The Prudent Case for Robust Federalism and Limited Subsidiarity

By Peter Daniel Haworth for FRONT PORCH REPUBLIC
http://www.frontporchrepublic.com/2010/07/the-prudent-case-for-robust-federalism-and-limited-subsidiarity/
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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.

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