1 Introduction

The concept of subsidiarity is often associated with a myriad of other concepts. Among these are some such as federalism, and libertarianism, which are judged differently by different people; and others, such as racism, which have an almost universal negative connotation. The purposes of this post are 1) to disentangle the concept of subsidiarity from those various concepts associated with it; and 2) to thereby disentangle these concepts from each other.

2 Definitions

Let us begin with some definitions:

By ‘subsidiarity’, I mean the principle that those functions which can be performed at a lower level of society should not be usurped by a higher level.

By ‘localism’, I mean a philosophical ideal according to which economic and political functions within a society should be performed at the smallest level at which those functions can be properly achieved.

By ‘federalism’, I mean the principle that those functions which can be performed by the various state governments should not be usurped by a federal government under whose jurisdiction they stand.

In some cases, the term ‘federalism’ is used synonymously with ‘defederalization’, to refer to the process whereby responsibilities currently fulfilled by the United States federal government are transferred to state governments, regardless of their suitability for being performed at the local level. In what follows, I leave this definition aside.

By ‘libertarianism’, I mean a political philosophy that aims at the maximization of individual liberty, understood as the freedom to choose between a multitude of options for the greatest part of people within the body politic, as its goal.

‘States’ rights,’ refers to the real or imagined right of a state subordinated to a federal government to self-determination with respect to the mode of society instantiated within its borders, as against the real or imagined threat of encroachment by the aforementioned higher sphere of government.

The concept of ‘states’ rights’ is thus only applicable in federations, wherein both a more local, state government, and a broader federal government exist at different levels. At the level of international relations between countries under a common international body (as in the European Union), it has an analogue in the notion of national self-determination, according to which a nation has the right to determine the mode of life instantiated within its borders free from the real or perceived encroachments of international bodies under whose jurisdiction it stands.

Racism is an ideology according to which some individuals are superior to others by virtue of their race, where ‘race’ refers to a collection of characteristics loosely determined by biology, outward appearance, and collective history, upon which certain other mental or spiritual characteristics are thought to supervene.

3 States’ rights and racism

3.1 The construction of the association between states’ rights and racism in post-Civil War historiography

Certain connections between some of these concepts are faintly detectable at first glance. Others, however, lack clear conceptual relations. The chief outlier among these is racism, which bears no clear conceptual connection to the various other concepts mentioned above. Rather, the relation between these concepts is a historical, accidental, one, and even there largely confined to United states political history.

The connection between racism and states’ rights was largely drawn in the aftermath of the United States Civil War, and developed in the dialectical retrospective of historians respectively favoring a ‘northern’ and ‘southern’ interpretation of its events.

Initially, certain authors sympathetic to the position of the U. S. Confederacy had begun to argue that the chief issue at stake in the war was not slavery, but the rights of the states to determine their mode of life.

In response, others championing a northern perspective pointed out that the chief right at issue was the right to own slaves, philosophically justified by the belief that black men and women constituted an inferior race to white persons.

As the northern interpretation of the conflict maintained or regained its dominance in various intellectual and popular circles, the term ‘states’ rights’ began to be itself treated contemptuously as a euphemism for racism.

Today, this treatment of the concept of ‘states’ rights’ has a limited presence in the academic sphere, and a more widespread one in the public eye. Since roughly the 1960s, this tendency has been exacerbated by a) the presence of genuine gains on the part of those peoples descended from slaves achieved by federal, rather than state, means; and b) the use of these gains in propaganda to combat defederalization initiatives of any sort, and especially those that would be pertinent to race relations.

It remains important to note both the contingency and the provincialism of this connection. In Fascist Italy and Nazi Germany, for instance, racism appeared not in the form of states’ rights movements, but rather as collectivist movements at the national level, erasing both internal distinctions between provinces and external borders between nations (in the case of the annexation of Austria) in favor of union under the concept of the national race. Likewise, modern first-world imperialism, according to which various non-western nations are made to conform to the cultural mores of western ones, arguably represents racism in an international form.

The Dorothy Day Caucus upholds the stance of the American Solidarity Party, condemning the philosophy of racism in all, including its modern imperialist, forms.

