Protecting Commoners’ Goods Pluralist Coexistence Through the Common Good Constitution’s Subsidiarity Municipalism

A. Subsidiarity According to Tradition: Pluralist Localism

In chapter 5 of the CGC Monograph, Vermeule engages with subsidiarity toward indicating one way that CGC applies to U.S. constitutionalism. His treatment largely frames the concept as a synonym for the libertarian conception of limited government. 77 He contrasts this conception, which he characterizes as negative, with a positive version. The positive version provides that limitations on any higher sphere’s power are prudential rather than formalistic. By prudential, he means that higher orders remain available to assume localities’ functions during what he terms states of exception. 78 Because he focuses on positive subsidiarity largely as a corrective to libertarianism, he omits the full measure of what subsidiarity affords under the Western legal tradition. This subsection develops what he omits.

In Western legal tradition, subsidiarity has long stood as a natural law 79 principle of ordering authority according to a preference for proximity, or rule by authoritative bodies closest to people on the ground. 80 As scholarship has emphasized, it is a principle, not a hard and fast restriction; 81 therefore, it allows myriad applications. Subsidiarity’s diverse manifestations are reflected in the dispute among Western theorists about why subsidiarity governs: whether it is a principle born of social reality or efficiency. 82 But as Maria Cahill’s scholarship makes clear, this debate can be framed as Tradition’s understanding of subsidiarity versus the contemporary understanding in European Union, North American, and South American constitutional debate. 83 Since it is the contemporary view that has produced the most varied manifestations, including applications appearing to contradict subsidiarity’s commitment to proximity, 84 this subsection elaborates what Tradition provides about subsidiarity. As such, it departs from Vermeule’s treatment of subsidiarity but follows his broader CGC method of providing modern law’s classical genealogy.

Scholars agree that the word “subsidiarity” comes from the Roman Catholic Church’s social doctrine, specifically Pope Pius XI’s 1931 encyclical Quadragesimo Anno. 85 The scholarly consensus is also that the term “‘traces its origins as far back as classical Greece, and was later taken up by Thomas Aquinas and medieval scholasticism.’” 86 From these origins, scholarship has identified that, as Tradition has understood it, subsidiarity describes an understanding of how coercive authority should be exercised. It holds that certain social matters should be resolved at the most local and proximate level of authority – units as small as the nuclear family – as a matter of justice. This point about justice is what most distinguishes classical subsidiarity from the contemporary form found in debates about the European Union. For the classical understanding regards local control as the natural order, a reflection of Aristotelian anthropology holding that human beings, as social animals, form natural associations as a conative endeavor. 87 Such Aristotelian anthropology as later developed by scholastics, most prominently Thomas Aquinas and later commentators on his view such as Luigi Taparelli, came to regard government as another type of human association, one whose function is to be auxiliary support for more proximate associations. 88

Classical subsidiarity explains why local government exists. It is so that an association of human beings can live the common good as an everyday reality. To express what classical subsidiarity grasps through Vermeule’s metaphor, 89 a giant may well possess the power to carry out the same functions as a local government. But it cannot genuinely rule without knowledge of circumstances that presuppose proximity and immediacy. In other terms, subsidiarity ensures that government serves its ultimate role in natural law theory of securing temporal tranquility 90 by tying the exercise of government authority to the most natural bonds.

For this reason, classical subsidiarity has conceptualized higher orders—national and state governments —as necessary aspects of localism. 91 This is a point Vermeule also makes, 92 but again without sufficient elaboration of the specific. For according to Tradition, strong government exists to sustain local bodies: this is what the term “subsidiarity” means to get at. Again, to borrow his metaphor, the giant is a tutelary matrix for human society, which exists at the local level. To follow Vermeule in explaining this legal principle by refence to Catholic doctrine, the local parish 93 presupposes and requires the Universal Church by whose support it can exist and through which it stands as a church rather than a community center. This is because a local parish is both a part of a whole as well as the entirety of the Universal Church where individuals, occupying their bits of space-time, can ever meet. 94 That last point must be emphasized: local government, say, a police officer, the Post Office, and the DMV, are each both branches of greater reality but also the entire experience of government for many citizens. It is this existential proximity that especially demands them to be socially inclusive so that all citizens can receive the benefit of government.

That classical subsidiarity advances a pluralistic social order is further clarified by one of its precedents: Roman practice of allowing local laws to govern local communities’ affairs. 95 Before elaborating the content of this practice, it is essential to explain why it informs the understanding of classical subsidiarity. Scholarship on subsidiarity’s origins has omitted Roman practice because it has elided over what its theorists drew upon to develop the concept. For example, John Finnis cites the third book of Aquinas’ Summa Contra Gentiles as one of subsidiarity’s sources, quoting a passage where Aquinas argues that God respects the free will of human beings even if it should lead them to do wrong in the same way that government authority is bound to respect the free will of people to the same consequences. 96 The comparison appears to infuse subsidiarity with moralism, so appearing to support Finnis’ contention elsewhere that subsidiarity is more a moral than legal principle in that it reflects Aquinas’ view that one becomes virtuous by doing, not merely by receiving. 97 But the structure of the analogy actually points to Aquinas’ political pragmatism, the art of administration. Aquinas’ explanation of how divine providence is compatible with permitting evil to occur relies upon his contemporaries’ familiarity with how government authority had been exercised.

