The Prudent Case for Robust Federalism and Limited Subsidiarity

by Peter Daniel Haworth on July 15, 2010 · 23 comments <span>Print this article</span> Print this article

in Politics & Power

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Phoenix, AZ. Many, no doubt, will initially view the above title to be a mistaken proposition. Why would someone advocate rigid federalism over the commonsense flexibility that can be attained through subsidiarity? This brief essay, which was originally posted by the Lehrman American Studies Center, seeks to answer this question with respect to political unions composed of smaller polities.

Federalism and subsidiarity are, indeed, different concepts, even though they often dictate similar applications. Federalism is a rigid notion; it now frequently connotes the making of strong demarcations of power between the multiple local associations and the single central government within a political union.  Subsidiarity, however, enjoins leaving a function with the lowest level of association (i.e., not allowing a higher-level association to assume power over the function) to the extent that the lower-level association can perform it efficiently.*

The difference between the two principles can be further illustrated through considering the different ways that each might dictate handling the scenario of a rogue state or polity within a larger political union that possesses a federal government to help manage the common affairs of this union.

Let us assume, for example, that a state gravely mistreated a minority portion of its residents.  What would each of the above principles direct as being the correct action? If the political union were organized such that the states had full police powers and this was not a power assigned to the federal government, then federalism would demand maintaining such demarcation of powers regardless of the fact that the rogue state is failing to protect and is even willfully mistreating its residents. In fact, other than during the initial stage of deciding how power is to be demarcated between lower and higher (or more centralized) levels, the effective performance of a function is not even considered in determining applications of the principle of federalism.

Subsidiarity, on the other hand, is more flexible, in that it is theoretically open to transferring a function (i.e., power over the function) to higher levels if it becomes clear that a lower-level association cannot perform the function efficiently. Thus, if it were found that a state or polity within our hypothetical union could not efficiently perform the function of protecting a certain minority of people within its borders, then subsidiarity would direct us to transfer this function and the corresponding power over such function to a higher level, by whose agency performance of that function could be performed more efficiently.

For many, the pursuit of such applications of the subsidiarity principle (and not federalism) just seems like utter common sense. Subsidiarity is a principle that allows for continual re-evaluation about which levels of government can most efficiently perform various functions and, hence, should have the relevant powers over such functions. Federalism, on the other hand, does not entail this evaluation within its concept; it refers merely to the maintenance of an already determined division of functions and the powers to implement them.

So, when it comes to organizing a political arrangement in a union of states or localities that entails a federal government, why even mess with the rigid principle of federalism, rather than just instituting the principle of subsidiarity such that the higher-level federal government can readily assume functions/powers that the states or localities prove themselves unable to handle?

One important answer to this question is that there is a strong prudential basis for maintaining robust federalism and limiting the application of subsidiarity in a political union of states or polities. This requires the empirical recognition that the political sphere is commonly filled with individuals and groups seeking to attain and solidify their power. In such an environment, each state and federal government will seek to expand and guard its respective powers. Such a conflict is usually decided by the level with the most power. Since this is often the federal government in established unions (i.e., those with a long enough history for experiencing the modern centralizing temptation that often provides a mandate for the federal government to amass more power at the expense of the powers of states), the federal government as the higher-level association is able to use force or bribery to reduce the states’ powers. Moreover, this transfer is almost always a one-way affair, because of the nature of federal politicians to guard and solidify the powers that they have taken from the states.

With these considerations in mind, one begins to see the practical problem with a bona fide implementation of subsidiarity within a political union. Real subsidiarity requires genuine flexibility and openness to the need for reallocating functions/powers to appropriate levels. This openness and flexibility does not occur in an environment where the relevant parties and groups are constantly seeking to aggrandize and guard their turf regardless of whether it is appropriate for them to possess the functions/powers that compose such turf.

