In every generation, the virtues of localism need to be reconsidered.  I believe in the natural law principle of subsidiarity, which means that whatever small forms of association can do, they should be allowed to do, especially when what they are doing is what they are naturally suited to doing.  For example, if the question is who should make decisions about the how to raise, care for, and educate children, the presumption should always lie with families, ruled by parents, not with the government, ruled by bureaucrats.  Government has a genuine responsibility to make laws for the common good, but it can never serve the common good by trying to absorb the functions of the family, or insert itself between children and fit parents.

Generally speaking, subsidiarity means that small is beautiful.  Surprisingly, though, the principle doesn’t necessarily translate into absolute localism.  The implications of subsidiarity are very clear when the choice lies between government and nonpolitical forms of association such as families.  However, they are much less obvious when it lies between lower, middle, and higher levels of government, and the right balance may even change over time.  Why is this so?

If local government decisions were always made in a participatory fashion, then no doubt it would almost always be better for matters of local concern to be settled at the most local level.  The reality, however, is that in all governments -- even local ones -- decisions tend to be made by elites.  So the question is what kind of elites will make them.  Will decisions be made by monolithic elites who squeeze out everyone but themselves, or by heterogenous elites made up of competing elements?

As James Madison realized, local elites are more likely to be monolithic.  By contrast, if representatives are drawn from all the different localities of a large geographical area, the elite group is really a coalition of groups that may disagree among themselves.  They will be forced to find some sort of accommodation of all of the different interests they represent.

Paradoxically, the result is that plain persons and their families may sometimes be better served and listened to by a government that, while not remote, is a little bit further away.

How much further away?  Madison thought that even individual states were too uniform.  For this reason, he believed that they always succumbed to the tyranny of the local majority.  Congress, he thought, with representatives from all over the big, mutifarious country, would make much better decisions.

However, individual states contain far more competing interests in our day than they did in Madison’s.  It seems to me that this knocks most of the stuffing out of the argument for bumping lots of state decisions upstairs to the federal level.

Then again, his argument may retain some of its force if we drop one rung lower down – considering not the balance between states and the federal government, but the balance between localities and the state governments.  For even today, far fewer interests and points of view are represented at the level of most towns and cities than at the level of most states.  True, we no longer have many company towns in which everything is decided by the lords of the dominant local business, but we do have a lot of party towns or ideology towns in which those who don’t think in the approved way can hardly get a word in edgewise.

Take, for example, how the schools are run in the independent school district of my own ideology town of Austin, Texas, where even highly motivated parents have a hard time finding out what is going on in the name of sex education.  In one notorious (but not unexpected) incident in 2019, a convicted male prostitute who performs under the name “Miss Kitty Litter” was invited to have contact with young children at Blackshear Elementary School’s Fine Arts Academy for seven hours.  The officials who extended the invitation weren’t naïve or uninformed.  On the contrary:  They considered the man’s deviation a plus for the children rather than a minus.

It isn’t enough to say that schools, having usurped the role of parents, should teach something different then they do.  They should not have usurped the role of parents in the first place.

In the short term, this is unlikely to change at the local level.  Parents in Austin are viewed as merely another interest group alongside people who want to sexualize children.  After all, lots of people have an “interest” in children, and aren’t they “stakeholders” too?  You could even call giving them access to children “pluralism.”  In fact, some do.

The same pernicious tendency to consider parents just another interest group exists at the state level too.  But at least at the state level they are a stronger interest group, because not all localities of Texas are the same.

So localism is not all one thing.  The argument for bumping all sorts of state decisions upstairs to the federal level is very weak.  Yet the argument for bumping various local decisions up to the state level is often very strong.  Families and other “little platoons” may sometimes be better protected from the heavy and intrusive hand of government if governmental decisions are not made at the very lowest level possible.

Gentle readers:  Just a quick announcement.  You can read my latest Op-Ed here:

"Are We Happy Yet?  Don't Just Count the Numbers"

Epoch Times, 16 February 2022

I wasn’t going to publish this item for a few more weeks, but after listening to a television interview this evening with my state’s lieutenant governor – whom I respect, but who is making a mistake – I have added a section and decided not to wait.

On one hand.

