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 Madison’s terminology, the “extent” 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 Federalist’s 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 “residuary and inviolable” portion of “sovereign power”; 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: “The proposed Constitution ...leaves in their [the states] possession certain exclusive, and very important, portion of the sovereign power.”  Madison in number 39 echoes this understanding: “the 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.”

      This conception of federalism involves  divided sovereignty which raises a multitude of perplexing problems.  Some of them are illustrated in Madison’s 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 “line” by encroaching upon the domain of state sovereignty?  At one point Madison answers that a “tribunal ... to be established under the general government” should resolve such disputes “impartially” according to “rules of the Constitution.”  Is the “tribunal” 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 “impartiality.” 

     Then, too, Madison makes reference to decisions in these cases being made according to the “rules of the Constitution.”  But what are these “rules”?  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, Madison’s 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 “line,” 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 “line” between state and national sovereignty.  In Hammer v. Daggenhart (1918), for instance, Justice Day, speaking for the majority, went so far as to maintain: “In 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.”  And he continued that to sustain a statute preventing interstate commerce of goods produced by child labor, “would 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.”  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 Roosevelt’s “Court packing” 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 “general police powers” 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 “substantially dependent on the great body of citizens of the United States.”  They are, he continues, “but different agents and trustees of the people, instituted with different powers, and designated for different purposes.”   “The adversaries of the Constitution,” he contends, have viewed these different governments “as mutual rival and enemies” without any common superior.  But this view, he insists, is erroneous; these adversaries have lost sight of the people.     “They must be told,” he writes, “that 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.”

      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 people’s support will ultimately go to that government which administers best.  If “the people should in future become more partial to the federal than to the state government,” Madison maintains, “the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities.”  Hamilton, for his part, offers  reasons why he believes the national government will be “better administered than the particular governments.”   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 “more 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.”

      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 “line” 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 – as does the divided sovereignty paradigm – hold federalism to be a constitutional principle.  The people are free, this is to say, to authorize Congress to draw “lines” 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 don’t complain.  Off at the end, as Hamilton puts it, “the national government, like very other, must judge, in the first instance, of the proper exercise of its powers; and its constituents in the last.”  In this, he is again one with Madison: the answer for a Congress that “oversteps” 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 Court’s 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 “switch” that gave the green light to the New Deal.                       

     Model II, political federalism, now prevails.  To be sure, there have been exceptions – 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 “fundamental 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.”  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 “perform with greater freedom, vigor and effectiveness, the tasks belonging properly to it, and which it along can accomplish.”

      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 “constitutional morality” 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: “Let those in power, therefore, be convinced that the more faithfully this principle of ‘subsidiarity’ 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.” 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 “to 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.”   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, “selling” the subsidiarity will be extremely difficult.  The skepticism shown toward President Bush’s 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.