federalism, including the social capital benefits, requires a very considerable amount of further work. If I have made any progress in this article towards that objective it is only by identifying a neglected area that requires further research (along the lines I outline below) before we draw firm conclusions about the advantages and disadvantages of federalism.
The social capital argument for federalism also suggests that there is value in uncertainty. An uncertain division of political power and ongoing struggles over the proper functions of different governing entities may in fact be a quite healthy aspect of our political system. Uncertainty, I have argued, creates opportunities for citizen engagement. Any search for a final, settled account of how to divide up the functions of government among competing authorities may therefore be quite unnecessary and perhaps ultimately misguided.
The social capital argument for federalism generates several theses with clear research implications. Empirical research is needed to determine whether and how federalism relates to observable levels of social capital. Studies could investigate, for instance, whether on a worldwide basis federal political systems tend to co-exist (as I have suggested) with higher levels of social capital measured by the presence of a large number of small-scale citizen groups and greater direct involvement by citizens in public life. Similarly, studies are needed to determine the nature and extent of individual citizen activity when political power divisions are poorly defined rather than settled.
Other studies could take a more longitudinal approach, investigating within a single political community whether periods of increased nationalisation correspond with decreased levels of social capital.[147] On a micro level there are a variety of important research questions. Research is needed to determine whether and how the organisational form of citizen groups varies according to the political structures in place. How do groups take into account governing structures? Do groups mimic the organisation of the polity? How quickly do groups adapt to changes in political structures? Research is needed also to determine how groups make decisions about where to allocate their resources in order to exert political influence, including the importance of a group’s perception of the influence exerted by other groups with which it is in competition.
The argument here, in other words, suggests several comparative, longitudinal, and organisation-specific studies examining the effects of federalism on levels of social capital.
The social capital argument for federalism points to an overlooked benefit of a federalist system of government. Federalism, I have argued, promotes social capital because dividing power between the national government and the states provides greater opportunities for citizen groups to influence politics and for individual citizens to participate in public life. Federalism therefore provides a healthy political environment for social capital – leading to important individual and collective benefits.
I have argued that these social capital benefits of federalism are enhanced by ongoing struggles between the national government and the states as to the appropriate division of political power. Accordingly, these are benefits not merely of decentralised government but rather of a political system in which there is a division of actual power. My account suggests also that the states remain of considerable significance because they are likely the only political entities that can engage in the kinds of power struggles with the national government that produce social capital returns. In addition, the social capital argument cautions against shifting governmental power away from the states to the local level of cities, towns, and neighbourhoods because these entities are likely to be too weak to compete with the national government over the appropriate division of power and such a shift is therefore likely to deplete social capital.
The social capital argument for federalism remains speculative at this time. The ways in which federalism promotes social capital requires greater theoretical exploration and, above all, empirical research. In setting out the basic features of the argument and identifying directions for further work, my objective has been to inform the ongoing debates about the value of a federalist design.
[*] Graduate Fellow, Yale Law
School.
[1] By federalism (or a federal
system of government) I mean simply government in which power is divided among
sovereigns. Thus, the
United States is a federal system of government because
power is divided between the national government and the states.
[2] See, for example, Daniel Elazar,
American Federalism: A View from the States (3d ed,
1984).
[3] See, for example, Thomas R Dye,
American Federalism: Competition Among Governments (1990); Richard A
Epstein, ‘Exit Rights Under Federalism’ (1992) 55 Law and
Contemporary Problems 149.
[4] Justice
Brandeis is often associated with this view of federalism. See, for example,
New State Ice Co. v Liebmann, 285 U.S. 262, 311 (1932) (Brandeis J
dissenting) (‘There must be power in the states and the nation to remold,
through experimentation,
our economic practices and institutions to meet
changing social and economic needs.’). See also Charles Fried,
‘Federalism—Why
Should We Care?’ (1982) 6 Harvard Journal
of Law and Public Policy 1; Lewis B Kaden, ‘Politics, Money and
State Sovereignty: The Judicial Role’ (1979) 79 Columbia Law Review
847, 853-55.
