Rob Hunter

Federalism Against Freedom

I recently finished reading Peter Wilson’s The Thirty Years War, and I regret that I didn’t read it sooner. While the book has received no small amount of attention for its contributions to the history of warfare, or of Germany, or central Europe in general, it can also be read as an important contribution to constitutional theory. The study of the constitution of the Holy Roman Empire – here using the sense of the word “constitution” in its “older” sense, that is, as a package of values, norms, and institutions peculiar to a given political community – can, I argue, furnish insights that are valuable to the study of the constitutional order in the U.S., which has historically been dominated by an obsession with the codification of constitutional rules in the written Constitution, and not the institutions, norms, and understandings that actually comprise the constitutional order.

Wilson’s book is ostensibly a history of warfare and military organization, but its insights into the social, religious, and institutional factors that contributed to the conflict merit attention from a wider audience than the armchair generals and grognards who seem to comprise the bulk of the audience for works of military history. Most prominently, the book calls attention to the ways in which the constitution of the Holy Roman Empire alternately dampened or exacerbated trends and developments behind the conflict as it expanded in scope and destructiveness. Wilson advances the argument that the breakdown of constitutional arrangements and understandings was the precipitating cause of the Thirty Years War, rather than the formation of coherent and antagonistic religious identities. Wilson takes special care to carefully lay out the structure of the Empire as a complex of overlapping ethnic groupings, linguistic communities, confessional congeries, and trade networks. Germany was by no means neatly cloven into rival Catholic and Protestant camps, geographically or socially. Princes both secular and ecclesiastical were more concerned with dynastic considerations and the maintenance of wealth. The mode of production in the Empire remaining overwhelmingly agricultural, most rulers’ income came in the form of rents extracted from a politically supine tenantry, although imperial cities – that is, urban communes enjoying various privileges and rights as direct vassals of the emperor rather than tributaries of local lords – served as centers of artisanal production and as entrepôts for trade.

Atop the secular hierarchy, the Holy Roman Emperor – at this point an office that was de facto the hereditary right of Habsburg princes – was by no means an absolute or proto-absolute monarch. Election to the imperial throne required the sedulous cultivation of the friendship of the seven electoral princes – the archbishops of Mainz, Cologne, and Trier, the king of Bohemia, and the princes of Saxony, the Palatinate, and Brandenburg – through various agreements and favors. Erratically scheduled but regularly occurring councils and diets served as the basis of a “decent consultation hierarchy” in the Empire’s legal system, in which princes, lay and canon lawyers, and the representatives of cities, guilds, and occasionally peasant communities advanced competing claims to property, privileges, rights, or dispensations under the imperial framework.

By the early seventeenth century, this framework was under increasing strain. Religious factors contributed to that strain, of course, as the Empire had been the hotbed of the Reformation in the previous century, and new sects – most notably the Calvinists – hived off from the first Lutheran churches, universities, and parishes that emerged in the previous century. But these were not the only stresses on the imperial constitution, and Wilson repeatedly points out that they may not have been the most important. The days of a continent-spanning Habsburg empire under Charles V were past; but even with the Habsburg dynasty now split into a senior Spanish branch and a junior Austrian one, dynastic considerations both foreign and domestic were still of paramount importance in German politics. The Spanish court expected Austrian help in containing and suppressing the Dutch rebels, while Austria expected Spanish cooperation in resolving the snarl of claims in Italy as well as in responding to Ottoman expansion that encroached upon the Empire’s southeastern frontier. (In addition to holding the imperial crown, the Austrian Habsburgs held suzerainty over various other regions that were not imperial principalities, such as Croatia and parts of Hungary.) Other German princes, wary of the consolidation of Habsburg power, were keen to protect the vaunted tradition of “German freedom” which, despite the name, had more to do with the flexibility and autonomy of imperial princes than the freedom of individual subjects. Finally, imperial finances were shambolic, though perhaps no more so than those of any other European monarchy at the time. The German fisc was far more decentralized and irregular than can be easily imagined today. Direct taxation with reference to a routinized schedule, administered by trained officeholders, was virtually nonexistent. Regular taxation was still unusual and most recurring taxes had to be wheedled out of reluctant, aristocratically-dominated estates. Military outlays, in particular, would be financed through a combination of credit, emergency taxation (almost exclusively of peasants), and creative acts of mass extortion of the territories occupied by armies.

