Magisterial Federalism

Wolfgang Musculus on Emperors and Magistrates

Imagine you’re back in the Holy Roman Empire. You’re a prince, like Otto Henry, one time Elector Palatine. Pre-Augsburg Settlement (1555), one question would be whether your sovereignty is derivative of the emperor, or whether it is in some sense parallel and, therefore, subordinate only in terms of scope. More concretely, does a German prince in the Schmalkaldic League have sufficient authority to exercise care for religion within his own principality, and even determine the denomination therein, without violating his obligations to the emperor?

Wolfgang Musculus argues that, through a sort of subsidiary principle, he would. Magistrates “which haue the meere [and] peculiar dominion upon the subiects, hauing the power of the sworde, the gouernance of mans life, and authoritie to make lawes, and that they neede not to require the consent of any superior thereunto.”

This is actually good for all parties concerned, he says.

How is this so? First, all power comes from and is ordained by God, and “surely not onely the power of the Emperor, but of all other Magistrates also is appointed by him.” Second, “euery power that beareth a sworde, is the minister of God, as the same Apostle testifieth: Ergo the power not only of the Emperor, but of other Magistrates also is the minister of Godde.” Third, all are bound by God’s law. Fourth, if all are bound by God’s law then they are also charged with enforcing it (according to the first and second reasons). Fifth, the authority or ministry of the magistrate corresponds to “wherein thei be bounde to serue God” and their power must, therefore “be directed unto this ende, that their subiectes may lieu commodiously, honestly, and godly.” Given what Musculus has already established, these duties indicate care of religion.

Neither power, emperor or prince, “hath ani power but such as he receaued of God.” And since both have received this power, and both share the same duties (though different in scope or reach), neither power can prevent the other from fulfilling said duties. Ideally, they would work together in harmony and mutual aid. The bottom line, however, is that “the Emperor is not therefore superior to hinder any inferior magistrates from lawfullye using their authoritie to the profit of the subiectes and glory of God, but rather to ayde them.” And, “Yea and in case thei doe negligently looke to their dutie, or do otherwise than thei ought to doe, than to bringe them into order, and help to upholde true Religion and iustice.” The subsidiarity, then, should not diminish the appropriate authority of both emperor and magistrate, but rather bolster its security.

This is not sphere sovereignty. The charge of the emperor and the magistrate are not equal; there is not mutual overlap of jurisdiction insofar as the emperor is over the magistrate and therefore expresses some sovereignty over the whole of the magistrate’s jurisdiction, but the magistrate exercises jurisdiction over territory as a subset of the emperor’s. This is hierarchical subsidiarity governed by an overarching higher law. And yet, insofar as the magistrate exercises power, this power is of God immediately (at least in this system) and not mediately through the emperor (at least in theory). The magistrate is, therefore, responsible for exercising the duties of magistracy owed to God just as the emperor is, and it is best for the emperor to allow the magistrate to do so unimpeded since the magistrate possesses the contextual, localized knowledge for proper formation and execution of law at a granular level. Certainly, the emperor cannot prevent the magistrate from exercising these duties rightly, and much prudential contingency will be expressed by the magistrate doing so. The emperor should only intervene when those duties are violated or neglected. Likewise, the magistrate should only resist on the same grounds.

This is how even our federalist polity can and should operate—let’s call it magisterial federalism.

Although the emperor must consider the general welfare of the whole, state magistrates receive their authority to govern for the good of their territory according to their God-ordained duties. They are not appointed by the emperor and do not serve at his please. But since their territory is within the empire (i.e., nation), the emperor may, at times need to intervene if a magistrate is, shall we say, underperforming. This for the good of the emperor’s polity and the fulfillment of his own duties to God since the territory in question is, ultimately, under his purview. In many ways, state magistrates should consider themselves governors of nations or kingdoms within an empire, like Otto Henry—but unless they’re in Missouri or Wisconsin they probably shouldn’t follow Henry’s lead in converting to Lutheranism. All this may not be polemically effective but it is conceptually helpful—if state magistrates can, for a moment, ignore national ambitions and stop allowing their states to be mere vassals of imperial capital—and Protestants need to start retheorizing structural functionality in our beleaguered polity.