3.2 The false assimilation of states’ rights and racism

The primary difficulty with this assimilation of states’ rights to racism, whether found in expressions of southern identity in former confederate states or in denunciations of southern culture in northern ones, is its falsity.

That there was no connection whatsoever between the concept of states’ rights and the ideology of racism as embodied in the institution of race-based slavery, is clear from the Dred Scott v. Sandford decision, which arguably represents the point past which internal military conflict over the issue of race-based slavery became inevitable. In the background to that decision, a slave-owning family brought their slave to a non-slave-owning state and resettled there. The slave, Scott, had argued that by being brought into the territory of a free state, he himself became free in accord with the laws of that state. As such, Scott’s argument represented an appeal to state rights to self-determination with respect to the mode of life instantiated within its borders, and specifically to determine whether the mode of life instantiated therein would or would not include the institution of slavery. The rationale behind deciding against Scott, by contrast, was decidedly antithetical to the states’ rights mentality, as were its effects: it appealed to the right to property as a universal right enshrined in the constitution at the federal level, thereby effectively erasing the distinction between free and slave states, and establishing a universal right to slavery in its place.

In this way, the association of racism and states’ rights promulgates a historical inaccuracy, and the conceptual connection between these thereby does not even arise to the level of an accidental connection in the way intended. Rather, the association of racism with states’ rights, even when intended to undermine states’ rights, itself serves as a medium for the propagation of a post-civil war racist mythology.

Note that this differentiation does not yet pronounce on either the intrinsic value or the utility of the notion of states’ rights itself. For that, the reader is encouraged to continue.

4 Federalism and libertarianism

4.1 The conflation of federalism, libertarianism, and states’ rights advocacy in American political discourse of the last decade

In recent memory, the connection between libertarianism and federalism was effectively forged during the 2008 campaign for president of U. S. Representative Ron Paul of Texas. The tendency to view Paul as a libertarian was supported by his having previously been the Libertarian presidential candidate in 1988; and, benefiting from the conflation of his views with libertarianism, by his failure to explicitly differentiate his philosophy from libertarianism in his 2008 and 2012 presidential campaigns. But that this label was never a completely good fit for Paul can be garnered from his reticence in explicitly applying the label to himself; and from his 2008 public endorsement not of the Libertarian Party candidate Bob Barr, but rather of Constitution Party candidate Chuck Baldwin. Likewise, during his 2016 Presidential campaign, Paul’s son, Senator Rand Paul of Kentucky, expressed this same reticence at first by referring to himself as not libertarian, but ‘libertarian-ish’, and later by dropping the libertarian label altogether in favor of the moniker ‘constitutional conservative’.

Rather, the political philosophies of both the elder and younger Paul were, and are, better expressed as a commitment to defederalization, rationally supported by appeals to a) efficiency b) the principle of federalism, and c) an interpretation of the tenth amendment of the U.S. Constitution according to which the U. S. Federal government is barred from the performance of certain functions not explicitly assigned to it in that same Constitution.

4.2 The identification of libertarianism and federalism constitutes a category mistake; the consistency of anti-federalist libertarianism

Thus, though a loose political alliance between federalism and libertarianism has been re-forged in the United States over the last decade or so, this does not yet imply any conceptual identification between these two. Rather, libertarianism and federalism differ to the point that their identification constitutes a category mistake: the one is a political philosophy, the other a principle governing political functions.  Far from being the same thing, they are not even the same kind of thing.

Furthermore, as a political philosophy, libertarianism says nothing whatsoever about the means to be undertaken in the establishment of the aim of maximizing individual liberty. Thus, the relationship between libertarianism and federalism is strictly orthogonal. One can consistently advocate for a libertarianism that makes extensive appeal to federalism. But libertarianism is also consistent with the adoption of anti-federalist attitudes on any number of issues.

