Livingston 1952

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A Note on the Nature of FederalismAuthor(s): William S. LivingstonSource: Political Science Quarterly, Vol. 67, No. 1 (Mar., 1952), pp. 81-95Published by: The Academy of Political ScienceStable URL: http://www.jstor.org/stable/2145299.

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A NOTE ON THE NATURE OF FEDERALISMFederalismas a JuridicalConcept

LMOST every treatment of federal government and itsproblems has begun with the assumption that the prob-lem here concerned is one of legal formalism and

formal jurisprudence. Nearly all theorists have been at painsto point out that a federal constitution is a device for associatinga number of distinct political and constitutional entities in sucha manner that a new body is produced which is above and dif-ferent from those that have come together. But the componentstates still retain their identity, sacrificing to the collectivityonly such powers and functions as are necessary for the im-plementation of the purposes for which the association isformed. Or, as it is described in some instances, the powers ofthe central government are devolved upon the subordinatebodies in such a way that both central and regional units arethenceforth endowed with certain powers and functions ofwhich neither can be deprived by the other. This is to saythat the central government's functions cannot be assumed bythe local governments, or the local governments' by the central.Each is placed in relation to the other in a position of auton-omy; neither is subordinate and each may exercise within itssphere the full extent of its powers. There is also substantialagreement among writers on federalism that the extent of thesepowers is strictly limited by the simultaneous existence of com-parable, though never identical, powers in the other unit. Theproblem thus becomes that of the proper delineation of thesespheres. Where is the boundary between the central and thecomponent governments to be drawn? How much power doesthe central government have and how much power do thelocal units have? This attempt to quantify power seems to becharacteristic of the juridical approach to the problems offederal government.

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82 POLITICAL SCIENCE QUARTERLY [VOL. LXVIIIn order that this line of demarcationbetween the two gov-ernments may be preciseand understoodby all it is ordinarilyconsiderednecessarythat the constitution of a federal state bewritten. Most writers have held it impossiblefor a distributionof this nature to be producedby the slow evolution of institu-tions such as is found in Great Britain. The experience offederal governments in the modern world is cited to show thatin fact they all do have written constitutions. Only a writtenconstitution, it is held, could preciselyassign powers and func-tions in the necessary manner.Once the distribution of powers is made, the accounts con-tinue, it must be protected; and this requiresthat some kindof obstacle be put in the way of constitutional change. If the

component units have entered the federation on the under-standing that they are to possesscertain rights and functions,then these must not be taken from them except in circum-stances where some agreed-upon criterion demands such re-assignment. Conversely the powers of the generalgovernmentmust not be alienated unless this is clearly necessary. In orderto protect the allotment of powers to local and central units,the constitution must be rigid. By this is meant simply thatto amend the constitution a proceduredifferent from (that is,more difficult than) that of ordinary legislation is to be used.Indeed, since Lord Bryce published his Studies in History atndJurisprudencethe definition of a rigid constitution has turnedon this very point. A rigid constitution, as contrastedwith aflexible one, has come to mean one that can be amendedonlyby a proceduremore diflicult than that by which ordinary lawsaremade.This procedure for constitutional amendment in a federalstate, it is ordinarilysaid, must be designed to protect the fed-eral allocation of governmental powers and functions. Sinceone of the purposes of employing a federal rather than a uni-tary constitution is to assurethe different units of their properand agreed-uponsharein governmental activity, the power toamend the constitution cannot be lodged in either the generalgovernment exclusively or in the local governmentsexclusively,for this would permit the one to take from the other without

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No. 1] NATURE OF FEDERALISM 83its consent those functions that it desiresto retain. Hence thefederalsystem necessitatesan amendingprocedure n which theconsent of both the general and the local governments mustbe securedbefore any change can be made. But, the accountscontinue, this does not mean that the consent of all the localgovernmentsis necessary,for this would effectively cripple thefederationand prevent all importantchange; it would also, ac-cording to some, transformthe federationinto a confederation.But the proceduremust consistof some form of consent on thelocal level as well as some forrnof consent on the national level.Usually the need for local concurrencetakes the form of a re-quirement that a majority or more of the component unitsmust consent to the amendment,though the means by whichthis consent is securedand measuredvary greatly.It requireslittle demonstrationto show that the constantemphasisthroughout this chain of thought is on the legal as-pects of federal organization. The questions are always of alegal nature. How much power? What vote is required?Upon what right may this or that action be based? Does itviolate the constitutional distributionof powers? Does it vio-late the principlesof federalism? The ordinary treatment offederalismis based upon a legalistic foundation and its prob-lems are treatedasproblemsof constitutionallaw.