What they would have been familiar with was Roman practice, a clear influence on Aquinas’ thinking that can be determined not only by reference to the intellectual climate in which he wrote 98 but also forensically. To marshal the forensic evidence, in Aquinas’ De Regno, his sole tract on government, 99he argues based on Roman examples. For instance, he warns that monarchy is tempted to tyranny by citing incidents discussed in Sallust’s Bellum Catilinae. 100 Elsewhere, he cautions against worse tyranny by further citing Tarquin the Proud and Domitian. 101 Especially in view of John Finnis’ observation that contemporary events “leave almost no palpable trace in Thomas’s writings,” 102 Aquinas’ reliance on Roman practice in his government theory renders such essential to understanding his legal thought. For it sources what another scholar describes as one of his principles: that government and legislation is more an art than ethics, an issue of practice, not theory, particular in nature, and contingent on events. 103

Similarly, Finnis’ engagement with Luigi Taparelli’s treatise that informs Quadragesimo Anno omits Roman practice as its source. 104Amply citing its passages, Finnis frames Taparelli’s discussion of subsidiarity as a normative ethical-social theory 105 but omits the historical facts upon which the discussion is based. As review of footnotes in Taparelli’s treatise establish, some of these facts are examples from Rome and Athens showing the necessity of dividing society into lesser consortia. 106 They also include historians’ sense that during the fall of imperial Rome, cities survived as bodies of public order based on their origins as natural human associations. 107

Having established that understanding Roman practice unlocks subsidiarity, this subsection now turns to elaborating its content. At a broad level, the Roman Empire “had a clear practice of conceding so-called ‘autonomy’ to conquered populations. In Greek and Roman practice, ‘autonomy’ consisted of the right of a politically consisted community ‘to use its own laws’ in regulating private-law affairs among those dwelling in its territory.” 108 “Local communities held an essential position in the government of the Roman empire: most of the daily business of governing was left to the hands of magistrates of the local communities[.]” 109 Governors, representatives of the imperial order within such communities, delegated administration to local government where it was found and encouraged local government where there was none. 110 Local government was a presupposition of the Roman model of provincial authority, one that gave governors limited duties and jurisdiction. 111 For the various peoples living within the empire, their everyday rights were determined by the civitas where they were born, a term encompassing what we call a town, territory, or group of rural communities. 112 Roman law referred to this idea as the law’s personality. 113

This principle of localism extended to jurisdiction, or the question of who was to administer legal order. This produced variety on which matters a governor administered toward centralizing Roman authority and which a governor deferred to local communes. 114 The variety produced different jurisdictional practices. For example, Roman Sicily was governed by a gubernatorial decree that allowed use of Sicilians’ local law for disputes arising between members of the same civitas. 115 For Greeks within Roman Asia, Roman Governor Scaevola’s edict of the first century before the common era allowed them to sue another according to their own laws, so sorting out a jumble of inconsistent practices. 116 Roman Cyrene, by contrast, was governed by gubernatorial edicts subjecting even local disputes to Roman officials’ determination, a reality suggesting the use of Roman law. 117 The practice of more gubernatorial involvement in Cyrene than in other provinces likely was because of Cyrene’s smaller size relative to larger cities in other provinces, 118 an apparent state of exception inviting a higher order’s more active management.

Localism was how the Roman empire governed as a matter of crude pragmatism since “ancient states generally lacked the infrastructural power to universalize their metropolitan culture.” 119 In addition, a cultural consideration informed the practice: governors and their staff also were “not conditioned to believe that they should carry out the comprehensive regulation of the life of the people subject to them.” 120 Since Roman law recognized the imperial order’s power of intervention, 121 local deference must be understood as a matter of constitutional principle. To put it differently, because the practical necessity was so obvious as a matter of human limitation, it amounted to a political preference foundational to maintaining peace and order in vast and diverse territory. 122

To state local deference as a preference must not obscure its status as law, however. It is articulated in Gaius’ Institutes, the only surviving legal textbook from antiquity. 123 The law of local deference also stated the basis for central authority based on its principle of two orders. Gaius’ Institutes states that Roman subjects are governed both by particular civil law, which they establish for themselves or their specific civitas, and the ius gentium, based on principles common to humankind and so universally observed. 124 Since Gaius’ statement was published in the common era’s second century, centuries after the apex of Roman territorial conquest, scholarship assumes it reflects long-developed practice 125 and is firmly established in the era’s imperial thinking. 126

More important than its antiquity is its substance. The legal distinction between ius civile and ius gentium produced local deference on private law matters—family law and matters relating to a specific community—and centralized, Roman law governing relations between members of the empire. 127 Some examples from peripheral, local communities help characterize which fell into which. José Luis Alonso has observed that for the 250 years spanning its annexation into Rome and extension of full citizenship to its members, Roman Egypt was governed by a constitution consistently endorsing the use of local private law in disputes involving “peregrines,” or non-citizen locals. 128 As examples of how this applied, Alonso mentioned Roman courts’ wholesale application of local laws despite their incompatibility with Roman legal principles. Conveying the extent to which this was a strong practice of localism requires full quotation:

In the absence of autonomous courts, peregrine private law would not have kept its hold in Egypt without the consistent endorsement of the Roman jurisdiction. The surviving court documentation confirms this assumption. The usual term “tolerance” is insufficient here. Peregrine law was not merely tolerated but unfailingly applied by the Roman courts, even when it challenged the most basic Roman principles. And thus: (a) sibling marriage; practices close to (b) materna potestas and (c) maternal guardianship; (d) succession in stirpes in the female line; (e) contractual mortis causa arrangements; (f) divisio parentis inter liberos covering the whole inheritance: all this persisted under Roman rule among peregrines, and was, as long as Romans were not involved, accepted as fully valid by the Roman administration. 129

As another example from Cédric Brélaz’s scholarship, the Council of Hierapolis, a local community in Roman Asia that never attained the status of a free city, was permitted to regulate the law enforcement activities of certain local officials called paraphylakes. As these officials “were in charge of patrolling the countryside and preventing misconducts and crimes in the rural territory belonging to cities,” 130 they were officially part of the imperial order protecting public security. Despite this, that local council was allowed to specify, under penalty of fines payable to its treasury and sanctions such as the deprivation of all local honors, which forms of material support such officials could request from villagers. The local council enacted such regulation to prevent abuse that villagers had complained about to Roman authorities, demonstrating imperial sanction of the local measure. 131

To demonstrate that both the practice and law of local deference are rooted in the Aristotelian anthropology driving classical subsidiarity, I here cite three sources. The first two are Barry Nichols’ 1962 introduction to Roman Law professing to “draw out the fundamental assumptions and distinctions of Roman law” 132 and H.F. Jolowicz’s 1965 study of Roman law claiming to supplement legal textbooks by providing students with “everything they need to know about Roman law.” 133 Nichols observes that the first principle of Gaius’ Institutes distinguishing between “man-made law, which is particular to one state, and natural law, which is universal” is substantially the same proposition that Aristotle propounded. 134 Jolowicz claims that Gaius’ first principle articulates a stream of Roman juridical thought also derived from Aristotelian theory: the same distinction between natural law that is universal and so common to all humankind and “man-made” law governing matters where, Nature being indifferent, a community was free to lay down its own rules. 135 Like Nichols,’ 136 Jolowicz’s discussion focuses on the natural law rather than the civil law. And he similarly contends that the Institutes’ foundational principle is “almost in the words of Aristotle.” 137 As for the third source, Peter Stein more recently observed that the Romans’ “philosophy of law was borrowed from the Greeks,” as, unlike Greek speculation about the nature of law and its place in society, Roman law was far more interested in rules and proceedings. 138 From all this, we can conclude that Roman law’s pluralist localism comes from Aristotle’s thought.

