Is there such a thing as the proper size of a political order?  Westerners have inherited three visions of political size and scale: the Aristotelian polis; the Christian commonwealth; and the Hobbesian modern state.  For Aristotle, the point of political order is the cultivation of human excellence.  Since virtue cannot be learned except through apprenticeship and emulation—which requires face-to-face knowledge—the polity must be small.  Aristotle thought its size should be in scale with the human body and its capacities—something that could be taken in from a hill at a single view or walked across in a single day.  This would yield a city-state on the order of 50-200,000 people.  Ancient Athens, republican Rome, and Renaissance Florence and Venice—all of which were within this range—were political orders of human excellence from which we still draw inspiration.  As Aristotle said, a great city is not necessarily a large one.  Indeed, human political order should be of this scale unless there are good reasons for it to be more extensive.

Christianity offered those reasons, while at the same time preserving Aristotle’s insight into the primacy of human scale in political things.  The Christian commonwealth that flourished from the 12th to the 16th century was grounded in Augustine’s distinction between the City of God (the Church) and the City of Man.  For Aristotle, the institutions that cultivate virtue are contained entirely within the walls of the polis.  Aristotle had a notion of natural justice, but there was no universal institution in which to cultivate it.  Christianity provided such an institution in the form of the Church, Whose scale was and had to be global.  But nothing from this followed about the proper size of the secular city.  Augustine, however, seems to have accepted Aristotle’s insight that the size of the City of Man, like that of a building, should be measured to the scale of the human body and its capacities.  Just as the relative size of a window, doorway, or bedroom has not changed over the millennia, so, too, with the City of Man.  And this became the case throughout Christendom, where few cities ever reached 100,000, and the vast majority were considerably smaller in size.

Although Christian civilization was vast in extent, there was no central political authority.  There were thousands of divided sovereignties and competing jurisdictions displayed on a continental scale.  It was not only the Church, with Her vast property holdings, commercial enterprises, and legal system, that was independent of the secular authority; countless secular jurisdictions were independent of one another.  Christendom was a rich patchwork of kings, small principalities, dukedoms, margravates, bishoprics, lordly manors, republics, free cities, and leagues of free cities.  And running throughout the whole was the universal spiritual institution of the papacy and, in the center of Europe, the light federalism of the Holy Roman Empire.

Christian Europeans necessarily acquired the habit of jealously defining jurisdictions and of limiting political power over corporate entities as well as over individuals.  Out of this practice arose the ideals of individual and corporate liberty, the parliamentary system, trial by jury, the rule of law, and the ideal of limited government.  Liberty is a gift of medieval Christians; equality—and the massive centralization of power needed to achieve it—is the “gift” of the moderns.

This rich fermentation of competing jurisdictions went on against the background of the Church, which colored the whole with Her teaching that each individual is of infinite worth because made in the image of God.  This universal ethic facilitated extensive commercial and cultural activity in a Europe without state borders and, over time, generated the institutions of capitalism whose scale, like that of the Church, was potentially global.  The steady growth of wealth in this period (1100-1500) has been called the “miracle of Europe.”

It would be tempting to say that the medieval economy of vast scale and the religious authority of global scale were private engagements separate from the secular state.  That would be a mistake, however, because there was no such thing as the state in Christendom and, consequently, no distinction, such as we have now, between the public and the private—a distinction created by the modern state.  What, then, is a modern state, and what is its teaching about size and scale?  Thomas Hobbes’ Leviathan (1651) gave us the master statement of its philosophical idea.  Men without the state are, Hobbes thought, in a condition of anarchy in which anyone can do absolutely anything he likes.  The only way to move from this miserable condition to peace and security is for everyone to agree to transfer his unconditioned liberty to a sovereign office that is unconditionally authorized to rule over all.

There are two parts of the Hobbesian notion of government that were unknown to Christendom.  One is the notion of political sovereignty—that there must somewhere be located a supreme unconditioned will that has the final say on political matters.  No one or office had the final say on political matters in Christendom, since political matters were largely matters of negotiation among property owners.  The second is the notion that sovereignty is vested in an artificial corporation with a territorial monopoly on coercion.  The office of sovereignty is theorized as distinct from those temporary rulers who occupy it and those ruled by it.  This is in marked contrast to both the polis of Aristotle and the medieval city.  In both cases, government is the property of an individual or a group.  In the modern state, the instrument of coercion is owned by no one; it is what Hobbes calls an “artificial man.”

