Faces of Federalism: From Bullinger to Jefferson - J. Wayne Baker

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Faces of Federalism:

From Bullinger to Jefferson

J. Wayne BakerUniversity of Akron

This study argues that the eighteenth-centurypolitical philosophy of federalism found its roots in thecovenant theology of early Reformed Protestantism in Zurich. It contends that there was a progression incovenan t or federal thought from the first pu blished articulation of the theological covenant by HeinrichBullinger in 1534, through the use of the covenant notion in defense of tyrannicide by Philippe Duplessis-Mornay, to fohannes Althusius's political philosophy offederalism, as well as the political theories of

Thomas Hobbes and John Locke, to the Declaration of Independence and the Constitution of the UnitedStates. These different faces or variations of federalism shared several common elements over the 250-year span.

.Daniel Elazar, during the 25 years I knew him, was an in spira tion in myown research-both through his prodigious publications on federalism andthe symposia he organiz ed from time to tim e. In his writings, Elazar showshow the political theology of federalism has had an impact on modernfederalism.

1In this essay, I wish to expand our understanding of the

connections between covenant theology and later political ideas offederalism by suggesting that the re were several layers or faces of federalismin the stream of thought from the early Protestant Reformation to thefound ing fathers of the United States. As im port ant as the ancie nt and

medieval background may be, Elazar points out that the basis for thedevelopment of modern federalism was the covenant theology of earlyProtestantism: " [The m oder n theorists] borrowed it lock, stock, and barrel.. . Radier than draw upon Roman or medieval contractualism, these moderntheorists and prac titioners em braced t he covenant idea and secularized it."

2

Therefore, the subject of this essay is the sixteenth-century roots ofpolitical federalism-in the thought of Heinrich Bullinger and PhilippeDuplessis-Mornay-and the fuller development of these ideas in theseventeenth century by Johan nes Althusius, Thomas H obbes, and Joh nLocke. Briefly stated, Bullinger created a powerful concept of the religiouscovenant in the 1520s and 1530s. Mornay built on the idea of the religiouscovenant when he developed the first expression of a political philosophyof federalism in 1579. In 1603, Althusius used Morn ay's incipien t fed eral

'Especially in his Covenant & Commonwealth: From Christian Separation through the Protestant Information.The Covenant Tradition in Politics, vol. II (New Brunswick and London: Transaction Publishers, 1996).

'Elazar, Covenant df Commonwealth, p. 45.

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framework to provide the first systematic, well-developed philosophy of

political federalism, which he based on the religious covenant. Therefore,

the concept that covenant or compact is the foundation of government was

an integral part of the federal tradition prior to Hobbes and Locke.

Each of these faces of federalism shared five common elements. First,

federal thinkers agreed that political society was formed by means of cov-

enant or compact. Second, they shared a general view of human nature.

Third, federal thinkers placed a high value on the community. Fourth,

federalists placed all members of the community under a common law.

Finally, federal thinkers held the community and its leader to covenant

faithfulness by means of checks and balances.

BULLINGER'S ONE AN D ETERNAL TESTAMENT OR COVENANT

OF GOD: THE ORIGINAL FACE OF FEDERALISM

Heinrich Bullinger (1504-1575), who replaced Huldrych Zwingli as the chief

minister of the Zurich Reformed church in 1531, was the founder of Re-

formed covenant or federal theology.3

He began to develop his concept of

the covenant in November 1525 and, in the next few years, used the idea

repeatedly in a variety of writings. His masterpiece, however, was his One

and Eternal Testament or Covenant of God (D e testamento sevfoedere dei unico &

aeterno)4

of 1534, the first treatise to be published on covenant.

The covenant was a distinguishing feature of Bullinger's thought. He

presents the covenant as the divine framework for human life, from thebeginning of the world to the end, in both religious and civil affairs. The

eternal covenant, first made with Adam, then renewed with Abraham, is

bilateral in nature, as God made clear when he said to Abraham, "Walk

before me and be upright" (Genesis 17:1). God promises to be all-suffi-

cient to those who are faithful in the covenant; the conditions for humans

are to have faith in God and to love their neighbor. It is thus a conditional

covenant.

Bullinger saw the entire Scripture as an affirmation of the covenant and

its conditions. The moral law, the Decalogue, is a restatement of the condi-

tions of the covenant. The first four commandments teach humans how to

walk before God; the other six commandments explain how to love the

neighbor in human society. Furthermore, the Old Testament prophets

taught the same covenant, with the same conditions-faith in God and love

of the neighbor. Finally, Christ renewed and confirmed the covenant, and

the Apostles taught the identical covenant. Therefore, for Bullinger, there

is only on e covenant of God. Nonetheless, the sacraments of the covenant in

s SeeJ . Wayne Baker , Heinrich Bullinger and the Covenant: The Other Reformed Tradition (At h e n s , OH :

Ohio Unive rs i ty Press , 1980).

' F o r an Engl i sh t rans la t ion, see C h a r l e s S. McCoy and J. Wayne Baker, Fountainhead of Federalism:

Heinrich Bullinger and the Covenantal Tradition (Louisvil le , KY: Wes tmins te r / Joh n Knox Press , 1991).



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Faces of Federalism 27

the Old Testament were changed in the New Testament; the old sacramentsof circumcision and the Passover were replaced by baptism and the Eucha-rist. Theref ore, in the same m ann er that infants, before Christ, were initi-ated into the covenant by circumcision, after Christ, they are enrolled amongthe people of God by baptism.

It is important to note how much emphasis Bullinger put on the com-munity in connection with the covenant. Not only does the individual be-come a member of the covenant itself by means of baptism, but, of equalimportance, a person becomes a member of the covenanted community,which is ruled by the civil mag istrate un de r divine sanction. Consequ ently,

even if an individual does not keep the condition of faith, that person isstill obligated, as a mem ber of the covenanted community, to keep th e con-dition of love of the neighbor. Bullinger's covenantal doctrin e was thusclosely connected with his view of the Christian community.