The Operationof Federal InstitutionsThis is assuredly a convenient method of approachingthe

problemand in many instances t is the only possibleone. Butit is not the only one. If a questionarisesthat requiresa legalanswer,it can be answeredonly in legal terms. But the valid-ity of such an answer s limitedto the frameof referencewithinwhich the question is posed. Legal answers are of value onlyin the solution of legal problems. And federalism s concernedwith many other problemsthan those of a legal nature.Above and beyond this legalismthere is an aspectof federal-ism that has been largely ignored. The essentialnature of fed-eralism is to be sought for, not in the shadings of legal andconstitutional terminology, but in the forces economic, social,political, cultural that have made the outward forms of fed-



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84 POLITICAL SCIENCE QUARTERLY [VOL. LXVIIeralism necessary. Federalism, like most institutional forms, isa solution of, or an attempt to solve, a certain kind of problemof political organization. It is true, on the whole, that federalgovernments and federal constitutions never grow simply andpurely by accident. They arise in response to a definite set ofstimuli; a federal system is consciously adopted as a means ofsolving the problems represented by these stimuli.

Whether a constitutional structure may properly be calledfederal, however, depends not so much on the arrangement ofthe institutions within it as it does on the manner in whichthose institutions are employed. Institutions have a habit ofserving purposes other than those for which they are designed.The passage of time produces changes in the purposes of anysociety and these new purposes are reflected in new modes ofoperating old institutions which frequently retain their origi-nal forms. Thus a society may possess institutions that are fed-eral in appearance but it may operate them as though they weresomething else; and, what is more likely, it may possess a uni-tary set of institutions and employ them as though they werefederal in nature. The institutions themselves do not providean accurate index of the federal nature of the society that sub-tends them.

Federalismnas a Sociological PhenomenonThis leads us another step forward in the analysis. We have

said that institutions may not be suited to the actual needs ofthe society and this point will be explored in greater detail later.If one could know exactly how the institutions are operated,one would have a much more accurate picture of the nature ofthe society itself. But the picture would still be incompleteand unclear; for institutional devices, both in form and infunction, are only the surface manifestations of the deeperfederal quality of the society that lies 'beneath the surface. Theessence of federalism lies not in the institutional or constitu-tional structure but in the society itself. Federal governmentis a device by which the federal qualities of the society are ar-ticulated and protected.Every society, every nation if you will, is more or less closely




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No. 1] NATURE OF FEDERALISM 85integrated in accordancewith its own peculiarhistorical,cul-tural, economic, political and other determinants. Eachis com-posedof elements that feel themselves to be different from theother elementsin varying degreesand that demandin varyingdegreesa means of self-expression. These diversitiesmay turnon all sorts of questions-economic, religious, racial,historical;any of these can producein a certain group within the popu-lation a demand for such self-expression. Furthermore,thesediversitiesmay be distributedamong the members of a societyin such a fashion that certain attitudes are found in particularterritorialareas, or they may be scatteredwidely throughoutthe whole of the society. If they aregroupedterritorially,thatis geographically, hen the resultmay be a societythat is federal.If they are not groupedterritorially,then the society cannot besaid to be federal. In either case coherence n the society maydependon the devolution upon these groups of the exerciseoffunctions appropriate to the diversities that they represent.But in the first case only can this take the form of federalismorfederal government. In the latter case it becomes functional-ism, pluralismor some form of corporativism.I realize that in using the term federalonly in this restrictedterritorialsenseI am taking from it some of the meaning attrib-uted to it by writers who profess to see federal elementsin thevarious forms of pluralism,such as feudalism or corporativism.But I suggest that these writershave addeda meaning that wasnot there before and one that introduces an element of con-fusion into the term. No government has ever been calledfederalthat has been organized on any but the territorialbasis;when organizedon any other it has gone by another name.It is true that the geographicaldiversitiesmay not alwaysfollow the boundary lines of the component units. In manycountries, and particularlyin the United States, the operationof the federal system has displayedpatterns of diversity thatare more nearly associated with regions or groups of statesthan with the individual states themselves. This is easily un-derstood. Federalismembracesnot merely a diversity of opin-ion on one issue but a whole pattern of diversitieson a numberof issues. It can scarcelybe expected that state boundarylines



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.will be adequateto mark off areas n which opinions differ onall possiblequestions. Indeedon many, or even most, questionsthe state boundaries will be of little significance in thus de-limiting the areasof diversity. Federalorganization s not per-fect in every case.