This is entirely different from Cicero’s definition of a republic as an association of men under law.  The Athens of Aristotle, the republican Rome of Cicero, or the medieval city can be thought of as a large fraternity made up of a federation of smaller fraternities.  Privately or severally owned governments of human scale have a built-in monitor for determining proper size.  When the number of fraternities or people becomes too large for the management of the jointly owned polity, it is time to form a new city; just as a corporation naturally downsizes or divides and duplicates when it becomes too large for its function.

There is, however, no human-scale standard to limit the size of the modern state.  First, the state theorized is large, comprehending millions.  Moreover, intimated in this idea is a single global polity, for, if unconditioned centralized power is the solution to the problem of anarchy within the territory of the state, then unconditioned global centralized power is the solution to anarchy among states.  Consequently, a modern state can expand, but it cannot divide through secession.  Every modern state is “one and indivisible.”

We live in a world more or less dominated by Hobbesian states.  Today, there is no room for the Aristotelean polis or the medieval city because there is no room for government conceived as private or jointly owned property.  All such independent social authorities would be potential sources of competition with the sovereign to whom undivided allegiance is owed.  Hobbes calls them “worms in the commonwealth,” and the sovereign must either destroy them or contain them.  Just as Plato excluded the poets from his ideal state, so Hobbes goes out of his way to abolish the literature and public memory of the Greek, Roman, and medieval republican traditions from Leviathan.

Modern political philosophers tell us that the desire to recover the human scale of the polis is a childish fantasy.  The modern state is not only here to stay but is the final form of political association.  If this were true, however, why is it that nearly every modern state presents itself to the world as a republic or a democracy?  The so-called French Republic, the Peoples’ Republic of China, and the American republic are not within light years of being either a republic or a democracy.  In none of them is the government conceived as a species of property, and they are all wildly out of scale for historic republics and democracies.  Yet the disposition to form such polities is so powerful that the modern state has had to appeal to it in legitimating itself.  There are, of course, some superficial resemblances (voting, representatives, etc.).  But the modern state also superficially resembles a village (our state managers speak of the “global village”) or a New England town.  (President Clinton held town meetings for the United States via satellite.)

The images of the village and town meeting are dishonest, Orwellian ways of understanding the modern state, but equally so is the classical image of a republic or democracy.  Every modern state has been embarrassed to describe itself as what it actually is: an artificial corporation having a territorial monopoly on coercion distinct from its temporary managers and subjects.  Hobbes gave it its true names: an “artificial man” and Leviathan—the latter, taken from a reference in the book of Job to that great sea monster which no man can hook.

Political societies always begin small.  Modern states of vast scale are the result of conquest, of crushing hundreds of smaller polities into larger and larger centralized states.  A consequence of this out-of-scale centralization is cities of unprecedented size, where millions are herded together.  Today, there are ten cities in the world in the range of 20 million population, mostly in the Third World.  By 2050, these are predicted to grow to 30-40 million.  Two of these monsters would equal the population of the entire Roman Empire at its greatest extent.  The reply that the world is more populous today misses the point.  Mexico has some 80 million people, a quarter of whom live in smog-choked Mexico City.  This concentration of people could not occur if Mexico were divided into, say, ten or more sovereign states of the size of Austria, Switzerland, Denmark, or Norway.  The pathological concentration of tens of millions into one urban center is not because of the greater number of people in the world but because of Hobbesian political centralization.

Can the Aristotelean disposition to form polities of human scale be given concrete political expression in a world dominated by Leviathans?  One possibility would be secession—breaking large states into smaller ones, as happened when 15 states seceded from the Soviet Union.  Until very recently, this seemed impossible, because it violated two Hobbesian maxims: that the state is “indivisible” and  that it should be large (and potentially global).  When the League of Nations was formed, in the heyday of the nation-state, it was understood that no state could be a member unless it was large.  The United Nations today has been compelled to abandon that rule.  Over half of the states in the world today have populations of five million or less.  More than one third contain a million or less; and nearly one third are 500,000 or less.  Fifty-two states have populations of 100,000 or less; and 13 have populations of 10,000 or less.  Twenty states occupy an area smaller than Washington, D.C., and one, the Vatican, is smaller than the Washington Mall.  Here, again, Christian Europe serves as a model.  There were more independent political units in 13th-century Italy, and in 17th-century Germany, than in the world today.