Bullinger felt that the no rm for the Christian commu nity was set in theOld Testament. He believed that the Christian magistrate, like the OldTestament rulers, is sovereign over all aspects of life, over the church aswell as the civil community. In fact, Bulling er hardly differentiated betweenthe two spheres of church and state. Th e m agistrate controls all discipline;the churc h has no powers of discipline. The magistrate has been given acharge by God to enforce God's will-the condition s of the covenant-w ithinthe Christian community. Th e magistrate does this not only by mak ing

sure tha t the Gospel is preac hed but also by enforcing the condition of loveof the neighbor bymeans of godly laws based on the moral law. H ence , thecovenant is the foundation of religion and of political society because it isthe centerpiece of the Christian religion and the cornerstone of the Chris-tian community.

Bullinger did not set out to create a political philosophy, but his systemdoes contain four of the five common elements of later political federal-ism: (1) he envisions a society forme d on th e basis of the covenan t; (2) h esees hum an natu re as the very reason why the covenant is necessary; (3) heemphasizes the community; and (4) he teaches that the community is to begoverned by God's law. However, there are no checks and balances in hissystem. Even though he does hold the comm unity and its leaders to faith-fulness in the covenant, the only suggestion of a check to the authority ofthe m agistrate is the th reat of divine punish me nt. It was Mornay who ad-vanced the idea of a real check, the deposing of a ruler who violates thecovenant.

M O R N A F S DEFENSE OF LIBERTY AGAINST TYRANTS: T H EEARLY POLITICAL FACE OF FEDERALISM

Mornay was the first to develop a rudimentary theory of political federal-ism in his Defense of Liberty against Tyrants: or, Of the lawful power of the Prince



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over the people, and of the people over the Prince (Vindiciae contra tyrannos: sive, de

principis in populum, populique in principem, legitma potestate). Morn ay's just i -

fication of resistance to tyranny rested on his belief in a series of covenants,both religious and political, which made the civil ruler responsible not onlyto God, but also to the people, who held ultimate political sovereignty.Mornay's covenantal thought was similar to Bullinger's,

5but the political

implications he drew from the covenant were mo re radical because he struc-tured his political thou ght aroun d the conc ept of popu lar sovereignty. Inthe Defense, Mornay explains that at the coronation of kings, "we read of atwofold cov enant: the first, between God, the king, and the people th at the

people will be God's people; the second, between the king and the peoplethat if he is a proper ruler, he will be obeyed accordingly."

6Th e first is the

religious covenant and the second, the political covenant. Mornay dealswith these covenants in terms of three q uestions: the first two have to dowith the religious covenant, the third with the political covenant.

The first question-whether subjects are obligated to obey rulers whosecom mand s contr adict God's law-he answers negatively. After giving ex-amples of Old Testament rulers who either kept the covenant or broke it,and thus lost their kingdoms, Mornay warns Christian rulers that they arebound by the same covenant, the same stipulations, and the same penal-ties. The stipulations of the covenant in any age are the love of God andthe neighbor.

7All of this is nearly identical with Bullinger's idea of the

covenant.

Mornay gives a positive answer to his second question-whether a rulerwho violates God's law and desolates the c hurch may be resisted. Such aruler can be actively resisted because the king and the people as a wholehave obligated themselves to the covenant, "the corporate body of themher e ac ting as a single individual." It is the king's duty to enforce the cov-enant among the people; the people, however, "have the right, not only ofmaking a Covenant, but also of performing it and of enforcing its perfor-ma nce" by the ru ler. Mornay assures the rea der that when he speaks of thepeople in a collective sense, he means "those who receive authority fromthe people, that is, the magistrates below the king who have been electedby the peop le o r established in some o the r way."

8

SThere is no proof that Mornay read Bullinger on the covenant, but the text of Bullinger's De testa-mentowas easily available to M ornay. Bullinger's treatise was first published in L atin in 1534; then it wasreprinted as an appendix to five different editions of Bullinger's New Testament commentary, the last in1558. If Mornay had not read Bullinger himself, he surely had read the works of others who were influ-enced by Bullinger.

' Ju l ian H. Frankl in , t rans , and ed. , Constitutionalism and Resistance in the Sixteenth Century: Three Trea-

tises by Holman, Beza, and Mornay (New York: Pegasus, 1969), p. 143. Th is is an abrid ged transl ation.

f r a n k l i n , Constitutionalism and Resistance, pp. 144-145; Harold J. Laski, ed. , A Defense of Liberty against

Tyrants (1924; reprint, New York: Burt Frank lin, 1972), pp. 71-75,80-85. Laski's is a full tra nslation.f r a n k l i n , Constitutionalism and Resistance, pp. 146-158; Laski, A Defense of Liberty, pp. 87-116.



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Mornay begins hi s di scuss ion of the thi rd que s t ion- wh ether a rule r who

oppress es or devastates a king dom may be resisted-with a clear affi rmation

of po pu lar sovereignty. A tyrant may be resisted because, al thou gh God

chooses rulers, the peo ple establ ish them . In essence, the n, the peop le as a

who le, rep rese nted by lesser magistrates, is grea ter tha n the king. Rulers,

establ ished by the p eop le as guardian s of just ice , are no t above th e law. All

of this has to do with the pol i t ical covenant in which the ruler promises to

rule acco rdin g to just ice an d law. T he rule r 's promise is abso lute, but th e

prom ise of the peo ple , to obey as long as the king rules justly, is condi-

t ional .9

Therefore, Mornay's twofold covenant , rel igious and poli t ical , was, inreali ty, on e covenan t . In the t radi t ion of Swiss covenanta l thought , he used

the te rms pactum a n d foedus interchangeably, whether referring to the rel i -

gious or pol i t ical cove nant . H e explici tly states that the two coven ants exist

i n t a nde m:

By the first covenant, or compact, religious piety becomes an obligation;by the second , justic e. In the first the king prom ises to obey God reli-giously, in the secon d, to rule the p eoplejustly; in th e former, to m aintainGod's glory, in the latter, to preserve the peo ple's welfare. Th e co nditio nin the first is: 'If you will observe My Law'; the condition in the second is:'If you will render each his own.'

