Only Subsidiarity Can Save the Republic

In mid-September, the Intercollegiate Studies Institute quietly hosted what may have been the year’s most important panel discussion, on the subject of the lost meaning of the American Founding. Like the Founding itself, too few have appreciated the event. Even after sitting through it, not many will have captured the evasive potential consensus that may yet unite the Right: the American set piece of localism and subsidiarity, enshrined in the Constitution of 1788 but lost after the Civil War. That is to say: like Odysseus, American conservatism must tie itself back to the mast of morality-legislation by state or local—but never national—government.

While few Americans care about subsidiarity or panel discussions, most conservatives have noticed that we have lost our republic, root and branch. In order to reclaim some version of it, we must reclaim American subsidiarity. 

The event probably stood for just such a proposition, but the message remains confined to subtext. Modern Age’s brilliant Daniel McCarthy moderated the panel discussion, which was peopled by four most excellent denizens of the scattered fields of the Right: Stephanie Slade, Michael Knowles, Michael Anton, and Kevin R.C. Gutzman.

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In our day, fusionists, “trad” post-liberals, Straussians, and states’ rights–favoring Constitutional textualists nurse a widening dissensus: whether America’s Constitution and culture began its decay ab initio (1776–88) or sometime thereafter. Since the stultifying rise of pandemic-and-vaccine administrative globalism and Dark Knight Rises–style anarcho-tyranny in spring and summer of 2020, the need for such a countervailing Right-wing designation has elevated in both prominence and exigency.  

We need not only an answer, but the right answer. Such would-be reconstructors of a Right-wing consensus have taken to gathering themselves in out-of-the-way enclaves to lick their festering wounds and—only sometimes more productively—to bandy about the etiology, teleology, and eschatology of 1776 (“the Founding”) and 1788 (“the Framing”). Easier said than done.

The ISI event’s problem was this: the call of the question was obscured by its lack of adversarial engagement, which I believe obviated some reasonably clear yet momentous entailments that might have been carried away by listeners.  

For a most fundamental example, Catholic fusionist-libertarian Stephanie Slade and states’ rights champion Kevin R.C. Gutzman failed to adequately express their ideological overlap—a muteness borne of either change-blindness or tribalism. Slade’s fusion of conservative civic and private virtue with libertarian insistence on individual liberty—a timeless concomitance first exhumed in American post-Lincolnian years by Frank Meyer—entails rather than contradicts Gutzman’s antebellum iteration of federalism.  

Plainly, the Constitution of 1788 requires two desiderata: 1) a libertarianism at the federal level—pace article one, section eight of the U.S. Constitution, which reserves only the unsexy, mechanical, amoral powers, such as money-coining, to the Congress—and 2) a conservatism at the state level—pace the Tenth Amendment’s “police powers” of state legislative domain over the infinitely sexier legislative fields of “health, safety, welfare, morals, and security.”  

But again, almost no one seemed to notice, least of all Slade or Gutzman.  

While the ISI event’s four opening statements were fraught with formulaic categorical commitments to differing titrations of civic liberty and civic virtue within the bromide of Americanism, the principle of alterity only goes so far. The Constitution, after all, has already troubled to stipulate where it generally warrants liberty to win out (viz. nationally) and where virtue should frequently carry the day (viz. in the states).  

No reinvention of the wheel need be called for. But again, neither Slade nor Gutzman troubled overmuch to spell out that the true America flows from the twin headwaters of federal liberty-guarantorism with state (and local) virtue-encouragement. In this connection, no one recollected that James Madison described his own Constitution as “half-conglomerated, half-confederated” and, more frequently, as an “imperium in imperio.” 

The failed opportunity at unmanufactured consensus passed, as Hegel once quipped, as the “night in which all cows are black.” Neither of the other panelists pointed it out, either. My good friend Michael Knowles proffered a characteristically insightful expression of the Catholic bias for governmental action in lieu of theory. In so doing, he recommended an unmistakable, if somewhat mitigated, sense of the subsidiarity denoted above, while tending to capitalize praxis as if it might usually be assumed to preclude Slade’s or Gutzman’s mistrust of federal morality-legislation.  

All this left the listener wondering whether Knowles would be satisfied by state legislation against bêtes noires such as “drag queen story hour” or whether he tends toward the Lincolnian, anti-subsidiarity view that such moralizing can and should be done from the national level. (I happen to know from private conversation that he would be quite contented—unlike Anton below—with the former, and I simply wanted him, Slade, or Gutzman to say it!)

In other words, I found myself hoping in vain that any one of these first three would more explicitly decry the supplantation of antebellum localism by trouble-generating postbellum federal interventionism. One panelist even mentioned at one point Jefferson’s righteous quip “I prefer state government to national government, but I prefer county to state and city to county, etc.” But none insisted upon its ramifications.  

This left only Michael Anton, the stage’s most unambiguous advocate of energetic federal power and Lincolnian nationalism. Although Anton once or twice obliquely acknowledged the superficial need for the restoration of American subsidiarity, his bias for Lincoln-style federal moralizing pervaded his remarks. (Personally, I like Anton, an able proponent of the Trump presidency’s virtues, very much.) He presupposed, like too many in our day, that the federal government bears the capacity to legislate morality.  

Yet neither Anton nor anyone on stage ever acknowledged that it was the uniquely corrosive handiwork of the supposedly virtuous Fourteenth Amendment—sometimes called the “new Constitution”—which proscribed virtue nationally and forced upon the several states porn, contraception, sodomy, abortion, and gay marriage while disallowing the legislative establishment of state sects of Christianity (although the Constitution of 1788 stood for the opposite in each domain).  

Ironically, on account of “moralizing” federal action, the illegalization of these evils—as well as the advocacy of the virtues of state establishments of Christianity—was itself rendered illegal. Yet given the restraints of the panel’s time and limited ability to allow adversarial interaction, all the excellent panelists seemed to flinch from (or in Anton’s case, celebrate) the toxic post-1865 notion that the federal government capably moralizes.  

Not to put too fine a point on it: conservatives do not oppose morality-legislation. However, it must be done locally, rather than federally. We must recall what Lincoln and the Fourteenth Amendment caused us to forget: the “fusionist as federalist.” The Constitution already requires precisely this localist hierarchy of outward-bound, legislative first refusals granting the federal government only the taxonomical residuum of unwanted legislative tasks. We Americans simply must reclaim it, in one way or another—the easy or the hard way.


  • Timothy J. Gordon

    Timothy J. Gordon studied philosophy in Pontifical graduate schools in Europe, taught it at Southern Californian community colleges, and then went on to law school. His most recent book, The Case for Patriarchy, is now available from Crisis Publications.

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