Carey – The Liberty Fund

George
Carey
The Liberty Fund

American Federalism and the Principle of Subsidiarity:
Some Comments

Our topic today is a broad one and I want to take the opportunity to
put one aspect of our major concerns about American federalism into
historical, theoretical, and political perspective.
In this endeavor I want to go back to the teachings of The
Federalist Papers. I do so
because, these essays represent
the first sustained effort to explain and justify what is acknowledged on all
sides to be a novel distribution of power, and by examining them can see the
roots of the difficulties that have grown over time.
At the very least, we can come to a better understanding of the
fundamental issues involved in our contemporary debates.
How this relates to the values embodied in the subsidiarity principle
will become apparent in due course.

That aspect of federalism that I want to discuss is, to borrow
Madisonís terminology, the ìextentî of national powers, a matter he
discussed in Federalist 39 and elsewhere.
While Madison regarded the extent of powers to be only one of
five measures for determining the federal character of the proposed
Constitution, today — where it is usually discussed in the context of
a constitutionally prescribed division of powers between the national
and state governments — it is taken to be the very essence of federalism.

Now The Federalistís treatment of this division of powers and
its teachings regarding how disputes between the state and national government
over their relative jurisdictions should be settled leaves a good deal to be
desired. Indeed, its
prescriptions are at points seemingly contradictory.
At two points, Federalist 9 and 39, we are led to believe that the
division of powers is constitutionally fixed and that the states are to retain
a ìresiduary and inviolableî portion of ìsovereign powerî; that is,
there is a portion of sovereign power that is to remain under the exclusive
control of the state government free from any control or intrusion from the
national government. As Hamilton,
no less, puts this in Federalist 9: ìThe proposed Constitution …leaves in
their [the states] possession certain exclusive, and very important, portion
of the sovereign power.î
Madison in number 39 echoes this understanding: ìthe
proposed government cannot be deemed a national one; since its
jurisdiction extends to certain enumerated objects only, and leaves to the
several states, a residuary and inviolable sovereignty over all other
objects.î

This conception of federalism involves
divided sovereignty which raises a multitude of perplexing problems.
Some of them are illustrated in Madisonís treatment of the question,
what if controversies between the two jurisdictions should arise?
What if, for instance, states allege that the national government has
crossed the ìlineî by encroaching upon the domain of state sovereignty?
At one point Madison answers that a ìtribunal … to be established
under the general governmentî should resolve such disputes ìimpartiallyî
according to ìrules of the Constitution.î
Is the ìtribunalî he has in mind the Supreme Court?
Presumably so, though certainly another interpretation is possible.
But if it is to be the Supreme Court, then as Brutus, later Jefferson,
Taylor, and, among others, Calhoun point out, we have an agency of national
government, a party to the controversy, vested with the final say.
On the face of it, this is hardly a procedure conducive to
ìimpartiality.î

Then, too, Madison makes reference to decisions in these cases being
made according to the ìrules of the Constitution.î
But what are these ìrulesî? In
McCulloch v. Maryland (1819), the first major case touching upon this issue,
Marshall found precious few rules in the Constitution to help him resolve the
issue. In sum, Madisonís answer
to the question of how to resolve disputes between the two jurisdiction in the
context of the divided sovereignty model of federalism sounds good and at
first brush seems reasonable. A
second look reveals difficulties that are profound.

Conservatives, along with many other Americans of various political
persuasions, are inclined to think of federalism in terms of this divided
sovereignty paradigm and are also inclined to look to the Court to uphold the
ìline,î that is, to protect residual state sovereignty against
aggrandizement by the national government.
And, in fact, in the realm of constitutional law this is the
paradigm that prevailed throughout much of our history.

It is interesting to note in this regard that during the period the
divided sovereignty model prevailed, the Supreme Court, contrary to the
predictions of Brutus and others, did strive to maintain the ìlineî
between state and national sovereignty.
In Hammer v. Daggenhart (1918), for instance, Justice Day,
speaking for the majority, went so far as to maintain: ìIn interpreting the
Constitution, it must never be forgotten that the nation is made up of states
to which are entrusted the
powers of local government. And
to them and to the people the powers not expressly delegated to the national
government are reserved.î And
he continued that to sustain a statute preventing interstate commerce of goods
produced by child labor, ìwould sanction an invasion by the federal power of
the control of a matter purely local in its character, and over which no
authority has been delegated to Congress.î
It was this divided sovereignty view of federalism and the need to
protect the residual authority of the states that led the Court to invalidate
major New Deal policies, which, in turn, led to Rooseveltís ìCourt
packingî proposal and eventually a turn around by the Court that opened the
way for expanded federal activity and the consolidation of powers.
In the more recent United States v. Lopez decision (1995), a decision
almost universally hailed by conservatives,
a majority of the Court returned to the divided sovereignty framework
to invalidate the federal Gun-Free School Zones Act, marking the first time in
almost sixty years that it has placed any limitation on the national commerce
powers. In the majority opinion,
Chief Justice Rehnquist place his finger on the difficulty associated with the
abandonment of the divided sovereignty framework, namely, the Congressional
commerce power would then be so broad as to allow for the federal regulation
of virtually all behavior; it would mean that Congress could use commerce
power to usurp the ìgeneral police powersî of the states.