Wilson is by no means uniformly critical of imperial constitutionalism, and he resists the kind of facile hindsight wisdom that has been epitomized for centuries by Voltaire’s inane quip (to wit, that the Holy Roman Empire fell because it “was neither holy, nor Roman, nor an empire”). Wilson devotes more care to the description of the Empire’s political culture and institutional traditions than many contemporary scholars of constitutional law do in the U.S. context. The result is a rich and complex portrait of a polity that is unlike any found in the world today, but still familiar to us in surprising ways. The division of the Empire into corporate bodies – “imperial Circles” of neighboring principalities, free cities, ecclesiastical entailments and church lands, and so on – is difficult to understand and envision today, when most states impose a comparatively much more uniform pattern of administration in their territories. Individuals in the Empire were not all equally represented by political institutions, did not stand in similar relationships to the same levels of government, and were not equally available or exposed to the rule, taxation, or protection of bishops, princes, or monarchs. Tenant farmers in neighboring plots might have very different privileges, tax liabilities, or religious freedoms, depending on whether the land they cultivated belonged to the allodial demesne of the emperor, or the estate of a local prince, an absent clerical landlord, or a city or urban corporation. (In this sense the United States bears at least a modest similarity to the Holy Roman Empire, in that the federal system decentralizes state power and does not evenly or equally protect citizens’ rights and privileges – a point I return to below.)

The ideal of “German freedom” that was believed to be embodied in this constitutional arrangement applied to rulers and not the ruled. Again, this was not so exceptional as it might seem – the bills of rights, constitutional claims, and political theories being bruited elsewhere in Europe at the time (particularly England and the Dutch Republic) were by no means universally emancipatory – but Germany’s political structure was very much part of the inheritance of feudalism. Feudal traditions such as representative assemblies were still maintained – especially when monarchs sought to levy taxes – and the sediment of centuries of legal and political precedents had settled heavily on the exercise of sovereign power in Germany. The constitutional logic of the Empire impelled great and petty rulers alike toward the jealous, active guardianship of their inherited (actually or allegedly) rights and privileges. The churn of claims and counterclaims in the imperial chancellery and courts was not necessarily a zero-sum game, as rulers, communities and corporations often did enter into extra-constitutional agreements or leagues, sometimes bridging confessional divides. But autonomy was the watchword. The hundreds of dukes, counts, margraves, bishops, knights, and mayors who exercised local power in the Empire at any given time were loyal to the emperor only insofar as he embodied and fulfilled the constitution’s system of protecting princely prerogatives. The Habsburg dynasty’s broader ambitions might with hindsight appear to be incompatible with such a medieval vision of the corpus politicum, but even ambitious or powerful emperors such as Ferdinand II believed themselves to be bound within the legal framework of the Empire – or they at least tried to find seemingly plausible juridical justifications for their actions and policies. The whole setup was romantically if not entirely factually recalled by the eighteenth-century writer and critic Christoph Martin Wieland (source):

From the [emperor down]… there is not a ruler in Germany whose greater or lesser powers are not limited on every side by laws, tradition and in many other ways, and against whom, should he engage in any sort of illegal activity against property, honor, or personal liberty, the imperial constitution does not provide the injured party protection and redress of grievances.

