The E.U.’s Hungary Overreaching on Sovereignty: International Trade

Sovereignty is not a word to be casually used, especially if in overreaching. In both the E.U. and U.S., state governments have overreached at the expense of the delegated competencies or enumerated powers of the respective Unions of states. The Nullification Crisis in the U.S. and de facto unilateral refusal of the E.U. state of Hungary to observe E.U. law both demonstrate how the overreaching by state governments can compromise a federal system.[1] In the E.U. the refusal to do away with the principle of unanimity in the European Council and the Council of the E.U. enable and even invite such overreaches at the expense of the E.U. itself, and its distinctly federal officials. Even a state government’s pursuit of it’s state’s economic interests does not justify holding the E.U. hostage. The case of supporting Ukraine in the midst of the invasion by Russia is a case in point.

The full essay is at "The E.U.'s Hungary Overreaching on Sovereignty."

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1, In 1832-1833, the government of South Carolina held that the U.S. tariffs of 1828 and 1832 were null and void within the state. “The resolution of the Nullification Crisis in favor of the federal government helped to undermine the nullification doctrine,” which holds that states have the right “to nullify federal acts within their boundaries.” Britannica.com (accessed August 25, 2025). I submit that the European Court of Justice could do worse than declare the same with regard to state laws, including the refusal of a governor or state legislature to implement federal directives, that are in violation of E.U. law and regulations. Monetary sanctions by the European Commission have not been a sufficient deterrent. If either de facto or de jure nullification becomes the norm, then it would only be a matter of time before the Union dissolves and the states could once again take up arms against each other.

Exploiting the E.U.’s Vulnerability to Enable an Atrocity Abroad

On April 3, 2025, Viktor Orban, prime minister of the E.U. state of Hungary, ignored not only the arrest warrant on Ben Netanyahu, the sitting prime minister of Israel, but also the E.U. law in the Rome Statute that requires the E.U. states to act on such warrants issued by the ICC (the International Criminal Court) by arresting people wanted by the Court. The provision in the Rome Statute of the E.U. requires all state governments to arrest people who are wanted by the ICC.  Orban doubtless knew that he could exploit union’s vulnerability with impunity because, like the U.S. in the eighteenth and nineteenth centuries, the E.U. relied so much on the state governments to abide by and implement federal law and regulations. By ignoring the Rome Statute, he put the E.U. itself at risk.

To put Orban’s defiance in perspective, Israel’s military had just killed fifty people in Gaza, including children who could not possibly have been culpable in the attack on civilians in Israel on October 7, 2023 even though the president of Israel declared after that attack that every resident in Gaza was guilty and thus deserved to pay the price in suffering and even wholesale death.[1] “At least 27 Palestinians [were] killed in an Israeli air strike on a school in northern Gaza that was serving as a shelter for displaced families,” and the killing of another 97 people in Israeli attacks over the previous 24 hours” occurred as Israel’s “ground offensive was expanding to seize large parts of the Palestinian territory.”[2] These killings of innocent people took place in the context of “Israel’s cutoff of food, fuel, medicine and other supplies to Gaza’s 2 million people” that had been put into effect only months earlier in order to strengthen Israel’s negotiating position.[3] That a commission at the UN reported to the General Assembly in March that there was substantial evidence that Netanyahu was committing the crime against humanity of exterminating the Palestinian people in Gaza only validates what common sense alone readily realizes. Bombings, the destruction of hospitals, intentional starvation, or mass re-location had been documented and evaluated by the UN as constituting the crime against humanity of extermination of a people.

Also on April 3, 2025, U.S. Senator Bernie Sanders vociferously called on his colleagues to vote to block more than $8.8 billion in upcoming arms-sales to Israel, which the Senate overwhelmingly voted not to ban. “What we are talking about is a mass atrocity, and what makes it even worse,” Sanders said in his floor-speech, “is that we as Americans are deeply complicit in all that is happening in Gaza.”[4] Apparently, political donations from defense contractors mean a lot to U.S. Senators, though loyalty to Israel could be held to be unconditional, ethically speaking, to some Senators, for both explanations are likely in play given the sheer number of senators who voted against banning the very type of bombs that Israel’s military had been using against even civilian homes, hospitals, and even fertility clinics.

Viktor Orban ignored the warning that the E.U.’s executive branch, the Commission, had directed to him in 2024, when he invited Netanyahu to Hungary.[5] Not even six months later, Orban welcomed the alleged war criminal to Budapest anyway, and even gave him a full state-ceremony. Much of the attention on the state visit was on the fact that Orban was ignoring the ICC’s arrest warrant even though Hungary was still a signatory as agreeing to the jurisdiction of the International Criminal Court. Because ignoring that international court and even the United Nations had by 2025 become part of the international status quo, as evinced by the Russian and Israeli governments, Orban’s willful disregard of his duty to have the alleged war criminal arrested could be greeted with a yawn.

The European Union is different because governmental sovereignty was divided in the founding between the state governments and the Union’s governmental branches, which includes the European Commission. Whereas in the U.S., the sovereignty assigned to the Union is referred to as enumerated powers, the delegated areas of governmental sovereignty of the Union are called competencies. Even the voting mechanism of qualified majority rule, which applies to some of the competencies, means that the E.U. state governments are not sovereign states. Just as when the U.S. was young, the E.U. even as of 2025 still vested most governmental sovereignty as retained by the states. Doing so risks dissolution of the union, as the U.S. discovered in 1861.

Even back in 1831, the government of the U.S.  member-state of South Carolina passed the Nullification Acts, whereby that state’s government could unilaterally invalidate any federal law or regulation within that state's borders. I submit that the E.U. state of Hungary did likewise in 2025 when Israel’s sitting prime minister landed in Hungary without being arrested. For as stipulated by the Rome Statute, and a statute is something more than a mere international agreement, the E.U. states are required to arrest individuals wanted by the International Court of Justice if they enter the territories of the respective states. That the obligation is part of the international legal framework on which the ICC relies is qualitatively different than the status of a federal statute of a union in which sovereignty is split (and shared). 

Just as U.S. President Andrew Jackson did not let South Carolina’s nullification law stand, E.U. President Ursula von der Leyen faced the necessity of seeing that state governments do not get away with ignoring E.U. law. For if such dismissiveness were to become the norm, the E.U. itself would eventually fall apart, especially given the imbalance of governmental sovereignty. Even just to commit the category mistake of treating a federal system of dual sovereignty as if it were of the same genus as international organizations is to undercut and even belie the former. I submit that Viktor Orban was guilty of this too.

It is interesting that so much can occur on the same day—that even though not causal in nature, combines to furnish an ethical and political meaning that is like a snapshot of the underlying dynamics stretching over continents. The sheer impunity of both Netanyahu and Orban, respecting international law and E.U. federal law, respectively, is, I submit, a red-flag pointing to the decadence of the post-1945 world order. That the U.N. itself was largely relegated as impotent to the sidelines with respect not only to Israel, but also Putin in Russia, can be taken as reason enough for a new world order. Unfortunately, the tyranny of the status quo has various levers at its disposal to keep political development from occurring even as fires rage on the ground.