[5] See, for example, D Bruce La
Pierre, ‘Political Accountability in the National Political Process
– The Alternative to
Judicial Review of Federalism Issues’ (1985) 80
Northwestern Unviersity Law Review 577; Deborah Jones Merritt, ‘The
Guarantee Clause and State Autonomy: Federalism for a Third Century’
(1988) 88 Columbia Law Review 1, 9-10. The Supreme Court has at times
endorsed this rationale for federalism. See, for example.,
Gregory v Ashcroft, [1991] USSC 108; 111 S. Ct. 2395, 2399 (1991) (noting that federalism
‘makes government more responsive by putting the States in competition for
a mobile citizenry.’).
[6] See, for
example, Akhil Reed Amar, ‘Of Sovereignty and Federalism’ (1987) 96
Yale Law Journal 1425; Andrzej Rapaczynski, ‘From Sovereignty to
Process: The Jurisprudence of Federalism After Garcia’ (1985)
Supreme Court Review 341.
[7] See, for
example, William J Brennan, Jr.,‘State Constitutions and the Protection of
Individual Rights’ (1977) 90 Harvard Law Review 489; William J.
Brennan, Jr, ‘The Bill of Rights and the States: The Revival of State
Constitutions as Guardians of Individual
Rights’ (1986) 61 New York
University Law Review 535; Randall K L Collins, ‘Foreword: The Once
“New Judicial Federalism” and Its Critics’ (1989) 64
Washington Law Review 5.
[8] See Amar,
above n 6,
1512-17.
[9] A useful overview of the
arguments against federalism is David L Shapiro, Federalism: A Dialogue
(1995) Chapter. 2.
[10] See, for example,
Richard B Stewart ‘Pyramids of Sacrifice? Problems of Federalism in
Mandating State Implementation of National
Environmental Policy’ (1977) 86
Yale Law Journal 1196, 1212.
[11]
See, for example, Edward L Rubin and Malcolm Feeley, ‘Federalism: Some
Notes on a National Neurosis’ (1994) 41 UCLA Law Review 903,
917-20.
[12] See, for example, Robert C
Post and Reva B Siegel, ‘Equal Protection by Law: Federal
Anti-discrimination Legislation After
Morrison and Kimel’
[2000] YaleLawJl 13; (2000) 110 Yale Law Journal 441.
[13]
See, for example, Rubin and Feeley, above n
11,
915-17.
[14] Robert D Putnam, Making
Democracy Work: Civic Traditions in Modern Italy (1994)
167.
[15] In this article, I contrast
federalism with ‘nationalist’ or ‘nationalised’
government. By those terms,
I simply mean a system of government in which power
rests ultimately in a single sovereign (even though power may also be
delegated).
France, for instance, is a more nationalist system of government
than the United States because in France much greater power is
located at the
national level.
[16] Matt Ridley,
The Origins of Virtue: Human Instincts and the Evolution of Cooperation
(1996) 6.
[17]
Ibid.
[18]
Ibid.
[19] See, for example, Ronald Burt,
Structural Holes: The Social Structure of Competition (1992); Mark
Granovetter, ‘Economic Action and Social Structure: The Problem of
Embeddedness’ (1985) 91 American Journal of Sociology 481; Neil
Fligstein, ‘A Political-Cultural Approach to Market Institutions’
(1996) 61 American Sociological Review 656; Alejandro Portes and Julia
Sensenbrenner, Embeddedness and Immigration: Notes on the Social Determinants
of Economic Action (1993) 98 American Journal of Sociology 1320;
Charles Smith, Auctions: The Social Construction of Value (1989); Sharon
Zukin and Paul DiMaggio, The Structures of Capital: The Social Organisation
of the Economy (1990).
[20] See, for
example, Robert D Putnam, Bowling Alone: The Collapse and Revival of American
Community (2000) 319-25; Mark S Granovetter, Getting a Job (1974);
Nan Lin, Social Networks and Status Attainment (1999) 25 Annual Review
of Sociology 467.