The strength of pluralist localism within the classical legal tradition is evidenced by its most begrudging form—Christendom’s practice with Jews. Even in a society explicitly organized to produce Christian faithful 139—a notion in great tension with religious dissent—Roman subsidiarity can be discerned. The Papal States, the portion of Christendom most committed to Christendom’s aim, nonetheless embraced a legal doctrine allowing Jewish outsiders to maintain some form of autonomous communities under administrative protection, including a right to maintain synagogues. 140 This was a part of Christendom’s commitment to maintaining Roman practice hailing from its inception. 141 Of course, the rank discrimination 142 and sordid record of hostility and pogroms that also characterize Christendom’s relationships with Jews 143—ones absent from classical Rome 144—serve as a reminder of how disruptive prejudice can be to social peace, as noted at the end of Section II. The problem of violence seems to stem from the begrudging aspect. Christendom only tolerated Jews based on a respect for precedent with the hope of their conversion, either immediately or during the final judgment, 145 rather than Roman pragmatic pluralism. 146 However fatuous it may be to reduce centuries of history to a single proposition, the comparison to imperial Rome shows that mere difference does not foment violence. Rather, a resistance to pluralist coexistence appears to do so, as the treatment of minorities is the acid test of democracy. 147 So, Christendom’s treatment of Jews also serves to reinforce how the embrace of subsidiarity, and not the mere incantation of precedent, is essential to social peace.

B. The Structure of Classical Subsidiarity: Five Implications for U.S. Constitutionalism

This subsection addresses classical subsidiarity’s mechanics and their implications for U.S. constitutionalism. It offers a framework for domesticating subsidiarity into U.S. constitutionalism so that municipalism might advance pluralist coexistence. The argument here first identifies how subsidiarity fits into the general U.S. constitutional scheme, drawing on Steven G. Calabresi and Lucy D. Bickford’s 2014 paper. 148 It then builds on their argument by positing five principles that classical subsidiarity incorporates into U.S. constitution, elaborating how each is grounded in the Roman localism discussed above Section III.A. 149

At a high level of generality, subsidiarity accounts for some basic features of U.S. federalism. I agree with Calabresi and Bickford that George A. Bermann’s contention during debates about including subsidiarity in the European Union’s constitution 150 is wrong. 151 Contrary to Bermann’s observation, subsidiarity does have a normative role in U.S. constitutionalism; it explains how popular sovereignty endures through the paradox of omnipotent limited governments. 152 Although U.S. constitutional law has not used the term subsidiarity, as Bermann observed, 153 it better accounts for the operation of U.S. government’s federalist structure for reasons Calabresi and Bickford elaborate. 154 They amply lay out how constitutional enforcement through judicial review and the Rehnquist Court’s commerce clause, dormant commerce clause, preemption, federal jurisdiction, and conflicts of laws jurisprudence are how the U.S. constitutional system has accommodated subsidiarity demands. 155 Here, we can summarize the gist. Consistent with the dual federalism ostensibly established in the constitutional text, 156 each governmental sphere possesses absolute power within its role. But the way U.S. constitutionalism has ensured that such raw power advances the general welfare is through checks-and-balances coordination. 157 The emergence of this coordination, denominated as the cooperative federalism that emerged during New Deal and Great Society policymaking, 158is archetypal classical subsidiarity. To take one example, the history of U.S. affordable housing policy serves as a microcosm of U.S. constitutional development from dual to cooperative federalism. For that history is a movement from the federal government owning and operating such housing to supporting local bodies doing so and then to embracing a system where the higher orders of government subsidize private developers to do so with funding and under standards administered by local bodies. 159 This movement has reflected the reality that government operates locally—there is scarcely any other way in so vast a polity. 160 But local government, in turn, is powerless to be effective without a giant’s mediation, support, and protection. From this comes civics’ description of the U.S. federalist order as one where local government primarily provides services and carries out operations and state and federal government primarily funds and regulates with coordinated overlap. 161 As sketched above in Section III.A, this basically corresponds to the complementary roles of the imperial and provincial governments under the Roman constitution. 162

Such pragmatic operation helps us to see how classical subsidiarity explains the endurance of the federalist order under the 1787 U.S. Constitution. It is important to remember the current constitutional order is not the United States’ first. The order under Articles of Confederation was the first and is conventionally understood to have failed because it left the national government unable to protect local governments. 163 To put this in terms of both Vermeule’s and Casey Conor’s more recent arguments, 164 the problem with the United States’ first attempted constitutional order was its inability to ensure that the spheres worked together toward the common good. Without omnipotent spheres mediating and checking warring factions in a transcontinental polity, 165the social tranquility that government exists to ensure is unachievable. 166

Applying classical subsidiarity to the U.S. constitutional order implies five principles correcting or clarifying prevailing deviations from the classical legal tradition in U.S. constitutionalism. They are as follows: (1) people enjoy a foundational right to local government rooted in their right of association; (2) municipal government governs local affairs; (3) subsidiarity imposes on municipalities and municipal officials a duty to regulate based on transparent, publicly declared findings of local facts and circumstances; (4) the interpretation of municipal charters and other putative sources of municipal power should be according to Cooley’s rule instead of the prevailing Dillon’s rule; and (5) higher orders’ powers should be understood as broad principles of order and justice consistent with lower bodies’ adaptation to particular circumstances. The following paragraphs elaborate the content of each in opposition to its antithesis.