One of the messages of Wilson’s book is that the “porous” imperial matrix – comprised of overlapping institutions, semi-sovereign rulers, and rights and duties embodied in conventions and political culture – was highly consequential to early modern political development in central Europe. The Empire was a surprisingly flexible arrangement that could withstand shocks like the Reformation and the early Wars of Religion. However, the imperial constitution also inhibited political centralization and administrative consolidation. Lacking these attributes, the Empire could not effectively respond or adapt to the whirlwind of conflict and violence that engulfed central Europe for three decades. The juridical framework of the empire rested on networks of trust and comity within the imperial hierarchy. As confessional divides were sharpened – in part as a result of the agitation of radical Protestants as well as zealous advocates of the Counter-Reformation in the imperial church and their secular allies – older understandings of constitutionality began to fray. The institutions comprising the constitution were concerned primarily with questions of legality and propriety in the Empire. They proved to be inadequate to containing or disciplining profound political disagreement. Once the imperial peace was shattered, political actors who appealed to traditions of imperial unity, or looked to imperial legal frameworks for guidance or authority, began to look increasingly naïve.

At this point, some interesting parallels to the situation in the contemporary U.S. emerge. Constitutional culture in America is predicated on an almost reverential treatment of the text of the Constitution, an outgrowth of the belief that the framework it describes is fundamentally sound. An obsession with constitutional text and interpretive fidelity has impeded the development of an understanding of constitutional politics – that is, the conflicts, understandings, and settlements that actually define and affect the way in which we get things done. For example, reading the Federalist Papers won’t help you understand the role of political parties in the contemporary United States, and appeals to the wisdom and foresight of the framers sound just as naïve as the belief of many German princes that the Empire could be restored to the status quo ante bellum.

Unlike the Empire’s, the constitution of the United States is predicated in part on the political equality of the people living within its boundaries. However, the protection and cultivation of that equality has dwelt within a space located somewhere between lip service and blatant hypocrisy. American Indians, African slaves, and many others were marginalized or excluded from the sphere of citizenship at the outset. The federal structure of the United States stems from the original rotten compromise of the framing of the constitution. Not only were slaves denied actually citizenship while serving as proxy citizens to goose the southern states’ legislative representation, but the substantial powers and autonomy “retained” by the states, to the detriment of the national government, were meant to ensure that local control would prevail over nationally representative institutions on the question of slavery. The Civil War – in which the U.S. was riven by the countervailing forces of central government and sectionalist recalcitrance in ways not dissimilar to the Thirty Years War – may have brought about the end of slavery, but even the military defeat of the Confederacy was insufficient to dismantle the constitutional fabric’s protections of white supremacy and local elites. The Fourteenth Amendment’s language of “privileges or immunities” (a phrase that, ironically, would not have sounded at all unusual to a German duke or Hanseatic mayor in the seventeenth century) was gutted by a Supreme Court that served (as it does today) as a redoubt for reaction and conservative resistance to the expansion of democracy, while Radical Reconstruction failed to thoroughly eradicate the patterns of local politics and power that gave birth to Jim Crow. One of the major themes of the political development of the United States since the Civil War has been the failure of nationally and popularly representative institutions and movements to curb the domination of minority and marginalized populations by local elites. The limited but real victories of the Civil Rights Movement were in a sense the long-overdue and partial fulfillment of the demolition of the southern regime.

Federalism in the U.S. is, simply and starkly, an antidemocratic mechanism for preserving the cultural logic of racist domination. Although proponents of federalism like to claim that local governments are more responsive and representative than “distant” national institutions, in practice American federalism has empowered local elites to consolidate their own power, a tradition that is very much alive today in the voter suppression efforts, welfare “reform,” and union-busting that state governments continue to show exceptional enthusiasm (and aptitude) for. Wilson’s book demonstrates that decentralized constitutions empower local rulers and inhibit large-scale collective action. It is this kind of constitutional theory that should be informing our efforts to fight subordination in status hierarchies based on race, class, and other categories of marginalization. Appeals to the written guarantees of the Constitution will accomplish little. The persistence of the privileges claimed by the powerful in the U.S., as in the Holy Roman Empire, gives the lie to the belief that constitutional law, predicated on interpretive fealty to centuries-old writings, will set us free. Just as the legalistic interpretations of the imperial constitution failed in the face of real and persistent political problems, the American fetish for a “de-politicized” constitution will not solve the political problems that deprive so many of the full exercise of freedom today.