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1. Gavin Blackburn, “At Least 50 People Killed in Overnight Israeli Air Strikes Across Gaza, Hospital Officials Say,” Euronews.com, April 4, 2025.
2. David Gritten, “Israeli Strike on Gaza City School Kills 27, Health Ministry Says,” BBC.com, April 3, 2025.
3. Julia Frankel and Samy Magdy, “Israel’s Cutoff of Supplies to Gaza Sends Prices Soaring as Aid Stockpiles Dwindle,” The Associated Press (apnews.com), March 5, 2025.
4. Sanjana Karanth, “Bernie Sanders Condemns ‘Deeply Complicit’ Congress Before Vote On Weapons Sales to Israel,” The Huffington Post, April 3, 2025.
5. Shona Murray and Jorge Liboreiro, “Brussels Warns Orban over Netanyahu Visit: It’s Your Duty to Comply with ICC Warrants,” Euronews, November 11, 2024.

The E.U. on Hungary: Beyond Symbolic Measures

Any federal system of government must function fundamentally as a unit even though the states are semi-sovereign, as is the federal level. The Nullification Crisis in the U.S. during the nineteenth century highlighted the plight a federal union would face were state governments able to ignore federal law unilaterally. Fortunately, President Jackson was able to get South Carolina to stand down on this point. In 2024, the E.U.'s federal officials were having trouble getting the state of Hungary not only to apply a federal directive within the state, but also to stop contradicting the E.U.'s foreign policy against Putin's Russia in Ukraine by engaging in diplomatic trips of appeasement. A federal system that lacks the means procedurally or substantively to protect federal prerogatives against the contradictory actions of wayward states is not viable in the long term.

Every E.U. state government is bound by Article 24.3 of the E.U.’s basic law, which mandates that those governments must support the union’s foreign policy “actively and unreservedly in a spirit of loyalty and mutual solidarity.”[1] It is not often that a E.U. official mentions the obligation of loyalty in reference to the states toward the union, but the normative glue should not be ignored or even trivialized, especially given the preponderance of residual sovereignty that the state governments enjoy in the E.U.’s federal system. Josep Borell, the E.U.’s foreign minister, was referring to Viktor Orbán of the state of Hungary, whose “peace mission” to Moscow and Beijing coincided with the state of Hungary’s six-month presidency of the Council of the E.U. in early July, 2024. “Any so-called ‘peace mission’ that ignores” that Russia is the aggressor in Ukraine “is, at the end of the day, only benefitting Putin and will not bring peace.”[2] Borell was referring back to Orbán’s previous characterization of the union’s supplies of weapons and ammunition to Ukraine as a “pro-war policy.”[3] “The only one who’s pro-war is Putin,” Borell stated.[4] Referring to Orbán’s statement as belonging “to the realm of a lack of loyal cooperation,” Borell said, “We have to send a signal, even if it’s a symbolic signal, that being against the foreign policy of the European Union and disqualifying the policy of the European Union as the ‘party of war’ has to have consequences.”[5] The informal meeting of the foreign ministers of the states, known as Gymnich, would take place in Brussels rather than in Hungary’s state capital, Budapest. This move is indeed symbolic, for the official meetings are not subject to the 6-month rotating presidencies of the states.

The question is thus whether Borell’s use of the symbolic was sufficient to enforce Article 24.3 on the loyalty that the state governments owe to the union with respect to its foreign policy. I submit that a symbolic gesture, at best a “slap on the wrist,” is not sufficient to forestall undercutting moves by the governors of the state governments, for the political interests of the latter may differ from that of the union as a whole, and symbol is no match for real politic.

As Borell himself admitted, Orbán’s continued veto of military assistance for Ukraine was ongoing, and it was totally legal under E.U. basic law. Moving an informal meeting to Brussels would not change Orbán’s use of his state’s veto in the European Council. Nor would the states sending lower-level civil servants to an informal meeting of state interior/justice officials in Budapest. Arnoldas Abramavicius, Lithuania’s Deputy Minister of the Interior, refused to call sending lower level politicians a boycott; he would not even state that Orbán’s diplomatic trips to Moscow and Beijing violate the E.U. foreign policy against Russia. “I think this is a reaction towards Hungary’s external activity maybe sometimes not adjusted to the European framework,” he said at the meeting.[6] The diplomatic trips designed to negotiate with an aggressor with whom the E.U. would not negotiate is worse than merely not being coordinated or adjusted with the federal policy, which, by the way, is not a framework.

In fact, Borell undercut his argument and the E.U. itself by how he put the matter of the states’ foreign policy power. “Each member state is sovereign on its foreign policy—true. But as far as they’re members of this club, they have to obey the treaties.”[7] Given Article 24.3, however, each state’s foreign policy was not sovereign, for it could not contradict the union’s foreign policy. Moreover, the E.U. itself was not a club even as of 2024. The European Court of Justice had repeatedly ruled that federal laws, regulations, and directives are binding on the states, and the ECJ’s decisions are binding on the state courts as well as the state governments. Furthermore, clubs do not have a directly elected legislature such as the European Parliament, and, moreover, all three branches of government. Given the preponderance of governmental sovereignty residing with the states in 2024, the E.U. could ill afford being rhetorically diminished by one of its own officials, especially in the midst of a struggle between the union and a sitting governor.

A letter signed by over 63 state lawmakers addressed to the top three E.U. officials insists that Hungary’s Orbán had “caused significant damage” by his two diplomatic trips, so it was not merely a matter of not being adjusted to the E.U.’s foreign policy in which Putin is squarely the aggressor in the war.[8] Appropriately, the state officials called on the union “to suspend Hungary’s voting rights in the European Council” because “mere verbal condemnation” of the wayward state government has “no effect.”[9] Nor does merely moving the location of an informal meeting and sending lower-level officials.

That the European Council had not already suspended Hungary’s voting rights not only due to Orbán’s efforts to appease (Von der Leyen’s word) Putin but also the European Court of Justice’s ruling that Hungary had refused to implement a federal directive suggests that the union is vulnerable to defections by state governments with all but symbolic impunity. To apply anything close to unanimity for the voting rights of a state in the European Council to be stripped is itself not only foolhardy, but undercutting as well. An amendment applying qualified majority voting to sanctioning a violating state in the European Council would improve the coherence and functioning of the union at the federal level in line with the rule of law, while a state government deprived of its voting rights could still appeal to the European Court of Justice concerning the fairness of the mechanism and how it is being applied.

It bears noting that the Titanic could not avoid the iceberg in part because the ship’s rudder was too small, given the size of the ship. Or, if an analogy of several ships is preferred, a line spoken by a European in the film, The Godfather, Part III, applies: “Our ships must all sail in the same direction.” For one ship to sail not only apart from the others, but then into them must surely not be permitted. Appeasing or even just negotiating separately with Putin while referring to the E.U. foreign policy as pro-war even while vetoing military assistance to Ukraine should have been met with more than a symbolic response by E.U. federal officials, and the fact that it was not is an indication that the federal system contains a significant vulnerability, or weakness, that should be redressed especially before additional states are permitted to join the union.

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1. Jorge Liboreiro, “Borrell Accuses Orbán of Disloyalty and Joins Boycott Against Hungary’s E.U. Presidency,” Euronews, July 22, 2024.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Caitlin Danaher, “E.U. Moves High-Level Meetings Out of Budapest to Protest Orbán’s Ukraine War Stance,” CNN, July 22, 2024.
7. Jorge Liboreiro, “Borrell Accuses Orbán of Disloyalty and Joins Boycott Against Hungary’s E.U. Presidency,” Euronews, July 22, 2024.
8. Caitlin Danaher, “E.U. Moves High-Level Meetings Out of Budapest to Protest Orbán’s Ukraine War Stance,” CNN, July 22, 2024.
9. Ibid.