No one supposes hat it is, however. Componentstatesexistbecause of some great significant diversity of such importancethat it is felt that only a federal organizationcan offer it suf-ficient protection. Day-to-day issuesmay easily and reasonablyproduce alignments that follow regionallines. Regionalisminthis sense is a valid manifestation of the federal principle. Itconforms to the criterionsuggested above,namely, that the di-versities in the society be grouped territorially. It should benoted, moreover, that regionalismin the politics of a federalcountry is madepossibleonly by the federal allocationof func-tions to the states themselves. The fact that several stateswithin a larger region are dominated by similar opinions andhence unite in an effort to transform these views into policydoes not detract from the importanceof the states as the basicunits of the federalsystem.On the other hand, federalism becomesnothing if it is heldto embrace diversities that are not territorially grouped, forthere are then no territorialunits that can serve as componentsof the federalsystem. I readily agreethat this is a questionofthe definition of federalismand that society can be organizedin accordance with any principle upon which there is sub-stantial agreementamong the mem bers f the society. But ifthe distributionof powers,which is the essentialfeature of thefederal structure, is made between the nation as a whole andcomponent units that are functional in character, such as in-dustries,tradeunions, churches,and so on, then the traditionaland, I think, necessaryquality of federalism s lost. We con-fuse two distinct principleswhen we apply the terminology offederalismto a society organizedon a functional basis.It may be objectedthat the federal division of powers amongterritorial areasis in reality functional, since these areas differfrom one another on questions of a functional character. Iagree. But the important point is that they are territorially




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No. 1] NATURE OF FEDERALISM 87organized. Such areasnaturally differin opinions,in composi-tion, in interests, in function. This, however, only brings usback to the point that they differ. If there were no functionaldifferences,there might be no need for federalisim. But thepoint that must be emphasized s that these functional differ-ences are territoriallygrouped; and thus they provide a reasonfor and a demandfor a federalsystem of government.

FederalInstitutions as a Reflection of Societal DiversitiesThe nature of a society is roughly reflectedin the externalforms of its political and constitutional arrangements; and itis true that the extent to which the society is federal can bemore or less accuratelymeasuredby the extent to which theseexternal forms are federal. The institutional patterns reflectthe federalquality of the societies n varying degrees;they maybe more or less " federal" in the way in which they manifestthe degreeto which the politicalsociety behind the institutional

fagade is integrated or diversified. But the institutional pat-terns and the constitutionalstructure are far from an adequatetest of the federal qualities of the society; dependenceuponthem alone can lead to serious error in assessing he nature ofthe society itself.If these did serve as an accuratemeasurementof the society,the problems of the constitution maker and of the politicalanalyst would be much simpler and this essay would not havebeen written. But the weighing of the various forces that gointo- the making and maintaining of a political community isan extremely difficulttask. Those who devise institutions cannever be sure that the institutions they devise will accuratelyrepresentthe nature of the society or will be adequate to theneeds they are designed to fulfill. Moreover,social patternsare constantly changing. What may be good for today willvery likely be outmoded and less adequate by tomorrow.Finally, institutions mean different things to different people;the same set of institutions may produce widely different re-sults when adopted and operated in different communities.Hence there can be no assuranceat any time that the institu-tional patternsfit the needs of the society below.



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88 POLITICAL SCIENCE QUARTERLY [VOL. LXVITFrom this it follows that the real nature of the society can-not be divined merely by an analysis, however brilliant andprofound, of the institutions only. No amount of readingof

constitutions can properly inform the analyst about the so-cietiesserved by those constitutions. The nature of the politi-cal society can be examinedonly by observinghow the institu-tions work in the context of that society. It is the operation,not the form, that is important; and it is the forces that deter-mine the mannerof operationthat aremoreimportantstill.The Spectrumof FederalSocietiesThis is no lesstrue of federalismthan it is of any other formof political organization. Federalisms a function not of con-stitutions but of societies. Viewed in this way, it will be seenthat federalism s not an absolute but a relative term; there isno specificpoint at which a society ceasesto be unified and be-comes diversified. The differencesareof degreerather than of

kind. All countries fall somewhere n a spectrumwhich runsfrom what we may call a theoreticallywholly integratedsocietyat one extreme to a theoreticallywholly diversifiedsociety atthe other. Some are more unified than others; some are morediversifiedthan others; and the differencesbetween adjacentsocieties in this spectrum may be so slight or so incommensu-rableasto be incapableof assessment. But that there is a grada-tion is clear from observingsocietiesthat are widely separatedin the spectrum.As one moves from one end of this hypotheticalspectrum tothe other the societiesencounteredare more and more diversi-fied. And the more diversified the society, the greater is thenecessity of providing some means for articulatingthe diversi-ties; for these diversitiesare nothing less than tensions and astensions they demand and require means of self-expression.But there is no point at which it can be said that all societiesonone side areunitary and all those on the other are federal or di-versified. If a society contains territorial groups that are sodifferent from the rest of the society that they requiresomein-strumentality to protect and articulatetheir peculiarqualities,then the society is likely to providesomemeansfor the creation