10

Th ere is no dou bt , the n, that Mo rnay closely co nn ecte d rel igious an d

political life within th e fede ral fram ewo rk." As Bu llinger pu t it, love Go d

an d the ne ighbor .

Mornay thus art iculated al l five of the common elements of federal ism:

(1) political society is for me d by me ans of a twofold co ven ant; (2) this cov-

enantal arrangement is necessary because of sinful human nature; (3) pos-

tulat ing the existence of the societal coven ant in tande m with the rel igiou s

covenant , he clearly defined the connect ion between fai th in God and the

obligat ions of the community within a pol i t ical covenant; (4) the commu-

nity is governed by God's law; and, therefore, (5) i f the ruler breaks his

"Frankl in , Constitutionalism and Resistance, pp. 158-181; Laski, A Defense ofLiberty, pp. 117-174.10 Frankl in , Constitutionalism and Resistance, p. 181.

"Quentin Skinner insists, wrongly, lhat there are two distinct covenants in Mornay's thought and thatthe implications of the two covenants are almost incomp atible. Skinne r sees the political covenant as the"typically scholastic idea of a contract between the king and the representatives of the peop le" and placesit in opposition to the religious covenant. He states further, "This contract {pactum) is wholly separatefrom the idea of the religious covenant {foedus). . ." Quentin Skinner, The Foundations of Modem PoliticalThought, vol. 2, The Age of Reformation (Cambridge: Cambridge University Press, 1978), 325, 332.

Mornay certainly did not see the incom patibility that Skinner imagines. Rather, Mornay saw the twocovenants in tandem , not as distinct and sep arate. While Skinne r sees the use of lexregia, the idea that aruler's authority derived ultimately from a grant from the community, as a purely secular concept, it isclear that Mornay did not. Mornay discussed the reform of Josiah in conn ection with the concep t of lexregiaand the covenant. Josiah promised to observe the precepts and commandments in the Book of theCovenant, "and he is thus referring to the precepts of religion and justice ." Franklin, Constitutionalismand Resistance, p. 180.



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promise to rule according to justice and law, he can be replaced.

The federal framework that Mornay began to build was given its first

systematic, well-developed expression byjohannes Althusius, who frequently

referred to Mornay.12

ALTHUSIUS'S POLITICS: THE BRIDGE BETWEEN THE

RELIGIOUS COVENANT AND POLITICAL FEDERALISM

By the late sixteenth century, the connection between the religious cov-

enant and political federalism was beginning to emerge.13

Johannes

Althusius (1557-1638) was the person most responsible for clarifying this

connection. His political philosophy of federalism was the result of a vari-ety of influences.

14Althusius began his university studies at Cologne in

1581, then moved on to Basel, where he took the doctorate in civil and

ecclesiastical law in 1586. While living in Basel at the home of the Swiss

Reformed theologian, Johann Jacob Grynaeus, Althusius became familiar

with the federal religious ideas of the Reformed community. From 1586 to

1604, Althusius lectured in law at Herborn, a major center of federal thought

and theology. Then, in 1604, as a result of the publication of the Politics the

previous year, Althusius was invited to become syndic (chief executive, des-

ignated by the council) of the city-state of Emden, near the Dutch border.

Therefore, in addition to the usual Greek and Roman sources from which

the political thought of his time drew, Althusius's political philosophy was

shaped (1) by his observation of the federal political system in Switzerland,

(2) by his daily practice and experience in politics, and (3) especially by his

knowledge of the federal theological tradition, which he learned at Basel

and at Herborn.

Althusius 's masterpiece-Pott ic5 Methodically Set Forth (Politico, Methodice

Digesta)-published in 1603, contains the first fully formed federal political

philosophy. His political thought is fundamentally covenantal.15

The first

12Space does not allow the tracing of the further development of sixteenth- and seventeenth-century

federalism in Germany, Britain, and France: in Germany, Matthias Martini (1572-1630), a colleague ofAlthusius, and later, professor at Bremen, and his brilliant student, Johannes Cocceius (1603-1669); inEngland, Dudley Fenner (c. 1558-1587) and William Perkins (1558-1602); in Scotland, Robert Rollock

(1555-1599) and , especially, Samuel R utherford (1600-1661); and in France, at the Academy of Saumur,John Cameron (c. 1580-1625) and Moise Amyraut (1596-1664). See McCoy and Baker, Fountainhead ofFederalism, pp . 39-44, 64-79.

I9The connection is clear even in the derivation of the terminology. The German word Bund is the

term for both the theological covenant and a political federal arran gem ent. Th e Latin word foedus, fromwhich the term "federal" derives, likewise refers both to the theological covenant and to a political federalarrangem ent. Therefore, by definition, a covenantal order is federal, and a federal order is covenantal.

MBiographical data have been gleaned from C arl Joachim Friedrich, Politica Methodice Digesta of Johannes

Althusius (Althaus) (Cam bridge, MA: Harvard University Press, 1969), and from Frederick Carney, ThePolitics of Johannes Althusius (Indianapolis: Liberty Fund, 1995).

I5See Charles S. McCoy, "The Centrality of Covenant in the Political Philosophy ofjohann es Althusius,"

Politische Theorie des Johannes Althusius, eds. Karl-Wilheim Dahm, Werner Krawietz and Dieter Wyduckel(Berlin: Duncker & Humblot, 1988), pp. 187-199.



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paragraph of Chapter 1 reads,

Politics is the art of bringing humans together for the purpose of estab-lishing, developing, and conserving social life among them. For this rea-son it is called symbiotics. The content of politics, therefore, is association,by which, in either an explicit or tacit covenant, the symbiotes mutuallyobligate themselves to a mutual sharing of whatever things are useful andnecessary for harmony and productive activity in social life.