The European Court of Justice Slaps Down Hungary: A Defense of Modern Federalism

The European Court of Justice (ECJ), the E.U.’s supreme court, which like the U.S. counterpart can overrule state courts, ordered the E.U. state of Hungary to pay a lump sum of €200 million and €1 million per day of delay from June 12, 2024 because the state government had disregarded “the principle of sincere cooperation” between states in taking in their fair share of foreign asylum-seekers and “deliberately” evaded implementing the federal law that directs the states how to treat those people who enter the E.U. through the state seeking political asylum.[1] The state government had made it “virtually impossible” for asylum seekers to file applications.[2] Similar to the Nullification Acts passed by the state government of South Carolina in the U.S. when that union was between 30 and 40 years old, the decision of Hungary to ignore the ECJ’s ruling on the matter in 2020 could not be tolerated by federal authorities, for a federal system of dual sovereignty (i.e., some held at the federal level and the rest at the state level) cannot survive if state governments can unilaterally decide to nullify, or ignore federal law. That federal directives in the E.U. reply on implementation into law at the state level just makes the E.U. more vulnerable should a state government so easily dismiss federal law. Why even be in a union if its law is deemed not worthy of respect?

In their written opinion, the justices of the ECJ clearly understood that the problem of Hungary’s dismissiveness of the legitimacy of federal law within the state struck at the foundation of the union. “That conduct constitutes a serious threat to the unity of E.U. law, which has an extraordinarily serious impact both on private interests, particularly the interests of asylum seekers, and on the public interest,” the high court declared.[3] The problem being extraordinary for the E.U. as a federal system of public governance, the public interest being impacted certainly includes that of the union itself. It is necessary therefore to separate out the particular issue, that of political asylum and even immigration, and focus on the viability of the E.U. itself.

Any federal system will not long endure if state governments attempt to throw off problems onto other states. In fact, given the cultural heterogeneity that naturally exists in an empire-scale federation such as the E.U. and U.S., cooperation between the states directly as well as through federal institutions of government plays a vital role. Tensions that might tear such gigantic unions apart need to be offset by cooperation; the last thing such a union needs is political infighting between the states and even just one state that presumes not to be subject to federal law. For such a union to lack enforcement power even in regard to its own competencies (E.U.), or enumerated powers (U.S.) is a sure recipe for collapse and the epitome, moreover, of weakness. So, the ECJ justices acted wisely in automatically taking Hungary’s fine out of its share of largess from the E.U. budget.

For its part, the state government of Hungary could have taken the opportunity to definitely decide whether to accept the validity of E.U. law as applicable even for the state governments, or secede from the union as the British did after they finally came to a decision rejecting the dual-sovereignty, which distinguishes (early) modern federalism from what is now called confederalism. A common expression in English comes to mind: that of, “shit or get off the pot.” Translated, this means, “use the toilette or get up, rather than procrastinate on it all day.” Muddling the difference by staying in the Union and yet mislabeling it as a “bloc” or a “network” rather than a federal system of government, and the European Parliament’s political parties (even the EPP!) as mere “groupings,” as if that legislative body were not a real legislature and political parties could only exist at the state level, only puts the E.U.’s self-understanding at odds with what the Union actually is, and such a lack of self-understanding can never be good for anything (or anyone).[4] A fish would not long live if it comes to believe that it is a frog. A house divided is bad enough; a house that comes to be viewed as a mere tool shed is in even worse shape.

Even though some healthy degree of anti-federalism is a good means of forestalling (i.e., by acting as a check politically and even in the basic or constitutional law itself) the kind of federal consolidation that has occurred in the U.S. since 1865 (i.e., the anti-federalists had been right), knowingly pretending with ill-suited words that a federal union of states is something else altogether whose nature, superimposed, weakens the union by denying what it is empirically is needlessly destructive and utterly dishonest intellectually. Engaging in word-games to obfuscate the public’s understanding of the very nature of the E.U. really only demonstrates the cognitively distortive propensity of ideology (i.e., its susceptibility to delusion from pride and resentment). Journalists and their editors generally have been easy, unthinking tools in that political game of perpetuating an illusion as if it were empirically extant and a fact of reason. What then of the perpetual peace, which old Kant saw as only possible rather than probable if there were a world federation, if a federal system just in Europe cannot even be consistently recognized as federal government rather than as something else entirely that is weaker in providing for public governance?  

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1. Jorge Liboreiro, “ECJ Finds Hungary with €200 Million over ‘Extremely Serious’ Breach of E.U. Asylum Law,” Euronews.com, June 12, 2024 (accessed June 13, 2024).
2. Ibid.
3. Ibid, italics added for emphasis.
4. I am in the midst of translating a 17^th century text from French, and I think the tiresomely long sentences are rubbing off on me. At least I’m not compounding the problem by inserting colons and semicolons throughout such a train of thought. Regarding the EPP, the European People’s Party, which is a political party in the European Parliament, a journalist at the time even parroted (not quoting) a Euroskeptic by dutifully writing, “the European People’s Party group” in an article published online by Euronews. Stating the obvious, I feel the instinctual need nonetheless to point out that “party” is in the very name of the party and thus it is, and understands itself as, a political party. Perhaps “group” should be used to designate the smaller parties at the state level, as more than one of such groups can feed into one of the larger federal parties by means of the elected representatives in the federal parliament—such groups themselves not being recognized there. Such a reversal would doubtless not be tolerated for long! Even so, by engaging in such a reversal, the hypocrisy of the status quo may be better known.

Compromising Public Health for a States' Rights Ideology: The Governor of Arizona Nullified a Federal Law during a Pandemic

On October 27, 2021, I rode on two mass transit buses in Phoenix, Arizona. Both drivers were knowingly and willfully violating the federal regulation (42 CFR sec.s 70-71), which requires transit operators to wear masks during the pandemic even when they are situated behind a plexiglass barrier. One of the drivers, whom I had twice before seen not wearing a mask, again had lowered the plexiglass window pane between the driver and customers paying.  The first time, I had asked her to put a mask on, given the federal regulation and her proximity to the passengers boarding. Replying as if making an announcement, she said, “If anyone feels unsafe on the bus, they can get off and wait for the next bus.” That prompted a passenger to insult me. The company subsequently backed up the driver's refusal by saying that the federal law doesn't apply to buses in Arizona. It did, so the company violated federal law with impunity.

 

I reported this incident to the regional bus authority and the city of Phoenix. Nevertheless I saw her maskless more than a week later and then during the following week. I did receive a voicemail from TransDev, a bus-operating company contracted by Metro Valley, informing me that regardless of the federal law, the company policy does not require bus drivers to wear masks. In fact, a representative from Metro Valley defiantly declared on a subsequent phone call that drivers can let maskless passengers board—again, in violation of federal law. Company policy apparently can nullify federal regulations in Arizona, a U.S. state with special needs. 

