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Revisiting Subsidiarity: Temptations and Limits

Back at Amherst College, in the turbulent years of the 1960s, I was struck by the appearance of what could be called a “reverse-Augustinian.” This was a student who railed against the war in Vietnam, and insisted that people should shed their reluctance to cast moral judgments. And yet he would cast no moral judgment on another student, living in his house, and quite plainly wasting away with drugs.

Augustine thought that governments could not help but be immoral, for men using the levers of power would find themselves doing hurtful things. He counseled us rather to tend to our own character, even when the powers of government would reward vice and debase honor.

This student in the 1960s could cast judgments mainly on the government, on matters quite distant from his own experience; but for the acts played out right before his eyes, he could deliver no moral judgment.

Another student I knew set off at 2 AM one morning to fetch a new member of his house, stranded now and sick at a closed mall near Boston. “Is this a friend of yours?,” I asked. No. “The why did you go off to get him?” And the answer was: “Someone had to do it.”

The difference engaged here touched what some of us take to be the core of the matter of “subsidiarity” and federalism – namely, that decisions should be made at the most practicable, local level, for that arrangement keeps offering an encouragement for people to take responsibility for persons and things within their own reach.

But our Constitution also contained a commitment to preserve “A Republican Form of Government” in each of the States. As I mentioned last time [1], there was an awareness that the smaller the enclave, the more easily it was taken over by powerful families or factions and turned into local tyrannies.

The protection of local minorities might depend on a more distant authority, not under the political thumb of the people who are powerful at the local level. That responsibility of the federal government was dramatically enlarged with the 14th Amendment, after the Civil War, when we found ourselves filling out the implications of “nationhood.”

The Constitution by Barry Faulkner, 1936 [National Archives, Washington, DC]

But that possibility for intervention was present from the beginning. It came with the awareness that the purpose of this whole project was to “secure” natural rights, and a government depending on “the consent of the governed.” In the same way, the scheme of “subsidiarity” in Catholic teaching is not one that finds something immanently admirable in using the laws to mark off a distinct local ethic – regardless of whether that local ethic is decent or debased. The scheme of subsidiarity takes its place in a larger polity that seeks to preserve, overall, a country directed to rightful ends.

I mention these matters because the reactions to my last piece found some of our readers grasping onto things like the 10th Amendment. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)

One reader seemed drawn to this provision as though it would provide a clear, decisive “fix,” insulating local communities from a federal government of the aggressive Left. It was as though the 10th Amendment would magically relieve us of the need to deliberate about the principles or rights that are so fundamental that we can look on with indifference if they are denied in any of States.

Nothing has been more distinctive of local law in this country than the laws on marriage and the family. And yet none of the conservative justices will say that it was wrong for the Court, in 1967, to strike down the laws that barred marriage across racial lines. Nor is it conceivable that one could have simply invoked the 10th Amendment, either then or now, for the purpose of keeping intact and unchallenged the laws that prohibited the marriage of blacks and whites.

What we have here, again, is the search for some handy device, in the Constitution, that allows us to avoid those vexing arguments about the “rights” and “persons” that are protected under the Constitution. The Constitution serves its first purpose in providing a structure of governance rather than an exhaustive inventory of rights. It becomes quite useful to know such things as: who will become President, and whom will the military obey, when a President dies in office; or whether a State may make its territory available as a naval base for another country.

Those are matters simple and structural, and they usually don’t stir litigation.

My readers may know that I’ve argued over the years for the need to keep moving “beyond” the text of Constitution to those principles the Founders drew upon as they framed the Constitution; the principles that would be there even if there were no Constitution.

Our friend and counsel, Michael Uhlmann, has pointed out that the very notion of a government of limited powers is drawn from deeper principles that were never themselves set down in the text of the Constitution. To make ourselves aware again of those principles is to do the work of the Natural Law.

Why do we find Catholics who would seek a way to avoid that salutary exercise – and think that, in avoiding it, they will find safety?

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. His most recent book is 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 now available for download.