Federalism

Federalist No. 51: Is the Past Relevant to Today's Collaborative Public Management? 

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Reference

Bingham, L. B., & O’Leary, R. (2011). Federalist No. 51: Is the Past Relevant to Today’s Collaborative Public Management? Public Administration Review, 71, s78–s82. https://doi-org.lopes.idm.oclc.org/10.1111/j.1540-6210.2011.02465.x

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Federalist No. 51 is another of the most recognizable and important of the Federalist Papers, famously arguing that one first must enable government to control the governed, and then oblige it to control itself. The authors suggest that part of this obligation involves effective collaboration within a system of separate powers. They then ask how this "collaboration imperative" can be exercised in today's contentious political environment.

Today's public administrators are working in a new landscape that requires them to be collaborative. By collaborative we mean "the process of facilitating and operating in multi‐organizational arrangements to solve problems that cannot be solved or easily solved by single organizations. Collaborative means to co‐labor, to achieve common goals, often working across boundaries and in multi‐sector and multi‐actor relationships. Collaboration is based on the value of reciprocity and can include the public" ([ 7]).

There are several reasons for the increase in collaborative public management both in the literature and in practice. First, most public challenges are larger than one organization, requiring new approaches to addressing public issues. Second, outsourcing has grown in volume and dollar amount. By its very nature, outsourcing is a collaborative endeavor between the public agencies awarding the contract and the organizations performing the contracted tasks. Third, the desire to improve the effectiveness of publicly funded programs is encouraging public officials to identify new ways of providing public services. Fourth, technology is helping government agencies and personnel share information in a way that is integrative and interoperable, with the outcome being a greater emphasis on collaborative governance. Finally, citizens are seeking additional avenues for engaging in governance, which can result in new and different forms of collaborative problem solving and decision making.

More than a decade ago, H. George Frederickson observed that public administration was moving "toward theories of cooperation, networking, governance, and institution building and maintenance" in response to the "declining relationship between jurisdiction and public management" in a "fragmented and disarticulated state" ([ 4]). Frederickson emphasized institutionalism, public sector network theory, and governance theory as relevant to the future of public administration

Lester Salamon observed that "[u]nlike both traditional public administration and the new public management, the new governance shifts the emphasis from management skills and the control of large bureaucratic organizations to enablement skills, the skills required to engage partners arrayed horizontally in networks, to bring multiple stakeholders together for a common end in a situation of interdependence" ([ 9]).

In earlier work, we have likened this approach to public management to "lateral thinking"—a phrase used to describe creativity that stems from taking knowledge from one substantive context or discipline and seeing how useful it is in an entirely different one ([ 1]). For example, Leonardo Da Vinci's genius stemmed from his mastery of lateral thinking; he moved fluidly from art to science, engineering, mathematics, medicine, architecture, and beyond, finding universal rules of nature manifest in widely varying contexts ([ 8]). He dissected the human arm and a bird's wing and then tried to engineer a machine to enable people to fly; in this way, he applied what he had learned from human physiology and natural science to engineering. And so it is with the public administration of the twenty‐first century: new challenges and new ways of addressing public policy problems by necessity demand collaborative approaches.

Feldman and colleagues provide a vision of a new professional identity for public administrators: "The public manager as inclusive manager facilitates the practice of democracy by creating opportunities for people with different ways of knowing public problems to work together in a collective space to solve problems" ([ 3]). [ 2] call this "leadership in a shared power world."

In this article, we argue that while the need for collaborative approaches to carry out the business of government is greater now than ever before, collaboration is not new. Rather, the Federalist Papers—first published in 1787—implicitly create a collaboration imperative, as is evidenced by several phenomena. First, the authors of the Federalist Papers structured divided government through separation of powers to prevent unilateral action by one branch unchecked by others. Second, the authors maintained that state and federal governments should not compete for power, but should work effectively together to protect and carry out the common good. Third, the authors advocated for consensus decision making in order to avoid the tyranny of the majority. Moreover, an examination of Federalist‐era legislation demonstrates that collaboration was mandated as far back as 1789. Finally, an examination of Federalist‐era actions yields the conclusion that collaborative activities—such as contracting out and public–private partnerships—were common and accepted practices. We examine each of these phenomena and then present text for a new Federalist Paper on collaboration.

In this article, we argue that while the need for collaborative approaches to carry out the business of government is greater now than ever before, collaboration is not new. Rather, the Federalist Papers —first published in 1787—implicitly create a collaboration imperative, as is evidenced by several phenomena.