Even though the FBI told me that it looks to local law enforcement agencies to enforce federal regulations, a supervisor at one of the police sub-stations told me that his department would not enforce the regulation. “Oh, so they want to dump it on us,” he said. Astonishingly, he claimed that only law passed by his state’s legislature is “real law in Arizona.” About a week later, a police transit supervisor told me that the chief of police had told the non-supervisory patrol employees not to enforce the federal regulation, and this directive had come down from the governor.

As shocking as such corruption is, the immature, even pathological behavior of the second maskless bus driver I witnessed on the morning of October 27, 2021 told me after I had asked her to put on a mask that she didn’t care if a federal regulation requires drivers to wear masks. “I don’t care. Go ahead, call the FBI,” she said with a daring tone of presumed impunity. She also encouraged me to call the local police after I said I would contact them too. “They don’t wear masks either,” she shouted. Yes, shouted. I replied that I was ending the conversation, which she ignored until I went to the back of the bus. She then accused me of threatening her. “Get off my bus!” she exclaimed angrily even though she kept the bus in motion. She was clearly making up an excuse to get me in trouble for having asked her to comply with U.S. law. What a strange, absurd mentality, at least outside of Arizona. Not surprisingly, she had let a maskless man ride. While walking to the back door to exit the bus, the maskless old male passenger felt entitled pick up the baton from the driver and shout “I’m vaccinated; I don’t have to wear a mask” at me. I knew he was ignorant so I did not comment. Nevertheless, she kept shouting his presumed factoid to me as he got closer. After he left, the driver once again began shouting insults at me, having dismissed my statement that I was done with the conversation. She called me a dumbass and a weirdo, and told me in a dismissive and hostile tone, “Go back to your institution!” My stop was coming up, so I could not get off the bus, but I did not want to hear any more from the childish driving having a temper-tantrum. So I began repeating, “I don’t talk to local creepers.” I had said this to the maskless passenger too.  “I won’t let you ride on my bus ever again,” the driver said. It is significant that she referred to her bus, in repeating, “I won’t let you ride my bus ever again,” when in actuality the city of Phoenix owns the bus and she does not have the authority to ban anyone from ever riding “her” bus ever again. Even were the bus her own, she would still be required to follow federal law, though she clearly believed otherwise.  She even put her two hands to her ears while operating the bus like a kid would do, and angrily repeated, “I know you are, I know you are,” after I declared that I do not talk with local creepers.  It was surreal that any bus driver would behave like a four year-old. “What are you in kindergarden?” I replied. Even when I was walking out of the bus and then outside of the bus, the driver was yelling insults, so I continued repeating my line. It was incredibly pathetic that a four year-old’s mentality would stop her temper-tantrum only to pick up her phone to call her supervisor, and yet the bus company’s customer service does not allow passengers to speak with a supervisor of the drivers in real time even when a driver is not only abusing his or her authority, but is having a temper-tantrum. It is precisely because the drivers know that they can misbehave with impunity that they go on the offensive even more by claiming that a passenger is misbehaving. It is not surprising that drivers tend to presume impunity in violating a federal regulation geared to ending a pandemic. It is not surprising that several drivers in 2020 and 2021 felt entitled to ignore the local and federal laws, respectively, requiring that passengers and drivers wear masks. Some drivers actually wore their masks to cover only the chin area as if that constituted compliance. Arizona’s pre-college education ranked 49^th out of the 50 states at the time. Go figure. Presumptive arrogance combined with astounding ignorance is a toxic combination.

I submit that this last driver was so brazen at least in part because there really is no accountability in the local mass transit system, which includes Metro Valley, the regional transit authority and TransDev, a private subcontractor that operates the buses, which are owned by the city of Phoenix. Both Metro Valley and TransDev have told me that their policies allowing maskless riders and drivers invalidate the federal law. By the way, a local police patrol employee informed me (when he was off duty) that bus drivers are not federal employees to the federal law does not apply to them. “So you locals are ok with the federal money you get from the feds for your mass transit, but that doesn’t obligate you to follow their regulations,” I concluded. He gave a thumbs up. Three weeks earlier, a patrol supervisor informed me that the only “real law in Arizona is that which goes through the state legislature.” There is virtually no enforcement of masks on the light rail by security guards either. They illegally impersonate police officers by wearing silver badges, yet have admitted that Metro Valley won’t allow them to enforce the local ordinance in 2020 and the federal regulation in 2021. I think the guards are more interested in intimidating passengers to feel the pleasure of being dominant (albeit certainly not superior in any way) than in enforcing even federal law.

It is strange seeing three or four guards on one half of a car yet not one of the Allied Security employees are enforcing the federal law as it is even stated on on-board signs declaring, “Per Federal Law, Masks Are Required.” Once when I heard a train’s operator make an announcement at every stop, I pressed a red button at an intercom with the driver. The drivers want passengers to report problems, so it was ironic that a young black guard rushed to me (I had not seen him in the back) and demanded to know what I had been talking about. I asked him twice to lift his mask from his chin to cover his mouth and nose. He obviously felt entitled to break the law even though signs on the doors and windows were obvious. Without even waiting for me to answer his question, he became very hostile toward me and declared that if he ever sees me use the intercom again, he would kick me off the train. As I was leaving the train, I passed by the operator’s open window. “Of course we want you to use the intercom to report things like you did—that many passengers are ignoring my announcement!” I asked her to report the guard.

In short, the arrogance, corruption, and incompetence at the state, city and mass transit levels at least in Phoenix are such that someone who is not used to such a sordid, ignorant, and hostile culture cannot but be astonished—jaws-dropped astonished. Not only does the bus company ignore reports of illegal behavior; the company claims that its policy, which contradicts federal law, is the only thing that the company acknowledges as valid. How could anyone at a company believe that a company policy nullifies a federal law? How could a police chief tell her police force not to enforce a federal law, when according to the U.S. Department of Justice, the F.B.I. routinely relies on local law enforcement to play a role in enforcing federal law. Yet in Phoenix, Arizona, a police supervisor specializing on transit refused to acknowledge that state officials ever enforce federal law. “They want their laws enforced? They will have to send feds to enforce them.”

The European Union at Risk: The German High Court Undercut the European Court of Justice on the Role of the European Central Bank

If a dispute between an E.U. state and the European Central Bank (ECB) on one of its programmes could come to challenge the European Court of Justice (ECJ) itself and the very sustainability of the E.U.’s federal system, then that system itself could be said to be severely impaired, and thus facing a high risk of being destroyed.  Yet in the Judgment of the Second Senate of May 5, 2020, the constitutional court of Germany did exactly that in throwing out an earlier ruling of the E.U.’s supreme court (ECJ) on the legality under E.U. law of an ECB programme.[1]

The primary objective of the  European System of Central Banks, which includes the European Central Bank and those of the States using the euro currency, to be the maintenance of price stability. In 2015, the ESCB “adopted a programme for the purchase of government bonds on secondary markets . . . , with the aim of returning inflation rates to levels below, but close to, 2%.”[2] According to the European Court of Justice, the E.U.’s supreme court within the federal judiciary (CJEU), the ECB’s rationale was that the large-scale purchase of government bonds—90% of which by the state banks—would facilitate “access to the financing that is conducive to boosting economic activity, by promoting a reduction in real interest rates and encouraging commercial banks to provide more credit.”[3] With the supply of goods and services fixed in the short-term, the increased lending by banks due to the lower interest rates would mean more euros relative to the E.U. goods and services, and thus an increase in inflation. However, the ECB’s stated purpose for the program was primarily to boost economic activity by means of lowering interest rates. Yet price stability was the ECB’s objective, hence not to be a byproduct of the pursuit of another objective.

