Raich and “subsidiarity”

I’m grateful to Tom, Marty, and the SCOTUSblog crew for facilitating this fascinating discussion of the Raich case. As Marty noted, there is a lively conversation going on at “Mirror of Justice” blog on the implications of the “subsidiarity” principle for the question presented in Raich.

“Subsidiarity,” for our purposes, is “that most weighty principle, which cannot be set aside or changed, [and which] 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.” (See here for more).

To be sure, the question whether our Constitution authorizes Congress to enact and enforce an exceptionless ban on the possession and / or use of marijuana is different from the question whether such a ban is wise, and also from the question whether it accords with a commitment to the “subsidiarity” principle. That said, the federalism- and enumerated-powers work of several of the Justices (I’m thinking, in particular, of Justice O’Connor) has often invoked themes (experimentation, localism, accountability) that sound in subsidiarity. So, consideration of that principle might be useful as we analyze and evaluate Raich.

Rick