SOCIETIES with more than one governments pose a new problem. It may indeed be assumed by Christians and Jews that, if the States created the Congress, the president, and the courts of the U. S., then those their creatures are subject to them; however, we require an argument good in the eyes of all men.

This is not merely an hypothetical lacuna in humanism. In The Final Superstition [Prometheus, New York: 1994] Joseph L. Daleiden indeed proceeds on the basis that citizen, State, and U. S. are equal.

We have agreed that, if P complains that D has allowed his cattle to graze on the land of P, then their equals listen to the complaint, and to the defense of D, and agree upon its merits. If all of them agree that D should make P whole, then D has little option but to comply; if your neighbors believe that you owe a sum of money to P, then your credit will be worthless unless you pay him.

But P may live in Black County and D in a different county, say Brown. If the Blacks hear the case, and deny justice to D, then not only D but all of the Browns will hold themselves wronged. But it is not P who has wronged the Browns, it is the Blacks collectively, the county. And if Brown county has been wronged by Black county, it is entitled to call upon their equals ¾ Green County and Grey County ¾ to come to its defense.

Thus, if a citizen of the Browns is wronged by a fellow citizen, all of the Browns hear the case. But if a citizen of the Browns is wronged by another county, all of the counties are concerned. Wrongdoing by a county against one outside that county threatens the surrounding counties . . . the case is heard by the court of all-the-counties, the State.

If, then, citizens and counties alike defend one another not as a matter of choice but as a duty under law, it follows ¾ not that the citizen and the county are equal ¾ but that the county is the mere arm or agent of the citizens. And if, when A is attacked, not only his immediate neighbors but those in other counties also are required to effectuate his defense, then it is the State which defends him.

When does the defense require such massive force? Obviously, not when the threat comes from a neighboring county, but when it comes from another State. If Georgia has wronged a citizen of South Carolina, then indeed all citizens of South Carolina are required to vindicate him ¾ i. e. the State of South Carolina is required to vindicate him. But if Georgia has wronged South Carolina, then all of the States are required to defend South Carolina.

Thus the theory of federalism† is plain: disputes within a county concern only the county, disputes across county lines concern the State, disputes across State lines concern the United States.

Let us observe that this theory ¾ viz. that jurisdiction is determined by the citizenship of the parties, not the subject matter of the dispute ¾ avoids acrimonious argument. No-one has any interest in whether the judges and juries of Black County or White State are just or unjust, except the citizens of those jurisdictions. (If the judges of White State reach decisions that are unjustifiable, they will find that the courts of other States will have difficulty in following White precedents.)

We have agreed that for a foreigner to wrong a citizen of one State is to wrong all of the States. Is it possible for anyone within the States to do such a thing: is there any "federal crime," a crime against the people of all the States? We can see that there may well be: suppose that all of the States use the same coins as money of account ¾ then anyone counterfeiting those coins causes the people of every State to lose faith in their money as a reliable measure of value. There are indeed circumstances in which someone inside a State may be liable to answer in a U. S. court.

This theory, apparently, would render the U. S. sovereign, in the technical sense that it could be sued only in its own courts; a complaint by a citizen in Alabama would be heard by a court representing Alabama, Alaska, et al .

Justice Cushing and Chief Justice Jay, in their concurring opinions in Chisholm vs. Georgia (1793) 2 U. S. [2 Dall.] 419, 1 L. Ed. 440, acknowledged that the argument upholding U. S. jurisdiction in cases between a citizen and a State not his own applied also to cases between a citizen and the U. S.

Subsequently, the States disavowed responsibility for wrongs done to citizens by other States in the Eleventh Article of Amendment.

However, such a conclusion can hardly be deemed plausible; it would mean that the citizen would find it more difficult to sue the U. S. than his own State or even county. The theory fails to answer the question, how the law is to be enforced ¾ how are the many individuals to supervise the few officers? The interest of each officer in breaking the law ¾ in acquiring power ¾ is great and immediate; the interest of each and every citizen in exacting obedience from some few, far-away officers is faint and occasional. The solution is, obviously, that the wrong-doing is to be opposed, not by all citizens equally, but by those to whom it is "local", among whom it is conspicuous: possibly all equally are responsible, but all are not equally in a position to know or to act.

If the citizen can call upon his State when he is threatened by another State, a fortiori he can call upon his State when he is threatened by its creature, the U. S. The U. S. government is plainly not an equal of the States; it does not have a territory of its own, within which it is sovereign (other than that granted or sold to it by [consent of] the States.) The true conclusion must be that the U. S., if it acts within a State, does so as the agent of the State, so that a citizen who is affected can sue the State. If the U. S. were acting in its own sphere ¾ say, if a Navy ship on the high seas collided with a ship owned by a Wyoming corporation ¾ then the citizen would indeed sue in the U. S. courts.

Thus we need not conclude that cases against the U. S. government are to be heard by the courts of the U. S. ¾ even as cases against State governments are to be heard in State courts. Any act of the U. S. forts, magazines, arsenals, dockyards, etc., is inherently liable to be done within the jurisdiction of one or another State. And such wrongdoing need not necessarily affect all of the States equally ¾ to the contrary, it is particularly an act which does not affect all of the States equally that constitutes a wrong.

The theory that the State must redress a wrong done by the U. S. is generally rejected: it is supposed that the U. S. can be sued only in its own courts ¾ the (majority) decision in Cunningham s. Neagle (1890) 135 U. S. 1, 10 S. Ct. 658, held that a U. S. officer who killed a person in California could not be tried in the courts of California (even though there was no crime of murder in the U. S. statutes.) However, a plausible holding was that in U. S. vs. Kirby (1869) 74 U. S. [7 Wall.] 482, 486; 19 L. Ed. 278, where, even though the defendant did not appear to argue his case, the Supreme Court unanimously rejected the claim of the U. S. government that its officers could not be arrested if the arrest obstructed their performance of their duties; the Court held that such had not been the intent of Congress in enacting the statute cited, but added "it may be doubted whether it is competent for Congress to exempt the employees of the United States from arrest on criminal process from the state courts, when the crimes charged are not merely mala prohibita, but mala in se."

If some other planet were found to be populated by intelligent beings, and a world government were created to send an embassy to it, then the U. S. government would be responsible for that government (within the States.)

Thus law does not rely upon the public-spirited individual, with only limited resources, to keep the government from doing wrong. Such would be the quintessence of optimism; David D. Friedman, The Machinery of Freedom (cited in Chapter 5) at 216, would be justified in mocking that a "public good" is a "private cost." Rather, the law organizes the citizens collectively for this purpose: the State defends them from the Union, the county from the State.

Justice Jackson’s dictum [in American Communication Association vs. Douds (1950) 339 U. S. 382, 442] "It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error", true as it must be ¾ who but a citizen can even recognize an error? ¾ explains not at all the process, the how, of citizen action: it would be explanatory if it read, "It is not the function of a State to keep the citizen from falling into error; it is the function of a State to keep the Union from falling into error."

We may well inquire how it is that, even in States where the State law is administered by county grand juries, district attorneys, county petit juries, district judges, the State prisons are nevertheless kept filled. The answer is that the prison is provided to the counties free of charge; counties which elect "conservative" (i.e. destructive) attorneys and judges do not find their taxes higher than those of liberal counties. And that the States (as we shall see, unlike the U. S.) do not exclude officers from voting in elections: the crime interest, such as the police and prison guards, is allowed to vote.

Let it not be thought that this is but an academic objection. The largest single contribution to the re-election campaign of Governor Wilson of California came from the labor organization representing the probation officers.