Although secession should be encouraged as a policy option, it does not guarantee that the seceding unit will have the Aristotelean human scale we are looking for.  If California seceded, it would have the sixth-largest GNP in the world and would still have the character of Leviathan.  To reach the range of an Aristotelean polity, we must consider a different form of secession, one that takes place within Leviathan, sapping it of its political strength but also transforming it into something that is less intrusive—and, possibly, that is useful.

Every form of tyranny has an Achilles heel.  The disastrous experiment with socialist and communist regimes has shown that the modern state cannot flourish without property rights and a market economy.  From the late 60’s on, there appeared around the globe—cutting across the ideological divisions of left and right—a disposition to privatize.  This disposition reached its most dramatic expression in the peaceful dissolution of the Soviet Union.

One form that this revolution in privatization took in America was the privatization of government in neighborhood associations.  This form of local self-government is different from zoning, which employs the coercive power of the state to exclude a certain use of the land in a territory.  Jointly owned neighborhood government was created largely by developers responding to market demands.  The developer would set up rules for the governance of the territory, and those who bought property in the development signed a covenant to abide by those rules.  In the wake of massive intrusions by the Hobbesian state, and its failure to protect valuable ways of life, people began seceding to form something like their own government.

The movement was not planned and had no leaders; it was simply a spontaneous reenactment of the Aristotelian disposition to form polities of human scale.  This new instantiation of government as property has taken on many forms, ranging from gated communities of the rich, to environmentally minded communities, to communities with a religious tone or a leftist bent, to entire towns.  According to Robert Nelson’s recent study, Private Neighborhoods and the Transformation of Local Government, there are some 250,000 private government associations, housing more than 50 million people.  As late as 1970, only one percent of Americans lived in such associations; today, 20 percent do.  Nearly 50 percent of all new housing units in major metropolitan areas are in private government associations.  They vary in size from a condominium development to an entire town.  Reston, Virginia, covers 74,000 acres with a population of over 35,000 and over 500 businesses.  Sun City,  Arizona, has 46,000 residents and ten shopping centers.

Some see the sudden emergence of these private governments as something new and unexpected.  But they are, in fact, a revival of the old.  They are, in embryonic form, reenactments of the Aristotelean polis and the medieval city—but especially of the latter, which was typically chartered as a business corporation.  Indeed, until the late 19th century, American cities were also chartered in the same way, as a business corporation.  This ended with the Civil War, which, more or less, transformed America from a federation of states into an Hobbesian unitary state.  Just as Lincoln argued that the states had never been sovereign but were mere creatures of the Union, so the federal courts would hold that American cities were mere creatures of the states, and, consequently, creatures of the Union.  In Hunter v. City of Pittsburgh (1907), the Supreme Court made this crystal clear:

The State . . . at its pleasure may modify or withdraw all [the city’s] powers, may take without compensation [the city’s] property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation.  All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest.  In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will [with the cities] unrestrained by any provision of the Constitution of the United States.

This is a perfect example of the Hobbesian American state seeking to contain the Aristotelean “worms” in Leviathan.

If the American city has no constitutional protection against Leviathan, the same is not true of private property.  It is unconstitutional for a state or federal government to take private property without just compensation.  And, from this, it seems to follow that a city chartered as a collectively owned business would have a quite different life from one chartered as a mere agent of the state.  The former city, being subject to property law, would be immune from civil-rights laws and court decisions regarding speech, religion, affirmative action, etc., since these are applicable only in the public sphere constituted by Leviathan.

The city of such a private government could establish a religion or prohibit all religion.  Its public square would be collectively owned and could contain Christian symbols at Christmas, unlike the public square of Leviathan which must, by today’s law, remain empty or be filled with a variety of “religious” symbols, all of which must have only a secular meaning.  It could discriminate on the basis of age, sex, religion, or ethnicity, and in other ways.  It could run businesses or be itself a business.  Depending on the terms of its constitution, it could sell a part or the whole of the city off to private owners, or to another city, or to Leviathan.  It would resemble the medieval cities that built the great cathedrals, became flourishing centers of commerce and culture, and, in league with other cities, were eventually able to force their will on kings—notably, at the battles of Legnano (1176), Kortrijk (1302), and Morgarten (1315).