[21] See Putnam, above
n 20, 296-306; Jason Mazzone, ‘Towards
a Social Capital Theory of Law: Lessons from Collaborative Reproduction’
(1998) 39 Santa Clara Law Review 1, 8-10; Toby L Parcel and Elizabeth G
Menaghan, ‘Family Social Capital and Children’s Behavior
Problems’ (1993)
56 Social Psychology Quarterly 120; James S
Coleman, ‘The Creation and Destruction of Social Capital: Implications for
the Law’ (1988) 3 Notre Dame Journal of Law Ethics and Public Policy
375, 384.
[22] See Putnam, above n
20, 326-35; Teresa S. Seeman, ‘Social
Ties and Health: The Benefits of Social Integration’ (1996) 6 Annual
Review of Epidemiology 442; Lisa F Berkman, ‘The Role of Social
Relations in Health Promotion’ (1995) 57 Psychomatic Medicine
245.
[23] See, for example, Robert Axelrod,
The Evolution of Cooperation (1984); Leda Cosmides and John Tooby,
‘Cognitive Adaptations for Social Exchange’, in Jerome Barkow et
al (eds), The Adapted Mind (1992); Lee Dugatin, Cheating Monkeys
and Citizen Bees: The Nature of Cooperation in Animals (1999); Herbert
Gintis, Game Theory Evolving (2000); Werner Güth and Menachem Yaari,
‘Explaining Reciprocal Behavior in Simple Strategic Games: An Evolutionary
Approach’
in Ulrich Witt (ed.), Explaining Process and Change: Approach
to Evolutionary Economics (1992); Elizabeth Hoffman et al,
‘Behavioral Foundations of Reciprocity: Experimental Economics and
Evolutionary Psychology’ (1998) 36 Economic Inquiry 335; Matt
Ridley, The Origins of Virtue: Human Instincts and the Evolution of
Cooperation (1996); Elliott Sober and David Sloan Wilson, Unto Others:
The Evolution and Psychology of Unselfish Behavior (1998); Robert Trivers,
‘The Evolution of Reciprocal Altruism’ (1971) 46 Quarterly Review
of Biology 35 ; Frans de Waal, Good Natured: The Origin of Right and
Wrong in Humans and Other Animals (1996); Robert Wright, The Moral
Animal (1994).
[24] These statements
summarise the detailed discussion contained in Putnam, above n
20, 307-25, 336-49.
[25] Ibid
20.
[26] Ibid
18-19.
[27] David Hume, Book 3, Part 2,
Section 5 (1740), as quoted in Putnam, above n 14,
163.
[28] See Robert Axelrod, The
Evolution of Cooperation (1984)
3-24.
[29] See Elinor Ostrom, Governing
the Commons (1991).
[30] See John
Ledyard, ‘Public Goods: A Survey of Experimental Research’
in John Kagel and Alvin Roth (eds) The Handbook of Experimental
Economics (1995).
[31] See Mancur
Olson, The Logic of Collective Action: Public Goods and the Theory of Groups
(1965).
[32] See C B Macpherson (ed),
Thomas Hobbes, The Leviathan (1986) 223-34.
[33] See Ostrom, above n
29.
[34]
See Putnam, above n 14,
167.
[35] Ibid
173.
[36]
Ibid
[37] Ibid
[38] See discussion II. E. below.
[39] See Putnam, above n
14,
174.
[40]
Ibid.
[41] See Putnam, above n
20,
367-401.
[42] See Richard H Pildes,
‘The Destruction of Social Capital through Law’ (1996) 144
University of Pennsylvania Law Review
2055.
[43] Putnam, above n
14,
169.
[44] Ibid
170.
[45] Ibid
173.
[46] See
ibid.
[47] Alexis de Tocqueville,
Democracy in America (J.P. Mayer ed., George Lawrence trans., 1988)
(1835) 513-17.
[48] See Arthur M.
Schlesinger, ‘Biography of a Nation of Joiners’ (1944) 50
American Historical Review 1.
[49]
Sidney Verba et al, Voice and Equality: Civic Voluntarism in American
Politics (1995) 81. See also James E. Curtis et al,
‘Voluntary Association Membership in Fifteen Countries: A Comparative
Analysis’ (1992) 57 American Sociological Review 139 (reporting
that Americans are the most likely to join associations if religious
organisations are included; excluding religious
organisations Americans join at
the same rate as citizens of other nations).