16

At the outset, then, Althusius asserts clearly that this covenantal symbio-sis is the basis of his political philosophy.

He goes on to state that such symbiotic, covenantal interdependency isabsolutely necessary if hum ans are to live comfortab le, safe lives. No on e isself-sufficient; everyone is miserab le alon e. No individual can provide acomfortable and happy life for himself. Therefore, as Aristotle taught,hu man being s turn to symbiotic association by necessity." Althusius con-cludes Chapter 1 by stating, "Thus, the arrogan ce and ferocity of man mustbe restrained by the certain reins of reason a nd law and political authority,lest he cast himself into the abyss of destruction ."

18Here, on the m atter of

hum an natu re, Althusius is a bridge between th e sixteenth-century federalthinkers and Hobbes and Locke. Bullinger knew that governm ent was nec-essary because huma ns are sinful by na tur e. W ithout men tioni ng sin,Hobbes and Locke wrote instead about "the state of nature," which makesgovernment necessary. Althusius was certainly aware of the sinful n atu re ofhumans-he was, after all, an elder in the Reformed church in Emden-buthe couched his warning in non-theological terms.

Having defined the symbiotic, covenantal basis of political life, Althusiusthen turned to the specific modes of association. Th e first type of associa-tion, "simple and private," ranges from the family to voluntary associations,such as the guilds or the collegia of theologians, philosophers, magistrates,and judges.

19The second type is the "mixed and public" associations of

the community, province, and commonwealth.20

The community is madeup of all the families an d co llegia in a village or a city. The province iscomposed of all the comm unities within a defined territory. The c omm on-wealth includes all private and public associations and is thus a "universalassociation" where "the people have been united into one body and gath-

ered together under one law by the agreement of many symbiotic associa-tions and pa rticular bodies."

21

At this point, Althusius turned to his concept of popular sovereignty.

16 Friedrich, Politico Methodice Digesla, p. 15; Carney, Politics, p. 17.

" F r i e d r i c h , Politico Methodice Digesta, pp. 15-16, 19; Carney, Politics, pp. 17-18, 24-25.

" F r i e d r i c h , Politico Methodice Digesta, p.19; Carney, p . 26 .

" F r i e d r i c h , Politico Methodice Digesta, p. 20-38; Carney, Politics, pp. 27-38.

T r i e d r i c h , Politico Methodice Digesta, pp. 38-94; Carney, Politics, pp. 39-78.21

Friedrich , Politico Methodice Digesta, p. 88 ; Carney, Politics, p. 66.



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After introducing the topic of "the right of the realm" (ius regni) or "theright of sovereignty" (majestatis jus), he wrote: "This right of the realm , orthe right of sovereignty, belongs not to individual mem bers but to all mem-bers in common and to the entire associated body of the realm."

22Then,

Althusius stated th at this "right of the realm ," or sovereignty, pertain s b othto relig ious a nd to civil life, an d that it consists of "universal symbiotic shar-in g (communio) and its adm inistration." This "universal symbiotic shar ingof the realm ," he wrote, "is either ecclesiastical or civil." He asserted tha tthe former has to do with religion an d piety, and with the first table of theDecalogue, "which pertains to the salvation of the soul and eternal life."

Th e latter cor respon ds with justice , "rend erin g to each what is due to him,the seco nd table of the Decalogue, which concerns the use of the body andthis life. In the former, all things must retu rn directly to the glory of God;in the latter, direcdy to th e use and welfare of the people associated in o nebody."

23This is an ech o of Bullinger's insistence th at the cond itions of the

covena nt cover all aspects of life-bo th civil and religious-in the covenantedcommunity.

24

By this point, Althusius has laid out the major themes of his theory ofsociety and govern men t. The symbiotic community and political societyare formed by means of a covenant because of human nature . The com-munity is ruled under a common law, and government is checked by thesovereignty of the people. The remainder of the Politics makes the mainpoints of Althusius's theory more explicit and clarifies the implications ofhis themes.

Althusius argued that actual government is constituted when a covenantis made between the supreme magistrate and the ephors (inferior magis-trates). The ephors, who represent all the people of the universal associa-tion, are elected by the consent of the entire people.

25The ephors and the

people promise obedience to and compliance with the laws of the suprememag istrate, as long as these laws do no t conflict with the law of God an d theright of die realm. He re, as in so many other places, Althusius cited Mornay'sDefense (question three, on popular sovereignty), along with numerous OldTestam ent passages.

26

Having discussed the basis for the authority of the supreme magistrate,

^Friedrich, Politico Melhodice Digesta, p . 91; Carney, Politics, p. 70."Friedrich, Politico Melhodice Digesta, pp. 93-94; Carney, Politics, pp. 74-75. This hardly sounds like an

author who was "talking exclusively about politics, not theology, and about the concept of rights, notreligious duties." Skinner, The Foundations of Modem Political Thought, 2:341.

"Friedrich (Politico Melhodice Digesta, p. civ) lists Bullinger as one of the auth ors whom Althusius oftencited. Friedrich compiled his list of autho rs not only from the Politics, but also from Althusius's OralioPanegyrica, an appendix to the Politics. Friedrich specifically cites Bullinger's In omnes apostolicas epistolasto which The One and Eternal Testament of Covenant of Cod was appended. Friedrich puts the total numbe rof Althusius's citations of Bullinger's works at about 150.

^Friedrich, Politico Methodice Digesta, pp . 162-163, 145; Carney, Politics, pp. 123, 102.^Friedrich, Politico Methodice Digesta, pp. 178-185; Carney, Politics, pp. 133-134.