That this is so is clear from the presence of such an attitude on three widely-discussed topics in politics today: abortion, gay marriage, and drug policy. On gay marriage, 2016 Libertarian Party presidential candidate Gary Johnson advocated not for leaving the determination of marriage law, where it traditionally had been prior to the Obergefell v. Hodges decision, in the hands of the states, but rather pledged to support the Federal law on the matter, determined in the aforementioned Supreme Court decision. 2008 candidate Bob Barr advocated not for decriminalization of marijuana, but rather for the drug’s legalization; and since its naissance, the dominant viewpoint in the Libertarian party has expressed strong support not for overturning Roe v. Wade and those cases in its wake protecting or expanding legal access to abortion (thereby allowing different states to have different laws on the matter), but for upholding these federal decisions. Thus, what is arguably the dominant tendency in Libertarian thought on a number of fundamental political issues is not federalist, but rather opposed to the principal of federalism.

4.3 The superficial objection to libertarianism and states’ rights

Over the same time period as those tendencies described above, and especially during the elder Paul’s 2012 campaign, Paul’s political opponents embarked on a campaign to assimilate his federalism to states’ rights advocacy, and, by the same lack of reasoning present in section 3, thereby to racism. While there were genuine questions about Paul’s opposition to the details of the 1964 civil rights act; his use of ghost-writers, some of whom expressed racist comments, in a periodical circulated under him in the early 1990s; and about his views on whether federal law should be used to address problems of discrimination, especially on the part of business owners, none of this is yet to suggest any conceptual connection between libertarianism and states’ rights, or between either of these and federalism.

Rather, the conflation of these views is largely founded on a misapplication of the logical principle of excluded middle. According to the correct understanding of the principle, for any proposition p, either it or its opposite must be true at a given time. For instance, it is or is not raining; it is or is not legal to run a red light in Trenton; the political philosophy of libertarianism is or is not consistent with the presence of racism in society.

The legal misapplication of the principle, however, makes the inference not from a state of affairs to the negation of its opposite, but from the failure of a law to support (or oppose) a given stance x on political issue y as support for (or opposition to) the contrary of x.

Suppose that right now that I am drinking too much coffee. Now, there is no federal law preventing me from drinking too much coffee. But neither is there a law requiring, encouraging, or otherwise supporting it.

The point is obvious enough in the aforementioned case, but tends to get lost in discussion of more emotionally charged issues. In this way, the absence of federal law defining marriage liberally is construed as anti-gay; advocacy for the decriminalization of a given drug at the federal level – i.e. making it a matter on which the federal government says effectively nothing – is conflated with advocating for its legalization, etc. In short, on any given issue, silence at a given level of government is construed as advocacy for the contrary stance on that same issue.

4.4 Totalitarianism and the genuine objection to libertarianism and states’ rights advocacy

Now call the fallacious appeal to excluded middle described above the totalitarian fallacy; the progressive tendency towards legal determination of the good embodied therein, totalitarian; and a philosophy of law according to which law is expected to pronounce, at a given jurisdictional level, on one or the other side of any matter of value in a given society, totalitarianism.

Totalitarianism is thus a philosophy of law according to which a given ethical vision of the good, whatever its correctness, is to be wholly embodied in the legal code of that same society at a given level of government.[1]

In current political discourse, the assimilation of federalism to both libertarianism and to racism has its root, in different ways, in the totalitarian fallacy. The call, in the name of liberty, to remove a given issue from government consideration is conflated with the use of government to maximize liberty; the failure of federal law to address racism in a given way is construed as support for racism, etc.

What the above should also make clear, if somewhat surprisingly, is that there is nothing inimical in libertarianism to totalitarianism as such: a totalitarian libertarianism, whereby the aim of maximizing individual liberty is taken as a government prerogative, is possible. Given prominent libertarian support for drug, abortion, business, and marriage laws that (at least superficially) contribute precisely to the maximization of individual choice aimed at by libertarian philosophy, libertarian totalitarianism is arguably a major, if not wholly dominant, form of libertarian philosophy today.

4.5 The analogical character of the relation between states’ rights advocacy and libertarian individualism

Furthermore, though it is natural for totalitarian tendencies to manifest themselves at the highest governmental level in a given society at that time, there is nothing inherently preventing its implementation at lower levels. This brings us back to states’ rights.

