On December 9, 2008, as I read through the federal criminal complaint against the latest Illinois governor to be indicted for the merest portion of his crimes, I could not help but feel uneasy. Sure, it was great fun to imagine Governor Hot Rod sweating it out in his holding cell, awaiting arraignment later in the day. Even the most casual observer of Illinois politics knew that Milorad Blagojevich, our S.O.B., had to be corrupt. After all, you don’t get elected governor of Illinois as a reformer if you actually are one.
The unease did not abate as Aaron Wolf and I watched a webcast later that morning of the press conference held by U.S. District Attorney Patrick Fitzgerald. The assembled reporters danced around the obvious questions, and Fitzgerald followed their lead. What is the actual federal crime of which Blagojevich is accused? Is there one? Aren’t Blagojevich’s transgressions, both those named in the criminal complaint and those for which he will probably never be indicted, state matters? Isn’t this a bit like prosecuting Al Capone for income-tax evasion, the main difference being that income-tax evasion was a federal crime, and Capone was guilty of it?
If there were an actual federal crime involved, that might be one thing; but the two counts leveled against Blagojevich stretch federal law so far as to make it meaningless. Or, rather, they stretch it so far as to make it absolute—any crime committed by an elected official of a state, and virtually any crime committed by a mere citizen, could be covered under their penumbra.
The first count alleges that Blagojevich and John Harris, his chief of staff, “did, [sic] conspire with each other and with others to devise and participate in a scheme to defraud the State of Illinois and the people of the State of Illinois, of the honest services” of Blagojevich and Harris. It is easy to see how this could be a state matter, but it only becomes a federal crime through a subordinate clause: “in furtherance of which the mails and interstate wire communications would be used,” in violation of various sections of Title 18 of the United States Code.
The second count alleges that the governor and his chief of staff “corruptly solicited and demanded a thing of value, namely, the firing of certain Chicago Tribune editorial members responsible for widely-circulated editorials critical of” the governor, in exchange for which they allegedly intended to provide
millions of dollars in financial assistance by the State of Illinois, including through the Illinois Finance Authority, an agency of the State of Illinois, to the Tribune Company involving the Wrigley Field baseball stadium.
This is certainly worthy of state prosecution, but why should it be considered a federal crime? Because Blagojevich and Harris are
agents of the State of Illinois, a State government which during a one-year period, beginning January 1, 2008 and continuing to the present, received federal benefits in excess of $10,000.
In a line sure to send a chill down the spines of evangelical dispensationalists and rad-trad Catholics, this second count notes that these actions violate “Title 18, United States Code, Sections 666(a)(1)(B) and 2.”
In the end, though, the Blagojevich arrest and indictment present a more mundane, yet perhaps more far-reaching, concern than the coming of the end times and the rise of the Antichrist. As contributing editor Clyde Wilson noted on the Chronicles website, “the idea of the FBI arresting a governor is disturbing” and “a very bad precedent.” The U.S. Constitution has long been a dead letter; federalism exists today in name only; yet it is hard not to sense that a broader principle even than the traditions of the American political system has been violated here.
In the Catholic tradition, we call that principle subsidiarity—the idea that a larger, higher, or more centralized authority should not usurp the rightful duties and responsibilities of a smaller, lower, or decentralized one. The framers of both the Articles of Confederation and the U.S. Constitution did not use the term, but the systems of federalism established under both documents adhered to the principle, each in its own way.
Subsidiarity is poorly understood. Many Catholics who claim to support the principle characterize it as the idea that higher authorities should never step in unless lower authorities fail to fulfill their responsibilities. I once had a debate with a Catholic traditionalist who argued that, under subsidiarity, overturning Roe v. Wade was not good enough, because some states would fail to protect the unborn. Therefore, nothing short of a Human Life Amendment to the Constitution was acceptable. Similarly, leaving the regulation of marriage to the states was out of the question, now that some states have legalized “gay marriage.” Their failure to exercise their responsibilities in accordance with Christian teaching on marriage meant that the federal government not only could step in, but must step in.