[50] See Putnam, above n
14,
174.
[51] Ibid
174-5.
[52] Ibid
175.
[53] Ibid
83-120.
[54] Ibid
162.
[55] Ibid
143-48.
[56] Ibid
115.
[57] Ibid 182.
[58]
Ibid.
[59] Putnam, above n
20, 345-46.
[60] See Ernst Fehr and Simon Gächter,
‘Fairness and Retaliation: The Economics of Reciprocity’ (2000) 14
Journal of Economic Perspectives 159; Armin Falk and Urs Fischbacher,
A Theory of Reciprocity (Feb. 1999) (unpublished manuscript, on file with
author).
[61] See sources cited above n
23.
[62] Allan Gibbard, Wise Choices, Apt
Feelings: A Theory of Normative Judgment (1990)
67.
[63] See Fehr and Gächter,
above n 60, 161-62. See also Joyce Berg
et al, ‘Trust, Reciprocity, and Social History’ (1995) 10
Games and Economic Behavior 122; Ernst Fehr and Simon Gächter,
Reciprocity and Economics: The Economic Implications of Homo Reciprocans
(Sept. 1997) (unpublished manuscript, on file with author); Simon Gächter
and Armin Falk, Reputation or Reciprocity (Sept. 1999) (unpublished
manuscript, on file with author); Bruno S Frey, Not Just For the Money: An
Economic Theory of Personal Motivation (1997); Alvin W Gouldner, ‘The
Norm of Reciprocity’ (1960) 25 American Sociological Review 161.
[64] See generally Linnda R Caporael et
al, ‘Selfishness Examined: Cooperation in the Absence of Egoistic
Incentives’ (1989) 12 Behavioral and Brain Sciences
683.
[65] See Fehr and Gächter,
above n 60, 162. In the typical experiment,
one subject (the ‘Proposer’) receives an amount of money. The
Proposer is free to
keep the money or send it or some portion of it to a second
subject (the ‘Responder’). The experimenter triples the
amount
sent. The Responder is then free to keep what is received or send it or some
portion back to the Proposer. Many proposers
send money and many responders
send money back. See also Gary Charness and Matthew Rabin, Social
Preferences: Some Simple Tests and a New Model (Jan. 2000) (unpublished
manuscript, on file with author).
[66] See
James S Coleman, Foundations of Social Theory (1990)
311.
[67] See Putnam, above n
14, 172.
[68] See Fehr and Gächter, above n
60, 164; R Sugden, ‘Reciprocity:
The Supply of Public Goods Through Voluntary Contributions’ (1984) 94
Economic Journal 772 .
[69] Putnam,
above n 20,
135.
[70]
Ibid.
[71] For a useful discussion of the
collective action impediments to legislation and of interest group influences in
politics see Jerry
L Mashaw, Greed, Chaos, and Governance: Using Public
Choice to Improve Public Law (1997)
13-21.
[72] Michael S Greve, Real
Federalism: Why It Matters, How It Could Happen (1999) 107-08 usefully
describes why today interest groups prefer a more nationalist system of
government:
Until the victory of the New Deal, corporate interests generally pursued an antinationalist strategy, both in Congress and in the courts. . . . From the beginning of the twentieth century and into the 1940s business associations masterminded and bankrolled many of the lawsuits against federal legislation . . . That posture stemmed from a straightforward calculation: so long as corporate America could hold the line against national intervention, federalism’s anti-regulatory, competitive dynamics worked to its advantage.
. . . [T]he collapse of the enumerated powers doctrine after 1937 dramatically changed the business community’s calculation. Once the dam had been broken, federalism quickly became a tactical concern. Individual firms, trade organisations, or industry sectors are for or against it, depending on the stakes. The drift is towards Washington, D.C., which offers the advantages of uniform regulation, lower transaction costs, and enhanced opportunities to expropriate a larger number of competitors on a grander scale.
[73] See Mashaw, above n
71, 19 (‘The American Automobile
Association and the American Association of Retired Persons . . . are
politically powerful organisations
whose vast memberships may enrol primarily
for the advantages of car towing, travel services, group discounts, and the
like.’).