Furthermore, these empirical considerations provide a strong basis for recognizing the need for robust federalism, even though this requires also significantly limiting subsidiarity. Given the tendency for modern political unions to centralize power, it is highly probable that the states’ functions/powers – even those which they can efficiently perform – will often be stripped away and assumed by the union’s federal government. Maintaining robust federalism requires preventing this from occurring through an institutional mechanism (e.g., states resisting federal usurpations) that can appropriately check the centralizing tendency. Furthermore, although federalism is rigid in a manner that favors local-level power, it is no less rigid than power-protection that favors the federal level once the federal government has usurped powers from the local level.

Here it must be conceded that the maintenance of robust federalism can result in some tragic misallocation of functions/powers – as we are so often reminded, it can allow localities to employ their allotted power in an abusive manner. Nevertheless, this outcome is often more acceptable than the realization of a centralized unitary regime in which the federal government amasses most or all real political power and, hence, is able to have its way with the entirety of the union’s individuals and groups, individuals and groups who thereby become its slaves.

* See John Finnis, Natural Law and Natural Rights, Oxford: Clarendon Press, 1980, p. 159. In past discussion, Joshua Hochschild has helped me understand that the common subsidiarity standard of whether an association can perform a function “efficiently” can be misleading. For, conceivably, a higher-level association might be able to perform a function more efficiently (e.g., managing procreation in a future scenario in which technological developments allow higher-level associations to greatly enhance the procreation process) even though such a function still properly belongs to a lower-level association (e.g., the family). Even with this in mind, I still use the “efficiency” standard in my above definition of subsidiarity to facilitate clarity. Readers, however, can easily substitute the “appropriate” standard. This alternative can lessen the degree of flexibility entailed in the subsidiarity principle, but it does not eliminate it. Hence, the substitution of the “appropriate” standard does not change the fact that federalism and subsidiarity can have substantially different applications. Dr. Hochschild has also published an excellent article on subsidiarity: “The Principle of Subsidiarity and the Agrarian Ideal,” in Faith, Morality, and Civil Society, ed. Dale McConkey and Peter Augustine Lawler (Lexington Books, 2003), pp. 41-68.  Reprinted in Faith and Reason 27 (2002): 117-155.

{ 23 comments… read them below or add one }

avatar Bruce Smith July 15, 2010 at 2:20 am

Phillip Blond in his book “Red Tory” would seem on my reading to be arguing that the real issue is that with the neo-liberalism ideology we are currently dominated by the majority of us are denied the choice of choosing subsidiary association in both market and state to create a civil society that more effectively pursues the common good.

avatar C. R. Wiley July 15, 2010 at 7:03 am

In discussions of this topic one seldom hears about the benefits of subsidiarty as a structural impediment to the spread of social and economic evils. Risk mitigation through ever larger aggregation allows contagion and may be the riskiest strategy of all.

avatar David July 15, 2010 at 10:42 am

Subsidiarty requires an executive process whereby an evaluation of effectiveness could be at least qualified, if not quantified. In the exercise of self-governance how would such an evaluation take place? Under the banner of some mythical “universal human rights” or even a lowly “civil best practices”? Even if such a list could be negotiated at the outset (resembling robust federalism) the parties themselves are dynamic. There is no third party appeal by which either party could make proper claim against the other, or sue for alterations to the contract.

I would prefer the strictest formulations of federalism (and I am learning from this blog and other readings) its kissing-cousin localism. But one cannot make such contracts stick in the long run. In the end civil powers never cease negotiations, realpolitik, and a significant responsibility of every citizen (including those empowered within civil structures) is to actively engage in that power struggle. It is a distraction from other duties, but an inextricable one. I suppose there’s an argument for having to at least make a passable defense for the administration of your citizenship.

It stinks to think that a farmer only has his farm because no one with sufficient access to civil power has taken it away, but that is the truth of it. Our civil constructions, federalism included, are as putting “The Club” on your car. You’re not stopping the thief, just trying to get him to move on to the next car, or at least inconvenience him enough to not make ruining your home town, worth it to him.

avatar Albert July 15, 2010 at 10:56 am

Unless you don’t consider the U. S. Constitution to have provided a robust federalism, it would seem that robust federalism is undermined by the tendency for groups to seek and consolidate power as well, though if your point is that it is less prone to abuse, sure. But the rigidity of federalism also means that it relies on getting the balance of power “right” from the get-go and makes it harder for a mistaken federal allocation to devolve to states as well as the reverse.

