Subsidiarity Isn’t in the Constitution

Different words usually refer to different things, and, notwithstanding their conflation in certain circles, so it is with the words “subsidiarity” and “federalism.” But the confusion that often arises between the two cannot be said to be uniformly cynical. As concepts, they look somewhat the same when put into operation, so it is understandable that the terms might be confounded. Still, the outcomes potentially arising from the confusion are pernicious enough to make an explanation of their distinct meanings a worthwhile endeavor.In his encyclical Quadragesimo anno, Pope Pius XI stated the principle that has come to be known as “subsidiarity”: “Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.”[note]QA, no. 79.[/note] He found the chief application of this doctrine in the relationship between the State and the rest of society.

The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts greatly. Thereby the State will more freely, powerfully, and effectively do all those things that belong to it alone because it alone can do them: directing, watching, urging, restraining, as occasion requires and necessity demands. Therefore, those in power should be sure that the more perfectly a graduated order is kept among the various associations, in observance of the principle of ‘subsidiary function,’ the stronger social authority and effectiveness will be the happier and more prosperous the condition of the State.

The pope did not mean by this that there was some fixed jurisdictional line limiting the action of the State or larger organizations. On the contrary, he acknowledged that “it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations.” But he held it to be a “weighty principle, which cannot be set aside or changed,” and which “remains fixed and unshaken in social philosophy,” that lower orders of society should be allowed to perform those functions for which they are competent.Pope John Paul II expanded on the definition of subsidiarity in his encyclical Centesimus annus, stating the principle this way: “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.”[note]CA, no. 48.[/note] With this explanation it is made clear that subsidiarity does not require a total hands-off policy by the State in areas that are within the competence of lower levels of society. Rather, the State should stand ready to offer needed assistance, without usurping the functions and role of the lower levels. Subsidiarity is a principle that requires restraint on the part of the government, keeping it from extending its reach beyond what is strictly necessary. But it does not forbid government help where it is required. Indeed, it is encouraged.It is important to understand that, with respect to the State, subsidiarity addresses the relationship between government and the rest of society. Government should not take over what can effectively be done by private associations, even if some State assistance is necessary. It might involve the relationship between a federal and local or state governments. But it applies even where there is only one level of government in existence.Federalism, on the other hand, is strictly about the relationship between governments, and the pertinent question isn’t about what government—federal, state, or local—is best able to serve a particular function, but about which government has legal jurisdiction to do so.In the United States, the federal government has only the powers given to it by the Constitution. Although disputes arise as to what those powers entail, there is never a serious argument that the federal government may exercise whatever power it chooses. The states, on the other hand, may exercise any power that is not forbidden to them in the Constitution. Thus we read in the Tenth Amendment to the Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[note]Amendment 10.[/note] Local governments may exercise any power that is granted them by the state in which they are situated.If the federal government decides to act within its powers, it need not be concerned that it is usurping a state’s operations, since Article VI of the Constitution provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”[note]Article 6.[/note] On the other hand, if a power is not granted to the federal government by the Constitution, the fact that it might serve a particular function more effectively than the states is of no consequence; and this is true even if the states refuse to perform that function, or are completely incapable of doing so.Thus we see the distinction between subsidiarity and federalism. Subsidiarity calls for government restraint when it is in danger of usurping a function that lower levels of society are capable of performing, regardless of what the government’s power might be. Federalism involves legal restraints on government action. Subsidiarity pertains to the relationship between government and the rest of society, which may or may not involve lower levels of government. Federalism is strictly about the allocation of powers between governments. Subsidiarity asks what level of society is competent to perform a particular function. Federalism asks what government has jurisdiction to engage in a particular activity. Subsidiarity requires the government to render assistance where needed. Federalism prohibits the federal government from acting in areas beyond the scope of its powers.Subsidiarity and federalism are different. Thus they both may work to the same end, or they may conflict with one another. The distinction between them must be kept firmly in mind if clear thinking is to prevail as to either subject.