First: The Right of Municipal Association. Against the prevailing notion that local government exists by the grace of State government, 167 classical subsidiarity empowers communities to form municipalities by implying a right of municipal home rule into U.S. constitutionalism. The principle empowers communities to form municipalities even in jurisdictions lacking a formal mechanism or legislative scheme for such. This right derives from the first principle of Gaius’ Institutes, specifically the right of a civitas to form its own law. To express this in more familiar terms, the right to municipal home rule is an extension of association rights. As we saw above in Section III.A, Western legal theory understands municipalities as collections of families, the right to self-govern being rooted in pre-political anthropology. 168

When applied to U.S. constitutionalism, the classical legal tradition’s principle of subsidiarity cleanses the order of ideology and roots it in human practice. As might be expected of a form rooted in free association, local government is anterior to any other form of government in the U.S. 169 This is one reason why it remains odd to conceive of self-governing local communities as depending upon, or deriving consent from, States to exist, a view that became dominant only in the twentieth century. 170 Saying “administrative subdivision” to convey some dependence on state authority to exist is a mistake that subsidiarity cures. As elaborated below in the fourth principle’s discussion of Cooley’s rule, classical subsidiarity supplies the correct understanding of how municipalities are administrative subdivisions of higher orders. Since all government exists to advance the common good, all serve the same basic ends. And so, consistent with Vermeule’s argument, 171 higher government orders such as states have a role in the regulation of local affairs. But local government is the form best suited to the ordinary regulation of such affairs based on the anthropology discussed above in Section III.A. 172 This fit makes it part of what is due to people in specific communities. 173

Second: The Presumption in Favor of Municipal Regulation of Local Affairs. Against the prevailing doctrines of the dormant commerce clause 174 and field preemption, 175 classical subsidiarity settles that municipal government is the proper organ of local regulation consistent with the first principle of Gaius’ Institutes. The most significant implication of this is not for the municipality’s powers as such but rather federal and state constitutional law. This principle mandates simplified and narrowed doctrines of dormant commerce clause and preemption that focus on sphere.

Explaining this change requires a brief overview of their prevailing understandings as applied to municipalities. Unless Congress approves the enactment or it is one where the locality seeks to favor its residents for its own programs or for access to government-owned businesses, dormant commerce clause outcomes turn on whether a local government is discriminating against foreigners. If yes, then an enactment is largely suspect. If no, then the enactment will be upheld unless the federal government has a more compelling interest, a test that has produced unpredictable outcomes. 176 As for field preemption, the doctrine holds that any area where state authority dominates precludes local regulation on the same. As a recent example illustrating the prevailing misunderstanding, a state trial court nullified New York City ordinances collectively providing for a local housing subsidy for shelter residents on the basis that state law indicated exclusive regulation of social services. 177 It did so despite the entire Anglo-American tradition of public assistance requiring local officials at the lowest level to provide assistance to those in need, 178 a tradition reflected in the text of New York’s own public assistance scheme. 179

Working in tandem with the requirement of factual specificity noted below, classical subsidiarity simplifies the inquiries to authorize municipal regulation of any local matter. The obvious exceptions would be where local authority clearly infringes upon some other municipality or encroaches upon the common spaces that higher authorities must mediate for the common good. And even in such exceptional situations, classical subsidiarity cautions the law to allow a higher order to regulate only that aspect of a local matter causing broader difficulties. As such, there would be no area of the law over which a municipality would lack authority as local affairs touch upon everything. Only the scope of its authority would be subject to judicial determination and refinement.

The general framework raises the question of what counts as a local matter. This subsection submits that the distinction largely tracks Roman law’s understanding of ius gentium versus ius civile. Implying such Roman wisdom into the U.S. constitutional scheme crystallizes the basic distinction between commercial versus social regulation. As state constitutions’ home rule texts state, 180 matters solely affecting people resident, things situated, and phenomena solely occurring, within municipal limits, are likelier to be social than commercial. Thinking of them as local is consistent with Roman law’s local deference on family law and centralization of commercial matters. 181 Understanding the law in such terms, courts also can resolve disputes about commercial municipal regulations raising issues of infringement and encroachment in such a way as to preserve local rule. Consistent with the role of determination central to CGC, classical subsidiarity authorizes a court to require that a municipality fashion an accommodation for non-residents to avoid infringement and encroachment, like the United States Supreme Court required of the federal government with the contraception mandate to avoid a free exercise problem. 182

Third: Specificity as a Formal Requirement. Against the conventional rational basis rule that upholds regulation based on any conceivable sound reason and not actual stated ones, 183classical subsidiarity’s deference to localities comes at a cost: a formal requirement enabling higher bodies to confirm local regulation’s propriety. The formal requirement is that municipalities regulate 184 based on published findings of facts about a local community’s specific regulatory circumstances. Such statements serve two purposes. The first is that it reflects the actual exercise of subsidiarity, which is circumstantial. As one scholar has articulated this aspect,

[s]ubsidiarity by its very terms refers to the need for more contextual, fact-specific decisions, and it necessarily works, if at all, as much more through rhetoric and politics as through formal doctrine. The detailed criteria by which subsidiarity operates are not suited to abstract reasoning ex ante, but instead need to be worked out over time, and the conclusions to which it leads will always be contextual and dynamic, containing the fluidity and flexibility of [practical judgment]. 185

Second, factual specificity also circumscribes the limits of municipal regulation, ensuring that it stays within the limits imposed by higher spheres’ regulatory remit. Such limits are what the doctrines of the dormant commerce clause and preemption appear to capture. To concretize this, where a municipality regulates a matter based on its declared empirical effect on a local affair, there can be no genuine concern that the regulation encroaches on other communities’ rights, or infringes on matters that are to be mediated by a higher order. Specified particular facts ensure that the municipality is regulating for the benefit of the common good rather than usurping a function more properly exercised by a higher order. As such, it follows the Roman principle that ius civile – a community’s rules regulating local affairs – be published, as was the case with Roman law’s foundational Twelve Tables at the demand of commoners. 186

Fourth: Cooley’s Rule as the Standard for Interpreting Municipal Authority. Against Dillon’s Rule, the prevailing standard for interpreting the scope of municipal authority, classical subsidiarity promotes the more accurate formulation found in Cooley’s Rule. Explanation again requires an overview of the current understanding. In the study of local government, Dillon’s Rule refers to a doctrine that has served two purposes. First, it has reinforced the notion that local governments have no inherent power, the prevailing doctrine within the U.S. legal systems 187 wholly premised on the ahistorical notion that local governments are creatures of States 188 discussed above with the second principle. Second, it reinforces such entrenchment by limiting local governments to exercising only those powers (1) expressly conferred by the sole sources of local government authority under prevailing doctrine such as state constitutions, statutes, or home rule charters, (2) necessarily or fairly implied in the expressly granted powers, or (3) essential to what the municipality or quasi-corporation was established for. 189