(Source: Trading Economics)

To be sure, the central bank’s mission was an inflation rate to levels below, but close to 2 percent, and the inflation rate in the “euro area” was .24% in 2015, with a period of deflation.[4] By 2019, the inflation rate stood at 1.76 percent, which was within the ECB’s objective. The programme had worked. Whether it should of worked—whether money supply should be increased to increase inflation—is debatable, for deflation and inflation should arguably be determined by relationship of GDP to the money supply. Otherwise, a pro-inflation mandate would mean that prices would continue to increase rather than reflect the market relationship of money and GDP. After a sustained period of inflation, balance would dictate a corrective period of deflation.

Answering questions submitted by the state of Germany’s top court, the European Court of Justice issued a press release in 2018 stating that the “purpose of the PSPP programme is to encourage a return of inflation rates to levels below, but close to, 2% over the medium term.”[5] Yet, as stated above, the ECB’s own stated reason for its programme was to boost economic activity (by decreasing interest rates). The ECJ states that “a monetary policy [i.e., decreasing interest rates to increase inflation] cannot be treated as equivalent to an economic [i.e., fiscal] policy [e.g. for boosting economic activity] for the sole reason that it may have indirect effects that can also be sought in the context of economic policy.”[6] In plain English, increasing or decreasing money supply is not an equivalent option to fiscal policy in boosting economic activity just because this is an indirect effect of the monetary policy. Therefore, even if boosting economic activity were an indirect effect, or byproduct, of the ECB’s primary intent to increase inflation, the ECB could not justify its programme on the basis of its indirect fiscal effect. Yet the ECB’s stated objective of the programme was to boost economic activity! The E.U. should have used a fiscal rather than a monetary policy if the primary aim, as the ECB stated, was to boost economic activity. The groups in Germany that had instigated the German court’s questions to the ECJ had a good argument that the ECB had been acting beyond its mandate in this narrow sense. However, that the ECB had achieved its inflation target by means of the programme suggests that the central bank could be viewed as having acted within its mandate. The question is perhaps whether the ECB pursued its program even after the inflation target had been achieved. That the rate in 2018 was still below 2% suggests that this was not the case. The problem, therefore, was that the ECB stated boosting economic activity as its primary objective, with lower interest rates serving only as a means.

Unfortunately, the constitutional court of the state of Germany took its objection too far. Even though groups that had brought constitutional objections to the Bundesverfassungsgericht (the German constitutional court) had claimed that because the PSPP programme exceeded the ECB’s mandate, the E.U. failed “to observe the division of competencies” between the E.U. and its states, the German court violated the supremacy of the ECJ, the federal supreme court of the E.U., over the state courts by directing the state’s central bank not to comply with the ECB’s programme by buying back German bonds. Such a long sentence, by the way, is in keeping with German, though my words do not reach such a length.

The Nullification Crisis in U.S. history can provide us with a context. In November, 1832, the South Carolina Government passed a law declaring the U.S. tariffs laws of 1828 and 1832 null and void in South Carolina. The underlying problem was “the constitutional theory that upheld the right of states to nullify federal acts within their boundaries.”[7] Had the member states still been sovereign, as they had been from 1776 to 1789 (including under the Articles of Confederation), the doctrine would have had a solid basis (i.e., the full sovereignty of the new republics within the U.S.). However, once the U.S. itself (i.e., the federal level) had been delegated some governmental sovereignty, the doctrine would have eviscerated that sovereignty. States would have been able to pick which federal law to recognize, hence any federal law could easily have been vitiated or compromised. The states would have been able to trample on the federal sovereignty with impunity and the federal system itself would have lost coherence, and thus the ability to function viably.

On May 5, 2020, the constitutional court of the state of Germany ruled against the legality of the ECB’s programme within the state, much as South Carolina’s legislature had voted against the legality of the tariff laws. It was a direct challenge to the E.U.’s central bank and supreme court (ECJ). Were the ECJ to let the state court’s ruling stand, other states would surely follow in opting out of whatever federal laws they do not like. The Government of Germany had been against the bond buy-backs in the euro area because of the shared losses. In short, the powerful northern state didn’t want to pay for the losses of poorer southern states through the programme. Likewise, the matter of shared state debt had been a hot topic during the Washington administration in the 1790s in the United States. There too, the state governments who had incurred less debt in fighting the Revolutionary War did not want the higher debts of other states to be pooled through the federal government.

The resistance in Germany since the European debt crisis during and after the financial crisis of 2008 to covering the massive debts of Greece, Spain, and Italy found a footing in the German court even though the ruling meant the possible vitiation (i.e. end) of the E.U’s competencies (i.e., governmental sovereignty), and thus of the federal system itself.  “Given the influence Germany wields as the largest [State in the euro area of the E.U.], the [ECB] can’t afford to ignore the [German] court’s decision, in part because it would be all but impossible for” the programme to continue without the participation of Germany’s central bank.[8] Moreover, other state governments (and courts), such as in Poland and the Czech Republic, would likely follow in challenging the E.U. unilaterally.

The German chancellorin (prime minister), Angela Merkel, had been urging a stronger E.U. after the secession of euro-skeptic (anti-federalist) Britain, yet her state’s interest in staving off shared debt through the ECB resulted in her state’s high court throwing an arrow directly at the core of the E.U.’s federal system (of dual or divided sovereignty). “At a time of growing tension in the EU over German reluctance to embrace ambitious plans to resuscitate southern European economies hit hardest by the coronavirus by issuing mutualized debt, known colloquially as corona bonds,” the German court’s ruling added fuel to the argument that the E.U. itself was being compromised by the power of its largest state in pursuing its own interests at the expense of the common good, or general welfare, in the Union as a whole.[9] Abstractly stated, no part should have sufficient power over the whole that the latter’s power is eviscerated because it is a mere reflection of  the interests of the part operating at the expense of the whole.

(Source: Politico)

As for the ruling of the Bundesverfassungsgericht (the German constitutional court), Justice Andreas Vosskuhle said that the ECJ had approved the programme that “was obviously not covered” by the ECB’s mandate.”[10] The ruling did not apply to the corona bonds during the pandemic in 2020. Nor was the ECB’s purchasing of state debt (i.e. quantitative easing) during the financial crisis. Even though the court did not find enough evidence to rule that the programme amounted to monetary financing (i.e., the ECB funding state budgets), the court did decide that the ECB had overstepped its inflation-objective mission.[11] The German government had been against pooling money through the ECB to fund the government budgets by pooling the debt of the more indebted states going back to the financial crisis of 2008. Regarding the programme at issue here, the German court’s claim that the ECB had overstepped its mandate does not succeed because the programme did not push inflation above 2% in trying to boost economic activity. In other words, the ECB had not over-shot its inflation target, even if the bank erroneously was primarily oriented to increase GNP. Inflation was so low in 2015 that an inflation rationale was justified. 