All that is too abstract to be of much use; I’d be interested in reading what about the American system of federalism you consider to be robust and what should have been made more robust.

avatar David July 15, 2010 at 11:05 am

“I’d be interested in reading what about the American system of federalism you consider to be robust and what should have been made more robust.”

I’d like that as well, particularly how you enforce such a robust system on a Federal government that has the only means of enforcement of that federalism.

avatar Peter Haworth July 15, 2010 at 11:41 am

Dear David and Albert,

Obviously, we no longer have robust federalism in the United States, and it is becoming a paramount example to the world about how establishing the federal government’s supremacy regresses into the gradual elimination of significant individual and group liberties. I conjecture that this trend only increases in the next ten to fifty years. You two bright gentlemen, however, know that this isn’t the only de facto regime that has existed in the United States; our past includes a period in which federal power was kept in check by the States interposing, nullifying, and threatening secession.

Best Regards,
Peter

avatar David July 15, 2010 at 12:05 pm

Peter,

Breach, by force, seems the only remedy states have, or rather had.

However vulgar the implications for those who strive for a civil society I am returning, perhaps via the long road of disillusionment, to my appreciation of primary executive state power being fulfilled in the sustenance of sovereignty by force of arms. War, or the threat thereof, seems to be both the primary weapon in support or for the destruction, of liberty (as understood in the context of self-governance and sovereignty).

I can see myself already developing the tendencies of a closet Cavalier.

avatar Peter Haworth July 15, 2010 at 1:34 pm

Hello David,

War is not always a necessity. Donald Livingston of Emory University has discussed Johannes Althusius’ vision for the threat of peaceful secession among small polities in confederation with one another. Some would argue that the United States had a version of this in its original Constituiton- i.e., secession being a reserved power implied by the Tenth Amendment and explicitly written into the compact by the New York, Virginia, and Rhode Island via their ratification statements. The problem, however, is maintaining such a Constitution via the balance powers in a federal union. No natural section or sections (i.e., potential confederation of States) can develop military (or potential military) supremacy over other differing/competing sections in the union; otherwise, secession is contingent upon the will of the stronger section or sections. Moreover, such “will” is another necessary condition that must be in place to prevent secession; this obviously was the case in the mid nineteenth century when the cult of nationalism and the acceptability of slaughter for advancing it was in place. Now, however, it is far from evident that such “will” exists. Consider how many peaceful secessions have occurred around the world in past years.

Best,
Peter

avatar Art Deco July 15, 2010 at 4:10 pm

Why not tease out the implications of the following institutional architecture?:

1. Delegations to the central government in the constitution are exceedingly spare (tax, hire civil servants and soldiers, ratify treaties and make war);

2. The spare delegations are supplemented by a statute of central government enacted and maintained by a biennial convention of municipal counselors.

3. Inter-governmental transfers are unrestricted and distributed according to formulae specified in the constitution.

avatar Russell Arben Fox July 15, 2010 at 6:08 pm

Peter,

A provocative essay; thanks for sharing it. What I find most provocative about it comes out clearly–to me, anyway–in your exchange with David and Albert: I sense, in your argument, the (perhaps unintended) implication that any kind of strong constitutionalism would open to the door to “subsidiarian” considerations, which would in turn undermine federalism. I think in particular, for example, of the notion of a constitutional arrangement premised upon rights (whether articulated as natural or civil, it probably doesn’t matter). Once said rights are woven into the fundamentals of the political order, then how could questions about how and how effectively and how much the government is or is not acting to preserve and extend those rights not demand “subsidiarian” (meaning, as you present things, upwardly spiraling) responses? Thus the 14th amendment, thus the EEOC, etc. So it would seem, following your logic, that the essential way to keep federalism truly robust is to not have a well-defined constitutional order, but rather a minimal and impersonal one. The Articles of Confederation, in other words. Which, in its own way, leads us back to David’s reflection upon the role of force in these disputes. You suggest that the will for “peaceful secession” existed when the current U.S. Constitution was first ratified…but if that was the case, why did Shays’ Rebellion turn violent?

