fbpx

Subsidiarity by the Progressives, of the Progressives, and for the Progressives

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 27, 2018 at 08:47:25 am

I've noticed these arguments too, and have asked my students the question in class: how far down should the subsidiarity principle reach ? Does it merely support the argument for Federalism and state power, or does it mean we should support even local city government against state control on issues such as "bag bans," stop light camera enforcement, etc?
As a legal matter, according to Dillon's rule cities are the creatures of a state; the state is where the subsidiarity argument has to end.

read full comment
Image of CJ Wolfe
CJ Wolfe
on March 27, 2018 at 11:49:39 am

"...the state is where the subsidiarity argument has to end."

OK - but!!!!!!

This statement was MOST certainly true when the States WERE States and not simply some barely masked subsidiary (oops, there is that word again, but used in a negative context) of a benefit-providing Federal behemoth.

As intended the Federal Government was not expected, or permitted to "act upon the individual." That power / prerogative was reserved to the Several States. Yet, the Federal Government, both through the artifices of its own Executive Branch agencies AND in conjunction with the States' own agencies impose obligations upon the individual citizen.
Can it still be said that subsidiarity EVEN exists at the level of the State?
Indeed, are (all) the States any longer interested in protecting their institutional prerogatives / powers?

(Rhetorical, of course)!!!

read full comment
Image of gabe
gabe
on March 27, 2018 at 15:48:30 pm

"These papers PURPORT to defend subsidiarity, the ideal that government should be pushed down to the lowest level capable of addressing relevant public concerns."

I have added my emphasis to the most important word in Professor McGinnis' commentary.

The Left's move toward subsidiarity is an illegitimate sham aimed opportunistically at the Machiavellian political ends of intensifying Democrat Party power and control in those states where it is not already absolute. (Say Texas, Virginia, North Carolina, Pennsylvania, Ohio, Michigan, Wisconsin.) It is a power-grab that is not based on subsidiarity's underlying political philosophy (as is constitutional federalism) or on its moral insight into the nature of man (such as the subsidiarity of Catholicism.)

True subsidiarity holds as the Founders believed (but as the Democrat Party now rejects both in theory and practice): 1) that societal forms are based on and in service to the autonomy and dignity of the human person in community, 2) that government should undertake only what cannot be done effectively by individuals or private groups, 3) that in order to protect the dignity and autonomy of the individual in community the decision-making functions of fundamental institutions (whether government or private, business or philanthropic, religious or secular) should be as local as feasible consistent with practical administrative considerations.) With subsidiarity the family, the community and voluntary associations of men and women serve as intermediaries linking the local with the larger society and any necessary higher levels of decision-making and administrative organization.

None of that is true of Democrat Party attempts using the rationale of subsidiarity and their vast urban power centers to undermine 9not to further) state protections and defenses of the vital principles of subsidiarity against intrusions by the centralized bureaucracy of the national government which carries out, for the most part, the will of the Democrat Party.

It is a false notion that the city councils of Dallas and Houston (for example) in the name of subsidiarity should be permitted to preempt or undermine legislative decisions made in Austin by exempting most of the population of Texas from those decisions and substituting therefor the separate and more intrusive city decisions over the people in those large urban areas. That leads not to respecting and protecting the dignity of the individual in community. It leads, rather, to the nullification of federalism and the intensification of centralized bureaucratic control.

AND THAT IS THE SOLE PURPOSE OF CRYPTO-NATIONALISM MASQUERADING AS SUBSIDIARITY.

read full comment
Image of timothy
timothy
on March 27, 2018 at 16:14:21 pm

Timothy:

Agreed that Democrat (and like you, I do not use the term "democratic as there is nothing the slightest hint of democracy in their operating philosophy or practices) subsidiarity is a sham. Also agree with your understanding of subsidiarity.

But a question, if I may:

Recent actions taken by small communities, and now smaller Sheriffs Dep't in California provide a counter to the actions / goals of the Democrat Party under the ruse of subsidiarity whereby these smaller communities / associations have determined that, at least, with respect to their own communities they SHALL NOT accept State mandate(s) to obstruct Federal Immigration authorities in their lawful efforts to enforce our immigration laws.

How are we to characterize this? - or is this simply an example of "subsidiarity" properly understood?

read full comment
Image of gabe
gabe
on March 27, 2018 at 17:10:42 pm

You smartly point out complications with blanket statements (such as mine) about subsidiarity.

One complication arises in determining the purpose and the impact of the (ostensible) subsidiarity effort. i.e. whether what purports to be subsidiarity is aimed at recognizing the dignity and protecting the worth of the individual in community, diminishing government control, rendering government less burdensome and enhancing freedom of the individual in community by reducing bureaucratic power.

Subsidiarity, it seems to me, should always operate (overall and on balance) on the side of those angels.

It seems to me that, overall, where one reasonably suspects the opposite purposes or sees the opposite effects then subsidiarity is not at work but rather crypto-statism. E.g., on the one hand, local opposition to state bans of local bag taxes which inevitably increase regulation and diminish freedom is not subsidiarityism (wow, there' s a word for the ages) but statism. While, on the other hand, as in the immigration enforcement matter, it would be subsidiarityism for locals and local communities to oppose a state's prohibiting them from cooperating in, even from aiding and abetting, federal protection (ICE) of the public safety of those individuals and of their communities against criminal aliens and drug-trafficking. Defense of self and of community is a dignified expression of human worth and, thus, by definition an act of subsidiarity.

read full comment
Image of timothy
timothy
on March 27, 2018 at 20:20:10 pm

Two further thoughts about Gabe's subsidiarity conundrum:

