Springtime for Subsidiarity

I worry sometimes that Rob Vischer and I are the only people who take subsidiarity seriously. We seem to be amid a subsidiarity renaissance, though, when I see Rick Hills invoke it a recent blog post and come across pieces by Heather Gerken and Daniel Halberstam broadly gesturing in the direction of, in Russell Hittinger’s term, "the sociality of society." As Hittinger puts it, “[T]he point of subsidiarity is a normative structure of plural social forms....To be sure, subsidiarity is often described or deployed in a defensive sense--as to what the state may not do or try to accomplish--but the principle is not so much a theory about state institutions, nor of checks and balances, as it is an account of the pluralism and sociality of society.” Here is Gerken on her project in the Harvard Law Review Supreme Court Foreword (“Federalism All the Way Down”):

Even as I join the nationalists in insisting on the center’s ability to play the national supremacy card, my account elides the principal-agent distinction, privileges messy overlap over clear jurisdictional lines, and understands power to be fluid, contingent, and contested. I celebrate the fact that Tocqueville’s democracy fails to produce Weber’s bureaucracy. I argue that division and discord are useful components of an integrated policymaking regime and a unified national polity. All of these claims push up against a conception of national power that is as deeply rooted in sovereignty as is federalism’s conventional conception of state power.