Monday, May 2, 2016

Sovereignty and Subsidiarity, I: The U.S. Constitution

There has been a lot of talk recently (meaning we saw one posting on FaceBook) claiming that the U.S. Constitution says nothing about “subsidiarity,” i.e., the principle that social and political issues should be dealt with at the most immediate level consistent with their resolution.  Thus, individuals should handle individual issues, local authorities deal with local issues, national authorities deal with national issues, and so on.  As CESJ co-founder Father William Ferree explained it,

Fr. William Ferree, S.M., Ph.D.
“[T]he Law of Subsidiarity has two parts: First, that no higher organization may arrogate to itself a function which a lower organization can adequately perform; and secondly, that no lower organization may ‘capture’ a higher one for its own particular purposes.” (Rev. William J. Ferree, S.M., Ph.D., Forty Years After . . . A Second Call to Battle, unpublished ms., cir. 1984.)
Naturally, a little bit of oversimplification has set in.  A common (mis)understanding of “subsidiarity” is that the State does whatever an individual cannot do for him- or herself . . . which tends to nullify the act of social justice altogether, and leads straight to totalitarianism.
Others assume that subsidiarity means that the State has no legitimate role whatsoever . . . which — carried to its reductio ad absurdum — also nullifies the act of social justice by positing that only the individual, not any form of social organization, can have or receive a delegation of authority.  As Ferree noted,
“Many people who profess great interest in the Law of Subsidiary Function don’t want to hear about the second part of the Law of Subsidiarity. This leads to such outlandish formulations as one I ran into personally in trying to dialogue with some students in the hectic passage from the Sixties to the Seventies: this earnest young man was even condescending in the patience with which he tried to explain to me that the lower level was always right!’” (Ibid.)
 Thus — if we agree with Ferree — it’s a matter of appropriate jurisdiction.  A national authority should no more interfere in purely domestic matters (e.g., how many children parents may have, the definition of marriage and family), any more than an individual citizen (say, a movie star visiting a hostile country) can claim to speak for the nation as a whole.
Albert Venn Dicey
Subsidiarity, then, consists of individuals doing individual things, nations doing national things, and intermediate institutions (those “corporations” not under direct State control against which the totalitarian philosopher Thomas Hobbes railed) handle all intermediate things.  Individual human beings, not the collective or the State, are inherently sovereign, and exercise that sovereignty by joining together with others in free association in organized communities and institutions: the pólis, from which we get Aristotle’s description of human beings as “political animals.”
As the English constitutional scholar Albert Venn Dicey (1835-1922), a great admirer of the U.S. Constitution, explained, “We, the People” as politically sovereign individuals, not the collective, delegate legal sovereignty via revocable grant to the legislature that represents them. Rights are therefore a grant from the people to the State, not the other way around. (A.V. Dicey, Introduction to the Study of the Law of the Constitution. Indianapolis, Indiana: Liberty Fund, Inc., 1982, 285.)
How this should operate in practice can be seen in the work of another astute commentator on democracy in America: Alexis de Tocqueville.  As he described the role of free association in the United States in the mid-1830s,
“The citizen of the United States is taught from his earliest infancy to rely upon his own exertions in order to resist the evils and the difficulties of life; he looks upon social authority with an eye of mistrust and anxiety, and he only claims its assistance when he is quite unable to shift without it. This habit may even be traced in the schools of the rising generation, where the children in their games are wont to submit to rules which they have themselves established, and to punish misdemeanors which they have themselves defined. The same spirit pervades every act of social life. If a stoppage occurs in a thoroughfare, and the circulation of the public is hindered, the neighbors immediately constitute a deliberative body; and this extemporaneous assembly gives rise to an executive power which remedies the inconvenience before anybody has thought of recurring to an authority superior to that of the persons immediately concerned. If the public pleasures are concerned, an association is formed to provide for the splendor and the regularity of the entertainment. Societies are formed to resist enemies which are exclusively of a moral nature, and to diminish the vice of intemperance: in the United States associations are established to promote public order, commerce, industry, morality, and religion; for there is no end which the human will, seconded by the collective exertions of individuals, despairs of attaining.” “Political Associations in the United States,” (Alexis de Tocqueville, Democracy in America, Volume I.)
Alexis de Tcoqueville
Thus, as de Tocqueville noted,
“In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate. (Alexis de Tocqueville, “The Principle of Sovereignty of the People in America,” Democracy in America, I.iv.)
Given all of this, how did things ever get into the shape they are today, with rampant State-worship combined (sometimes in the same individual) with rejection of the proper role of the State, and a complete corruption of the principle of subsidiarity?
We’ll look at that tomorrow.

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