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Althusius the n devoted several chapters to what he calls political p rude nce,or the art of governing. Chap ter XXI deals with the rule of law, whichpertains "to the duties that are to be fulfilled toward God an d the neighb orand to the love of God and th e neighb or"-Bu llinger's two condition s of thecovenant. Althusius goes on to distinguish between comm on law and properlaw. The Decalogue embodies the common law. The first four precepts,the first table, deal with one's duties toward God and the love of God. Thesecond table, the last six commandments, deal with one's duties toward theneighbor. The crucial poi nt here is that the co mm on law is identical withthe m oral law and natural law, and applies to all people.

27

It is, therefore, clear that Althusius did not m ean to exclude a scripturaland Christian perspectiv e from his political philosophy. His use an d treat-ment of the Decalogue clarifies what he meant when he stated in the pref-

ace that he wished to return the theological element to its proper place.His political science would still have a Christian framework and perspec-tive, but he would not dabble in theology per se in his political philoso-phy.

28

In fact, Althusius specifically conne cts his entir e political th eory with thereligious covenant. In this religious covenant, the magistrate and all themembers of the realm promised to introduce, conserve, and defend truereligious doctrine and w orship. God promised to bless those who fulfilledthis duty, and G od would punish those who neglected it. Althusius the n

cites num erous Old Testam ent examples and, subsequently, refers to ques-tion one (whether subjects are obligated to obey rulers whose commandscontradict God's law), as well as question two (whether a ruler who violatesGod's law can be resisted) of Mornay's Defense. He then concludes, "Whatis at stake in this obligation is not only the public practice of the honestworship of God and of orthodo x religion . . . but also the correc t and hon-est admin istration o fjustice, the second table of the Decalogue."

29Althusius

thus applied the religious covenant to both the civil and ecclesiastical lifeof the symbiotes.

Therefore, like Bullinger and Mornay, Althusius gave the political cov-enan t the same wrapping as the religious covenant. In the preface to the

"Friedrich, Politico Methodice Digesta, pp. 190-194; Carney, Politics, pp. 139-144.M

Skinner quotes from the preface of Politico, to the effect tha t Althusius had "the ambition to emanci-pate the study of 'politics' from the confines of theology and juris pru den ce, and to return 'all merelytheological, juridical a nd philosophical elem ents to their proper place s' in the name of conce ntratingexclusively on th e ind epen den t subject-matter of political science." Th e Age of Reformation, 342. Friedrich'sresponse to someone who stated that Althusius had not considered the foundations of his thinking suffi-ciently, also might suffice for Skinner: "This remark is typical of those who do not ad mit religious ideas asthe ultimate basis for thought, an attitude which bars one from comp rehending much of the profoundestpolitical thought of mankind." Politico, Methodic* Digesta, p. Ixvi.

"Friedrich, Politico. Melhodice Digesta, pp . 261-263; Carney, Politics, pp. 163-164.



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34 Publius/Fa ll 2000

1610 edi t ion, immediately fol lowing his statement that he would return al l

theological elements to their proper place, he wrote:

And I have included am ong other things herein, all in their p rope r places,the precepts of the Decalogue and the rights of sovereignty, about whichthere is a deep silence among some other political scientists. The p re-cepts of the Decalogue are included to the extent that they infuse a vitalspirit into the association and the symbiotic life that we teach, that theycarry a torch before the social life that we seek, and that they prescribeand constitute a way, rule, guiding star, and boundary for human society.If anyo ne wou ld take them o ut of politics, he would destroy it; inde ed, hewould destroy all symbiosis and social life am ong me n. For what would

human life be without the piety of the first table of the Decalogue andwithou t the justic e of the second? What would a common wealth be with-out the sharing and communication of things useful and necessary tohuman life?30

This is precisely what he me ant later in the treatise when he referred tothe "political doctrin e of the Decalogue," and it is reminiscent of Bullinger'steaching ab out the social and political implications of the conditions of thecovenant, of which the second table of the Decalogue is the clearest expres-sion.

Althusius introduc ed his argument for popular sovereignty (againstJeanBodin) in the preface to the 1603 edition, where he argued that the su-preme magistrate is the steward of the rights of sovereignty, but the owner-

ship of these rights "properly belongs to the total realm or peopl e." Thepeople have established these rights and have granted their admin istration"to a prince by a . . . covenant."

3' When, toward the end of the Politics,

Althusius considered tyranny and its remedy, Mornay plays an importantrole. He re, Althusius's extensive ar gum ent is simply a more sophisticatedversion of Mo rnay's theory. If a ruler violates his cove nant with the p eop leor neglects God's covenant, h e should lose his authority to rule, which wasgiven to him by the people. The epho rs are responsible for removing aruler from office if he persists in breaking these covenants.

32

Althusius's theory was thus die first complete expression of a politicalphilosophy of federalism. He includ ed all five of the comm on elem ents offederalism tha t he received from Mornay: (1) political society is formed by

means of covenant; (2) government isnecessary because of hum an natur e;(3) the com mun ity is formed by symbiotic association; (4) th e com munityis un de r the com mo n or natural law, as stated in the Decalogue; and (5) heaffirms the conc ept of popula r sovereignty, whereby he advocates the depo-

^ C a rn e y , Politics, pp . 11-12; Friedrich , Politico Mcthodice Digcsta, pp. 7-8.

" C a rn e y , Politics, p. 7 ; Fr iedrich , Politica Methodice Digesta, p. 5 .

^ F r i e d r i c h , Politico Methodice Digesta, pp. 376-402; Carney, Politics, pp. 191-200.



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sition of a government that breaks the covenant with the people or withGod.

Theref ore, Althusius is the bridge between the sixteenth-century expres-sions of federalism and those of the seventeenth century. While he basedhis political philosophy on rational principles, he did not divorce it fromthe theological idea of the covenant or from scriptural principles. Th etheories of Hobbes and Locke, later in the seven teenth century, were "secu-larized" versions of sixteenth-century federalism, based on "rational" prin-ciples, without any significant appeal to religion.