The notion of a right embodied in states’ rights advocacy, as in its analogue in the notion of national self-determination, is both ‘thick’ and ‘thin’ in different ways. It is thin in that it refers only to the right of self-determination, connecting this right neither to other rights, nor making mention of the responsibilities with which rights correlate. But it is thick in that the application of this right lacks any intrinsic limit to its expansion. The right is thus limitless in its applications.  In this notion, self-determination is regarded as the right of a state to construct or build a certain way of life within its borders. It is thus the putative right of the law within a given set of boundaries to fully implement a certain vision of society within those boundaries. It is thus the real or perceived right to the exercise of choice, conceived after the pattern of human choices, transferred onto the state.

The ‘rights’ discourse envisioned in states rights’ advocacy thus represents an expansion of the goals of libertarianism from human persons to include corporate individuals. To the degree that it ascribes these rights to states, it is materially inconsistent with the ascription of these same rights, as in traditional libertarianism, solely to individuals: to ascribe the prerogative of determination to the state is correspondingly to diminish the share in this prerogative ascribed to individuals. But states’ rights advocacy achieves its formal character via a transformation of the fundamentally libertarian ideal for human existence, the expansion of the possibility and range of choices, lifted from individuals and grafted onto states. The same process is also found in the notion of ‘right’ found in the discourse of national self-determination, as well in that of corporate personhood in the business world.

Thus, the mentalities present in states’ rights advocacy, national self-determination, and corporate personhood, while materially inconsistent with libertarian individualism, nevertheless are saturated with its formal content. This transference of agency is part and parcel of the shift from classically liberal to neoconservative economic theory, where the primary actors are no longer conceived as individuals, but as states, through enactment of liberal law, and corporations, through the promulgation of consumer choice, both at the service of the libertarian ideal.

In short, there is thus nothing inconsistent in the concept of a libertarian totalitarianism; beyond its loose political alliance with libertarianism, states’ rights advocacy is conceptually analogous to libertarianism in its focus on self-determination, understood after the pattern of human choice; this same analogical transference is functional elsewhere in conceptions of the self-determination of the nation, as well as in conceptions of corporate personhood. Neither states’ rights advocacy nor libertarianism is inconsistent with totalitarianism, and the dominant form of the latter arguably is its totalitarian form.

Adding to this the idealist, totalizing character of progressive liberal political discourse, leaves the greater part of our political discourse as a friendly scrimmage among different totalitarian philosophies.

Now I shall show you a better way.

5 Subsidiarity and federalism

5.1 Subsidiarity in the political and religious discourse of the Catholic Church

Though its presence in mainstream political thought is increasing, the term ‘subsidiarity’ has been lifted largely from the social teaching of the Catholic Church. The Catechism of the Catholic Church mentions the principle of subsidiarity on three occasions: the first of these, formulating the principle, is taken from Pope John Paul II’s encyclical Centesimus Annus:

‘a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to co-ordinate its activity with the activities of the rest of society, always with a view to the common good’ (CCC 1883)

At CCC 1885, the catechism states:

‘The principle of subsidiarity is opposed to all forms of collectivism. It sets limits for state intervention. It aims at harmonizing the relationships between individuals and societies. It tends toward the establishment of true international order’.

And the matter is succinctly summarized at CCC 1894:

‘In accordance with the principle of subsidiarity, neither the state nor any larger society should substitute itself for the initiative and responsibility of individuals and intermediary bodies.’

From the above, we can deduce the following: that certain communities are related to each other as higher to lower; that certain levels of community have essential functions, i.e. functions that belong to them by their nature, in accord with their levels; and that certain actions of the state or other higher bodies can interfere with these functions. Inasmuch as those functions of a given community are its own, they are distinguished from those appropriate to superordinate communities not by their quantity, but by their type. There are thus, certain types of things that, regardless of their goodness, certain bodies should not do.

This is the fundamental point missed in the totalitarian scrimmage described in the previous section. None of these philosophies sets any intrinsic limits to government functions in accordance with its nature as a given kind of government, but rather aggregates ever-increasing functions to it in accordance with demands of the time.

5.2 The derivation of the principle of federalism from the principal of subsidiarity

In contrast with the totalizing tendencies of libertarian maximization of choice, especially consumer choice, the principle of federalism can be straightforwardly deduced from that of subsidiarity, on the simple assumption that state and federal government are related to each other as higher and lower. Proof.