See also Putnam, above n 20,
58-64.
[74] See David Knoke,
‘Associations and Interest Groups’ (1986) 12 Annual Review of
Sociology 1.
[75] See de
Tocqueville, above n 47, 515
(‘Feelings and ideas are renewed, the heart enlarged, and the
understanding developed only by the reciprocal action of men
one upon
another.’). Echoing these observations, John Stuart Mill writes that
through association with others, a citizen is
drawn out of the sphere of
self-interest and learns to pursue collective ends:
He is called upon . . . to weigh interests not his own; to be guided, In case of conflicting claims, by another rule than his private partialities; to apply, at every turn, principles and maxims which have for their reason of existence the common good: and he usually finds associated with him in the same work minds more familiarized than his own with these ideas and operations, whose study it will be to supply reasons to his understanding, and stimulation to his feeling for the general interest.
John Stuart Mill, ‘Considerations on Representative
Government’, in John Stuart Mill, Three Essays (1975) (1861)
197-98.
[76] See de Tocqueville,
ibid 516.
[77] See Verba et
al, above n
49.
[78]
Ibid 60-61. The study also included a category for ‘other’ groups
not covered by these categories.
[79] Ibid
62.
[80] Ibid 62. See also Frank
Baumgartner and Jack Walker, ‘Survey Research and Membership in Voluntary
Associations’ (1988) 32 American Journal of Political Science 908
(reporting that 77.7% of respondents are members of one or more group); Virginia
Hodgkinson et al, Voluntary Associations: Building the Habits of
Caring, Sharing and Community Service, paper prepared for the research
symposium honouring the contributions of Brian O’Connell to research and
the development of
education about the independent sector, Washington D.C.
(1994) (reporting that 70% of Americans are members of a religious organisation
and that 30% of Americans are members of some other organisation); David Horton
Smith, The Rest of the Nonprofit Sector: The Nature, Magnitude, and Impact of
Grassroots Associations in America, paper prepared for the annual convention
of ARNOVA (1994) (reporting that 67% of adult Americans, or 124 million
individuals belong
to one or more grassroots organisations; and that there are
7.5 million such associations); Robert Wuthnow, Sharing the Journey
(1994) (reporting that 40% of the adult population, or 75 million Americans, are
members of a ‘small group’ that meets
regularly and estimating that
there are 3 million small groups in the United States).
[81] See Verba et al, above n
49,
63-64.
[82]
Ibid.
[83]
Ibid.
[84] See ibid. See also John C
Scott, ‘Membership and Participation in Voluntary Associations’
(1957) 20 American Sociological Review 315 (reporting that 16% of
members hold positions as officers; 14% are on committees; and the average
attendance at meetings is 2.65
times per month); Morris Axelrod, ‘Urban
Structure and Social Participation’ (1956) 21 American Sociological
Review 13 (reporting that only one-fifth of respondents were active in their
associations).
[85] See Putnam, above n
20, 338. See also James Kerri,
‘Anthropological Studies of Voluntary Associations and Voluntary Action: A
Review’ (1974)
3 Journal of Voluntary Action Research 10
(explaining that externally associations act as political pressure groups;
perform deliberative functions; and act as points
of articulation with
officials).
[86] See Amy Gutmann, ‘An
Introductory Essay’ in Amy Gutmann (ed) Freedom of Association
(1998) 3 (‘Without access to an association that is willing and able to
speak up for our views and values, we have a very
limited ability to be heard by
many other people or to influence the political process, unless we happen to be
rich or famous’).
See also Joshua Cohen, ‘Deliberation and
Democratic Legitimacy’ in James Bohman and William Rehg (eds),
Deliberative Democracy (1999)
67-91.
[87] See Putnam, above n
20, 338.
[88] See Verba et al, above n
49,
304.
[89] Ibid
305.
[90] Ibid
309.
[91] Ibid 309-10 (footnote
omitted).
[92] Ibid
314-320.
[93]
Ibid.
[94] Ibid.