 

The impact of the Bundesverfassungsgericht’s ruling went beyond the ECB itself. The viability of the ECJ and the federal system itself was suddenly under threat. Dismissing a 2018 ECJ decision to allow bond buy-backs, the state court “ordered the ECB to provide Germany with adequate justification for the program within the next three months. Should it fail to do so, the Bundesbank [the state’s central bank] would no longer be permitted to participate in the program.”[12] The ECB was at the time “an independent EU institution [that] does not have to take orders from the German court, and the government in Berlin.”[13] In reply, the ECB told the German court that the ECJ had already determined the legality of [the programme]. In dismissing the ECJ’s earlier conclusions, the German court, by a 7-1 majority, declared the reasoning by the ECJ to be “not comprehensible” and “objectively arbitrary” and the decision itself to be untra vires (i.e., beyond the court’s authority).[14] Yet the German court presumed itself to have the authority to overrule the federal supreme court!

Even were the ECJ to deliver a bad ruling, or one injurious to a particular state’s policy, the ECJ would be protected by the precedent of its superiority over state supreme courts. The ECJ had ruled in Costa v ENEL (1964) that the states had transferred sovereign rights to the ECJ on E.U. law and furthermore that such law could not be overridden by state law. The ECB being a federal institution, the matter of whether the programme breached the central bank’s mandate was within the purview of the federal supreme court, the ECJ, rather than any state court. In stating that the gravity of the question at hand merited going up against the ECJ ruling and the ECJ itself, the German court had, I contend, lost perspective. Buying back bonds through a federal program, unlike something infringing on basic human rights, for example, does not have sufficient weight to justify imperiling the federal system itself. It is ironic that just months after the state of Britain seceded in part out of dislike for the extant governmental sovereignty of the E.U. in relation to that of the state governments, the German state court threw a bomb from within.

---

1. BVerfG, Judgment of the Second Senate of 05 May 2020 – 2 BvR 859/15-, paras. (1-237).

2. Court of Justice of the European Union, Press Release No 192/18, December 11, 2018.

3. Ibid.

4. Statistica.com (accessed May 10, 2020).

5. Court of Justice of the European Union, Press Release No 192/18.

6. Ibid.

7.  The Nullification Crisis, Britannica.com (accessed May 10, 2020).

8. Matthew Karnitschnig, “German Court Lays Down Law in Defiance of European Union,” Politico, May 5, 2020 (accessed May 10, 2020).

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. Ibid.

14. Ibid.

The U.S. Senate: What Is It Really?

Part I

In 1928, the Senate stopped the bill that would have given WWI vets their bonus then rather than in 1946.  Mass protests for weeks by thousands of vets on the U.S. Capitol may have swayed the U.S. House, but the Senate was undaunted: passage of the bill would be economically disasterous .   Such a scenerio is exactly what the delegates in the U.S. constitutional convention in 1787 would have predicted.  They designed the House to reflect the passions of the people, and the Senate as a check on such passion where it is intemperate.   Looking back at Shays’ Rebellion in Massachusetts, the delegates feared excess democracy.  No supporter of the Senate, Madison nonetheless points out that “a numerous body of Representatives were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils” (Madison’s Notes, p. 194).

However, the delegates also designed the U.S. Senate “to represent the wealth of the Country” (Pinkney, in Madison’s Notes, p. 198).  Col. Mason claimed that “one important object in constituting the Senate was to secure the rights of property” (Madison’s Notes, p. 200).  Does being wealthy make one temporate or enlightened?   Madison observes that “wisdom & virtue” are among the objects of the proposed Senate (Madison’s Notes, p. 195).  Does being wealthy mean that one is apt to stand up for virtue?  Does wisdom come from having inherited or earned wealth?

As if these two purposes etched in the design of the U.S. Senate are not sufficiently disjoined, the delegates also intended that the Senate represent the State governments so as to proffer them a means of defending their turf against encroachment by the U.S. Government.  Senators were selected by State governments before the ratification of the 17th Amendment in 1913.  It was debated in the convention whether popular election would give the senators a sufficient incentive to protect their respective State governments.  The delegates concluded that it would be insufficient, and history has proved them right–as the governments of the States have steadily lost power to the expansive U.S. Government.

So, the U.S. Senate was designed as a check on the excess democracy possible in the U.S. House, to protect the interests of property, and to represent the State governments and protect the balance of power so crucial to the viability of federalism.   It is not clear to me that these three functions are mutually-supporting or even compatible.  I don’t see evidence in Madison’s Notes of Debates in the Federal Convention of any consideration of the assumed compatibility.

Just as any human institution is apt to subtly morph if it endures for a sufficient time, the U.S. Senate has changed through the centuries.  As a result of the 17th Amendment wherein U.S. Senators are now popularly elected (by State), the U.S. Senate is more democratic–hence more like the House.  The six year senatorial term is a buffer, to be sure. However, re-election is never too far off to be absent from a given Senator’s political and legislative calculation.   Hence we are unwittingly leaving ourselves vulnerable to our own excesses.  Are we assuming that our passionate, spur-of-the-moment, collective impulse cannot be reckless and ultimately not in our own best interest?

I have already pointed to the implications for the State governments, and we have seen their eclipse through the last century.   What about the protection of property?  How does this mix with the more-democratic “structural tendency” in the Senate?   Are Senators more oriented to the upper-class voters while soothing the rest as if we too are being represented?  In other words, is there a sort of duplicity built-in to this combination?

In my opinion, the U.S. Senate can represent the State governments while simultaneously serving as a check on the intemporate excesses possible in the U.S. House.  Property is sufficiently represented in the U.S. Government as a whole, given the small number of elected and appointed officials relative to the entire population.   I would look to the commensurate European Council in the E.U.   The Council not only represents the State governments, the chief executives of the States (or their ministers when specialized topics are decided) sit on the Council.   It is a viable check on the European Parliament, which is commensurate with the U.S. House (i.e., elected representatives by the people of the EU).   We could do better by emulating the European Council.

Accordingly, I recommend that the governors sit in the Senate (which would meet periodically…with the governors’ respective staffs doing the leg work), with the relevant members of the States’ cabinets meeting on specialized topics.   This might seem confusing, but it works in Europe.  Essentially, officials in the respective State governments would meet in a common council.  50, not 100 members.  The latter number is too numerous for a council.   Because governors are elected, democracy would not be shirked even as the Senate would be a viable check on the excesses in the House (because the governors acting in a council are “two degrees” from the voters while the U.S. Reps are only one).   To be sure, the Senate would not be meeting every day, but meeting periodically to decide the major points.

The Senate representing the State governments would distinguish the Senate from being a replica of the House.  Do we really need two Houses?   Strictly speaking, proportional representation applies where citizens are being represented.  In contrast, in an intergovernmental council each government is a member–a person, as it were–regardless of how much each weights (e.g., different populations, territorial size, or wealth).  The European Council deviates from the “intergovernmental council” model because the number of votes assigned to the governments is influenced by its population.  I don’t see why the Senate would no longer be an intergovernmental council just because the votes are proportional; the key would be that governments would be voting, so the one vote per government could be relaxed.  Because proportional represention is the rule in the U.S. House, the big States can protect themselves.  So I don’t view the one vote per government in the Senate as problematic in terms of the Congress as a whole.  In general terms, the more we can distinguish the two bodies of the Congress, the more we enrich our system of government by taking advantage of the unique contributions from different forms of polity.   If there is a downside to proportional representation,  a Senate not partaking of that method would automatically be a check (and vice versa, of course).