HOBBES'S LEVTTHAN: TH E DARK FACE OF FEDERALISM

Thom as Hobbes and Joh n Locke are often contrasted, on e as the precur-sor of conservatism and authoritarianism, and the other, of liberalism anddemocracy, in the mo dern w orld. While that may be true , they have somethings in comm on. On e imp ortan t similarity is that both built a politicaltheory on the sixteenth-century foundations of federalism. They are twofaces of federalism in the second half of the seventeenth cen tury. Lockeagreed with all five of the common elements of federalism, but Hobbesaccepted only four of them, hence, the differences in their political phi-losophies. On on e hand, H obbes, with his dark view of hum an natu re,thou ght t hat th e absolute state, the "m ortal god," was the only guarantee ofa peaceful and stable society. On the other hand, Locke's mitigated view of

human nature allowed him to construct a theory based on the sovereigntyof the people. However, both m en used the c once pt of covenant, or socialcompact, in constructing their political philosophies; both emphasized t hecommunity; and both advocated a community under the rule of a commonlaw.

Hobbes is hardly a perfect fit into the framework of federalism that cameout of the thought of Mornay and Althusius. Although he shared most ofthe common elements of federalism, he did not agree with the concept ofchecks and balances, and this gave his political theory a totally differentcast. He explicitly den ied the rig ht of resistance, even against a tyrant, forany reason, political or religious. In this respect, he echoed Bullinger,

33

the founde r of the Reformed federal tradition , more th at he did Althusius.However, while Bullinger's covenantal theory simply lacked any practical

check on the civil rulers, Hobbes's theory explicitly rejected such a check.Inasmuch as he rejected the entire concept of popular sovereignty, whichMornay and Althusius made an important element of federalism, it mayseem that Hobbes's theory does not correspond with these earlier faces offederalism.

Nonetheless, Hobbes places himself within the framework of federal-

33He also resembled Bullinger in his affirmation of the sovereignty of the chief magistrate over reli-

gious m atters as well as civil m atters.



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ism. In the Introduction to Leviathan, he explains that the commonwealthis an artifact, made by the art of huma ns in imitation of the a rt of God inmakin g and governing th e world. Moreover, both the work of God and thework of hum ans are federal in nature: "The Pacts an d Covenants, by whichthe parts of the Body Politique were at first mad e, set together, and unite d,resemble that Fiat, or the Let us make man, pronounced by God in the Cre-ation."

34The entire discussion in Leviathan, throughout its four books,

revolves around this covenantal understanding of God's relation to theworld. This covenantal understan ding, plus the fact that about one-half ofLeviathan deals directly with religio n, is often ig nore d by scholars. Th ere -

fore, although it is true that Hobbes's political philosophy is based on ratio-nal principles, in the sense that he does not base his argum ent on Scriptureor religious traditio n, it is also true th at his entire argu me nt is founded inthe concept of covenant, which was first articulated in the sixteenth cen-tury.

Hob bes's theory is a type of federalism. With the exception of the oneelement of checks and balances, his theory includes all other elements offederalism duri ng the perio d. His "state of natu re" is a condition of vio-lence and misery because of human nature.

35Political society, or a com-

mon wealth, is instituted by mean s of a covenant, a covenant made amongthe people, who then make a Sovereign, either explicitly or implicitly.

36

The Sovereign legislator is not subject to the civil laws, but the entire com-mu nity is subject to th e laws of the Sovere ign. Althou gh H obb es speaks ofnatura l law, he equ ates it with civil law: "The Law of Nature , and the CivillLaw, contain each other, and are of equall extent."

37Theref ore, the Sover-

eign defines natural law when he makes civil law.

Given the absolute nature of the authority of Hobbes's Sovereign, it isno t surprising that h e rejects every sort of check on the Sovereign's actions.He explicitly rejects any resistance theory based on a covenant with God:

And whereas some men have pretended for their disobedience to theirSoveraign, a new Covenant, made, not with men, but with God; this also isunjust: for there is no Covenant with God, but by mediation of some bodythat representeth Gods Person; which none doth but Gods Lieutenant,who hath the Sovereignty under God.

38

Here, Hobbes alludes to those who accepted Mornay's concept of thepolitical and religious covenant existing in tandem . He clearly does no trefer to the biblical covenant, because he deals with it at some length in

"Thomas Hobbes, Leviathan, ed. C. B. Macpherson (Baltimore: Penguin Books, 1968), pp. 81-82.3i

Ibid., 183-188.^Ibid., 228-239."Ibid., 311-335, here 314.'"Ibid., 230.



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Part 3, in connection with the Kingdom of God, which he equates with thecivil kingdom and the Sovereign of the civil kingdom.

39

Hobbes's political theory thus includes most of the elements of th e fed-eralism of the seve nteen th century : (1) political society is created by meansof a covenant; (2) political society must exist because of the meanness ofhuman nature in the state of nature; (3) this covenant creates a commu-nity; and (4) this community is ruled und er the com mon law of the Sover-eign, who is absolute and whose authority is not subject to any checks.

It is the absolutist part that makes his theory sound an tithetical to feder-alism. Hobb es's absolutism is based on rational principles rather than on

an appeal to Scripture or tradition or divine right. In this sense, his abso-lutism is new, although it serves the same purpose as the absolutist argu-ments of Bodin and other earlier thinkers. Hobbes's rejection of popularsovereignty or any other check on the Sovereign fostered a new, secularconservatism and absolutism in the future. In this sense, Hobb es's theoryis the dark face of federalism.

LOCKE'S SECOND TREATISE OF GOVERNMENT:

A NEW FACE OF FEDERALISM

Nonetheless, the idea of popular sovereignty turned out to be as powerfulas federalism itself. Perhaps M ornay's Defense of Liberty against Tyrants was afactor in th e resilience of the idea of popula r sovereignty in En gland, wh en,

in 1649, the English acted out th eir own tyrannicide . Mornay's treatise waspublished in an English translation in 1622, then reprinted in 1631 and in1648, the year before t he execution of Charles I. The n it was reprinted twoadditional times, in 1660, at the Restoration, and in 1689, at the GloriousRevolution. The core of Jo hn Locke's argum ents on the federal natu re ofgovernm ent, on tyranny, and o n the right of resistance is present in Mornay'streatise, and, in fact, Locke owned two Latin copies of the treatise.