[95] See Putnam, above n
20, 339 (citing Frederick C. Harris,
‘Religious Institutions and African American Political Mobilization’
in Paul Peterson
(ed), Classifying by Race (1995) 299). For a
discussion of the historic role of Black churches in political activity, see
Joseph R Gusfield, Symbolic Crusade: Status Politics and the America
Temperance Movement (1963); Aldon D Morris, The Origins of the Civil
Rights Movement: Black Communities Organizing for Change (1984). On the role
of churches in modern interest group politics, see Allen D Hertzke,
Representing God in Washington: The Role of Religious Lobbies in the American
Polity (1988).
[96] Verba et al,
above n 49,
40.
[97]
Ibid.
[98]
Ibid.
[99] Theda Skocpol usefully traces
the proliferation of associations in the United States as a function of
politics, religious freedom,
and republican government: see Theda Skocpol,
‘How Americans Became Civic’ in Theda Skocpol and Morris P
Fiorina (eds) Civic Engagement in American Democracy (1999) 42. In this
regard, it was the American Revolution that marked the first period of active
associationalism in this country.
See ibid 43. The Revolution expanded the
group of people engaged in thinking about issues of equality and freedom, and,
because
the experience of rebellion brought together dispersed individuals in
shared circles of loyalty, it gave ordinary Americans tools
for collective
action. During the 1820s-1850s, association was closely tied to politics:
representative politics institutionalised,
at the same time, political parties
and civic associations, and both types of groups sought to maximise membership
in order to exert
political influence. Indeed, the very nature of associational
organisation in this period mirrored the design of the nation itself:
associations implemented detailed rules and procedures, provided for the
selection of leaders and representatives, and organised
themselves as local
units of a national body. See ibid 47. During the Civil War, translocal
associationalism flourished with a
political purpose: fraternal organisations,
in particular, were actively engaged in aiding members away from home. See ibid
55.
At the end of the Civil War, associations played an important unifying
role: the number of associations surged as a result of deliberate
efforts to
link Northern and Southern citizens in common groups with a shared purpose. See
ibid 56-57. Finally, during the Progressive
Era, when Americans created and
joined an unprecedented number of associations, association-building was
specifically directed at
curing various social ills which were thought to result
from decreased solidarity among citizens because of dramatic changes in the
economy and society. See Putnam, above n 20,
367-401.
[100] See Akhil Reed Amar, The
Bill of Rights: Creation and Reconstruction (1998)
239-41.
[101] See Putnam, above n
20,
389-90.
[102] Linda Blair, The
Clubwoman as Feminist: True Womanhood Redefined, 1868-1914 (1980)
93-112.
[103] See Amar, above n 100, 241;
Putnam, above n 20, 392.
[104] See
Amar, above n 100,
241.
[105] See Putnam, above n
20,
254.
[106] See Bruno S Frey and Iris
Bohnet, ‘Identification in Democratic Society’ (1997) 26 Journal
of Socio-Economics 25.
[107] See Nancy
Buchan et al, Who’s With Me? Direct and Indirect Trust in China,
Japan, Korea, and the United States (unpublished manuscript, on file with
author) 6; Iris Bohnet and Bruno S Frey, ‘The Sound of Silence in
Prisoner’s Dilemma
and Dictator Games’ (1999) 36 Journal of
Economic Behavior and Organisation 43, 45-46 and 53; John M Orbell et
al, ‘Explaining Discussion-Induced Cooperation’ (1988) 54
Journal of Personality and Social Psychology 811; Donnel Wallace and Paul
Rothaus, ‘Communication, Group Loyalty, and Trust in the PD Game’
(1969) 13 Conflict Resolution 370.
[108] Of course, we might not. Some
groups are highly insular, emphasising how their members differ from
others.
[109] See Iris Marion Young,
‘Communication and the Other: Beyond Deliberative Democracy’, in
Seyla Benhabib (ed) Democracy and Difference: Contesting the Boundaries of
the Political (1996) 129-30.
[110]
Ibid 129.
[111] The United States Senate,
for instance, famously relies on these kinds of rituals (e.g. honorifics).
[112] Putnam, above n
20,
22.