avatar Peter Haworth July 15, 2010 at 6:54 pm

Hello Russell,

Thanks for your thoughtful comment. First, let me note the following: what you view as a constitutionalism based on rights, I deem to be a loose construction of fundamental law that allows the federal government to grow ad infinitum because it has usurped a monopoly over the authority to interpret such law, which was originally intended to delineate the limits of its powers. Second, I believe the original understanding of the Constitution reveals it to be a compact among sovereign States; thus, like the Articles, it was really just another version (i.e., one with a federal government with limited delegated authority over the citizens of the States) of the confederation among the thirteen States. Third, the secession of a sovereign State from the federal Union, which is still a confederation, is far different than a quasi-civil war within a sovereign State like Shay’s Rebellion. The former would be akin to an European State leaving the EU. The latter is a basically a breakdown into lawlessness. What I imply in the above exchange with the other interlocutors is that the Civil War marks a change in the regime from the original Constitution in which secession was viewed legitimate tragedy (i.e., one that could occur peacefully and according to fundamental law based on the 10th Amendment and the States’ understanding of the Constitution at the time they ratified it) to a de facto unitary regime of federal supremacy in which the States’ rights and powers exist only to the extent the federal government (e.g., through the Court, Congress, or the Executive) allows them. Coincidentally, this also serves as an answer to your past post about identifying the end of true federalism in the United States.

Best Regards,
Peter

avatar David July 15, 2010 at 8:56 pm

I believe Peter reads the circumstances of the Constitution’s structure properly (that is, I agree, so if we’re wrong we’re wrong together).

However, war powers are vested to the Federal government, effectively neutering a key element of sovereignty. In fact, one might argue it’s a necessary element.

Perhaps legal remedies for exit from the federation are not adequate without the force of arms behind them?

avatar Peter Haworth July 15, 2010 at 11:08 pm

Thanks, David.

Indeed, the powers to raise an army and call on State militias were considered a primary flaw by both Brutus and the Federal Farmer, and history proved the Farmer and Brutus to be prophetic when the federal government employed these powers to wage war on the seceding States during the 1860′s. Without such centralization of these war powers, it is doubtful that the Feds could have forced the South back into the Union. Nevertheless, a seceding State “people” reclaims the powers it has delegated to the federal government, and (hence) reclaims control over its militia. Thus, again, an important key to preventing one section/sections from violently attempting to prevent another section/sections from seceding is to ensure that there is an even balance of military potency among the competing parties. When the seceding section/sections withdraw, the comparable military strength can serve as a deterrent against the opposing section/sections attempting forceful confrontation of the seceding section/sections. This was not the case in our American case study.

Furthermore, I didn’t mean to imply that secession is always peaceful. Moreover, I concede that the facts in the American case may have made war probable, especially given the personalities in control of the federal government and the North’s superior military potency. I just wanted to suggest that peaceful secession is both theoretically and practically possible in certain circumstances.

Regards,
Peter

avatar Art Deco July 16, 2010 at 6:08 am

Indeed, the powers to raise an army and call on State militias were considered a primary flaw by both Brutus and the Federal Farmer, and history proved the Farmer and Brutus to be prophetic when the federal government employed these powers to wage war on the seceding States during the 1860’s.

Fella, the free rein to raise an army is a necessary aspect of sovereignty. There is not much point to erecting a federal state absent that. You can make do with a customs union or alliance.

avatar Rob G July 16, 2010 at 9:23 am

Although I occasionally find him a bit too dogmatically libertarian, Thomas Woods has just published a new book on nullification which might be helpful here. I’ve only just skimmed it as of yet, but it seems to have a lot of interesting and well-documented info.

