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6. Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government
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190 6 SUBSIDIARITY, THE JUDICIAL ROLE, AND THE WARREN COURT’S CONTRIBUTION TO THE REVIVAL OF STATE GOVERNMENT VICKI C. JACKSON Professor Steven Calabresi and Lucy Bickford have suggested that the concept of subsidiarity, an explicit aspect of the quasi-federal system in the European Union, is already inherent in the U.S. constitutional system; that it serves several distinct goals; and that it should be employed by courts in their doctrine.1 As someone who has written positively about the idea of subsidiarity in the context of U.S. federalism in the past, I am delighted at their interest, though I part company on particulars. In the first section of this Comment, I raise some questions about their essay and what they mean by subsidiarity. I question the aptness of the U.S.-EU comparison and the conception of subsidiarity as being primarily about externalities; I raise the problem of “bricolage” and constitutional multifunctionalism for any single-minded application of subsidiarity (at least one consistent with broader commitments to constitutionalism and the rule of law); and note the lack of a basis in comparative experience for strong judicially enforced versions of subsidiarity. In the second section, assuming that the idea of “subsidiarity” is a valuable goal toward which federalism is directed, I advance an Subsidiarity, the Judicial Role, and the Warren Court 191 alternative “proceduralist” approach to the courts’ role in advancing subsidiarity in the U.S. constitutional context. That is, I suggest that the courts may be better situated as an institutional matter to try to assure that other branches attend to considerations of subsidiarity than to make the substantive judgments directly. In the third section, I offer a different perspective on what foreign comparisons suggest, this time set in the context of debate over the Warren Court and federalism. The premise of the Calabresi-Bickford essay is that courts protect federalism by judicially declaring certain areas or forms of regulation off limits to the federal government. I suggest that courts may advance federalism in other ways, and that the Warren Court promoted federalism by nationalizing the Bill of Rights. In so doing, I suggest, and especially with respect to voting rights, national intervention dramatically improved the legitimacy and efficacy of the state governments , so that they could assume a more prominent role both in day-to-day governance and in resolving major controversies that emerge over time. 1. Subsidiarity as a Constitutional Concept Calabresi and Bickford argue that the U.S. Constitution should be read to establish a presumption in favor of state-level regulation in areas of concurrent jurisdiction, for reasons in part of the “Economics of Federalism.” They argue that the benefits of legislation at the state level are (1) better accommodating local preferences; (2) promoting competition for businesses and taxpayers; (3) advancing experimentation; and (4) lowering monitoring costs.2 They argue that national lawmaking has other benefits, including (1) economies of scale; (2) overcoming collective action problems; (3) responding to externalities generated by state activity; and (4) protecting civil rights.3 These benefits do not, however, as a selfexplicating matter, establish a presumption in favor of one level or the other.4 The authors, rather, rely on the theory of subsidiarity, “recogniz[ing] the natural right of individuals to have their problems addressed by the level of government that is closest to them,”5 to argue for a presumption in favor of state-only power unless one of the four benefits of national regulation described earlier is at stake. And they argue that “constitutional federalism enforced [44.213.80.174] Project MUSE (2024-03-19 11:20 GMT) 192 Vicki C. Jackson through substantive judicial review is the correct legal response to the demands of subsidiarity.”6 Calabresi and Bickford seem to be suggesting that the concept of subsidiarity be used to define the scope of the enumerated powers themselves.7 In Europe, subsidiarity operates in theory to define allowable uses within the enumerated powers of the Union that are held concurrently with the Member States; that is, the doctrine goes not to the scope of the power but to the permissibility of its use in particular instances.8 Whether anything turns on this distinction depends, in part, on one’s views of whether doctrine and conceptual categories really constrain. But if one does so believe, as I think the authors do, then this is a bit of a conceptual problem. In their proposal, as I understand it, the European conception would function, in...