[113] Ibid
23.
[114] See Donna M Desforges et
al, ‘Effects of Structured Cooperative Contact on Changing Negative
Attitudes Toward Stigmatized Social Groups’ (1991) 60
Journal of
Personality and Social Psychology
531-44.
[115] See Nancy R Buchan et
al, Trust and Reciprocity: An International Experiment (April 2000)
(unpublished manuscript, on file with author) 5-6; Iris Bohnet and Bruno S Frey,
‘The Sound of Silence in Prisoner’s
Dilemma and Dictator
Games’ (1999) 36 Journal of Economic Behavior and Organization 43,
46 and 53; Elizabeth Hoffman et al, ‘Social Distance and
Other-Regarding Behavior in Dictator Games’ (1996) 86 American Economic
Review 653.
[116] A review of more
than 100 game experiments demonstrates that communication has a significant
positive impact on cooperation in both
one-shot and repeated games. In one-shot
games, communication increased cooperation by 45% on average; in repeated games,
communication
was found to be the single most important explanatory variable,
increasing cooperation by 40% on average. See David Sally (1995)
7
Rationality and Society 58. For a specific study see, for example Sanford
Braver and L.A. Wilson, ‘Choices in Social Dilemmas: Effects of
Communication
within Subgroups’ (1986) 30 Journal of Conflict
Resolution 51, 59 (reporting that in a public goods-game, communication
among participants increases cooperation by 27% and nearly doubles the
provision
of the public good).
[117] See Bruno S
Frey and Iris Bohnet, ‘Identification in Democratic Society’ (1997)
26 Journal of Socio-Economics 25 (reporting on positive effect of
communication on ‘other-regarding’ behaviour with respect to
third-parties).
[118] See Sally, above n
116, 68-70; Braver and Wilson, above n
116, 59-61; Elizabeth Hoffman et al,
above n 23, 339.
[119] See Nancy R. Buchan
et al, Trust and Reciprocity: An International Experiment (April
2000) (unpublished manuscript, on file with author) 19-20; Frey and Bohnet,
above n
117.
[120]
See Cass R. Sunstein, Democracy and the Problem of Free Speech (1998)
243-44; Joshua Cohen, ‘Deliberation and Democratic Legitimacy’, in
James Bohman and William Rehg (eds) Reason and Politics (1997) 68-9; Iris
Marion Young, ‘Difference as a Resource for Democratic Community’ in
Reason and Politics, 400.
[121] Jon
Elster, ‘The Market and the Forum’ in Bohman and Rehg , above
n 120, 12 (footnote omitted). See also Joshua Cohen, ‘Procedure and
Substance in Deliberative Democracy’
in Bohman and Rehg, above n
120, 414 (‘One must . . . find reasons
that are compelling to others, acknowledging those others as equals, aware that
they have
alternative reasonable
commitments’).
[122] See Amy
Gutmann, ‘The Challenge of Multiculturalsim in Political Ethics’
(1993) 22 Philosophy and Public Affairs 171, 197; John Rawls, ‘The
Domain of the Political and Overlapping Consensus’ (1989) 64 New York
University Law Review 233,
238-39.
[123] Jon Elster, ‘Strategic
Uses of Argument’ in Kenneth Arrow et al (eds) Barriers to
Conflict Resolution, cited in Cass R Sunstein, Democracy and the Problem
of Free Speech (1998) 243 fn 7.
[124] See Sunstein, above n
123,
244.
[125]
Ibid.
[126] See Elster, above n 12; Joshua
Cohen, ‘Deliberation and Democratic Legitimacy’ in Bohman and Rehg,
above n 120,
76-77.
[127] See Frey, above n
63,
45.
[128] See Eric Uslaner,
‘Democracy and Social Capital’ in Mark Warren (ed), Democracy and
Trust (1999) 141.
[129] See Putnam,
above n 20,
22.
[130] See Akhil Reed Amar, The Bill
of Rights: Creation and Reconstruction (1998) 48-49, 55, 88-98.
[131] See Michael Schudson, The Good
Citizen: A History of American Civic Life (1999)
4-6.
[132] Ibid
6.
