The state of states (2): Central governance or ‘subsidiarity’? States' rights and wrongs

John Locke (image: Godfrey Kneller, Public domain, via Wikimedia Commons)

Who should decide? A previous post on the current American presidential contest discussed whether power resides with the president or with the administrative apparatus that office oversees, or with the individual person, natural or legal.

Let’s look now at a different level: Should power be exercised centrally or devolved?

Historically in America, it’s the difference between the power of the federal government and “states’ rights”. Even the 2022 Supreme Court decision about abortion, overturning its own precedent of the 1973 Roe v. Wade ruling, rested not on the right- or wrongness of abortion. Its decision concerned whether the US Constitution gave the federal government – and specifically the Supreme Court – the right to decide. The ruling left it for states individually to decide. And many states mainly those that seem likely to vote for Trump, quickly enacted legislation to tighten restrictions. Central vs. devolved.

There’s an important if ambiguous concept in political philosophy with an ugly name: subsidiarity. The argument for it cuts in two opposing directions.

• One meaning seems both sensible and sensitive: In any hierarchy of power, it’s best to let those furthest down in a hierarchy to make decisions, provided they are competent to do so. Even fans of centralised power say that the monarch – the Leviathan (Hobbes, 1651/1946), the dictator (Schmitt, 1922/2005) doesn’t need to make every decision. That way tyranny lies. Delegating power to the first competent authority is efficient. It’s also effective because it dampens the revolutionary spirits of the competent but disempowered. It tips the delicate balance of power in a way that maintains the (limited) authority of the central power by giving it greater legitimacy. But the centre still holds the power.

• Another meaning inverts authority within the hierarchy. The “subsidiary” authority isn’t “sub” – below – at all. The centre derives its power from the members. It is the members who are legitimate. The centre is subservient.

The European Union has embraced “subsidiarity” in the second sense to hold its incohesive band of states together (Cahill, 2017; Vause, 1995), allowing Britain to leave, and making life afterward difficult. Even so, those on the political right often see the EU Commission as imperious, under which member states have morphed into a sub-species of political organisation.

Britain, for its part, has embraced “subsidiarity” in the first sense. It moved in the last quarter of a century to greater devolution of decision-making. Scotland has long had a legal system independent of the one for England and Wales. The Welsh now have their own legislature with law-making powers in certain areas. But the central government won’t readily accept any dismemberment of the state. Even so, many in Scotland, Wales and Northern Ireland, and some in the north of England would prefer to invert the hierarchy, or abandon it.

In America, Trump, his supporters, and the current majority of the US Supreme Court seem to want to cut it both ways. First, they want to make the powerful apparatus of central government beholden to the president so that he can easily distribute that power to whomever the president chooses. Even to those unbeholden to the state or even the presidency. This is how to understand the recommendations of Project 2025 and the Supreme Court rulings on presidential immunity and the Chevron Deference. Second, they seem to want the federal government to roll back, giving individual states greater freedom to set their own rules on economic and environmental issues like carbon emissions, coal mining, oil drilling, and on social matters like abortion. This is the temperament evident in the “originalist” opinions of some of the Supreme Court’s Republican appointees.

The US Constitution embraced subsidiarity in the second sense. It was the product of rationalist, late 18^th thought, drawing on the now-mainstream but then-revolutionary ideas of the Enlightenment philosopher John Locke. Locke rejected not just the divine right of kings, but even more limited types of monarchical sovereignty. His motto was one of citizen rights – to life, liberty, and property – a political philosophy that inspired the American revolution and the country’s new constitution. By embedding checks and balances around any governmental action, it established mechanisms to impede imperious power. It impeded centralisation of power for two reasons, one stated, the other implicit.

• The stated one concerned human dignity: Having freed themselves from domination by the British, the American revolutionists wanted to place a brake on power of any would-be tyrannical monarch. The former colonies, separately, are now sovereign.

• The formally unstated, but well-understood reason was undignified. Southern states, where slavery was legal, wouldn’t join a union that didn’t give each state the right to set its own laws. Some former colonies are now more equal.

Locke (1690/2005) described legitimacy as existing when the governor rules with the consent of the governed. But who are the governors, who the governed? Legitimacy, like subsidiarity, is an ambiguous term. Be careful what you wish (vote) for.

Cahill, M. (2017). Theorizing subsidiarity: Towards an ontology-sensitive approach. International Journal of Constitutional Law, 15(1), 201-224. doi:https://doi.org/10.1093/icon/mox003

Hobbes, T. (1651/1946). Leviathan, or the matter, forme and power of a commonwealth ecclesiasticall and civil. Oxford: Basil Blackwell.

Locke, J. (1690/2005). Second Treatise on Government. Project Gutenberg. Retrieved from http://www.gutenberg.org/ebooks/7370

Schmitt, C. (1922/2005). Political Theology, Four Chapters on the Concept of Sovereignty (G. Schwab, Trans.). Chicago: University of Chicago Press.

Vause, W. G. (1995). The Subsidiarity Principle in European Union Law–American Federalism Compared. Case Western Reserve Journal of International Law, 27(1), 61-81. https://scholarlycommons.law.case.edu/jil/vol27/iss1/8