avatar Bruce Smith July 16, 2010 at 12:06 pm

Hilaire Belloc told us in 1913 in his book “The Servile State” that capital desires power to accrue to the central state to ensure its rent-seeking activities are supported uniformly both nationally and globally using law with court and police/military enforcement. Politicians and bureaucrats also benefit from jobs ameliorating the excesses of rent-seeking through welfarism. This activity of capital continues at local state level and represents the real challenge to be addressed not a Federalism versus Subsidiarity argument. Phillip Blond’s book “Red Tory” is essentially a lament that the abuses of capital are not addressed through social contract embedded in private and legally binding contracts. This he argues will support the renewal of civil society through the mechanism of intermediary associations both in market and state and organically encourage subsidiarity and thereby a reduction in the activities of the state both at central and local level particularly in welfarism. The role of state at both levels he sees transformed to that of facilitator and corrector of abuse and failure of those associations. To paraphrase Blond ” Society is more free when enabled by market and state and less free when dominated by them.”

avatar Albert July 16, 2010 at 4:12 pm

Peter, thanks for your follow-up comments. They answer my question.
Cheers,

avatar D.W. Sabin July 17, 2010 at 1:02 pm

Under the concept of the Separation of Powers, it seems to me that a right-ordered, sustaining Federalism needs some countervailing force of subsidiarity. But then, I have a bad attitude. The current sideshow of Federalism Gone Wild (with its own form of bikini doff) killed the Republic because it abandoned the local and applied itself to the War Train with its Sainted Act of World Improving for a group of freebooting Corporateers that would have made the House of Borgia look like nancy boys. Not that they are intrinsically malevolent mind you, just preternaturally clueless as a result of having their private Pinkerton Agency known as the United States Military which increases the odds of success despite brazen levels of disregard and stupidity.

Perhaps “abandoning the local” is a poor use of words. On further consideration , I think I’ll change that to “sacrificing the local on an altar of Oil and Aluminum”. Don’t get me wrong, i enjoy oil and aluminum as much as the next guy but I don’t think it is everything.

avatar Peter Haworth July 17, 2010 at 6:09 pm

Dear Bruce,

Thanks for your comments about Phillip Blond. I need to study his argument. I will say, however, that I am wary of attempts to empower the state to do any sort of social engineering, even for the sake of returning to traditionalism (i.e., a goal that I favor). Robert Higgs in his fabulous (albeit, probably too individualist-libertarian) tome, Crisis and Leviathan, shows how empowering the government as an agent for change in society is like turning a ratchet; you can turn it forward in the direction of continued state-power aggrandizement, but it is practically impossible to turn it back in the direction of decentralization. Furthermore, there is the problem of the government using certain areas of power, which might be granted for functions that seem reasonable for it so perform, to usurp other functions that are not reasonable for the government to administer.

Unfortunately, Distributists like Belloc and Chesterton failed to understand such prudential concerns when developing their otherwise excellent vision for empowering empowering families and other communities. This was probably due to the Progressive “spirit of the age” that was so dominate in the early 20th century.

Best Regards,

Peter

avatar Stephen July 17, 2010 at 7:26 pm

Peter,

I think you raise some great concerns.

What struck me when reading this was that the problem you raise—the state is quick to assume new responsibilities and slow to delegate them—seems to be a reason to prefer sphere sovereignty (as laid out by Kuyper and Dooyeweerd) over its cousin subsidiarity. Where subsidiarity sees the state as the “higher-level” institution that is generally responsible for making up for the failures of “lower-level” institutions, sphere sovereignty sees the state as specifically concerned with “doing justice, that is, of harmonizing the various interests within a territory, weighing their respective claims, and doing so in such a way as to recognize their intrinsic limitations and their proper places within the larger social context. In particular, the state is called upon to interrelate justly the various spheres, ensuring through its coercive power that they do not overreach themselves and encroach upon other legitimate areas of responsibility.”
(From David Koyzis’s book on Dooyeweerd-http://alpha.redeemer.ca/~dkoyzis/Dooyeweerd_intro.html)

By giving a more specific, limited role to the state, sphere sovereignty seems to me to better than subsidiarity at avoiding the danger of the state’s assuming and never relinquishing powers.

avatar Bruce Smith July 18, 2010 at 11:15 am

Dear Peter.