Separation of Powers

The authors of the Federalist Papers structured a divided government through separation of powers to prevent unilateral action by one branch unchecked by others. In other words, collaboration is a fundamental requisite of governing. It is the animating principle of the U.S. Constitution, which repeatedly requires that branches of the federal government either act together or in concert with state governments.

Article I of the Constitution has a number of clauses that facilitate, or require, collaboration between two of the three branches acting together with at least the acquiescence of the third. Section 3, clause 4 facilitates collaboration between the legislative and executive branches by providing that the vice president will break the tie of a divided Senate. Section 7, clause 2 provides that every bill passed in the House of Representatives and the Senate must be presented to the president of the United States for approval or disapproval (veto) before it becomes a law. The houses must reconsider and pass the bill by two‐thirds in order to become a law. Similarly, clause 3 requires the same for "[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary." Thus, the branches are bound to consider each other's views in a deliberative fashion, something reinforced by Article II, section 3's provision regarding the president providing Congress with information about the state of the Union and recommending that they consider certain measures.

Articles I and II require coordination in the execution of government by providing that one branch shall empower the other. While Article II, section 1, clause 1 provides that "[t]he executive Power shall be vested in a President of the United States of America," Article I, section 8, clause 18, the "necessary and proper clause," allows Congress "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The final clause anticipates the birth of public administration. The chief executive needs departments to carry the Constitution's powers into execution. Section 2, clause 1 provides that the president "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." This anticipates a consultative relationship between the chief executive and departmental executives. The necessary and proper clause anticipates the creation of subordinate structures and governance designs, potentially including collaborative ones, within government.

Article II, section 2, clause 2 gives the president power with the advice and consent of the Senate to nominate and appoint "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Collaboration among the branches is also implicit in Article II, section 2, clause 2's provision that Congress "may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

State and Federal Governments Should Not Compete for Power

The Federalists also envisioned collaboration among the federal and state governments. The legislative power encompasses coordination of a national economy. The power to regulate commerce in section 8, clause 3 suggests collaboration "with foreign Nations, and among the several States, and with the Indian Tribes." Similarly, section 9, clause 6 mandates a certain amount of cooperation by providing that "[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."

Article II, section 2, clause 1 also contemplates that the president shall be commander in chief not only of federal troops, but also of the militia of the several states, when called into service of the United States. Article IV, section 1's full faith and credit clause evidences collaboration by treating the acts, records, and proceedings with respect. Section 2, clause 1 similarly evinces accommodation of every other state by ensuring that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," and that states shall reciprocate by extraditing those charged with crimes in their jurisdiction in clause 2.

The judiciary has the power to resolve disputes among all of these players in Article III, sections 1 and 2. It does not initiate action. It acquiesces in actions on which the other two branches agree, absent a case or controversy by someone with standing. Thus, in a very real sense, the Constitution requires collaboration among the three branches of government in order for the federal government to take action, and collaboration among the federal government and the states to implement a coordinated national economy and common set of rights for citizens.

Evidence from Federalist‐Era Legislation

Recently, [ 6] reexamined the origins of American administrative law and debunked a number of commonly accepted myths. He argued that "from the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive powers, created systems of administrative adjudication, and provided for judicial review of administrative action" ([ 6]). He found that the first national independent agency was the Patent Office, created 97 years before the Interstate Commerce Commission, the agency most scholars point to as the start of modern administrative law (1260). He also reported on a number of administrative tools, structures, and designs that one could argue represent Federalist‐era uses of collaboration. For example, Congress authorized payments to cod fishermen on the condition that they execute satisfactory contracts on how to divide the catch with their seamen (1279, citing An Act Concerning Certain Fisheries of the United States, and for the Regulation and Government of the Fishermen Employed Therein, ch. 6, § 1, 1 Star. 229, 229–30 [1792]).

Similarly, Congress adopted An Act to Regulate the Collection of the Duties Imposed by Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises Imported into the United States (1789), which provided for collaboration at major ports. Each major port had a collector, a naval officer, and a surveyor; each had separate responsibilities, but the act also required that they act together ([6]). The act required collaboration among government and nongovernmental actors. Mashaw found that if the officials attempted to levy additional duties in excess of the ship's invoices regarding the goods' value, they needed the consent of two reputable merchants who would determine the value of the goods and their conformity to the invoices. Mashaw observed that this system protected the interests of the ship and shippers (1279). This Federalist‐era legislative construct enforced collaboration among shippers, merchants, the collector, the naval officer, and the surveyor.