But this is not the only model or framework of federalism that we find
in The Federalist. On the
contrary, in various essays the authors are at pains to develop another
understanding or view of the relationship between the states and the national
government and how the differences between the two should be resolved.
In this regard, we can most profitably turn to the first
paragraph of Federalist 46. Both
the national and states government, Madison points out, are ìsubstantially
dependent on the great body of citizens of the United States.î
They are, he continues, ìbut different agents and trustees of the
people, instituted with different powers, and designated for different
purposes.î ìThe
adversaries of the Constitution,î he contends, have viewed these different
governments ìas mutual rival and enemiesî without any common superior.
But this view, he insists, is erroneous; these adversaries
have lost sight of the people.
ìThey must be told,î he writes, ìthat the ultimate authority,
wherever the derivative may be found, resides in the people alone; and that it
will not depend merely on the comparative ambition or address of the different
governments, whether either, or which of them, will be able to enlarge its
sphere of jurisdiction at the expense of the other.
Truth, no less than decency, requires, that the event in every case,
should be supposed tod epend on the sentiments and sanction of their common
constituents.î

While Madison offers a number of reasons to believe that the states
might well enjoy an advantage over the national government in appeals to the
people, he holds that the peopleís support will ultimately go to that
government which administers best. If
ìthe people should in future become more partial to the federal than to the
state government,î Madison maintains, ìthe change can only result from
such manifest and irresistible proofs of a better administration, as will
overcome all their antecedent propensities.î
Hamilton, for his part, offers reasons
why he believes the national government will be ìbetter administered than
the particular governments.î On
this score, he opines that the national councils will have a superiority over
those of the states in the caliber of personnel, as well as in the possession
of knowledge and information. Moreover,
like Madison, he believed the national government would be far less prone than
the states to factions and factious behavior.
The national government, in his words, would be ìmore out of the
reach of those occasional ill humours, or temporary prejudices and
propensities, which, in small societies, frequently contaminate the public
deliberations, beget injustice and oppressions towards a part of the
community, and engender schemes, which, though they gratify a momentary
inclination or desire, terminate in general distress, dissatisfaction, and
disgust.î

Taken as a whole, we have another model or conception federalism before
us; one that is entirely different than the divided sovereignty model.
No longer, in this framework, is there appeal to a tribunal, to the
rules of the Constitution, or to inviolable portions of state sovereignty.
Moreover, when we contemplate how the will of the common constituents
is to be known, how it is to prevail in disputes between the state and
national governments, we are obliged to conclude that the Congress alone can
perform these functions. Thus,
the matter of the ìlineî or the division between state and national
authority would seem to largely a political matter to be resolved by Congress
in accordance, presumably, with the will of the common constituents or the
people.

Now conservatives are and have been aware of this understanding of the
federal arrangement and, for the most part, they bemoan the passage of the
Seventeenth Amendment which provided for the direct election of Senators on
the grounds that states interests would no longer be sufficiently represented
in the political processes on matters related state/national relations.
For this reason, many conservatives believe that with the passage of
the Seventeenth Amendment federalism died.
Nevertheless, whether Senators are elected directly or not, the
implication of this political framework are enormous.
For one thing, this conception does not ñ as does the
divided sovereignty paradigm ñ hold federalism to be a constitutional
principle. The people are free,
this is to say, to authorize Congress to draw ìlinesî between the two
jurisdictions wherever they want. Or,
put in slightly different terms, in practice Congress is free to determine
where the lines ought to be drawn so long as the common constituents donít
complain. Off at the end, as
Hamilton puts it, ìthe national government, like very other, must judge, in
the first instance, of the proper exercise of its powers; and its constituents
in the last.î In this, he is
again one with Madison: the answer for a Congress that ìoverstepsî its
bounds — i.e., acts against the will of the common constituents — is the
election of more trustworthy and responsible members.

Now, if
all this seem too theoretical it should be remarked that the heart of the
controversy over the role of the Court during the mid-1930’s involved a clash
between these two paradigms of federalism.
Those supporting the New
Deal policies could argue that the common
constituents through Congress and the legislative process possessed the
constitutional authority to readjust the boundaries between state and national
authority; whereas those opposed could argue that these New Deal policies
involved usurpation of the residual sovereignty of the states, thus requiring
constitutional amendments for passage. In
any event, the Courtís early opposition to the New Deal was principled,
based on an accepted and defensible understanding of the constitutional
allocation of sovereignty. The
same can be said of the position
adopted by the Court after its ìswitchî that gave the green light to the
New Deal.