Phillip Blond’s analysis is that social engineering is already taking place through manipulation of market and state by elites. This is Hilaire Belloc’s argument from “The Servile State” which Belloc in turn lifted from Marx and Marx from Judaic/Christian religion and religion from taming our innately strong and sometimes abusive drives for survival involving adequate territorial food bases and sexual selection. Blond’s solution is to argue for a form of coalitionary power (communitarian mutualism) through intermediary associations that interpose a “civil” or “big” society between market and state to mitigate their abuses. ( An antecedent to this is the late English sociologist Paul Hirst’s “Associationalism” ) Your article too is principally concerned to address the issue of the use of power. Blond’s work is fundamentally concerned to do the same.

Because of our natural and essential strong drives to find adequate food to survive, protect ourselves from other animal aggressors and reproduce we are no different from animals and need hierarchy to do two things; give quick leadership in times of attack that a more democratic approach could not do and secondly keep the peace amongst ourselves when choices conflict. Indeed when enforced stability reigns so paradoxically does expansion of choice. Leadership in its natural animal form, however, has always been conditional upon it not being abused. Strength is weakness if care is not taken to underwrite the power derived from that strength by coalition or alliances. This is because there will always be coalitions developing that seek strength to overthrow leadership because the members of those coalitions believe their innate drives are being blunted or indirectly their choices are different and being thwarted. Indeed these innate drives for power produce pride and pride can be a very deadly force indeed as we can see in patriotism, pace the American Revolution. In hunter-gatherer times it would seem to have been easier for human beings to achieve harmony with each other partly because population densities were low and partly because technology and know-how was relatively easily passed on and not unduly complex.

The advent of farming, property, the development of technological complexity and the subsequent accumulation of capital disrupted the conditional nature of leadership. It is now possible to use capital to achieve power, both market and state, use it abusively and hang onto to it irrespective of the wishes of the majority. The development of Blond’s intermediary associations is an attempt to mitigate this abuse of power. However, in his book “Red Tory” I think Phillip Blond dodges the issue of how to “rapidly” achieve control through capital for the majority in their “private” intermediary associations primarily concentrating on the easier option of creating “public/private” intermediary associations for the delivery of public goods or services which the current Conservative/Liberal government in the UK is now pursuing. This is a little like Margaret Thatcher selling off social housing but stronger. Personally, I cannot see there being an alternative to “rapidly” and “urgently” achieving control of private capital associations to mitigate further market and state abuse of power except through the central state facilitating this process albeit on a non-confiscatory basis to avoid the socialist’s unsuccessful and reversible twentieth century nationalization procedures. This is an argument that says minority controlled capital is ratcheting state power to our detriment anyway so why not use the state to de-ratchet that power and in doing so activate a process that also de-ratchets state power because it reduces its role in welfarism used to ameliorate elite abuses of power. Somewhere along the line you have to break into a vicious circle of abuse and the state can do this because the legal power of enforcement rests with it. Ultimately the current and future state of every country’s human civilization rests on adequate amounts of capital being sustainably invested, entrepreneurial leadership and innovative energies being as widely harnessed as possible and the cybernetic link between supply and demand being democratically reinstated and maintained by the many and not usurped by the few.

Best Regards. Bruce.

avatar Peter Haworth July 18, 2010 at 5:16 pm

Stephen,

Thanks for the thoughtful comments about the sphere-of-sovereignty thought of Kuyper, et al. I need to review this. It seems quite relevant.

Best,
Peter

avatar Kevin L Hall July 25, 2010 at 8:29 pm

Mr. Haworth,

I apologize for coming to this discussion very late. However, although you claim that your interchanging the words “efficient” for “appropriate,” makes little difference and is provided for clarity’s sake, it seems to make all the difference indeed. For if principles of subsidiarity hold that certain functions are proper or “appropriate” to certain levels or roles, then I fail to see how a very structured Federal system that did not give what is proper to those roles would be better than a system that attempted to do so. In doing justice to authority, like doing justice to men, it may often be very easy to give to authority that which is efficient, but very difficult to give to authority that which is proper, but only one is the right path.

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