40This is

not to suggest that Locke's political theory is identical with Mornay's; it isnot. However, the connectio n between Locke and Mornay does establish apedigree for t he federalism of Locke.

Although the basic thrust of the political theories of Locke and Hobbesare rather different, th ere are two imp ortan t similarities. First, both Lockeand Hobbes created their theories on the basis of rational principle; nei-ther appealed direcdy to tradition nor to biblical principles. Second, b othmen saw government as a huma n artifact, a federal artifact; th eir argum entswere ultimately based on the idea of covenant, which had its roots in theidea of the theological covenant. Otherwise, their argume nts are dissimi-lar. Locke's "state of nature ," his social compact, th e type of commu nity h e

"Ibid., 442-451.^John Harrison and Peter Laslett, The Library ofJohn Locke (Oxford: At the University Press, 1971),

No. 1856, 2054c, pp. 181, 193.



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advocated, and the limits that he placed on government clearly differenti-ate him from Hobbes.

In his Second Treatise of Government, Locke describes the state of nature as"a State ofperfect Freedom to order their [human] Actions, and dispose oftheir Possessions and Persons, as they think fit, within the bounds of theLaw of Nature, without asking leave, or depending upon the Will of anyother M an."

41It is a state of equality and of liberty: "The State ofNaturehas

a Law of Natu re to govern it, which obliges every one: And Reason, whichis that Law, teache s all Mankind, who will but consult it, that b eing all equaland in depe nden t, no on e ought to harm anoth er in his Life, Health, Lib-

erty, or Possessions."42 In the state of nature, humans have the right toprotect their lives, liberty, and property from any who might encro ach uponthem.

43Th e probl em is, however, that not everyone will recognize the rule

of reason or the law of nature. Ther efore, even thoug h Locke's was a miti-gated view of human nature when compared to Hobbes, Locke's state ofnatur e is, none theless , an incon venient state, where life, liberty, and p rop-erty are constantly threatened.

44

Therefore, in order to gain greater security, Locke believed that everyperson should consent to a social compact which forms political societyand government, under common, established laws. The purpose of politi-cal society is to preserve life, liberty, an d property.

45The legislative power

is the supreme power in the commonwealth, but its power is not absolute:

"Thus the Law of Natur e stands as an E ternal Rule to all Men, Legislators aswell as other s."46

Locke intro duce s th e concept of popu lar sovereignty at this point. Eventhough the legislative power is the supreme political power, "yet the Legis-lative being only a Fiduciary Power to act for certain ends, there remainsstill in the People a Supreme Power to remove o r alter the Legislative, when they

find the Legislative act contrary to the trust reposed in them."47

In otherwords, the people put their political power in trust to government; a gov-ern m ent that violates that trust can be replaced by the peop le. The sameprinciple applies to tyranny: " Wher-ever Law ends, Tyranny begins."48

In a casewhere the lives, liberty, and property of the majority of the peop le are en-dangered, the people can resist such a tyrant.

49

•"John Locke , Tw o Treatises of Government, ed. Peter Laslett 2d ed. (Cambridge: At the University Press,

1967), p . 287.

•"Ibid. , 289.

" Ibid . , 289-290, 341-342.44

Ib id . , 368-370.45

Ib id . , 348-351, 368-369, 371 .46

Ibid. , 376.47

Ibid. , 385.4s

Ib id . , 418.49

Ib id . , 422-423.



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Faces of Federa lism 39

The fiduciary aspect of Locke's theory is also the key to his understand-ing of the relationsh ip of the individual and the com munity. Locke is oftenpresented as teaching th at the individual is self-directing and self-sufficient-as the first advocate of liberal individualism.

50This, however, is not quite

true. Individuals are no t sovereign. According to the social compact, eachindividual sur rende rs his executive power of the state of natu re to the com-munity. Th e comm unity is now governed by a commo n law. As Lockeexpressed it, "And thus all private jud ge m ent of every particular Memberbeing excluded, th e Community comes to be Um pire, by settled standingRules, indifferent, an d the same to all Parties."

51Therefore, the individual,

by virtue of the social covenant, surre nders his right of jud gm en t an d issubject to the comm on law of the com munity.

Locke thus included all five of the basic elem ents of federalism: (1) thepolitical community, the com monw ealth, is formed on the basis of a socialcovenant or co mpact; (2) in the state of natu re, political society becomes anecessity because of huma n natur e; (3) the com munity replaces the privatejudgment of the individual because (4) individuals have agreed to live inthe commonwealth under a common law based on the law of nature; and(5) the peop le have ultimate sovereignty. If the gov ernm ent does not pre-serve these basic rights, or if the gov ernm ent becom es tyrannical, the peoplemay replace it, and, if necessary, they may resist a tyrant to the point ofrebellion.

The idea that government is based on covenant or compact was thor-oughly embedded in the federal tradition by the second half of the seven-teenth century. Hobb es and Locke were the heirs of sixteenth-centuryfederalism. Hob bes, because he rejects any check on the power of govern-ment, is the d ark face of federalism. Locke's political theory is usually treatedwithout even a nod toward federalism, but it is, in reality, a face of federal-ism. Locke's role was to "secularize" the id ea, to state it in mo re "rational"terms, so that it could be further developed in the eighteenth century associal com pact theory. Locke's new face of federalism c arrie d forward thefully developed federal philosophy, including the concept of popular sov-ereignty, into a new era.