Part II

The US Senate is “absurd.” So said Katie Connolly of MSNBC in 2010.  She was referring to Sen Shelby (R-AL) being able to singlehandedly place a hold on all pending nominations.  Citing a congressional scholar, Johathan Chait noted that a blanket hold has never been used before. Connolly argued that Shelb was doing it “because he wants a European corporation to build some planes in his state.”  Such a reason would be ubiquitous if not squalid enough in either body of the US Congress, so it is certainly plausable.  One might recall the money Sen. Ben Nelson got for Nebraska by agreeing to the health care reform bill.  In needing all 60 votes from the democrats and two independents, that bill gave us all a reminder of what an international body is like where each member has a veto.  In singlehandedly blocking all pending nominations before the US Senate, Sen Shelby was drawing on this theory as well.  While it is easy to trounce on each Senator (or each state) having a veto, I would argue that it is far less sordid than Shelby’s reason (i.e., more pork).  Because every state in the Union is semi-sovereign (and enjoys residual sovereignty as per the tenth amendment), there is constitutional support for any state represented in the US Senate having a veto on any legislation or appointment.  Because the veto is based on governmental sovereignty (i.e., the US Senate being in this respect an international body—unlike the US House), Alabama can use its veto even for reasons we might find disgusting.

So if each Senator (who represents his or her state as a political body even though he or she is elected by the citizens of his or her state) having a veto makes the US Senate “absurd” (and I join with those who are frustrated by it), we might want to consider the consequences that would be involved in depriving the political members of the Union of their vetos in the General Government (ie., Washington).  We could expect an acceleration in the consolidation of power in the General Government at the expense of the state governments—resulting in one size fits all in a heterogenous empire-scale Union (i.e., empire).  Any state government objecting to Washington taking over yet another domain of power would be powerless to stop that train without breaks running down the tracks toward a central state.  Meanwhile, that train would be able to pass more legislation through the US Senate, further accelerating its speed.

Some time back, I asked Sandra Day O’Connor of the US Supreme Court why she wasn’t objecting to the US Government going beyond its enumerated powers.  She replied to the small group that Congress was acting like a state legislature.  Disgust was palpable in her voice.  In a sense of futility, she added that it takes five on the US Supreme Court to have a majority decision (meaning that a majority would not go along with her on the enumerated powers matter).   You might be wondering what is wrong with Congress acting like a state legislature. The problem is that the US is in scale (and its make-up) commensurate with an empire by today’s standards.  In other words, most of our states are equivalent to countries.  You just can’t (or shouldn’t) run a combination of countries as though it were one country.  For one thing, a combo is inherently diverse.  Also, its center is further from the people.  It means less democracy or republican principles of representation because there are far fewer US Reps and Senators than state Reps and Senators.  Also, the US Government is designed as an empire-level polity.  Whereas the states’ Senates represent citizens (just as the states’ assemblies do), the US Senate (unlike the US House) represents political entities (the states) rather than US citizens.  In other words, both US citizens and US states are members of the US.  The US Government isn’t fashioned like a state government because the Union is a combination of such states (whereas a state is not a combo of republics in turn).

So we ought to be very careful about kneejerk reactions to fix the “absurd” US Senate.  To be sure, holding up appointments to get pork is squalid even by a pig’s standards, but turning the US Senate into a state senate would drastically alter what the US are.   Even though we use “the US” as a singular noun, the entity itself and its government were formed and designed with it as a plural noun (the states) in mind.  The US constitutional convention delegates invented modern federalism to suit this new genus of an empire: the Union.  The EU has since come into being along similar principles because it is of the same genus.  To treat either the US or EU as though it were commensurate with one of its states would be to treat something other than what it is.  That can only lead to a downfall.   So perhaps rather than change the US Senate to fit our understanding, we might alter our understanding to fit what the US are. This would entail taking the pressure off of the US Senate by returning most of the domestic legislation to the state governments (where there is more democracy).  Consider the coherence in having the US Senate  mainly involved in foreign policy (and regulating between the states) and having a filibuster (which is close to the principle of international organization).  That is, the state governments meet in the US Senate technically on an international basis. Moreover, the U.S. Constitution forms a hybrid between or composed of international and national governance.  This unique situs fits with the empire-scale of the United States, especially as they have expanded to fifty. 

Treating the US Senate as a state legislature…legislating on everything from healthcare to education…is a gross departure from this coherence.  It is indeed absurd—only we have the arrows reversed.  It is our use of the US Senate that is absurd—not the Senate’s principles (even though they can be abused, such as by Nebraska and Alabama). Treating the US Senate (and the Union) as other than what it is can only lead to the fall of our empire…our Union of States. To be sure, every empire that rises must fall.  So why write?  I’m merely trying to stay the fall a bit, but the outcome is certain.  In the meantime, let’s not help it along.  This will take more humility and much less presumptuousness in what we think we know about our system of public governance.  With more humility, perhaps more of us will be content to get involved in our state governments.  As it is, we overlook them and advocate changing the US Senate into our own image of what it should be, presuming the extant Senate is "absurd" (perhaps it is sheer hubris to make such a summary judgement?).

Source: http://blog.newsweek.com/blogs/thegaggle/archive/2010/02/05/need-more-evidence-the-senate-is-absurd-look-no-further.aspx

President Trump: Revisiting Presidents Jackson and Lincoln on their Statesmanship

In an interview in 2017, U.S. President Donald Trump said he wondered why the issues leading to the U.S. Civil War “could not have been worked out” to prevent the republics from exiting the U.S.[1] “People don’t realize, you know, the Civil War, if you think about it, why?”[2] In particular, “People don’t ask . . . why was there the Civil War? Why could that one not have been worked out?”[3] The reigning assumption has been that President Lincoln could not have resolved the dispute short of going to war. Trump then suggested that had President Andrew Jackson been president rather than Lincoln, we “wouldn’t have had the Civil War.”[4] Aside from the point that Jackson was a Southerner, his feat in resolving the Nullification Crisis without a shot being fired suggests that Trump had a point; the war between the C.S.A. and U.S.A. could have been averted. More importantly, the mentality that won the war may not be as salubrious as we suppose.

In 1828, when John Quincy Adams was the federal president, a tariff—a tax on imported manufactured goods that originally went into effect in 1816—was increased even beyond the increase in 1824. The intent was to protect the nascent American manufacturing sector, which was mainly in the Northern states, from cheaper European imports. As a result of the tariff, Southern plantation owners had to pay more for manufactured goods from Europe, and Europeans had fewer dollars with which to buy Southern exports, of which cotton and rice were particularly important to the Southern agrarian economy.

In 1829, Andrew Jackson became the U.S. President and John C. Calhoun became the Vice President. The latter, who was from South Carolina, proposed the doctrine of nullification, wherein a state government could constitutionally nullify any federal law injurious to the state’s interests. Even from the standpoint of a loose federation, or a confederated Union of mostly sovereign republics, the doctrine was specious; for it would eviscerate virtually any federally-agreed-to constraint on the states. The former president John Quincy Adams argued more practically that the U.S. Supreme Court, not the state governments, had the ultimate authority to declare federal law unconstitutional. For his part, President Jackson sided with Adams out of fear that state-nullification could potentially lead to the break-up of the Union.