There is no reason to think that America could not one day be dotted with a network of flourishing medieval- and Renaissance-type cities rooted in property law, just as she is dotted with a network of flourishing business corporations rooted in property law.  The legal framework that distinguishes constitutionally between private and public, as well as the spectacular growth of private government associations, leave the political door open to this prospect.  What largely prevents it is a lack of political imagination.  Americans are creatures of the Hobbesian state and, through long training and habit, have acquired something of the timid character of Hobbesian subjects.  And they still feel an allegiance to the 19th-century nationalism that emerged from the Civil War (but which did not exist before it) and which today no longer makes sense.  Bill Clinton, in a speech, told Americans of European descent that they must get used to the idea of becoming a minority—and that this was a good thing; the Supreme Court has started incorporating E.U. law and international treaties into American case law; Congress will not enforce U.S. immigration law.  A regime that delegitimates its founding culture, whose constitution is shaped by foreigners, and that will not control its own borders can no longer be called a country.

The elites that manage the Hobbesian American state are increasingly shifting their allegiance to supranational and stateless organizations.  Ordinary Americans do not understand this, but if it ever sinks in, their allegiance to post-Lincolnian nationalism will begin to fade.  They will then have a reason to turn to what is near and dear as the main focus of civic loyalty.  That would not, of course, preclude weaker loyalties to the overarching state authorities that survived; the citizens of medieval cities had multiple allegiances.  But the kind of allegiance demanded by the “one and indivisible” Hobbesian nation-state would no longer exist.  The “worms” in Leviathan would have gained legitimacy in what would now be recognized as an entirely different kind of political order.

I said that the legal door seems open to a revival of polities of human scale.  That door, however, could be closed.  The courts could declare private governments to be “state actors,” as was done to municipal governments in the late-19th century.  And, of course, the disposition of the Hobbesian state is to do just that.  But the rapid and spontaneous rise of the private-government movement suggests that it will not be easy to roll back.  Americans have a deep commitment to property rights and localism, and, though both have eroded, they are still solidly framed in our legal tradition and could be strengthened incrementally by astute and persistent political action.  In the end, judges are camp followers of victorious political forces.

Chief Justice Warren Burger wrote in 1980 that “a community of people are—within limits—masters of their own environment. . . . Citizens should be free to choose to shape their community so it embodies their conception of the ‘decent life.’”  The question is, what are the limits?  In a 1992 opinion, Supreme Court Justice Anthony Kennedy declared that, if something “is a product not of state action but of private choices, it does not have constitutional implications.”  If so, then private governments, being the product of private choices, should not be subject to the constitutional constraints that apply to “state actors,” such as cities.

Whether the courts draw this conclusion and apply it will depend, in large part, on what political action the people undertake in this contested field.  The rapid rise of private government has caught the state and the courts unaware.  Robert Nelson, in the book mentioned above, has explored the confused and contradictory decisions of both state courts and the Supreme Court on whether neighborhood associations are “state actors.”  He points out, for instance, that the Davis-Stirling Act, passed in California to regulate the activities of neighborhood associations, has been changed 35 times since it was first enacted in 1985.  The matter is unsettled.

Since each state can make its own laws in this matter, and since there are 50 states, it is possible that some states will be more tolerant in allowing private governments to emerge.  The same was true in the Middle Ages, where towns had to negotiate with the count or prince who chartered them.  They acquired their liberty incrementally, over time.

But should people continue to secede, emotionally and spiritually, from the American Hobbesian state; and should they begin to put their political and economic energy into building political societies in the pattern of the polis and the medieval city; and should a few of these succeed and become flourishing centers of wealth and culture, they would inspire emulation.  And, at that point, the state would find it hard to destroy them.  So the question remains whether Americans are content to remain timid Hobbesian subjects, or whether they have the civic virtue and political imagination to revive the polities of human scale they enjoyed before the Civil War and to pursue the prospect that has been opened up, legally and politically, by the private-government movement of the past 35 years.