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No. 1] NATURE OF FEDERALISM 89of such an instrumentality. One such circumstancedoubtlessdoesnot make asociety or aconstitution federal. But two orsixor twenty may producea result that may be properlyso called.

It cannot be said that when a society is just so diversified,it requiresa federalconstitution. In the first place we are un-able to quantify social and political forces to the degreeneces-sary to warrant such a demarcation;and secondly the forcesthemselvesare incommensurable. (Which is more diversified,a society rent by religiousschismsor one in which the membersare divided by differencesof language?) Societiesemploy in-strumentalities for the expressionof diversitiesin accordancewith what men in particular societies think is necessary;andthis view of what is necessaryand what is not will vary con-siderably from society to society. Thus some societieswhichwould seem to be highly diversified are able to get along witha set of institutions that seemsto be nearly unitary; and, con-versely,some that seem quite unifiedadopt institutions that wecall federal. It may be that one especiallystrong unifying ten-dency in a society, such as a long historicaltradition of unity,will overcomediversitiesof economicinterest, languageand thelike which, in another society, with a weaker historicaltradi-tion, would necessitatefederalinstitutions.

Types of DiversitiesThe socialdiversities hat producefederalismmay be of manykinds. Differencesof economicinterest, religion, race, nation-ality, language,variations n size, separationby great distances,differences n historicalbackground,previousexistence as sep-arate colonies or states, dissimilarityof social and political in-stitutions-all these may produce a situation in which the par-ticular interests and qualities of the segments of the larger

community must be given recognition. At the sametime thesedifferencesmust not be too great, else the community mustbreak up into independent groups. Federalismcannot makecoherent a society in which the diversitiesareso great that therecan be no basis for integration.There is no way to estimatethe relativeweights of these fac-tors except in results; we have observedalreadythat they are



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.largelyincommensurable. But it seemsclearthat some aremoresignificant than others, at least within a single society. Forexample,a society that enjoys a uniformity of social and politi-cal backgroundcan still hold together despite deep cleavagesin other matters. The point is that the diversitiesand similar-ities are of many differentkinds and when taken together theyproduce a total picture of the extent to which the society isintegratedor diversified.The total pattern of these diversitiesproducesa demand forsome kind of federal recognition of -the diversities. This de-mand must in most cases meet a counterdemand (or inertia,which is equally a force) for increasedunity or integration.These two demandsor forces-the one impelling toward auton-omy and independencefor the component units, the other im-pelling toward centralizationand the suppressionof diversity-meet each other head on; the result of their conflict is the fed-eral system. The federal system is thus an institutionalizationof the compromisebetween these two demands,and the federalconstitution draws the lines of this compromise. The consti-tution will be more or less federal in accordance withthe relative strength of the two demands. Thus societies inwhich the demand for integration is strongerthan the demandfor decentralizationwill produce a set of institutions that ismore nearly unitary; and a contrary situation will produce acontrary result. It is in this sense that federalismis a matterof degree and not of kind. The varying degreesof federalismare produced by societies in which the patterns of diversityvary and in which the demandsfor the protectionand articula-tion of diversities have been urged with more or less strength.But what determinesthe federal quality of the government isnot only the constitutionthat drawsthe lines of the compromisebut the whole pattern of instrumentalitiesthat are employedas a result of these demands.