1) Subsidiarity holds that government should not do what can be privately done. Hence, for a local government to impose a cumbersome, unnecessary regulation , such as a plastic bag tax, when voluntary recycling would suffice (there is NO data to the contrary) violates the principle of subsidiarity, albeit the needles law has been enacted at the lowest level of government.
2) The recent organized efforts of a few California localities to decline participation in the obstruction of justice campaigns of California's legislature and Attorney General is much more than subsidiarity, it is a) civil disobedience visa vis an unlawful state law and an unlawful conspiracy of state officials to obstruct justice, b) admirable compliance with federal law and c) praiseworthy performance of their duty to defend public safety in their communities, which they have taken an oath to do.

read full comment
Image of timothy
timothy
on March 27, 2018 at 21:15:44 pm

And a third additional subsidiarity point:
The Democrat Party has consistently advocated an open-door policy on illegal immigration, opposing both restraints on and barriers to it and efforts to enforce laws against it, including going so far as to a) provide sanctuary to illegal aliens, b) to aid and abet illegal aliens in violating federal and state law, and c) to prohibit communities and citizens from i) complying with federal immigration law, ii) voluntarily assisting federal enforcement of immigration law sand iii) enforcing separate state local laws aimed at protecting states and local communities from the adverse effects and the crime of illegal immigration. (The Hazleton, Pa and the Arizona immigration enforcement efforts were both opposed by Obama's DOJ and declared unconstitutional.) Similarly, the Democrat Party has consistently opposed and successfully challenged state voter ID laws and unofficially advocated "open polling place"/ ''anyone can vote" policies intended to encourage illegal voting.

Both of these Democrat Party policies are contrary to the principle of subsidiarity. They are decisions made at the highest level of government that deprive state and local local communities of the legal and political power to control their own jurisdictions, protect their own citizens and elect their own public officials.

Thus, it is a matter of the greatest hypocrisy for Democrats to advance the principle of subsidiarity in defense of statism and centralized government.

read full comment
Image of timothy
timothy
on March 28, 2018 at 18:22:06 pm

[T]he 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?

Unclear. Troy’s population has been declining since roughly 1910. Can this really be explained by high state taxes?

Conversely, Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming have no state income taxes, which obviously explains where their small towns are booming. Oh, wait….

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.

All true. Damn those progressive abolitionists, suffragettes, unionists, civil rights activists, etc. Why must they constantly seek to impose legal uniformity on us, to the degradation of our “peculiar institutions” and cherished ways of life? Good to know where McGinnis stands.

read full comment
Image of nobody.really
nobody.really
on March 28, 2018 at 18:43:04 pm

I "really" don't understand what "nobody.really" said, really.

Are you being ironic or merely sarcastic?
Or are you making a serious, substantive argument that Progressive have imposed legal uniformity at the expense of subsidiarity but that doing so is a legal, political and moral good and that good exceeds the legal, political and moral value of subsidiarity? (That would be an interesting argument.)
It seems you disagree with McGinnis, but in what way?

read full comment
Image of timothy
timothy
on March 28, 2018 at 19:01:47 pm

Are you being ironic or merely sarcastic?
Or are you making a serious, substantive argument that Progressive have imposed legal uniformity at the expense of subsidiarity but that doing so is a legal, political and moral good and that good exceeds the legal, political and moral value of subsidiarity?

Forgive me for being obscure (and for failing to close my blockquotes). Let me try to be clearer:

YES!

Southern colonies, and later southern states, embraced "states rights" as a means to defend slavery, their "peculiar institution." Rightly or wrongly, progressives believed that freedom was for everyone, and imposed that view on the South. Likewise for women's votes, the National Labor Relations Act, civil rights, etc.

In praising McGinnis's stance, I'm being facetious. I don't sincerely praise such a stance, and I don't sincerely think that McGinnis would embrace such a stance (although I could be mistaken about unions). But in adopting an uncritical embrace of subsidiarity, he's ignoring all this.

My view is that we value uniformity on some matters, and federalism/subsidiarity on other matters. There is widespread, nuanced dispute about where to draw the line. Could I see the hands of anyone who disagrees with this statement?

But, of course, nuance isn't very much fun to acknowledge; it doesn't lend itself to becoming a culture war issue. It's hard to demonize those naughty, naughty progressives for adopting a position that differs only subtly from your own.

McGinnis chooses to ignore the nuance, and instead to indulge in the culture war. But in so doing, he exposes his flank to attacks such as the one I made. So I made it. If he were to respond, I expect that he'd have to acknowledge that he embraces enforcement of some universal principles, too, which would defeat his thesis. So he won't respond. But at least you can now see the weakness of the position he espouses.

read full comment
Image of nobody.really
nobody.really
on March 28, 2018 at 20:54:20 pm

nobody:

You DO seem to be an excellent exemplar of the Proggies infatuation with nuance - Ha!

However, in this instance, I do not disagree with the general thrust of your observations and have so commented above, re: small municipalities in California rejecting that States obstructive immigration policies.

AND

I must point out that Timothy has done likewise in his response(s) to my query.
Rather, I would prefer that you respond to Timothy's exposition following my "immigration - subsidiarity nexus".

I think that you will find (not to speak for timothy as he is clearly most capable of doing so) that his *refinement*, his mini-disquisition on subsidiarity properly understood is quite on the mark AND does not require the peculiar version of *nuance* in which you have become quite fluent.

BTW: Keep up the nuance - I do enjoy it, especially as I consume some wonderful Walla Walla Valley Merlot (as I am presently doing).

Take care
gabe

read full comment
Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

Related

Quarantine

Deadly Tradeoffs

The question is not the existence of tradeoffs, but whether the necessity of making tradeoffs will be honestly acknowledged or dishonestly denied.