Wednesday, August 01, 2007

Subsidiarity, and the 9th and 10th

Yesterday, I opined that while Shel Lubar's concerns about fiscal responsibility in the Greater Milwaukee area are licit and compelling, that his proposal for a 'super-board' of fiscal control is not the right solution.

My line of argument was that the Principle of Subsidiarity should be respected and applied, and that the Founders, in their wisdom, wrote the 9th and 10th Amendments with that principle in mind.

A friendly interlocutor/attorney/blogger suggested (see combox in the link) that while he agrees that a "super-Board" may not be the solution, he does not think that the 9th/10th have all that much to do with "subsidiarity."

OK. Let's start by defining the terms.

Subsidiarity is the principle which states that matters ought to be handled by the smallest (or, the lowest) competent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level. The concept is applicable in the fields of government, political science, cybernetics and management. Subsidiarity is, ideally or in principle, one of the features of federalism. (Wikipedia)

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.

(Kinda convenient that Wiki even mentioned "federalism" for this discussion, no?)

Obviously, we're merely converting the Amendments to the State level--or more accurately, to the sub-State level of 'regions' and 'localities.' Resemblance to actual sub-State regions may be accidental. Names are withheld to protect the innocent. All the usual jibberish from the lottery tickets and credit card agreements apply.

Many interpreters of the Constitution begin with the understanding that the Bill of Rights 'speaks directly to the Federal Government;' that is, that the BoR expressly limits the Feds. Both the 9th and the 10th show that clearly. The 9th protects "other" individual rights not already named in the Constitution and the BoR (e.g, assembly, bearing arms, property, etc.) and the 10th protects the rights of States, 'empowering' them with what was not explicitly granted to the Feds.

Thus, early on, some States maintained a State religion (Maryland was Catholic). Other States did not. Each State must govern elections as it sees fit (subject to the 14th,) etc., etc.

With these in mind, the combox is open to Reaganite.


Reaganite said...
This comment has been removed by the author.
Reaganite said...

When I first read your challenge, I thought about going back and forth between our blogs. I thought this might be fun. After all, the most fun debates are with people with whom one generally agrees. Debating with the left can be like banging your head against the wall.

However, I do not differ with much of what you have said in this post. I disagreed with your prior post's implication that subsidiarity somehow is mandated on local levels by the 9th and 10th amendments.

If you believe that the 9th and 10th amendments should be interpreted to mandate subsidiarity on the local level, then we have something to debate.

I want to reiterate that I do not agree with Lubar's proposal (although I am happy he acknowledges that the present system is broken). I think the taxing body should be elected from districts created within the taxing jurisdiction (which should extend no farther than the area of the relevant service).

Dad29 said...

If subsidiarity were "mandated" by the BoR, then the 9th/10th would not exist, I guess.

While Wisconsin's Constitution may actually permit some regional 'super-board', my argument is that we should not go there specifically because 'subsidiarity' militates against it--as demonstrated by the existence of the 9/10...and that Wisconsin, while under no obligation to utilize that principle, should give it some deference.

Glad we agree on all that stuff.

Next, to Church Music!!

Reaganite said...

I'm not sure I get your first sentence. The 9th and 10th are part of the BoR.

Now here's a question - how do you reconcile your preference for subsidiarity with TABOR? If we are to be slavish to local control, shouldn't we allow the locals to control?

Generally, I think subsidiarity is not a particularly helpful guiding principle. One of the articles that you quote from states that "central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level." I can drive a truck through that exception.

Because I do not see any clear lines, I do not think of it much as a principle. I am a pretty black and white guy. Using the Church as an example, how would you respond if the Church changed its position on abortion to "abortion is bad unless it solves a bigger problem?" I would be appalled. I see concepts such as subsidiarity being that mushy.

Therefore, while I lean toward the samllest unit of government doing things, I also am in favor of TABOR. I look at it less from a concept like subsidiarity and instead ask "what works?"

Dad29 said...

Well, it's a matter of how far back you peel the onion.

School (and other local) spending is often mandated by State agencies like DPI. Now you see the cause/effect problem with "non-subsidiarity" created by a lot of goo-goos in the Legislature, both R and D, by the way.

TABOR is based on the same premise as is Lubar's "board." That is, that somebody ELSE knows something which must be imposed on those who actually pay the bills.

Of course, it's possible that the Leggies will rescind their inane mandates (and get rid of DPI, too.)

Let's go there, instead of the other direction.

Dad29 said...

....and what I tried to say, inartfully, in the first sentence was that the 9th/10th are redundant if some OTHER Amendment had mandated 'subsidiarity.'

But that didn't happen, so we have the 9th/10th.

Rick Lugari said...

Mr. Reaganite,

I don't know you, but my guess would be that whether you recognize it or not you accept the principle of subsidiarity and appreciate it to the extent that it exists in the founding of this country. It seems to me that it's just the formulation of the terms and the application of it that is getting in the way here. I think Dad29 is correct in pointing out the principle of subsidiarity in the 9th and 10th Amendments, but I think it's enshrined throughout the Constitution and the thoughts and papers of the Founding Fathers.

In this Constitutionally Limited Republic, we recognize first and foremost that all men are created equal, endowed with unalienable rights and that each is his own sovereign. We recognize that as individuals we can't do everything for ourselves, that there are certain functions that rightfully belong to a government (a means to adjudicate our differences, legislate laws to maintain order for the common good, defense, etc.), so WE, delegate certain powers - and only those certain powers - to the government. We do this for all levels of government - in fact that is why there are levels of governemt (at least in theory, because over 220 years we've violated these principles very often). I'm sure you know and appreciate all of this...I'm not trying to give you a civics lesson...I'm just trying to demonstrate the general concept of subsidiarity that our system is based on by breaking these things down.

As the Wiki article states, the principle of subsidiarity was developed in the encyclical Rerum Novarum of 1891 by Pope Leo XIII [and the actually term was coined by Pope John XXIII], but the principle really is ancient. The Roman legions applied it in their order of battle. Thomas Jefferson, while not having the definition, was actually a big advocate of the principle. It was he who advocated and set up the "ward" system. We recognize that today in the form of townships, 36 square mile regions where the majority of our governance was intended to take place. Those wards make up counties, which are intended to do only what the wards can't do for themselves - then the states to do what the counties can't - and the Fed.

It's more difficult to see subsidiarity these days because the principle has been violated piecemeal non-stop since the Civil War and we just come to accept these things, but it does underly the foundation of our country. I hope I've been helpful...again, I am just trying to offend...just tease out what you probably already know and identify it. And what say you, Dad29 - fair representation?

Dad29 said...

Rick, it's always helpful to have your additional insights.

Of course, the problem that Reaganite points to is that the principle has been so mangled and strangled in the last ~100 years that it will be hard to recover it during our lifetimes, if at all.

That's why Reaganite is more "action-oriented" than I am.