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Thursday, November 17, 2005

Federalism, Subsidiarity, and Posner

In a recent issue of the New Republic, Judge Richard Posner asks ("Our Incompetent Government"), among other things, why the "Posse Comitatus" law should regarded as an "excuse" for the federal government's "inaction" after Hurricane Katrina.  Our Constitution, he insists, "really is not a suicide pact."  He then observes:

As for the principles of federalism, they teach that government responsibilities should be pushed down to the lowest level at which they can be performed effectively--but not lower. If a terrorist attack or a comparable natural disaster paralyzes local government, spills across state lines, and for these or other reasons exceeds the capacity of local and state government to respond, then responsibility shifts upward to the federal government. The federal government must be prepared for such an eventuality. There are certain essential tasks that only the federal government can do.

Is this right?  That is, it is really the case that our [constitutional] principles of federalism "teach that government responsibilities should be pushed down to the lowest level at which they can be performed effectively", or that because "[t]here are certain essential tasks that only the federal government can do" (and, clearly, there are), therefore the government may, or has the power to, do those things?  Judge Posner, it seems to me, is equating "principles of federalism" with what is often called -- in human-rights law and Catholic Social Thought, for example -- "subsidiarity."  Is "federalism" really just about "greater effectiveness though competition and devolution"?


Posted by Rick Garnett on November 17, 2005 at 01:14 PM | Permalink


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As I say above, if that is what you mean by "effectiveness" then we are not quarrelling over anything. But that isn't Posner's usage of the term, I don't think, and I don't think that was Professor Garnett's question either. I might have misunderstood them.

Posted by: Will Baude | Nov 17, 2005 5:31:11 PM


I think you are forgetting one bedrock principle: one element of the "effectiveness" of government is how it secures personal liberty. I think the framers had the good sense to realize that divided government was better than hegemonic government, both vertically (states vs. federal) and horizontally (bicameral legislature/executive/judiciary). And that's why they didn't cede all power to the federal government, to dole it out according to its goodwill and goodsense.

I further think that the framers believed that good governance would be best preserved, as a default, by local government. That's why federal power was the exception. (As it happens, the framers also realized that they had to cede power to the states in order to get the constitution ratified. Ah, synergy.) The framers tried to locate those areas in which it would be plainly more effective/just/liberty-inducing for power to be exercised by the federal government, and acted accordingly.

Things have changed a great deal, but I do think that was their intent.

Posted by: Hillel Levin | Nov 17, 2005 3:35:08 PM


Only sometimes. First off, speaking generally, if your only concern was for effectiveness rather than power, you might well decide to give all constitutional power to the central government and simply give it the ability to decentralize and delegate that power as needed. Some states basically do this when dividing power between local and state governments.

Take, for example, the second amendment. Under any conception of Article I and the Second Amendment the states retain authority to constitute their own militias. I think there's no suggestion that this is to promote military "effectiveness" in the conventional sense, as an examination of the disastrous of the decentralized military order in the confederacy should make clear. But it was seen as a barrier against tyranny. The limited jurisdiction of the federal courts, the sovereign immunity rules, and so on might be other examples.

[A controversial example would be interpretive authority. The constitution itself makes no decision about whether states or the federal government should be the final interpreters of the constitution. We've settled that argument ourselves largely because we think it's efficient to put the power in the U.S. Supreme Court, but it's not clear that sort of efficiency was the first priority of Madison or Jefferson.]

At any rate, you could get around all this with a very elastic definition of "effectiveness", where any decision that has normatively good consequences is taken to be "effective". And that's fair enough, but it's not exactly what Posner means, and it's not what I mean to distinguish.

In any case, if decentralization were only about effectiveness, then the choice to accopmlish that decentralization via constitutional ordering would be odd, since it would be very likely to leave us vulenrable to the dead-hand problem you describe. But if decentralization was also a bulwark against tyranny-- which I think it was, and which I think is separate from Posnerian effectiveness-- then constitutionalizing it made a lot of sense.

Posted by: Will Baude | Nov 17, 2005 3:26:31 PM


Don't you think the framers intended to give constitutional power to whatever governmental entity would be best-equipped (in their judgment) to wield it effectively?

Thus, of *course* the federal government got to legislate interstate commerce, foreign relations, and such; and of *course* the state government got to legislate the everyday activities and relationships of the people. There is a legitimate question as to whether the framers' model will stretch to fit present-day circumstances (e.g. would an originalist model that did away with national environmental laws be a good thing?); but wasn't that plainly their intent and attempt?

Posted by: Hillel Levin | Nov 17, 2005 2:56:06 PM

Is "federalism" really just about "greater effectiveness though competition and devolution"?

Absolutely not.

There are two very different questions-- one is about the decentralizations of task performance-- which is the subsidiarity you refer to and that Posner appears to analyze. The other is about the decentralization of ultimate constitutional power-- this, I think, is what is more helpfully called federalism, and is only somewhat related to who can perform tasks efficiently.

Posted by: Will Baude | Nov 17, 2005 2:11:23 PM

Excellent post, Rick. I think the Pos is right that this was the thinking behind the federalism that was written into our constitution (and yes, Dan, I think it is actually there). The trouble is that today's reality doesn't look much like the Fouders'. So to the extent they codified THEIR reality of what is necessarily "federal" vs those things that ought to be decided by the states, that won't necessarily stretch to our own reality.

In any event, it strikes me that Posner is coming at this from his uniquely pragmatic perspective.

Posted by: Hillel Levin | Nov 17, 2005 1:49:05 PM

To answer your question: I don't think they're the same conceptually but Posner is probably *urging* that we start thinking about federalism in terms of subsidiarity, even if he equated the two ideas. I wonder whether there's an orthodox legal basis for such a prescription though, and whether that matters. Arguably federalism is a "principle" that has been read into the Constitution rather than arises from it, and to the extent that's true, Posner's implicit recasting of federalism qua subsidiarity may be just as legitimate an interpretative move as the one that interpolates federalism into constitutional decision-making when it is not, strictly speaking, necessary. I think Posner's larger point, however, is that the incompetence of the federal gov't is manifested by its obsession with issues that should be dealt with at more local levels and its failure to do things for which it has a comparative advantage. Federalism might arguably justify the intervention of the federal gov't on some of these "distractions" whereas subsidiarity would not.

Posted by: Dan Markel | Nov 17, 2005 1:40:31 PM

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