2 Colum. J. Eur. L. 573 (1996)

Gerald L. Neuman. Professor of Law, Columbia University School of Law.

In surveying insights gained from these two symposia, I will not presume to replicate George Bermann’s fine recapitulation of the first symposium. Rather I will try to make a series of comparative observations on what I have learned, from an American point of view, under the general heading “Subsidiarity, Harmonization, and their Values.

Speakers have repeatedly invoked the Supreme Court’s opinion in New York v. United States. Early in that opinion, Justice O’Connor made the following disclaimer:

The benefits of this federal structure have been extensively catalogued elsewhere, but they need not concern us here. Our task would be the same even if one couldprove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution.

Then, in a manner too predictable to be called ironic, O’Connor followed this disclaimer by imposing a brand-new doctrine of federalism – the anti- commandeering principle – which may or may not be normatively attractive, but which lacks persuasive grounding in either text or history. On a prior occasion, Richard Briffault has argued that a disclaimer like O’Connor’s defines the proper judicial role in U.S. federalism. The values served by subsidiarity are diverse and difficult to quantify. In any given case, whether subsidiarity actually promotes those values, and to what degree, and how those benefits compare with the conflicting values served by federal legislation, are matters ill-suited to judicial determination. George Bermann has similarly argued that the European Court of Justice should limit itself to a procedural review of subsidiarity – Rudolf Steinberg disagrees.

But we are not judges. Scholars and policymakers both may properly ask what values are served by subsidiarity in the European Union and the United States, in general, and in the particular cases where subsidiarity claims are respected or overridden. As Ingolf Pernice reminds us, federalism is not intended to benefit the states or public officials as an end in itself, but to benefit their people. I would like to take that statement here in the opposite of the sense in which Justice O’Connor meant it. O’Connor meant that state sovereignty should be protected in formal terms, and that we should treat state sovereignty as a mechanism whose protection would ultimately produce benefits for the people. As scholars, we are entitled to look behind the state in each case, and ask who benefits.

For the United States, Justice O’Connor has summarized the values served by federalism as follows:

It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.

Perhaps the principal benefit of the federalist system is a check on abuses of government power.

The virtues ascribed to subsidiarity in the European context are similar, though not identical. For example, George Bermann has summarized the values underlying subsidiarity as “self-determination and accountability, political liberty, flexibility, preservation of identities, diversity, and respect for internaldivisions of component states,” plus the possible value – if it counts as a value per se – of deregulation.”