Meanwhile, South Carolina’s government declared the tariff to be unenforceable in the state. European firms could export their goods to buyers in South Carolina without having to pay the tariff. Hence, the buyers would get the lower prices, and the sellers and their compatriots would have more dollars with which to buy South Carolina rice and cotton. The tariff would remain in effect in the U.S. where the toll on economies was less. Interestingly, Calhoun also argued that the federal government had constitutional authority to use tariffs only as a means to raise revenue for that government, rather than to favor certain economic sectors; such picking and choosing—essentially between states—was going too far, especially as a certain region of states was losing power in Congress as the Union added new states. I submit that South Carolina’s government officials and Calhoun pushed their favored confederal approach or interpretation of American federalism too far in incorporating the nullification doctrine precisely because the plantation economy was becoming less and less, proportionally speaking, of the American economy, and the Southern states, less and less, also proportionately, of the total number of states in the American Union. This dynamic, not its symptom of slavery, was the underlying cause of the war between the C.S.A. and the U.S.A. How this interpretation differs so from the victor’s moralistic, almost apolitical narrative! How bound we are, without even realizing it, to the narrative!—alternatives being deemed nothing short of heresy! Abominations!

President Jackson diffused the changing dynamic—shifting regional power in the Union in the midst of two starkly different preferences of federalism (confederalism and modern federalism, respectively)— by signing tariff legislation in 1832 and again in 1833 that lowered the tariffs even as he stated that South Carolina’s nullification law was null and void and sent federal troops down to the state to enforce the law. The deal, in other words, was a much lower tariff in exchange for the state’s repeal of its nullification law. Because the president pressed Congress to repeal its increased tariff, essentially giving that one to Calhoun’s point on the federal use of tariffs for revenue only, Jackson cannot be said to have been staunchly on the side of the federal government—which is something, considering that Jackson headed one of its three branches! Rather, the president gave something to South Carolina—putting the state’s interests ahead of the other states and the federal government. Yet the state’s government had to pay a price—giving up on its cherished, albeit over-extended, doctrine of nullification.

South Carolina’s legislature had prepared a secession, or “exit,” document—Calhoun himself was involved in crafting it. The same document would be used in 1861 for the “SoCarexit”—to borrow from the E.U. secessionist state’s lexicon. Interestingly, Congress had again just enacted a tariff increase in 1858. It is possible that this old issue, as much as new free states being admitted to the Union, sparked renewed impetus to divorce from the U.S.[5]

The threat to the Southern plantations in 1861 was not the imminent end of slavery there. The threat was indirect and more diffused, coming in the form of new states with different economies being admitted to the Union. The theory of confederalism insists that the enumerated and residual sovereignty of each state is protected—hence the balance of power resides with the states. The Southern fear was that the balance was already shifting in favor of the federal head, and this made the decreasing proportion of the Southern states in the enlarging Union particularly worrisome. In other words, the “nationalist” variant of federalism (modern federalism) was gaining over confederalism, and the interests of the Southern states—political, economic, cultural, religious—were becoming more of a minority in an increasingly heterogeneous, larger empire: the United States. The tariff and slavery were only symptoms.

Jackson’s peaceful resolution of the Nullification Crisis lays in stark contrast to Lincoln’s “take it or leave it” approach to the Southern secessionist states. Whereas Jackson had the federal government retreat voluntarily on its tariff, Lincoln’s approach can be seen as being one-sided because he did not even offer to have the federal government step back at all from its position. When all the political heavy-lifting is put on the other side—for it to do the backing down—it is no wonder that resistance is encountered and a long, bloody war results. I submit that Lincoln could reasonably have compromised and yet save the Union in the sense of retaining all of its existing states.

For example, Lincoln could have assuaged the Southerners’ fears by proposing a qualified majority voting system in the U.S. Senate and perhaps even in the U.S. House of Representatives. Such a system would be designed such that legislation could not pass without at least some Southern support. The federal government would thus not be able to turn on the South—which I submit was the underlying fear. In the E.U., for instance, qualified majority voting in the federal legislative chambers—the European Council and the European Parliament—requires at least 55% of population of the Union and 55% of the states be represented on the yes side of votes for the bills to become law. Lincoln and Congressional leaders could have entertained novel ideas on how to craft such a system. A Council of Regions, for instance, wherein only the major regions of the U.S. were represented—each region having a veto--could have been added as a third legislative chamber, or perhaps even to replace the U.S. Senate! Even beyond Jackson’s fine job in 1832, thinking outside the box in such occasions is invaluable in thwarting violent conflict from engulfing all other possibilities of resolution.

For the slavery-reductionist advocates, I submit that the Southern states were a significant portion of the Union and so were justified politically in wanting to feel that they would not be rolled over in federal chambers—even though the institution of slavery was squalid, especially to our modern sensibility in the twenty-first century. The institution is for us unthinkable, undenkbar, vorbotten even in retrospect (i.e., in a historical context). For us, to think of other human beings as wild animals or property is nothing short of pathological. Even so, we must allow ourselves to admit that because the Emancipation Proclamation did not occur until 1863 (and did not apply to the five slave states that remained with the Union, and had no effect in the rebel states), the immediate point of contention in 1861 was not slavery itself where it existed. The fear was more future-oriented, and generalized, and the anger was informed by political theory—namely, two contending versions of federalism—and declining political power. Accordingly, the conflict at hand could have been resolved short of war without the South having to give up the institution of slavery. The demand that Jackson's approach applied back in 1861 include the abolition of slavery where it then existed is unfair, for not even the new Republican Party was demanding then that the South give up its sordid institution! 

Had Lincoln adopted Jackson’s approach at that time, the South might then have moved years later to put its slavery in play. Perhaps the Southern states would have accepted federal financial help with a new plantation labor system in exchange for a repeal of the 1858 tariff, combined with the region having a veto on federal legislation in a Council of Regions or a stiff qualified-majority voting system in the U.S. Senate—either of which could have been enshrined as a constitutional amendment. To be sure, any of these items could have been used in 1861 to walk back from war. At any rate, ensuing incremental agreements, progress without war, might have been possible once cooler heads could again prevail. My point is that we cannot assume that were Jackson’s approach put in place in 1861, slavery would have endured for decades. But I digress.

Jackson was able to resolve his “either/or” by putting together a deal in which both sides—the federal government and the state—gave something and got something in return. Such an approach is superior to Lincoln’s “my way or the highway” stance—that of making demands of the other side without any accommodation or retreat on his side. Rigidity begets rigidity, and much harm came ensue when two pieces of sandpaper are rubbed against each other. Even beyond Jackson’s paradigm, however, of resolving a seemingly intractable “either/or” within itself is the ability to see a third, fourth, and even fifth alternative that may never be even thought of in holding fiercely onto the typical “either/or” paradigm. In short, I think we make things more difficult than they need be, even in assuming that the Civil War had to be fought. We do not even recognize our own mental cages, so we go on making the same mistakes over and over. To arrest this pattern, revisiting even “sacred cows” can be invaluable.

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[1] Jonathan Lemire, “Trump Makes Puzzling Claim About Andrew Jackson, Civil War,” The Sacramento Bee, May 1, 2017.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] The use of the term divorce is incorrect as it assumes two equal or equivalent parties. A state is not equivalent to a union of such states, hence the use of the term for the secession of a state involves a category mistake. In the context of “Brexit,” for example, “divorce” can be read as presumptuous for the secessionists.