The Lure of Subsidiarity

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Call it the operating code or style of conservative jurists and lawyers as they faced the aggressive moral challenges that have marked the “culture wars” since 1965: Try to find some procedures that seem “fair” to people on all sides, arrangements we can agree on, and try then to avoid the substance of those vexing moral questions.

Abortion? We’ll seek to return the matter to the States, and live with some liberal States accepting abortion on demand. Let’s not claim that anything in the principles of the Constitution could possibly challenge the grounds on which a legislature could withdraw protections of the law from those small human “persons” in wombs.

Marriage? Let’s say that the Constitution says nothing about “marriage,” and so no need to stage an argument for the union of one man and one woman as the most defensible form of marriage. Let’s simply return that matter to the political arena, but without the guidance of suggesting the moral case for marriage as we’ve known it.

But now we have same-sex marriage installed by the Supreme Court? Let’s not move to have Congress flex its powers as it has in the past to counter decisions of the Court. Let’s leave the substance of that decision uncontested, and try at least to gain some “religious” exemption for ordinary folks, bakers and florists, who don’t wish to become accomplices in something they find objectionable.

But some of our people quarrel over what constitutes a “religion,” and even that effort, summoning the devotions of my friends, is stalled now in Congress. Meanwhile, the other side seems to hold the moral ground. They claim the mantle of the “just” and they see others merely quibbling for exemptions for themselves that cannot be shared with others who are not religious.

With some earlier columns of mine, readers were writing in to make the pitch again for “subsidiarity,” and that remedy of sorts has been offered anew by Yuval Levin in his new book, The Fractured Republic.   Our culture is so split and fragmented now, he argues, that the best prospect may be found in lives led in distinct local enclaves, free to cultivate their own character.

crumbling wall

This is what federalism used to be about, and the rationale was to favor governments closer to the people they govern. And there will always be a case for the ethic cultivated here: the ethic of Tocqueville and George Eliot, of people taking responsibility for those within their reach. If a community in America needed a bridge, wrote Tocqueville, they built the bridge themselves; the French would wait for permission from Paris.

But “subsidiarity” simply offers another device to find some shelter from the moral war. And for the same reason it will work no better than the others. At no time was the insularity of local enclaves stronger than at the time of our Founding, and yet it became clear during the Constitutional Convention that this new government would need the authority to intervene in those local enclaves.

For those enclaves turned themselves more readily into tyrannies of the local majorities, doing things like canceling debts. As James Madison remarked, it was the threat to the “security of private rights” that “had more perhaps than anything else, produced this [Constitutional] convention.”

Still, in those early years, Fr. Permoli in New Orleans in the 1840’s could violate the local law by holding a funeral with an open casket, and the Supreme Court could not take his case. The First Amendment, with protection for the “free exercise” of religion, was held to apply only to the federal government, not to the States.

All the while of course the scheme of subsidiarity covered the most dramatic diversity of moral arrangements: the accommodation with slavery. Stephen Douglas sung the praises of the system in his debates with Abraham Lincoln as he savored the delicious variety on offer: there were cranberries in Indiana, oysters in Virginia, and in certain parts of the South. . .slave labor. Not in Illinois, where his people had little taste for that sort of thing, but who was to judge?

Lincoln remarked that Douglas “looks upon [slavery] as being an exceedingly little thing – only equal to the question of the cranberry laws of Indiana,” because it was “something having no moral question in it.” But then the Mormons in Utah brought polygamy. Ah, that was an entirely different matter, and for that, Douglas was willing to send in the army! For that, you see, mattered. That was morally serious.

And there we have it. In 1967, the Supreme Court struck down the laws that barred marriage across racial lines. And yet none of the conservative justices will say that the Court had it wrong then, even though “marriage” was no more in the Constitution at that time than when the Court dealt with same-sex marriage in 2015. Even the conservative judges will not send that issue back to the voters in the political arena in the name of “subsidiarity.”

As soon as the sense takes hold that something rightful, something of moral significance is at stake, the walls of subsidiarity will be coming down. There will be mandates to respect the transgendered and same-sex partners in local schools, public and private, with the threat to withhold federal funds or launch prosecutions.

How long will it take to learn that there is no low door under the wall? If conservatives are to resist, they will have to shake off their aversions and meet the opposition directly, by contesting the substance of their moral argument.


Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.