Subsidiarity in the Real World

Thanks to Rick for his response and to Tom for his questions.  Rick is correct that we are largely in agreement -- my skepticism toward pinning the subsidiarity inquiry on the wisdom of the centralized policy stems from my conviction that we can't rely on a straightforward balancing approach to determine whether the higher or lower body is the better locus of power in a given context; rather, we should presume that the lower body should have authority absent a showing to the contrary.  This does not mean that such showings cannot be made.  (Indeed, I've previously criticized the Bush Administration for appearing -- pre-9/11 -- to equate subsidiarity with a broad program of devolution.)

Tom asks whether spillover effects can justify higher-level action.  I would say it depends on the injury threatened by the spillover.  Environmental stewardship is a fairly strong justification for government action under Catholic Social Thought, and the spillover effects of air pollution would (in my view) warrant federal regulation.  (Even absent spillover, a state's failure to address its own air pollution may warrant intervention from the higher body.)  But the mere fact that the autonomy of lower bodies impacts other lower bodies is not enough to curtail that autonomy.  (An association's right to exclude, for example, is meaningless unless it impacts the freedom of other groups and individuals.)  As for the marijuana example, I would want evidence of the spillover threat posed by this particular exemption, as well as a persuasive argument that the resulting injury amounts to a significant impairment of human flourishing, properly understood.

Tom also asks whether uniformity of regulation justifies federal intervention.  Here I'm more skeptical, for efficiency concerns could eviscerate subsidiarity in a variety of contexts.  (A single state-mandated educational program for all children would be wonderfully efficient.)  If a state's citizens choose to embrace uniformity in an effort to attract business to the state, for example, I see nothing wrong with that.  But if uniformity is imposed by the higher body, that's a problem unless there is an independent showing that intervention is warranted.  In this regard, the federal government's decision to condition highway funds on states' willingness to raise the drinking age to 21 may be justified given the alcohol-related death rates of teenagers.  In most family law areas, by contrast, I believe that the current trend toward uniformity creates tension with subsidiarity, as these are issues where localities' norms and ideals should be reflected in their legal regimes, regardless of efficiency.  (Gay marriage is the leading example where a state-by-state approach is crucial, in my view.)

To be clear, these thoughts are tentative attempts to put real-world flesh on the often amorphous framework of subsidiarity.  I welcome others' views.

Rob