Types of InstrumentalitiesThe diversitieswithin a society require certain instrumental-

ities for their expressionand protection. Just as the diversitiestake many forms, so do the instrumentalities; he latter are de-signed to fit the needs of the former. But the relation and




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No. 1] NATURE OF FEDERALISM 91correspondencebetween the diversitiesand the instrumentalitiesthat express them will vary from society to society. A di-versity that requiresone kind of instrumentalityfor its expres-sion in one socialcomplex will requireanotherkind in anothersocial complex. So also similar instrumentalities in differentsocial complexeswill serve different kinds of diversities. It isthis fact that has been largely ignored by most analystsof fed-eral institutions.We aretoo prone to say that federal constitutions must con-tain a certain five or eight or ten characteristicsand that allconstitutions lacking any of these are not federal. Such a setof criteria gnoresthe fundamental fact that institutions are notthe same things in differentsocial and cultural contexts. Twosocietiesequally diversifiedwith respect to a particularmattermay require very different instrumentalities for the imple-mentation of that diversity. By the same token, similar insti-tutions or instrumentalitiesin different social contexts mayserve to implement dissimilardiversities.The word " instrumentality" is a broadone and necessarilyso; but we must be clear about what is meant. First of all, itdoes not mean merely a clause in the constitution, though suchclausesmay be examplesof such instrumentalitiesand it may besaid that the provisions of the constitution are a good roughguide to the pattern of instrumentalities,though they becomeless adequatewith the passageof time. But the word includesnot only the constitutionalforms but alsothe mannerin whichthe forms are employed;it includes the way in which the con-stitution and its institutions are operated. Beyond this, more-over, it includes many things that are far from constitutionalin importancein the ordinarysense of the word. It includessuch things as habits, attitudes, acceptances,concepts and eventheories. It includesperhapsthe rulesof the AmericanSenate,the make-up of the Canadiancabinet, the zeal of the BaptistKarens in Burma. All these may serve as instrumentalities orthe expressionof the diversities within a society, and whethera country is federalor not may best be determinedby examin-ing the pattern of these instrumentalitiesand not by checkingits constitution against an a priori list of the characteristicsofa federalconstitution.



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92 POLITICAL SCIENCE QUARTERLY [VOL. LXVIIFederalConstitutionsand FederalInstrumenttalities

Indeed the documentary constitution may be a poor guide inattempting to discover whether or not the society itself is fed-eral. Several South American countries have adopted federalconstitutions and yet an examination of those countries revealsa rather high degree of integration. Are we to infer that SovietRussia is more federal than, say, the United States because itprovides in its constitution for a right of secession?

Other examples may better illustrate the point. It is mean-ingless to insist that the Union of South Africa is unitary andnot federal because of certain characteristics of its constitution.I should be quite willing to agree that the component units maybe overwhelmed by the central government, if the testimony ofthe constitution is to constitute the only evidence. But I shouldat the same time insist that what is significant is, not what theconstitution says, but how the people of South Africa employit. The fact is that in many instances South Africa operates itsinstitutions as though its constitution were federal; it worksfederally despite the unitary character of its legal forms. Ifone examines the South African polity from a strictly legal orconstitutional point of view, it is clearly unitary. But if oneprobes deeper into the processes of politics one quickly perceivesthat federalism is still an operative Iprinciple in that society.

A similar argument may be advanced in regard to GreatBritain, a country whose constitution is most often cited asbeing typically unitary. Many elements of British public lifeare witness to the vitality of the federal principle in Britishsociety. Indeed there would seem to be an operative right tosecede from that community, exemplified by the withdrawalsfrom it in recent years of such elements as Burma and Ireland.If Northern Ireland or Scotland, or perhaps even other ele-ments, were to seek actively for secession, it seems most un-likely that the right would be challenged. A right of secessionas an operative idea in a society suggests diversities of a ratheracute nature and places that society, as far as the particularpoint is concerned, well over toward the diversity side of thespectrum of federalism. Federal elements in Great Britain takeother forms as well. Northern Ireland has its own parliament;




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No. I] NATURE OF FEDERALISM 93Scotlandhas its own courts and legal system as well as its ownchurch. Scotland, furthermore, is especiallyprotected in theHouse of Commons by a ScottishCommitteewhich dealswithquestionspertaining to that area. If the central governmentwere to attempt to abolish any of these institutions, the out-raged complaints of injustice would bear adequatewitness tothe extent to which this society is diversifiedand to the neces-sity of providing these instrumentalitiesfor the articulationand protection of the federal qualities.Even France under the ancien regime, which is ordinarilyconsideredto have been a very highly centralized executivestate, manifested certain federal qualities. The laws and cus-toms of the provinces were far from standardized. Each hadits own legal code, its own body of customary law, its ownhistorical tradition and a very considerabledegree of localpatriotism.