Evidence from Federalist‐Era Actions

Mashaw also found that early administrative departments were not so hierarchical as in modern bureaucracy (2006, 1308) nor was it always clear whether a person was an "officer" or an independent contractor. For example, in [10], Chief Justice John Marshall, sitting as circuit justice, observed that "[a]lthough an office is 'an employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer." In other words, there was precedent for the modern "new governance" tool of contracting and privatization in the Federalist conception of administration. Contracting is one form of collaborative activity.

Similarly, there were various methods for compensating those who did the central government's work. Mashaw found that many government agents functioned independently and at some distance from their supervisors in the central government, were part time, and were paid at piece rates or a percentage of revenues collected, unlike modern full‐time, salaried career civil servants. He observed they "occupied some hybrid category that fused salaried employment, independent local standing, and private entrepreneurship" (2006, 1314). This, too, seems to suggest that collaboration was a necessity to gain acceptance for those carrying out the work of the early republic.

Collaboration to Avoid the Tyranny of the Majority

Thus, the Constitution's language, the historical record of contemporaneous legislation, and early administrative practice all contain evidence of collaboration. However, there is direct evidence from the authors of the Federalist Papers themselves that collaboration was not simply a happy by‐product of innovating a new nation; it was a conscious design for promoting the articulation and reconciliation of diverse interests as a means of avoiding the tyranny of the majority in voting. The revealing language appears in Federalist No. 51, variously attributed to Alexander Hamilton or James Madison. We quote it at length here to accurately convey the intent of the writer of this Federalist Paper:

[T]he Constitution's language, the historical record of contemporaneous legislation, and early administrative practice all contain evidence of collaboration. However, there is direct evidence from the authors of the Federalist Papers themselves that collaboration was not simply a happy by‐product of innovating a new nation; it was a conscious design for promoting the articulation and reconciliation of diverse interests as a means of avoiding the tyranny of the majority in voting.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First, in a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self‐appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. ... Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

....

In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self‐government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS (emphasis added)

The authors of the Federalist Papers here are proclaiming the virtues not of majority rule, but rather rule by consensus. They argue for the division of society and government into smaller and smaller parts and interests such that it is harder for them to combine. If it is harder for them to combine, they will do so only when there is overwhelming agreement. In other words, the Federalist authors believe the Constitution provides a structure expressly designed to elicit voluntary collaboration in the interest of the common good. This, taken together with Hamilton's statement of the American question in Federalist No. 1—can we make self‐government work?—sets the stage for additional avenues for engaging in governance, which can result in new and different forms of collaborative problem solving and decision making.

[T]he Federalist authors believe the Constitution provides a structure expressly designed to elicit voluntary collaboration in the interest of the common good. This, taken together with Hamilton's statement of the American question in Federalist No. 1—can we make self‐government work?—sets the stage for additional avenues for engaging in governance, which can result in new and different forms of collaborative problem solving and decision making.

Conclusion

The Federalist papers implicitly create a collaboration imperative. This is seen in language concerning the separation of powers, in language stating that state and federal governments should not compete for power, and in arguments for consensus decision making in order to avoid the tyranny of the majority. There is evidence of mandated collaboration dating back to 1787. The writers of the Federalist Papers presume collaboration with the people through deliberative democracy to make policy decisions concerning the direction of government; collaboration among government organizations, citizens, and stakeholders to implement the will of the people; and a government that collaboratively can enforce the rule of law through the consent of those governed. Were the drafters here to make that collaboration imperative more explicit, they might express it as a new Federalist Paper, as provided next.

Federalist No. 51 Appended

We propose the following language for a new Federalist Paper on collaboration:

Some suggest that confining public servants within a rule of law and not men or women requires a clear delegation of authority to a department or agency and strict hierarchical accountability to the executive. A civil servant must know to whom he or she is responsible and for what tasks. Managers must know whom to hold accountable and for what tasks. Within delegated authority, hierarchy alone can provide accountability, or so they argue. For example, if multiple civil servants are charged with a single task, and all are held equally accountable for achieving or failing the task, a misguided civil servant may simply stand back while the others accomplish the task. He or she may receive the credit regardless of his or her contribution to its achievement. This indolence may spread like a contagion sapping the energy of the executive, for want of individual recognition or reward.