By contrast, Cooley’s Rule provides an equally broad statement of municipal power rooted in subsidiarity. For it provides that

[i]t is axiomatic that the management of purely local affairs belongs to the people concerned, not only because of being their own affairs, but because they will best understand, and be most competent to manage them. The continued and permanent existence of local government is, therefore, assumed in all the state constitutions, and is matter of constitutional right, even when not in terms expressly provided for. It would not be competent to dispense with it by statute. […T]he local community is entitled to local government, [but] it cannot claim, as against the State, any particular charter or form of local government. 190

That municipal power is rooted in localities’ superior competence over local affairs is reflected in other limits that Cooley prescribes on states’ powers: the inability to coerce localities in matters of purely local convenience, their powerlessness to appoint officers to take charge of local affairs, and the illegality of state law authorizations to tax residents over matters not of local interests or to regulate individuals outside the municipality. 191 In a word, Cooley’s Rule is one of plenary authority within the local sphere, consistent with the discussion above. 192

In endorsing Cooley’s Rule over Dillon’s, this Article nonetheless submits that subsidiarity municipalism serves to refine our understanding of it. This is because the traditional formulation of Cooley’s Rule remains steeped in the sort of sovereignty stuff that, as Vermeule rightly holds, is beside the point. 193 Rather than some text’s formulation of whether a municipal government should be understood to have the inherent power, local power should be understood as omnipotence within a sphere of competence and for the sake of sound order. As stated above with the second principle, matters that have no local dimension – that are about regional or national relations – must be left for resolution by higher orders of government. So too must the regional or national dimensions of local matters. This segues neatly to the final principle.

Fifth: Generality as a Standard for Interpreting Higher Orders’ Power. Finally, against federal and state governments increasingly granular regulation, 194 classical subsidiarity empowers inferior bodies to regulate in service of humanity, albeit indirectly. Consistent with the cooperative federalism it explains, 195 classical subsidiarity implies into U.S. constitutionalism an understanding of higher orders’ enactments as broad statements of order and justice adaptable to local circumstances. 196 Such an understanding corresponds to Roman law’s distinction between ius gentium for imperial matters and ius civile for muddling through the everyday discussed above in Section III.A. 197 So when incorporated into U.S. Constitution, the principle does two things. Not only does it reinforce the understanding of the federal government as sovereign over certain areas without possessing general police power, 198 even where its enumerated authority encroaches on local affairs such as, say, grain production or roadside motel operations. 199 It also corrects how we are to understand states’ exercise of broad police powers in relation to local communities. In the light of classical subsidiarity, even verbose, detailed state regulatory schemes must be understood as default standards or norms that local orders can adapt to local circumstances. In other terms, it further clarifies field preemption by centering on what aspects are regulated rather than how much a state purports to regulate. 200 And consistent with Roman practice, it treats elaborate state schemes as local models guiding local regulation but not precluding local variation. 201

C. How Subsidiarity Can Serve Dissenters’ Interests

Touring legal history brings us to the Article’s central point of how subsidiarity helps commoners to coexist under the CGC. Preceding from an understanding of municipal government as an instrument of the common good, this subsection elaborates how subsidiarity municipalism allows localities to be spaces where outsiders can live their lives and enjoy temporal goods within a Traditional polity. Put another way, subsidiarity municipalism represents the proper balance between Tradition’s sense that all law exists to provide “the peaceful condition needed to get the benefits of social life and avoid the burdens of contention” 202 and the practical difficulties resulting from diverse interpretations of what achieves this. 203 In a polity so vast as to be made up of regions that, in one account, amount to nations onto themselves, 204 Roman wisdom is vital.

Because the concept described here is better explained concretely, this Article applies the framework elaborated above in Section III.B to live controversies. The aim is to demonstrate that subsidiarity advances a practical and prudential pluralism that even Vermeule concedes. 205 To show what difference subsidiarity municipalism can make to how dissenters can live their lives, it engages issues of human sexuality – abortion, same-sex existence, and nonmarital sex – that legal commentary regards Dobbs to threaten. 206 So that this subsection’s approach can be received properly, the subsection first contextualizes the discussion for progressives.

For them, some clarity is needed about the type of municipal progressivism that can solve the problems that the Dobbs decision is thought to have created. This subsection argues that subsidiarity municipalism can advance a progressivism closer to the conceptualization that Vermeule deprecates as liturgical: 207law’s recognition that, consistent with Roman practice, people should enjoy a measure of freedom with private matters. 208It wholly prescinds from a conception of municipal progressivism as a space for sweeping exercises of government power producing broad socioeconomic egalitarianism; that is, the conception of progressivism as the use of authority “to regulate economic problems [and] ameliorate social ills.” 209 It skips over this for two interrelated reasons informed by Roman practice. It first does so as a matter of precedent. As elaborated above in Section III.A, 210 the classical legal tradition afforded more local liberty with private law matters than with commercial ones. 211 Roman reflection and practice segue to the second reason, one in the spirit of Roman pragmatism. This subsection omits the use of subsidiarity municipalism for broad socioeconomic regulation because it agrees with local government law expert Richard Briffault that such is not achievable. Well before he wrote about “the new preemption” even further constraining local government regulatory authority, 212Professor Briffault critiqued his peers’ Charles M. Tiebout and Gerald E. Frug’s progressive vision of municipal power. Tiebout and Frug had argued that municipalities can advance various progressive policy goals such as operating banks as well as insurance companies, providing housing, creating cooperatives, and running profit-making business in such a manner as to empower workers, the poor, and consumers. 213 Briffault rejected this based on the practical reality that municipalities are often afflicted with ungovernable multiplicity and residents’ free movement can dissipate the tax base such measures require. 214 So, while the framework developed above is in principle amenable to some forms of local economic regulation, such is unlikely to work in practice.