Premise 1: Those functions of a society which properly belong to a lower level should not be usurped by a higher level.

Premise 2: Federal and state governments relate to each other as the governing forms of higher and lower levels of community.

Conclusion 1: Therefore, those functions which properly belong to states should not be usurped by a federal government.

Conclusion 2: Therefore, there are functions which belong properly to states.

Conclusion 3: Therefore, there are functions which it is wrong for a federal government to usurp.

The first premise is the principle of subsidiarity; the first conclusion is simply the principle of federalism as defined above in section 2. The second and third conclusions are straightforward consequences of any non-trivial form of federalism, i.e. any one that also admits the existence of state and federal governments, and functions proper to each.

Federalism, then follows from subsidiarity on the straightforward assumption that a federation represents a different level of society than a state; the principle of federalism is thus a species of the broader principle of subsidiarity.

5.3 Federalism and constitutionalism

None of this is yet to determine what the precise functions of a state or a federal government, as such, should be. Plausibly, the latter includes matters such as international trade relations and defense, but does not include things like mandatory bathroom assignments in accordance with new age religious mores. The responsibilities appropriate to the European Union as a body are not strictly enumerated in the constitution of that body. Nor is it clear which exact responsibilities are more appropriate to Edinburgh than to Westminster – though it is clear that for the government of Westminster, for instance, to take on responsibilities perfectly capable of being carried out in Edinburgh or Belfast, represents a violation of the principle of subsidiarity.[2]

In the case of the United States federal government, however, those functions peculiar to it arguably are more conspicuous: hence, the existence of an interpretation of U. S. federalism, stretching back to Thomas Jefferson and others, according to which the constitutive limits of the U. S. Federal government are given in, well, the U. S. Constitution. While none of this is to say that the model of federal government determined in that document is a good one, it is to say that it is one that has some strictly defined limits written into it, limits which, if they prove to be inexpedient, point minimally to the need for constitutional amendment.

6 Subsidiarity, localism, and the cultivation of real solidarity

Occasionally, one finds the idea that the attempt to defederalize certain government functions pertinent to the material well-being of certain individuals within that state is inconsistent with another principle of Catholic Social teaching, namely solidarity. For this reason, the context of the Centesimus annus quote mentioned above is worth quoting in full. John Paul II writes:

‘In recent years the range of such intervention [viz. by the state] has vastly expanded, to the point of creating a new type of State, the so-called “Welfare State”. This has happened in some countries in order to respond better to many needs and demands, by remedying forms of poverty and ‘deprivation unworthy of the human person.

‘However, excesses and abuses, especially in recent years, have provoked very harsh criticisms of the Welfare State, dubbed the “Social Assistance State”. Malfunctions and defects of the Social Assistance State [Vitia autem et pravitates ‘Civitatis auxiliaris’][3] are the result of an inadequate understanding of the tasks proper to the State[emphasis mine]. Here again the principle of subsidiarity must be respected: a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good.

‘By intervening directly and depriving society of its responsibility, the Social Assistance State leads to a loss of human energies and an inordinate increase of public agencies, which are dominated more by bureaucratic ways of thinking than by concern for serving their clients, and which are accompanied by an enormous increase in spending. In fact, it would appear that needs are best understood and satisfied by people who are closest to them and who act as neighbours to those in need. It should be added that certain kinds of demands often call for a response which is not simply material but which is capable of perceiving the deeper human need. One thinks of the condition of refugees, immigrants, the elderly, the sick, and all those in circumstances which call for assistance, such as drug abusers: all these people can be helped effectively only by those who offer them genuine fraternal support, in addition to the necessary care.’ –Centesimus Annus 48

The relevance of the principal of subsidiarity to the expansion of the welfare state, and the problematic nature of the latter, are thus completely conspicuous in the Pope’s thinking about the subject. The encyclical does not locate the problem of the welfare state merely in a failure of efficiency, but in ‘an inadequate understanding of the tasks proper to the state’: there are, then, according to the encyclical, certain functions that, no matter their goodness, simply are not for the state to do; and among these are functions that were typical of the so-called ‘welfare state’.