The Causal Relation Between FederalismandIts Instrumentalities

The point has been made that the pattern of forces withinthe society changeswith the passageof time. Society is neverstatic 'butchangesconstantly in accordancewith the interplayof the various dynamic forces within it. As a result, the di-versitieswithin the society wax and wane in intensity so thatthe need for their articulation increasesor decreases. A com-plex of psychologicaland sociologicalfactors may requireonetype of instrumentalityat one time and another type at someother time. As the nature of society changes, demandsfor newkinds of instrumentalitiesare created and these demands aremet by changing or abolishingold instrumentalitiesand sub-stituting new ones in their place. But it can scarcelybe hopedthat the instrumentalitieswill keep pace with the changingpattern of social relationships,and as a result the pattern ofinstrumentalities ends to lag behind the changesin society it-self (though it may be observedthat the functioning of theinstrumentalitieswill not be so rigid in this respectas the con-stitutionalforms).This is complicatedfurther by the fact that the instrumen-talities, once put into operation,become rigidifiedand acquire



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94 POLITICALSCIENCE QUARTERLY [VOL. LXVIIa status of their own. They become substantive instead ofmerely adjectival; they become ends in themselvesinstead ofmerely means toward other ends. Their proceduresbecomestandardized;they may take on an honorificquality; they be-come matters of pride to the diverse elements that they serve;and ultimately the instrumentalitiesenter into and becomepartof the psycho-sociologicalcomplex itself.This is by no means an unusual occurrence; almost everysociety manifests this tendency in one form or another. TheScottish Committee of the British House of Commons, men-tioned above,is an example. This Committeewas at the outseta device, an instrumentality,to permit the organizedexpressionof Scottish opinion on affairsthat directly concernedScotland;it is still that. But it is also much more, for it has become athing of value in itself, a thing to be preservedbecause t is anessential part of the federal relation between England andScotland.Another exampleis the SupremeCourt of the United Stateswhich began as a mere court of law. But as judicialsupremacydeveloped n the United Statesthe SupremeCourt becamemoreand more an institution that connoted the maintenanceof jus-tice in federal relations in this country. (It came to meanmany other things aswell, but it is the federalarrangement hatconcerns us here.) Few men now claim that the Court is amere court of law; and few men would dareto disturbits posi-tion without seriousconsideration f the effects of such a changeon the shifting balanceof nationalpower and state power. TheCourt has ceasedto be a mere instrumentality and has enteredinto the psycho-sociologicalcomplex that determinesthe na-ture of the instrumentalities.Another example is to be found in the United States them-selves. America adopted a federal constitution at the outsetbecausethe elements that were to make up the new countrywere so diversifiedthat they could be brought together in noother form. But since that time the FederalConstitution hascontinued in force and has collected around it all the aura ofa highly reveredinstitution. As other states have entered theunion they have taken their places in the federal arrangementand have found that all the perquisitesand particularitiesof the



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No. 1] NATURE OF FEDERALISM 95establishedstates have accruedto them. Although at the timeof their entry these later states may not have been sufficientlydiversified to justify such special treatment, they rapidly ac-quiredsuch consciousnessof individuality that they would nowbe unwilling to part with the instrumentalities hat permit theexpressionof that individuality. It is doubtful that the twoDakotas warranted the dignity of separate statehood at thetime of theirentry into the union; but who can deny now that,having lived as states for a number of years, they would lookwith disfavor upon any proposalto deprive them of their in-dividuality by mergingtheminto one? TheConstitution,whichendows the states with the characteristicsof diversity, treatsthem indiscriminatelyand thus tends to create diversity wherenone previouslyexisted. The Constitution with its federalplan,though designed as an instrumentality, has become a part ofthe complex of sociologicaland psychologicalvalues that con-stitutes the pattern of diversities. It is no longer merely aninstrumentalityservingto protect and articulate the diversities;it has itself become a part of that complexof values which is thepattern of diversitiesand which determinesthe pattern of theinstrumentalities.Thus the problem of the student of federalism s made muchmore difficult,for he cannot clearlydistinguishbetweensocietyand the instrumentalities t employs. Similarly with the prob-lems of the statesman; he cannot devise means to accomplishnew ends without disturbing the old relationship, for the oldmeans have themselvesbecome ends and the old techniqueshavebecome values.The effort to draw the distinction must be made, however;for otherwise we end by confusing cause with effect and byattributing to the instrumentalitiesvalues that belong properlyto the anterior diversities. The student of federalism mustprobe deeper than ftheinstitutional patterns, for these are butthe productsof the diversities n the society; it is to the patternof these diversitiesthat we must go if we would assess he fed-eral qualitiesof the society.

WILLIAM S. LIVINGSTONTHE UNIVERSITY Op TEXAS

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Livingston 1952