With this clarification, this subsection picks back up the thread of concretizing. Let us consider higher orders such as the State of Alabama that have enshrined, as constitutional lodestars, a right to life from conception until natural death, 215 or others that take up Project 2025’s exhortation to so elevate traditional marriage 216 and the welfare of the nuclear family. 217 Let us even suppose that, as Project 2025 further threatens, 218the federal government adopts or is sued into adopting 219 policies elevating these to the same. How might subsidiarity municipalism apply to defend the existence of ordinary people with unwanted pregnancies, in same-sex marriages, or engaging in a variety of nonmarital sex within such polities? This subsection elaborates a path based on the framework stated above in Section III.B.

Step One: Forming Dissenting Communities. As a preliminary matter, the framework affords communities of likeminded dissenters the right to form their own municipalities within such a polity. Think of counties within states or cities, towns, or villages within counties formed to enfranchise communities of dissidents by granting them control and administration of their quotidian affairs. Under the framework, dissenters can do so even within polities appearing to require state commissions or bodies to approve or reject proposed municipalities. 220 One can anticipate the main controversy being some higher order – likely the state itself or some governor – seeking to hamstring or prevent the formation of such a municipality, presumably by repealing any positive law formation procedure that current law presupposes 221or pursuing one of the new preemption measures referenced above. 222 Happily, even in such a situation, the classical legal tradition also supplies the solution: the default principle of lex majoris partis for any deliberate collection of people. 223 According to this, a simple majority within a defined territorial space can declare a new municipality, aiding likeminded dissidents to group and organize themselves under their own rule. The classical default is even more beneficial than Cooley’s Rule discussed above in Section III.B. For in recognizing the inherent right to local government, Cooley’s Rule nonetheless concedes that the higher order of a State has the power to prescribe the form of government. 224 Since this also means that states can specify the procedures by which communities can form a municipality, Cooley’s Rule affords fodder for obstruction that is absent from the default principle. Of course, where the polity contains a procedure for formation, dissidents can simply use it and organize themselves around supermajority requirements or other procedural hurdles.

Steps Two and Three: Using Municipal Government to Pass Local Laws Protecting Dissenters’ Liberties. Here, the requirements of factual specificity and the presumption in favor of regulating local affairs are merged because, on the ground, they are seamless, as my above framing suggests. Continuing with our case of progressive municipality within a prolife polity, subsidiarity affords options that need not look like open defiance, or some formal doctrine of nullification. Rather, subsidiarity municipalism affords local space for liberty rooted in genuine common-good concerns. So, for instance, a municipality can, consistent with a Right to Life constitution, adopt a policy declining to prosecute domestic matters. Such a policy based on findings of fact about causes of resident hospitalizations or the limited resources meets a natural law criterion. 225 Such an enactment passes the mark for two reasons.

First, as covered above in Section III.B with reference to Cédric Brélaz’s scholarship, 226 Roman law’s classical subsidiarity recognized a right to local criminal administration. The Roman structure afforded localities the power to create offices such as paraphylakes, to give them a distinct role in law enforcement toward protecting local interests, and to regulate the manner and scope of their exercising power. 227 So, a local government determining to limit the circumstances where local law enforcement power can be exercised would be well within what the classical legal tradition has recognized.

Second, whatever Tradition’s views on whether a polity committed to the defense of life from conception until natural death must criminalize abortion, the law understands the protection of unborn life to be complicated by its dependence upon another and her cooperation. 228 This insuperable complexity has led to the issue to be regulated outside the criminal justice system. This is the narrow sense, recognized both in Part VI of Justice Blackmun’s Roe v. Wade majority opinion 229 and in Wolfgang P. Müller’s study, 230 that even during Christendom, the de facto decriminalization of abortion was thought perfectly consistent with the sanctity of human life. For example, Müller’s study notes that amid the expansion of scholastic theology’s denunciation of abortion and classification of it as a felony, juries determining the secular prosecution of abortion in modern Czechia and England widely refused to convict. 231 Emphasizing this refusal’s roots in subsidiarity, Müller’s study observes that such lay jurors came to reject scholasticism’s equation of abortion with criminal prosecution based on local concerns. The following passage from his study conveys this spirit:

In view of learned recognition and prosecutorial indications suggesting that induced miscarriages stopped being a felony in English common law from early in the reign of Edward III, what factors were responsible for the swift abandonment of judicial rigors after the thirteenth century? At some distance and in a different legal context, lay jurors meeting at Brno [Czechia] around 1353 produced important evidence to the effect that the scholastic equation of abortion with homicidium did not enjoy the unanimous support of ordinary Christians and was resented especially by groups concerned with their honorable status and standing in the community. One faction of the Moravian Schöffen [judicial panel] pointed out that, by custom, the killing of unborn and newborn humans was to be left to the discretion of the delivering mothers. That panel members appointed to return criminal verdicts in England were similarly inclined to regard the death and survival of nascent children as properly pertaining to the domain of parenthood, in spite of the supervisory claims advanced by secular authorities, can also be inferred from a wider selection of court data. 232

In a similar vein, a municipality can respect a higher sphere’s principle of Traditional marriage while also dealing with the perennial dilemma of sex work. To take an example of what such a policy can look like, consider local regulation modeled on New York County District Attorney Alvin Bragg’s January 3, 2022 Policy and Procedure Memorandum. That policy disclaims or narrows the prosecution of prostitution, among other crimes, in the interest of safety and fairness. 233 As explained in that memorandum, the District Attorney adopted such a policy toward focusing resources to incarcerate only for offenses causing the most significant harm, on the logic that such would make the population safer in view of sociological data. 234 Such regulatory practice follows even Christendom’s practice with sex work, which was recognized and regulated as a necessary evil. 235 Reflecting subsidiarity, municipal authorities throughout medieval Europe placed it under strict control without abolishing it; and it was they, not central authorities, who were charged with regulating it. 236 Such control amounted to establishing licensed and occasionally municipally owned brothels and red-light districts. 237 In England, even an ecclesiastical figure, the Bishop of Winchester, regulated brothels in his capacity as a property owner, subjecting disputes arising out of their operation to the jurisdiction of his court. 238 The sanction and regulation of sex work was rooted in a pragmatism that we should now recognize as misogynistic. It was a response to activity meeting male demand that helped preserve social order by “preventing homosexuality, rape, and seduction” consistent with the prevention of spreading disease. 239 This misogynistic pragmatism accounts for one of its salient features common to all regulatory regimes across continental Europe: its restriction to specified areas within a municipality. 240 Christendom’s practice of regulated acceptance seamlessly carried over into the United States, where it was a common practice from the latter half of the nineteenth century into the early twentieth. 241 So, municipal pragmatism about human sexuality amid general norms promoting chastity 242 is part of a venerable tradition.