[133] Amar, above n
130,
56.
[134] Ibid
55.
[135] Jury trials in criminal cases
were also protected in the 1787 Constitution. See the Constitution of the
United States of America, art. III, § 3.
[136] See Amar, above n
130, 84-85. On the Zenger trial, see Shannon
C Stimson, The American Revolution in the Law: Anglo-American Jurisprudence
Before John Marshall (1990)
52-55.
[137] See Harris v Rivera
[1981] USSC 230; 454 U.S. 339, 346 (1981) (per curiam) (describing the ‘unreviewable
power of a jury to return a verdict of not guilty for impermissible
reasons’). The Fully
Informed Jury Association seeks to inform citizens
of their right to nullification when they serve as jurors. See
<http://www.fija.org>
. Judges, of course, resist this idea. See, for
example, United States v Thomas 116 F.3d 606, 616 (2d Cir. 1997)
(‘[N]o juror has a right to engage in nullification – and, on the
contrary, it is a
violation of a juror’s sworn duty to follow the law as
instructed by the court.’)
[138]
See Amar, above n 130,
94-96.
[139] Alexis de Tocqueville, above
n 47, 276.
[140] Ibid
274.
[141] See Amar, above n 130,
100-01; John D Gordan III, ‘Juries as Judges of the Law: The American
Experience’ (1992) 108 Law Quarterly Review 272 ; Douglas G.Smith,
‘The Historical and Constitutional Contexts of Jury Reform’ (1996)
25 Hofstra Law Review 377, 446-454; Albert W Alschuler and Andrew G
Deiss, ‘A Brief History of the Criminal Jury in the United States’
(1994) 61 University of Chicago Law Review 867, 903-921; Mark De Wolfe
Howe, ‘Juries as Judges of Criminal Law’ (1939) 52 Harvard. Law
Review 582; Note, ‘The Changing Role of the Jury in the Nineteenth
Century’ (1964) 74 Yale Law Journal 170. Even though juries no
longer decide issues of law, non-lawyer judges continue to do so. See Alschuler
and Deiss, above, 915 (discussing
the role of municipal judges, county judges,
and justices of the peace). See generally Doris Marie Provine, Judging
Credentials: Non-lawyer Judges and the Politics of Professionalism
(1986).
[142] See, for example, Michael W
McConnell, ‘Federalism: Evaluating the Founders’ Design’
(1987) 54 University of Chicago Law Review 1484, 1493-1507; Jacques
Leboeuf, ‘The Economics of Federalism and the Proper Scope of the Federal
Commerce Power’ (1994) 31 San Diego L.aw Review
556.
[143] Rubin and Feeley claim for
instance that arguments based on the benefits of local participation and
responsiveness of local government
as well as competition among states and
experimentation at the local level are really arguments in favour of a
decentralised system
of government, not necessarily a federal system of
government. See Rubin and Feeley, above n
10,
914-26.
[144] Ibid 914-15,
951-52.
[145] Of course, in some
situations the federal government might intervene, such as to protect federal
rights. But I am concerned here
with instances in which the states are properly
exercising their powers.
[146] See, for
example, Richard Briffault, ‘The Local Government Boundary Problem
in Metropolitan Areas’ (1996) 48 Stanford Law Review 1115; Gerald E
Frug, ‘The City as a Legal Concept’ (1980) 93 Harvard. Law
Review 1059; Joan C Williams, ‘The Constitutional Vulnerability of
American Local Government: The Politics of City Status in American Law’
(1986) Wisconsin Law Review
83.
[147] In this respect, it is
significant that empirical research demonstrates that during the past four or
five decades – a period
in which it seems reasonable to believe the nation
has become more nationalised – levels of social capital have been
declining.
We are increasingly ‘bowling alone’, according to the
influential work of Professor Robert Putnam, whose solitary bowler
is the symbol
for decreased membership over the last generation in a host of voluntary
associations, declining interactions with
our family members, friends, and
neighbours, declines in church-going and participation in religious
organisations and events, decreased
political involvement, and the consequent
loss of the value and benefits of social capital this represents. See Putnam,
above n
20.
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