Model
II, political federalism, now prevails. To
be sure, there have been exceptions ñ the Lopez case being perhaps the most
notable. But, in my view, a
return to the divided sovereignty conception of federalism is highly unlikely;
ten years down the road, I venture to say, Lopez will seem like an aberration.
The arguments over direct or indirect affect on commerce, whether
commerce can be distinguished from manufacture, or what constitutes a
unwarranted invasion of state reserved powers are those of an era in
constitutional law that has long since past.

Where,
then, to turn to the topic at hand, does the subsidiary principle fit into
this picture? This question can
best be answered by pointing out that at the present time we operate in a
vacuum, so to speak, when it
comes to matters relating to state/national authority.
More exactly, political federalism by itself does not offer or embody
any principles for the determination of the extent or use of federal power.
Under this model, for instance, we can readily construct a
case that would allow the national government to take over and operate our
entire educational apparatus from kindergarten through high school.
We could plausibly argue that education is vital to our economic growth
and our competitive position relative to other nation states; that we cannot
rely upon states and localities to provide that kind of education that will
enhance our opportunities in the increasingly competitive world market.
Hence, we must set down a national curriculum with national standards
and control. Only politics,
combined with a traditional understanding that education is primarily a state
and local responsibility, prevents this kind of argument from being seriously
advanced at the present time. But
down the road, ten or twenty years, who knows?

My
basic point, only illustrated by this example, is that under model II we operate
without any principles, without regard to any higher social purposes or ends.
Briefly put, the principle of subsidiarity fills this vacuum.
Its starting point, as articulated in Catholic social thought where it
was first systematically set forth, is the ìfundamental principle of social
philosophy, fixed and unchangeable, that one should not withdraw from
individuals and commit to the community what they [individuals] can accomplish
by their own enterprise and industry.î A
corollary proposition is that the state ought not to assume the functions and
responsibilities best fulfilled or performed by the subsidiary associations,
groups, and institutions, private and public, within the society.
Quite the opposite: The subsidiarity doctrine holds that it
is the responsibility of the state to honor and encourage the independence of
such associations, groups, and institutions.
In this way, according to Catholic thought (and a view also widely shared
in Protestant circles), the state is then enable to ìperform with greater
freedom, vigor and effectiveness, the tasks belonging properly to it, and which
it along can accomplish.î

Now
the following observations are called for:
First, under model II, political federalism, the only real restraint
against the continued concentration of power at the national level will be the
acceptance of a ìconstitutional moralityî that contains within it principles
of restraint. As I see it, the task
of conservatives is to transform the principle of subsidiarity — through
discussion and debate — into such a constitutional morality; to substitute, in
effect, the subsidiary principle for the Tenth Amendment.
As the Catholic encyclical dealing with subsidiarity (Quadragesimo
Anno) put this: ìLet those in power, therefore, be convinced that the more
faithfully this principle of ësubsidiarityí is followed and a hierarchical
order prevails among the various organization, the more excellent will be the
authority and efficiency of the society, and the happier and more prosperous the
condition of the commonwealth.î Second, the
thrust of the subsidiarity principle is entirely consonant with our tradition
from colonial times through first third of the Twentieth Century.
Its advocacy could hardly be considered revolutionary in any sense.
For example, the Virginia Plan presented at the Constitutional Convention
to provide for a strong national government embodied the subsidiarity principle;
the national legislature was authorized ìto legislate in all cases to which
the separate states are incompetent, or in which the harmony of the United
States may be interrupted by the exercise of individual legislation.î
And third, the subsidiarity principle is more flexible and expansive in
scope than the federalism of the traditional divided sovereignty model which has
preoccupied many conservatives. The
principle is easily adaptable to the political culture of the modern, positive
state that we presently have; that is, a state in which state power is
increasingly exercised over realms and for ends once considered
private or social. The
national government, to put this more concretely, has in recent decades seen fit
to move more and more aggressively against non-governmental associations,
undermining their autonomy, and forcing upon them rule and regulations that
advance key elements of the liberal political agenda.
For instance, universities, as Robert Nisbet has documented, once proudly
and fiercely independent, are now under the thumb of the national government,
from admission policies to the allocation of funds for athletic programs.
Adherence to the subsidiarity principle would go a long way towards
insuring the integrity and independence of associations and organizations in the
social sector. At the same time, if
we had followed this principle, it is unlikely that the Gun-Free School Zone Act
and other legislation that intrudes upon state and local concerns would have
passed.

What seems
clear to me is that so long as there is a dependency on the national government
for revenues, so long as the national government can offer financial incentives
and rewards that lure organizations and associations into its orbit,
ìsellingî the subsidiarity will be extremely difficult.
The skepticism shown toward President Bushís faith based initiative
program would seem to be well founded. But
this is an unusual case. Normally
the prospects of immediate gain or benefit through the largesse of the national
government will outweigh considerations of long term interest.
How this particularly difficulty can be overcome is a fit subject for
another panel.

Finally,
I have not touched upon the myriad of ways in which the Supreme Court has
undermined federalism, republicanism, and the subsidiarity principle.
This, too, is a matter for another day.