On the other hand, the claim that ‘needs are best understood and satisfied by people who are closest to them’ is one of the foundational motivations for localism.

Localism, as stated above, is a philosophical ideal according to which economic and political functions within a society should be performed at the smallest level at which those functions can be achieved. Though not all relations governed by subsidiarity are spatial, to the degree that the hierarchy presented in the principle of subsidiarity includes levels of society spatially contained in each other, where the ‘height’ of a given level of society is correlated with its spatial extension, localism represents the ideal limit of that principle: to ascribe each function in accordance with the most intimate body capable of performing it. While there may be extraordinary circumstances preventing the achievement of this ideal at a given time in a given society, it remains the normative ideal towards which the principle of subsidiarity, in its governing of locally subsidiary bodies, remains ordered.

7 In brief

Federalism differs from libertarianism in that the former, like subsidiarity, is a principle, while the latter is a philosophy. The tendency to conflate these two thus constitutes a category mistake. The relation of libertarianism to federalism is strictly orthogonal, and the dominant form of libertarian in the United States today is arguably anti-federalist.

The assimilation of federalism to both libertarianism and to racism has its roots in totalitarianism, an understanding of the role of law according to which its purpose is to fully implement a certain vision of the good at a given level in a society.

Perhaps surprisingly, there is nothing in libertarianism inimical to totalitarianism as such. Every non-trivial form of federalism, by contrast, does provide a limit to the implementation of totalitarianism, at least on the federal level, and hence is not consistent with it. Localism is constitutively inconsistent with totalitarianism.

While libertarianism is not materially consistent with either states’ rights advocacy or the principle of national self-determination as commonly expressed, the phenomena referred to by the phrases ‘States’ rights’ and ‘national self-determination’ are themselves arrived at by a transference of a libertarian ideal onto corporate persons, and thus do not represent a genuine contrast with libertarian philosophy. This same transference is also present in conceptions of corporate personhood in the business world, with the transference there representing an important factor in the shift from classical liberal economic to neoliberal economic modes of life.

The notion of subsidiarity requires that functions appropriate to a given level of society are not usurped by a higher level. The functions of a given body are determined in accordance with its kind. Hence, there are certain functions that, by nature, are inappropriate for a federal government; and others that are inappropriate for governments as such. Catholic social teaching, from which the notion is taken, explicitly links the problem of said usurpation to the growth of the welfare state.

While the limits determining what functions are appropriate to the governing body of a federation as such are somewhat vague, those determining what functions are appropriate to the U. S. federal government in particular are less so. Those functions constitutive of the U. S. Federal government are those, well, enumerated in the Constitution, the remainder being reserved to the states by the tenth amendment, with provision for adding further functions via the amendment process.

Localism represents the ideal limit to which the principal of subsidiarity aims, as it pertains to the relation between levels of society one of which is locally contained in the other. In accordance with the ideal, those various economic and social functions should be allocated at the lowest level at which they can be performed. This aim serves not primarily the goal of efficiency (though it does serve this end, too), but rather that of ensuring that economic and social care maintain its personal, social, and charitable character, rather than ceding to faceless bureaucratism.

This post also appears, under the same title, at https://jacobarchambault.com/2017/09/25/libertarianism-racism-federalism-subsidiarity-localism/

[1] Note that the definition here given makes no reference to the truth or falsity of the ethical maxims embodied therein. A society that sought to wholly embody the true morality in its legal code at a given level of government, would nevertheless have a totalitarian government at that level. For example, a theocratic government wholly adhering to the true faith, (whatever one thinks that is) and morals (whatever one thinks these are) would nevertheless be totalitarian.

[2] In this case, too, where the relation is more clearly one between two importantly different cultures, the analogy of this usurpation of duties to imperialism in the international sphere is somewhat more perspicuous.

[3] I have changed the English translation’s ‘in the Social Assistance state’, to ‘of the Social Assistance state’ in accord with the Latin text, which uses the genitive. Hence, where the Vatican English translation is amenable to a reading on which the malfunctions are merely functions within the state, the Latin text is not, but contains a stronger meaning, ascribing these vices and defects to the kind of state itself.