To take yet a third example emerging in the wake of Dobbs, subsidiarity would also allow municipalities to protect the practical gains of same-sex marriage at a local level, where people live. If Obergefell were to be overturned, 243 and if higher orders were to adopt constitutional provisions enshrining Traditional marriage, subsidiarity would still allow municipalities to recognize and register same-sex marriages. Such ordinances might be a regulatory scheme extending to same-sex couples all rights such as visitation and inheritance associated with their status and offering them a local credit or subsidy offsetting the absence of federal and state tax benefits. Allowing this would be wholly consistent with what José Luis Alonso’s scholarship observes of Roman Egypt 244 and justified by Ulpian’s principle 245 in putting similarly situated same-sex residents in the same position as their similarly situated neighbors, so advancing tranquility. And within the U.S. constitutional order, it seems unavoidable that such local same-sex marriages must be entitled to export such social rights throughout the country incidental to the couples’ fundamental right of travel. 246

Steps Four and Five: Judicial Affirmation of Municipal Pragmatism: The last point of concretization is to imagine how courts should determine the inevitable lawsuits that some higher order will bring challenging the municipality’s local regulation as undermining the polity’s norms. Or, as illustrated by the recent imbroglio involving a Florida State Attorney, 247 we can anticipate higher authorities threatening to suspend or remove local officers exercising administrative discretion in favor of liberty. As with steps two and three, these steps are merged because the application of Cooley’s Rule and the principle of higher generality flow together. Let us suppose that the municipality or municipal official enacting the nondisturbance policy suggested above has stated it provocatively or unartfully, pontificating liturgically or purporting to arrogate general authority that they lack. A court should still uphold such a local regulation or prevent the suspension or removal of the issuing municipal officer so long as the regulation can be cabined to local affairs and subjects. The point can be stated more strongly: a court should cabin a local law toward upholding it or preserving the local officers’ prerogatives. Even if a local municipality’s nondisturbance policy goes one step further than nolle prosequi and purports to create obligations—consider a local law with the same requirements as those in the Emergency Medical Treatment and Labor Act (EMTALA) 248 at issue in the recent Idaho abortion litigation 249—that dispute should still be resolved in favor of such local regulation. The key would be to construe the measure as a regulation governing hospitals administering emergency care to local residents, and not a general regulation of hospitals that just so happen to be located within municipal limits. Ius lies in the difference between the two. When refined as a pronouncement upon local matters, such an ordinance can properly and sensibly be understood as a local regulation on emergency care, not some local opinion on a broader societal question committed to a higher order. In this sense, a “Right to Life” constitutional precept can be disregarded as irrelevant to such regulation where it focuses on issues prescinding from the lofty question. It is precisely because a higher orders’ enactments are understood as general and instructive in contrast to lower orders’ specific and functional solutions to identified problems that apparent conflicts can be avoided.

In a similar vein, both that local policy of Red-Light Districts and that sort of local ordinance providing for local same-sex couples’ companionship rights described above in steps two and three are also compatible with a regime of Traditional marriage. With these, the key is again understanding them as provisions for local residents solving identified social problems and not as a general statement of liberation from Tradition norms.

D. How Subsidiarity Municipalism Is Consistent with Natural Law’s Virtue Regulation

So far, this Article’s argument has largely been addressed to the Left in arguing that subsidiarity municipalism can protect dissenters’ right of coexistence. But one last aspect of subsidiarity municipalism must be taken up and is directed to Traditionalists: the matter of whether it represents a legitimate interpretation of the classical legal tradition. Because the classical legal tradition holds that law exists to encourage human flourishing ordered to humans’ supernatural end, including by inculcating virtue and right beliefs, 250 this subsection must address whether subsidiarity municipalism undermines that commitment. In essence, the question is whether municipalities, in this Article’s framings, are the very zones of disorder Vermeule’s notion of positive subsidiarity is meant to combat. 251 If they are merely that, then subsidiarity municipalism is some counterfeit version of a natural law legalism.

To address this question, this subsection develops two points. Before doing so, however, it frames how we should think about what Tradition ordains. A book Vermeule’s CGC heavily relies on 252 acknowledges that natural law reasoning is perfectly consistent with outcomes that can be considered progressive in the sense mentioned above in Section III.B. Indeed, the natural law was cited as a source for the right to privacy that Traditionalist legal scholars have long decried. 253 Even more to the point, Vermeule’s invocation of Ronald Dworkin’s arguments 254 shows that natural law principles are susceptible to a diversity of conclusions, a point that Conor Casey explicitly makes. 255 So, the two points developed here account for how Tradition is open to what we may classify as progressive outcomes, a natural consequence of Vermeule’s point that legal problems require determination because principles must be concretized. 256

Turning now to the points, Aquinas’ political thought, so instrumental to CGC, supplies the foundation for progressive outcomes. As this Article itself illustrates, Aquinas has been cited both for liberal democracy and for sharp authoritarianism because he maintained two ideas in tension. 257 The first is the Aristotelian notion that human beings, as social animals, are better together in community and society, where they can acquire virtue through socialization. 258 The second is the notion, based on Augustine of Hippo’s political thought, that the human person must not be swallowed up in the group and retains an independence from society. 259 From this flows the two ways in which the subsidiarity municipalism sketched here is consistent with the classical legal tradition developed by Aquinas.

