Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
Subsidiarity, Federalism, and the Role of the State
The principle of subsidiarity—the belief that decision-making should occur at the lowest level appropriate to its purpose—is a staple of conservative thought. In fact, it is sometimes asserted that subsidiarity “is a bulwark of limited government and personal freedom.” In general, local control is usually preferable to a decision-making process based on larger political units, in which the responsible officials are far-removed from the affected population. Local government officials are typically more responsive to individual citizens than are federal officials; local decision-making enables regional preferences and variations in lieu of stultifying uniformity; and voters can more easily replace an unresponsive local elected official than his state or federal counterparts.
Subsidiarity and Federalism
The principle of subsidiarity seems to dovetail with our system of federalism, which preserves the states as the basic unit of government. Distant bureaucrats often ignore the wishes of the public they supposedly serve. Nevertheless, local control is not a talisman; abstract concepts can become complicated when applied to real-life situations. In Federalist No. 10, James Madison warned that factions would have greater influence in a smaller polity than a larger one, as anyone who has endured the pettiness of small towns or homeowners’ associations can attest. Cities with a small number of voters may also be subject to corruption. Moreover, there are many instances in which larger units of government are more suitable—even necessary—to discharge important public functions. The Constitution assigns certain tasks to the federal government for this reason. Accordingly, it is simplistic to contend that local control is always preferable.
I have previously written about the tension between state and local control, and am prompted to return to the topic by two, seemingly unrelated, recent events. The first is the state of California’s ongoing resistance to the immigration policies being implemented by President Donald Trump. California, home to at least 2.3 million illegal immigrants, has declared itself a “sanctuary state,” University of California President Janet Napolitano has sued the Trump administration in federal court to challenge the rescission of the DACA program, and, most disturbingly, California Attorney General Xavier Becerra has threatened to prosecute California employers who cooperate with federal immigration authorities conducting enforcement sweeps.
What should we make of this? Is California simply exercising “local control”? Should proponents of limited government applaud these actions as an exercise of subsidiarity, or federalism? Under the Tenth Amendment, all powers not delegated to the federal government in the Constitution are reserved to the states. Regulating immigration and naturalization, however, is exclusively a federal function. The Constitution contains a Supremacy Clause, expressly overriding inconsistent state laws. Leaving aside personal and political objections to the current administration, President Trump won the 2016 election and has the constitutional authority to enforce federal law. Critics of federal immigration laws should attempt to change them, not interfere with their enforcement.
A state’s defiance of lawful federal authority in a sphere properly assigned to it by the Constitution is as illegitimate and ignoble as Gov. George Wallace obstructing the enrollment of African-American students at the University of Alabama in 1963. We did not countenance “local control” or “state rights” during the civil rights era, and should not do so now in connection with rogue states’ resistance to the Trump administration. That Californians preferred Hillary Clinton over candidate Trump in 2016 by nearly a 2-to-1 margin—over 4 million votes—does not alter the outcome of the election, or diminish their obligation to accept it. Federalism does not condone nullification or sedition.
The States versus the Cities
The second recent event is a case argued before the Texas Supreme Court on January 11, 2018 challenging an ordinance passed by the city of Laredo prohibiting businesses in the city from dispensing single-use plastic bags to customers. A local merchants’ association contends that the ordinance is pre-empted by a state law that prohibits local governments from regulating “the sale or use of a container or package in a manner not authorized by state law.” The merchants object to cities’ piecemeal regulation of business practices commonly used statewide by multi-site retailers, which they contend would create inefficiency and impose burdensome compliance costs. Random municipal regulations could produce a patchwork quilt of inconsistent standards. Proponents of the ban cite environmental benefits, and defenders of the ordinance tout the virtues of “local control.”
Many people simplistically equate the relationship between cities and states with that of states and the federal government, arguing that cities have an inherent right to exercise autonomy. They do not. The United States was formed as a federation of pre-existing, sovereign states. In contrast, cities are literally creatures of the state—”political subdivisions,” in public law parlance. As such, cities and other units of local government can be regulated by the legislature at will. “Local control” exists at the discretion of the state.
There is simply no notion of “federalism” or reserved autonomy equivalent to the Tenth Amendment protecting the sovereignty of cities, counties, school districts, and similar entities from state authority. The only legal issue in the Laredo bag-ban case is whether, as a matter of statutory construction, single-use plastic bags constitute a “container or package.” If so, the Texas legislature has pre-empted local regulation in the interest of promoting commerce within the state, and Laredo’s ordinance is invalid. Local interests may be overridden by state laws.
Should we mourn the lack of subsidiarity in such cases? To some, the debate over bag-bans—a trendy “green” measure popular in many progressive cities, including Austin—is between tree-huggers concerned with litter and shoppers favoring the convenience of a free bag with which to transport their groceries. But the governance issue is broader. Progressive cities—in Texas and elsewhere—increasingly seek to dictate economic and social policy at odds with state law, by setting minimum wage standards higher than the state requires, mandating paid sick leave for private employers, regulating businesses’ hiring practices, regulating gun ownership, and sometimes even declaring themselves “sanctuaries” for illegal immigrants.
To the consternation of aggressive urbanists, state legislatures can—and often do—override such local ordinances if they deem it necessary to promote a paramount state interest. States historically have sought to maintain statewide uniformity regarding matters of environmental standards, consumer protection, economic regulation, curriculum standards in public schools, health and safety regulations, and in a host of similar areas. If every “political subdivision” within a state could function as its own fiefdom, intrastate commerce would be greatly restricted, statewide compliance would become a nightmare, and local factions would be incentivized to “capture” local government for their own selfish economic or ideological benefit.
Many purely local issues are left to municipalities to control: public safety, zoning, traffic regulation, regulation of noise, water treatment and sewage disposal, building permits, libraries, parks, trash collection, and the like. For government services involving general application throughout the state, we understandably look to state government to set uniform standards. When that happens, local control must yield to consistency and efficiency.
In sum, the utility of subsidiarity depends on the government function in question. States control cities, not vice versa. And, of course, in many areas of life the most appropriate decision-maker will not be a government body of any sort. Americans have always relied to a great extent on the free market, voluntary organizations, service clubs, churches, neighborhood associations, friends, and families to provide the type of community they desire—and that should continue.
 Chy Lung v. Freeman, 92 U.S. 275 (1876); Arizona v. United States, 576 U.S. 387 (2012).
 Article VI.