Since vocal Catholic “defenders” of subsidiarity make such arguments, it is not surprising that another common misconception, especially among those who are skeptical of the influence of the Catholic Church on politics, is that (in the recent words of one European journalist) subsidiarity means “that the power rests at the top . . . but the power at the top will let some of it trickle down as it sees fit.”
Both sides are wrong. The most cogent summary of the principle of subsidiarity is found in Pope Pius XI’s 1931 social encyclical, Quadragesimo anno. Building on the work of his predecessor, Pope Leo XIII, in Rerum novarum (1891), Pope Pius writes (paragraph 79):
As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations. Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.
Phrases such as “fixed and unshaken,” “gravely wrong,” “injustice,” “grave evil,” and “disturbance of right order” do not allow for a whole lot of wiggle room. Even more important, however, is the Holy Father’s choice of verb to describe the responsibilities of subsidiary organizations: He speaks of what they “can do,” without qualification. He does not go on to say that if they deliberately fail to do that which they can do, it is no longer “a grave evil and disturbance of right order” for a larger, higher, or more centralized authority to usurp the power that rightly belongs to a smaller, lower, or decentralized one.
This isn’t sloppiness on Pius XI’s part, nor is it a deliberate attempt to hide some dark Catholic belief that power flows from the center and is held by families and local governments and other intermediary institutions only at the whim of the centralized state, which owes its power to the Supreme Pontiff. Rather, it is a classic statement of the traditional Christian understanding of moral and social order: There is a place for everything, and everything in its place.
The proper authorities in the state of Illinois could have handled the Blagojevich problem, as the impeachment proceedings in the Illinois General Assembly prove. They chose not to. And the citizens of Illinois, who could have demanded that their elected officials fulfill their sworn responsibilities to uphold the Illinois constitution, chose to look the other way, too. Neither failure represents an inability to carry out their responsibilities, and thus neither justifies the “grave evil and disturbance of right order” of a federal intervention.
Pius XI wrote Quadragesimo anno at a time of unprecedented centralization and destruction of Edmund Burke’s “little platoons” that are “the first principle . . . of public affections . . . the first link in the series by which we proceed toward a love to our country and to mankind.” Today, to quote the typically pithy assessment of Burke’s latter-day disciple Russell Kirk, the situation is “much worse.” Subsidiarity, Pius XI saw, was the key to the return to right order, which would mean the limitation rather than the expansion of the centralized state:
When we speak of the reform of institutions, the State comes chiefly to mind, not as if universal well-being were to be expected from its activity, but because things have come to such a pass through the evil of what we have termed “individualism” that, following upon the overthrow and near extinction of that rich social life which was once highly developed through associations of various kinds, there remain virtually only individuals and the State. This is to the great harm of the State itself; for, with a structure of social governance lost, and with the taking over of all the burdens which the wrecked associations once bore, the State has been overwhelmed and crushed by almost infinite tasks and duties.
Should Governor Hot Rod be convicted on federal charges, I won’t shed a tear for him—he deserves far worse than a few years lounging around a federal country club, with a weekly “Get Out of Jail Free” card to meet his family and political cronies on Saturday morning at a local restaurant for breakfast. But the successful prosecution of a governor who was indicted while still in office would set, as Dr. Wilson rightly stated, a very bad precedent.
While the American constitutional order may have all but crumbled into dust, subsidiarity, as a broader principle, still stands—for the moment. Defending it, even in—or perhaps, especially in—distasteful situations such as the strange case of Milorad Blagojevich, is the first step toward restoring a sane political order in the United States.
And think of the delicious irony if a reinvigorated federal system were to spring forth from the Land of Lincoln.
This article first appeared in the March 2009 issue of Chronicles: A Magazine of American Culture.