First, simply as regulated structures, municipalities advance the common good through the idea of sound public order. In their actual function, they bring dissenters under Tradition solely through ordering them into community and requiring that they operate according to sound reason. This inculcates virtues of stability and community. This basic virtue-as-socialization is what Aquinas’ political thought seemed to have aimed for, eschewing the notion that law should regulate all aspects of morality. 260

Second, subsidiarity municipalism provides concrete answers to the question of what is to be done with many people outside norms such as people who do not assume the health risks and toll of pregnancy despite optimism about adoption. 261 Or gay people who are and have been in committed long term relationships such as Edith Windsor and Thea Speyr. 262 Or people who, for a variety of reasons, buy and sell sex. 263 To put this question from the perspective of Tradition seeking to inculcate respect for life and public order, there remains the issue of how exactly unborn lives are to be saved when they require the cooperation of women’s wombs. Or what to do with committed and stable couples who happen not to be heterosexual. Or what to do about human passions such as sexual desire, desperation, and economic necessity whose confluence can produce public health and safety problems. Tradition allows for progressive solutions because, as discussed above in Section III.A, governments closest to human communities have the role that Vermeule assigns to administrative agencies in CGC: that of determining how immutable principles of justice apply to specific situations. 264 The only difference between the argument here and Vermeule’s is this: whereas common good administrative agencies determine how general laws apply to specific factual circumstances under the Administrative Procedure Act (APA)’s various categories, 265 municipalities and municipal officials issue ordinances and adopt policies adapting the entire natural law framework to particular, discrete communities. In other terms, municipalities administer broad justice at a more intimate level, regulating the mundane. 266 As such, subsidiarity municipalism can produce a dynamic and developing constitutional structure and order without ceasing to be law as a rational ordering. 267

So, progressive modi vivendi are admissible outcomes within a classical polity because dissenters are Aristotelian natural human communities. If the takeaway from George Chancey’s history is that gay culture emerges from urbanity, 268for instance, then we can fairly conclude that there have been gay communities so long as there have been cities. This is a conclusion only reinforced by gay and Roman Catholic social historian John Boswell’s hypothesis of same-sex unions in antiquity and Christendom. 269 Even that scholarship rejecting the notion that these were same sex marriages in the modern sense nonetheless recognizes that they were at least some form of natural human community. 270 It is such a same-sex human community that John Henry Newman appears to have been sustained by, 271 showing how organic human communities are among the common goods 272 that subsidiarity municipalism as a natural law concept should further.

Free human movement also raises practical questions that can rationally be worked out progressively, such as with schemes guaranteeing confidentiality and immunity to conduce cooperation and local tranquility. One of higher authorities’ most prominent challenges is their inability to effectively enforce criminal laws against aspects of human existence absent local authorities’ assistance. 273 Without local buy-in and information from people on the ground, the higher orders cannot enforce norms. 274 Human movement always presents operational challenges that prevent higher orders from fulfilling their remit without local assistance, if for no other reason that they lack information required for enforcement. To be clear, this subsection acknowledges that higher governmental authorities have devised scaled systems of surveillance, arrest, and pressure. For example, the racistly named “Operation Wetback,” or post-war grand scale deportation of actually and apparently undocumented Mexicans, was such a moment. 275 So too is the present moment during these early days of the Trump Administration. But the story of that infamous operation also illustrates the reality. It worked only because it had ground support, 276 the type providing reliable inside information sufficient to establish probable cause. 277

With all that said, the argument here readily acknowledges that the practical liberty available under subsidiarity municipalism costs what Obergefell provides: dignity understood to mean the social reality of others’ acceptance and affirmation, or actual lived equality. 278 The subsection acknowledges that the reproductive freedom available under subsidiarity municipalism is steeped in the indignity of stigma as it seems to revive the notion that abortions should be safe, legal, and rare, 279and not a part of equal citizenship. 280 Or it undermines the dignity of sex work as work by confining it to municipal margins. In response, this subsection points out that one principled way to read Vermeule’s objection to the liturgical aspect of progressive constitutionalism 281 is as a rejection of dignity as law’s business. So understood, subsidiarity municipalism would change nothing because, in this sense, dignity has always been beyond the law’s scope. Law lacks jurisdiction over hearts and minds, the reason that school segregation persists throughout the United States despite the enactment of sweeping civil rights frameworks long ago. 282 Law is most useful in creating structural conditions favorable to those human interactions that produce conversion. 283 This corrective helps to focus energy and effort where such will be fruitful in protecting commoners’ gains rather than futilely leaving vulnerable groups exposed by the pursuit of liturgical conversion rather than concrete outcomes.

What then of a related Traditionalist concern, Conor Casey’s description of CGC as recognizing law’s role in inculcating virtue and beliefs? 284 Subsidiarity municipalism also allows for the law to advance moral virtue but only through its didactic and exemplary dimensions. Building on the salutary sense in which the U.S. local communities are described as laboratories of democracy, 285 subsidiarity municipalism allows the law to inculcate moral virtue structurally, through the formation of counterweighing municipalities engaging in Traditionalist regulation. Put somewhat differently, this subsection’s argument understands Conor Casey’s point to be satisfied by authorizing spaces for organic, human persuasion. To dispel any doubt, just as subsidiarity municipalism allows the formation of communities enabling dissenters to coexist and protect their temporal goods, it also allows space for Traditionalist communities to demonstrate virtuous living and so attract by example. The argument in Section III.C also allows for municipalities like Ave Maria, Florida 286 to adopt all forms of social regulation within municipal limits free of the individual rights claims Vermeule rejects as a distortion of natural rights. 287 Under the subsidiarity municipalism framework, nothing in the federal constitution’s speech clauses would prevent a local community, based on the same sound findings of fact and local circumstances, from regulating the consumption of pornography within municipal limits. 288 Because others can form their own community, can protect the right to consuming pornography based on specific factual circumstances, and can vote with their feet, a municipality engaging in Traditional regulation is within its power.

In arguing this, this subsection acknowledges that, for many Traditionalists, communities of virtue depend on widespread affirmation because many aspects of public morality are difficult. For example, many Traditionalists recognize that marriage and parenthood are moral commitments upon which a social order depends that require social buy-in. 289 Under this account, such can be undermined by free movement. But no real alternative is achievable in a pluralist society. Just as, discussed above, progressives must bear indignity to coexist with others, Traditionalists must pay the price of restraint. That people must be left to some measure of independence from coercion represents Western law’s reflection on Tradition in light of historical experience, a conclusion that the Roman Catholic Church has reached. 290 It is an experience instructing that people must not be compelled to virtue through state apparatus and cautioning to rely on practical and prudential pluralism in teaching natural law so as to maintain peace and order.