Given the overwhelming left-wing composition of the legal academy, faculty workshops provide a window onto the progressive concerns of the day. And this year at Northwestern there have been two very similar papers presented, both decrying the tendency of red states to preempt progressive municipal legislation in their cities on such items as the minimum wage and transsexual access to bathrooms of their own gender identity. The papers by Richard Schragger, titled “The Attack on American Cities,” and by Richard Briffault, titled “The Challenge of the New Preemption,” are available on SSRN.
These papers purport to defend subsidiarity, the ideal that government should be pushed down to the lowest level capable of addressing relevant public concerns. It is a serious idea, one that is foundation of much conservative and even classical liberal thought. Unfortunately, in the hands of progressive professors it becomes politicized. First, as the title of Richard Schragger’s suggests, the concern is about legislation enacted by cities being preempted by their states. But rural counties in states where cities dominate face very similar problems. Such states pass minimum wage regulations and laws on matters relating to sexuality and privacy — to name just two issues on which these papers focus — that are out of step with the views of their rural and exurban denizens. The mismatch between the high-regulation and high-tax policies of California and New York, for instance, are in no small measure responsible for the depopulation of these areas. People may be willing to pay high taxes for a unique experience of New York City, but who would pay eight percent of their income to live in Troy, New York?
Moreover, the papers have a pro-regulatory bias. They are not concerned with protecting the ability of localities to refrain from government regulation, thus allowing issues instead to be resolved by social nor market norms without being preempted by the state. Theirs is a subsidiarity by, of, and for progressives.
Finally, the papers do not acknowledge that collapse of subsidiarity in the relation between the nation and states creates a political dynamic in which red states legitimately fear that the municipal legislation in progressive localities will lead to national rules that will preempt the laws or absence of laws in those states. There is a national movement for a national minimum wage set by Congress that passage of city minimum wage laws is designed to advance. Less democratically, courts will be emboldened by initiatives on transgenderism to reinterpret the meaning of sex in Title VII to include gender identity.
Of course, we once had a Constitution that itself protected subsidiarity at a national level by enforcing the limits on Congress’s enumerated powers. We also had a legal culture that saw states rather than Congress, or worse the courts, as the principal engines of social change. Returning to those constraints would make states less concerned that the actions of localities would end up preempting their own power. But that subsidiarity and that legal culture were themselves victims of progressivism. Untune that string and hark what discord follows.