Governors and lieutenant governors who oppose Diversity, Equity and Inclusion programming in the public schools have been criticized for racism and suppression of academic freedom.  The question is framed, “Should DEI opponents be allowed to continue to practice racism and to exclude all approaches to the study of race but their own from discussion?”

This question is like “Have you stopped beating your wife?”  It assumes the answers to the really important questions before discussion begins.  A  better way to frame the question would be like this:  “Are any persons trying to practice racism and to exclude all approaches to the study of race but their own from discussion?”

The answer is “Yes.”  One group is.  Not the opponents of DEI – its practitioners.

What those interested in the controversy need to understand is that contrary to the claims of its supporters, DEI is not a way to promote racial fairness, and its associated dogma, usually called Critical Race Theory, is not just one academic approach among others to the study of race.  DEI is a total indoctrination system, beginning in the elementary schools, intensifying in the secondary schools, and pervasive in most universities.

The practitioners of this approach use tendentious definitions, according to which only white people can be racists – which is racist.  They attempt to smear all those who disagree with their racist definitions -- as racists.  Instead of encouraging students to achieve, they foster a perpetual sense of grievance and victimhood.  They patronize students of minority ethnicity by having low expectations for them, assuming that they need to be evaluated by different standards.  (The racist assumption is that they aren’t smart enough, but the pretense is that the existing standards are racist.  Did you know that arithmetic can be racist?)  Often, they even separate students by race, as in the days of Jim Crow -- but this time for woke reasons, which is supposed to make it good.  This is just the tip of a big, oily iceberg.

The controversy is not about whether one opposes old-fashioned racism, nor is it about whether one supports academic freedom.  It is about whether one supports the new racism of the left, which wants to convert public schools into political indoctrination centers.

On the other hand.

Texas Lt. Governor Dan Patrick proposes that in order to oppose this system of racist indoctrination, the tenure system should be abolished.  After its abolition, university faculty would be re-evaluated every year, and such things as teaching Critical Race Theory would be grounds for dismissal.  This proposal is supposed to put an end to the empire of tenured radicals.

I’m sorry, your honor, but it won’t do that.  One must be realistic about how universities actually work.  Annual faculty re-evaluations wouldn’t increase viewpoint diversity; they would reduce it.  After all, who conducts faculty reviews?  Other faculty do.  It is hard enough for a scholar who is not politically correct to get a job, and it is harder still to get tenure.  At least the few non-woke scholars who do get tenure have a certain amount of security.  However, it would be virtually impossible for one of them to hold onto his job if he were up for dismissal at the discretion of his woke colleagues every single year.  The legislature might declare the criteria for dismissal, but the faculty would interpret them.

If you want to introduce viewpoint diversity into the public universities, the only way to succeed is to get the universities to do it on their own.  I can think of only one way to get them to do that:  If they don’t, cut their budgets.  Believe me, administrators will listen then.

A young nonwhite woman in graduate studies – at my university, but not in my department – told me how maddening she found it that none of her teachers or advisors would give her any constructive feedback no matter how she pleaded for it.  Everything she did was great, fine, wonderful.  It was as though she could do no wrong.

Observing that her woke mentors spent more time talking about race and sex than training her in her field, she told me she thought they were patronizing her.  I suggested that they may also have been terrified that they would be accused of racism or sexism if they didn’t patronize her.

She readily agreed.  We both knew that in the wokest circles, each person spends a lot of time nervously looking over his shoulder.

Various writers including Adrian Vermeule of Harvard have advanced a rather unfettered common-good approach to jurisprudence.  Some who like the approach have suggested that it is not much different than what liberal judges have been doing for years – except that it is conservative.  To me, vigorous judicial activism seems equally alarming whether it is practiced by the left or the right.

Yet we had better not judge hastily, for after all, the purpose of law is the common good.  Is there such a thing as a fettered common-good jurisprudence -- a way to have judges consider the common good which puts the brakes on judicial usurpation of legislative judgments of the common good?

Some have suggested a relatively modest sort of common-good jurisprudence, which would allow judges to apply the criterion of the common good only when the law is unclear.  Maybe, but some questions remain to be asked.

Let’s try to think not like lawyers, but like constitutional designers.

In the first place, why not say that judges should use the criterion not when the law is unclear, but only when failure to do so would produce a result contrary to presumed legislative intention?  Or, to limit judges even further, why not say that they should use it only when failure to do so would produce a result contrary to actual legislative intention?