Moreover, what is true within a department must hold with greater force among various departments. Each department will seek to preserve its resources for those tasks with which it is most clearly charged and individually accountable. It is in the department's budgetary interest to leave to other agencies those tasks that cross departmental boundaries. If a department cannot accomplish the task without others, so, too, it cannot be held responsible for failing to accomplish that which is not within its sole control or authority. The department succeeds whether the task is achieved or not. In success, it shares without using its resources. In failure, it avoids disapprobation by pointing to its lack of control over the outcome.

Yet further objections arise when one contemplates a department or several departments working together with associations of persons outside of the central government, whether those associations take the form of societies, companies, state or local governmental bodies, or tribes. While both civil servants and departments are arguably bound by the terms Congress sets forth for their power and responsibility, there are no such limits on those outside the legislative mandate. If they join the task, there is no means to prevent their withdrawal of services before the task is complete. Even if they complete the task, they are not accountable for its success or failure. What motive exists for them to devote full energy toward achieving it?

Thus, these critics argue the structure of government cannot contemplate collaboration among equals to achieve a public goal. It requires a lineage of responsibility to ensure that the people can hold those appropriate responsible for the effectiveness of their government.

The argument is absurd; it proves too much. The Union itself is the product of collaboration among equals. Its mere existence demonstrates that it is possible for a diverse group of people, acting either for themselves or as representatives for others, even as representatives for sovereign peoples in states with various histories, religious founding traditions, industries, crops, and climates, to achieve a common good. This is particularly true when the common good can ONLY be achieved by their joint action.

It is true that joint action, collaboration among equals, is not always the most efficient means to accomplish an end. Those of us present at the negotiation over the founding, at the drafting of the Declaration of Independence, Articles of Confederation, and ultimately our Constitution, will attest to that inefficiency. We endured many forceful disagreements, debates, and long‐winded speeches, at the expense of our duty to our families and homes. We did so in the interest of a higher duty.

It is also true that the Union required a single commander to marshal its forces in the war for its birth. However, no single commander, even one so beloved as our first President, could have enforced his will against that of thirteen sovereign divided and opposing states, each with its own resources and militia. Only the grave injustices of the Crown and subsequent mutual action of the colonies achieved that unity.

The people are sovereign. The people would have held the drafters fully responsible for the great loss of their freedom had we failed to carry out our collective task.

If mere flawed people, a small collection of farmers, doctors, lawyers, and business people, can achieve such an end through collaboration, how can it be concluded that we ourselves intended to withhold this tool from the government that we achieved at this cost?

No, the genius of our country is the genius of many working together, when it is only possible to achieve the end by working together, when grave threats demand that we work together, and where people recognize what is at stake if we fail.

—PUBLIUS

References 

1  Bingham, Lisa Blomgren, and Rosemary O'Leary, eds. 2008. Big Ideas in Collaborative Public Management. Armonk, NY: M. E. Sharpe.

2  Crosby, Barbara C., and John M. Bryson. 2005. Leadership for the Common Good: Tackling Problems in a Shared‐Power World. San Francisco: Jossey‐Bass.

3  Feldman, Martha S., Anne M. Khademian, Helen Ingram, and Anne S. Schneider. 2006. Ways of Knowing and Inclusive Management Practices. Special issue, Public Administration Review 66 : 89 – 99.

4  Frederickson, H. George. 1999. The Repositioning of American Public Administration. Administration & Society 22 (4): 395 – 417.

5  Hamilton, Alexander, John Jay, and James Madison. 2011. The Federalist Papers. New York: Tribeca Books.

6  Mashaw, Jerry L. 2006. Recovering American Administrative Law: Federalist Foundations, 1787–1801. Yale Law Journal 115 (6): 1256 – 1344.

7  O'Leary, Rosemary., Beth Gazley, Michael McGuire, and Lisa Blomgren Bingham. 2009. Public Managers in Collaboration. In The Collaborative Public Manager: New Ideas for the Twenty‐First Century, edited by Rosemary O'Leary and Lisa Blomgren Bingham, 1 – 12.Washington, DC: Georgetown University Press.

8  Riding, Alan. 2006. Glimpses of a Genius Who Blazed His Paper Trail. New York Times, September 26.

9  Salamon, Lester M. 2005. Training Professional Citizens: Getting beyond the Right Answer to the Wrong Question in Public Affairs Education. Journal of Public Affairs Education 11 (1): 7 – 19.

United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)

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By Lisa Blomgren Bingham and Rosemary O'Leary

Reported by Author; Author

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