TH E AMERICAN FACE OF FEDERALISM

In the Am erican ex perien ce, we witness two early instances of the conceptof covenant b ein g used to lay the basis for po litical society. In 1620, whilestill aboard the Mayflower, the Pilgrims made a covenant, which reads inpart:

50 See , for ins tance , C . B. Macpherson, The Politcal Theory of Possessive Individualism: Hobbes to Locke(Lon don : Oxford Unive rs i ty Press , 1962); Joh n Rawls , A Theory of Justice (Cam bridge , MA: Harvard Un i -

versity Press, 1971).51

Locke , Two Treatises, p. 342.



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40 Publius/FaU 2000

We whose names are under-written . . . doe by these presents solemnlyand mutualy in the presence of God, and one of another, covenant andcombine our selves togeather into a civill body politick, for our betterorderin g and preservation and furtherance of the ends aforesaid; and byvertue hereof to enacte, constitute, and frame such just and equall laws,ord inanc es, acts, constitutions, and offices, from time to time, as shall bethoug ht most meete and co nvenient for the generall good of the Colonie,unto which we promise all due submission and ob edience.52

Ten ye ars later, in 1 630, on the voyage to establish t he co lony of Massa-

chuse t ts , Jo hn W inth rop preached a se rmon tha t dea l t wi th the prob lem of

establ ishing a pol i tical and ecclesiastical commu nity u po n the arrival of thecolonists in New En glan d. In that serm on , W inth rop said:

Thus stands the cause betweene God and us, wee are entered into Cov-enant with him for this worke, wee have taken out a Commission, theLord hath given us leave to drawe o ur ow ne Articles . . . Now if the Lo rdshall please to heare us, and bring us in peace to the place wee desire,then hath hee ratified this Covenant and sealed our Commission, [and]will exp ect a strickt perform ance of the Articles contained in it, but if weeshall neglect the observation of these Articles . . . the Lord will surelybreake ou t in wrathe against us .. . and make us knowe the price of thebrea che of such a Covenant. . . [F]or wee must Con sider tha t wee shall beas a Citty up on a Hill, the eies of all people are upo n us.

53

Thus, years prior to the ideas of Hobbes and Locke, we discover two

laymen using a rudimentary theory of social compact to bui ld a pol i t ical

community on the basis of the rel igious covenant .

One-hundred-fifty years later, a more sophisticated theory -the new Ameri-can face of federalism-is evident in Thomas Jefferson's Declaration of In-dependence:

WE hold these Truths to be self-evident, that all Men are created equal,that they are endo wed by their Creator widi certain u nalienable Rights,that among these are Life, Liberty, and the Pursuit of Happiness-That tosecure these Rights, Governments are instituted amo ng M en, deriving theirjust Powers from the C onsent of the Governed, that whenever any Formof Government becomes destructive of these Ends, it is the Right of thePeop le to alter or to abolish it, and to institute new Gov ernm ent, laying itsFoundation on such Principles, and organizing its Powers in such Form,as to them shall seem most likely to effect their Safety and Happiness. 54

Although these familiar words are seldom t hou ght of in connection with

52William Bradford, "History of the Plimoth P lantation," in Perry Miller and Thomas H.John son, The

Puritans. Revised edition (New York: Harper Torchbooks, 1963) 1:102. I have modernized the spelling ofall English texts.

"John Winthrop, "A Modell of Christian Charity," in Miller and Johnson, The Puritans 1:198-199."Action of the Second Continental Congress, July 4, 1776.



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federal ism, these sentences, nonetheless, contain several of the common

elements of federa l i sm tha t we have t raced f rom Bul l inger to Locke .

Jefferson succincdy affi rms that go ver nm ent is form ed by com pact in o rde r

to secure "certain unal ienable rights." When a government breaks die com-

pact , the people have the right to abolish diat government and to form a

new gov ernm ent . His insistence diat the basis of go vern me nt is the con -

sent of the governe d is simply a restatem ent of the co nce pt of popu lar sov-

ereignty. Although the tone and even die words may bring up the image of

John Locke, these ideas also echo the Mayflower Compact and Winthrop's

sermon, and their deeper roots are found in the federal ism of the sixteenth

century.Finally, in 1789, after a peri od of loose u nio n u nd er the Art icles of Con-

federa t ion, the founders formed a new government of the Uni ted Sta tes

un de r the Const i tut ion. Th e conn ec t ions be tween the new Const i tut ion

and the old covenant theology are succincdy stated by Daniel Elazar:

By 1787 the theological stream of covenant ideas and the philosophicstream of compactual ideas had become so intermingled in the conceptof cons titutiona lism th at it is difficult to sep arat e their effects. Albeit,given that the federal system established by the framers bears a muchgreater similarity to the political systems proposed by the federal theolo-gians and implemented in their church polities than to the political sys-tems proposed by Hob bes or L ocke, and given that Americans were alreadycovenanting into civil societies well before the speculative philosophers

adopted the idea, it is difficult to avoid the con clusion that covenan t ideashad, in the final analysis, a mo re decisive influence than those of the newpolitical science.55

The founders formed a federa l communi ty based on a covenant among

the pe op le . Th e Con st i tut ion i t se lf is the bas ic law un de r which thi s

covenanted com muni ty exist s . Al though n o ment io n is mad e about the

hu m an co ndit io n, the Const i tut ion does conta in a variety of checks a nd

balances , includ ing th e separat io n of powers. Finally, while no provision is

made for the overthrow of this government i f i t breaks the compact , the

principle of popular sovereignty assures a continuing federal revolut ion in

the form of the bal lot box.

Such a repu bl ican form of gove rnm en t was fa r f rom the m ind s of

Bull inger and Mornay, but i t was their federal framework that formed the

roots of Am erican federal ism a nd m ade possible the mo de rn federal re-

publ ic .

"Danie l J . Elaza r , The Covenant Tradition in Politics, vol. 3, Covenant and Constitutionalism: The Great

Frontierand the Matrix ojFederal Democracy (New Brunswick and Lo ndo n: Transac t ion Publ i she rs , 1998), 78.



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Faces of Federalism: From Bullinger to Jefferson - J. Wayne Baker

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