For that matter, if the law is ambiguous, but the situation is not an emergency, then why must judges rule at all?  Why not say that no ruling can be made until the legislature clarifies the law?  I know this isn’t how we usually think about such matters.  But should it be?  I am thinking especially of regulatory law.

Suppose judges do use the criterion of the common good.  May they interpret the common good differently than the legislature does?  And how much does the answer to that question depend on how confused about the meaning of the common good the judges -- or legislators -- are in the first place?  Someone has to decide how confused they are, of course.  I am thinking of the constitutional craftsmen and revisers -- and yes, I know there are problems there too.

If we do want judges to use the criterion of the common good, then how can we keep judges from defining the common good tendentiously, tailoring their definitions to suit their personal agendas?  We don’t want the incantation “the common good, the common good” to be an abracadabra which allows judges to do whatever they please.

By the way, a similar problem arises if judges are allowed to consider the natural law – definitions may be tendentious in that realm too.  I’ve written before that this is no reason to say that judges should not consider the natural law.  For even if judges push the natural law out the front door, what amounts to careless natural law reasoning creeps in through the back door, disguised as something else.  So, I’ve argued, rather than not thinking about the natural law, judges should think about it better.  In the same vein, should we say that rather than not thinking about the common good, judges should think about the common good better?

Continuing my little digression, a distinction is necessary too.  Anyone, whether a judge or a legislator, can understand the basics of the natural law.  However, legislators are much better situated than judges are to work out their detailed, remote implications.  For this reason I think the case for deferring to legislative judgments of what the natural law requires is strong when we are thinking of the details, weak when we are thinking of the basics.  Perhaps an analogous distinction applies in the case of the common good.  In this case, judges would have little or no authority to substitute their detailed judgments of what the common good requires for those of the legislature.  But if the legislature blatantly pursued private interests instead of the common good, that might be a different kettle of fish.

Here is another issue.  Someone might suggest that in principle, judges should consider the common good, but the morally skeptical law culture, and the even more skeptical law school culture, in which judges are formed, makes it dangerous to allow judges the same degree of discretion that would be reasonable if these cultures were different.  In England, it used to be said that the monarch had a power of prerogative – a power “to do good without a rule” – a power to do something for the common good even in the absence of a legislative rule explicitly authorizing what he wanted to do.  John Locke remarked that the English parliament sometimes expanded and sometimes contracted royal prerogative, depending on its judgment of the moral character and wisdom of the king.  Should we expand and contract the judicial “prerogative” in the same way?

If so, then should the degree of discretion we are willing to grant judges in the name of the common good depend only on the moral character of judges, or also on the moral character of either the voting public or the legislators whom they choose?  I distinguish the latter two groups because legislators might be either more or less virtuous than voters.  Why is that?  Because if voters choose the most virtuous legislators they can find, then those whom they choose may on the whole have even better moral character than they do; but if voters are either corrupt or deceived, then those whom they choose may on the whole have even worse moral character than they do.  Knaves usually prefer to be ruled by scoundrels.

Finally, how much should our answers to questions like these depend on long-term prudence, and how much should they depend on short-term prudence?  For example, it is almost always prudent in the long term to practice separation of functions:  Those who make general rules should be a different group of people than those who apply these rules to the adjudication of particular cases.  But if one of these groups becomes profoundly untrustworthy, then someone might argue that in the short term it may be prudent to alter such arrangements.  He might suggest that we may even resort to letting legislators judge, or letting judges legislate.  Needless to say, such arrangements might be put into place for the wrong reasons.  Considering them “thinkable” may make them even more likely to be put into place for the wrong reasons.  Another drawback is that even if they are put into place for the right reasons, it might be very difficult to reverse them when they are no longer needed.  In fact, they may tend to perpetuate the character faults that prompted their use in the first place, for those who are shut out of decisions tend to become even less capable of exercising good judgment.

Don't say checks and balances will take care of all these problems.  Checks and balances assume that legislators will be jealous of their authority and resist judicial usurpation, but legislators may even have motives to kick controversial decisions to judges.   After all, they stand for re-election and judges don't.

I don’t have answers to these questions or solutions to these difficulties.  I’m just trying to frame them.