U.S. Presidential Encroachment on State Prerogatives

Both in the E.U. and U.S., the member-states are semi-sovereign, and are even guaranteed all residual sovereignty that is not in any of the enumerated competencies (i.e., powers) of the respective unions and the states. Europeans are smart to have multiple avenues for the state governments in the European Council and the Council of Ministers so those governments can protect themselves against encroachment by the Commission. To be sure, these safeguards go too far, especially given the sheer number of states even by the mid-2020s, in giving each state a veto especially on important matters in which qualified-majority voting does not apply. In other words, the safeguards against federal encroachment in the E.U. are excessive as long as each state can wield its veto against federal policies, legislation, and regulations. Regarding the latter, the directive means provides each state with some latitude. I suspect that the Europeans who constructed the E.U.’s federal system were in part fearful of federal encroachment because so much of that had already built-up in the U.S., where federal consolidation had become a threat to the governmental sovereignty of the member-states, as if they were just regions rather than republics holding even more sovereignty, on parchment at least, than does Congress and the federal president. So, it is worth taking not of the rare instances in which a state legislature pushes back against threats from the U.S. president on a competency (i.e., enumerated power) reserved by the states.  The rejection by the Indiana Senate of U.S. President Trump’s pressure to accept new districts for U.S. House representatives from Indiana—a map in which the Republican Group would likely pick up two seats—is important because Congressional-district maps are the prerogative of the states rather than an encroaching federal executive.

According to Article 1, Section 4 of the U.S. basic law (consolidated as a constitution), the member-states have the primary authority to regulate the “times, places, and manner” of the U.S. House or Representatives’ elections. This authority includes enacting the boundaries of the districts within a state. To be sure, Congress has been delegated authority to override a state’s Congressional-district map, as federal oversight is in line with the “checks and balances” feature of modern federalism. For instance, a state’s map that discriminates against regions populated mostly by a racial minority would be ripe for Congressional action. It is significant that the U.S. president plays no role either in crafting such maps or in oversight. Therefore, U.S. President Trump’s threats laid against certain senators in the Indiana Senate so they would pass a new Congressional map before the next census so to give Trump’s Republican group in the U.S. House of Representatives more representation than otherwise would likely be the case was a case of federal encroachment of a state power encased in the U.S. Constitution. The Indiana senators voted prudently and justifiably in rejecting the U.S. President’s “bully tactics.”

Senator Michael Crider, a Republican, who faced “threats of violence and intimidation,” issued a statement after he voted no on the redistricting proposal.[1] “When you get kind of bullied and threatened, if that tactic works, then you can expect to deal with that for the rest of your political career.”[2] Sen. Vaneta Becker issued the following statement: “I think this looks like and feels like bullying, and I don’t think Hoosiers respond well to bullying.”[3] Neither, I might add, do Illinoisians on the other side of the Wabash river, to whom people from the Indiana side of the river-border used to shout, “Whos you’r,” hence the mascot, “Hoosier”, instead of who are you?

The same consequences of giving into a bully can be said of a state legislature; once it capitulates to threats and pressure from the federal executive (or Congress), threats will be more likely to continue and even become more dire until the member-state legislators are afraid to use even the powers reserved for the states. In the case of the redistricting plan, President Trump even threatened the Indiana government that federal funds would be cut off from the state in retaliation for not approving the president’s partisan plan. Sen. Spencer Deery made the problem of encroachment on the state explicit: “As long as I have breath, I will use my voice to resist a federal government that attempts to bully, direct and control this state or any state. Giving the federal government more power is not conservative.”[4] That a prerogative of a state legislature could be circumvented “at the whim of a president’s request” was too much for Sen. Mike Bohacek too.[5] Therefore, both in terms of threatening Indiana lawmakers, who have been democratically elected, and in terms of eclipsing federalism, wherein the vital element of checks-and-balances between the federal institutions and those of states, the political courage of the Indiana Republican senators who voted against President Trump’s partisan plan is laudable. Threats of violence have no place in politics, and efforts to usurp the governmental sovereignty that is reserved for the states, whether in the U.S. or E.U., should be resisted lest the check-and-balance “oversight” feature of modern, dual-sovereignty, federalism be lost.

Fortunately, the “acts of intimidation and threats and acts of violence targeting [Republican Indiana] senators who opposed” the proposal backfired, as a majority of the 40 Republican senators voted against the bill.[6] Ironically, politically conservative principles were cited by some of those senators. The head of the Republican Group in the Indiana Senate, Sen. Rodric Bray, said, “many of my caucus members don’t think redrawing our Congressional map mid-cycle is a guaranteed way for Indiana.”[7] In short, changing maps for partisan purposes mid-way through a decade violates the tradition of redrawing maps only just after the U.S. census, which occurs once every decade. As per conservative principles, Bray urged Republicans to campaign more so as to sway a district that was then held by a Democrat but becoming increasingly Republican. As the saying goes, elections have consequences.

 

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1. Paul Blumenthal, “These Are The Indiana Republicans Who Voted To Crush Trump’s Redistricting Plan,” The Huffington Post, December 12, 2025.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.

Statehood for Canada: Hardly a Merger

The U.S. Constitution includes an open invitation for the accession of Canada into the U.S. as a state. The invitation was made before Canada spread across from the Atlantic to the Pacific oceans. So, were Canadians to seek statehood in the American union of states (i.e., the U.S.A.), they would have a good argument for Canada being split in to a few states rather than just one. This is qualitatively different than a “merger” between the two countries; the latter ideological conjecture is predicated on a category mistake. Such a mistake would say, for example, that Singapore and China are of the same genus politically even though the former is a city-state and the latter is on the (early modern) empire-scale. Just because both Singapore and China have foreign policies and are member-countries of the UN does not mean that a city-state is to be treated more generally as if it were the same as an empire. By “empire,” I am referring to China itself, rather than any territories it might have beyond mainland China. The Qing emperor Kangzi expanded mainland China to include some central Asian kingdoms, thus making China an empire (of kingdom-level/scale subunits). Similarly, the U.S., as well as the E.U., are empire-scale/level polities of (kingdom-level) polities, whereas Canada does not have enough such polities to qualify as being on the empire-scale, for an empire contains many kingdom-level polities.

When the U.S. federal constitution was written, Canada consisted of Lower Canada, which was French-speaking, and Upper Canada, which is present-day Ontario. There were also maritime colonies to the east. It makes sense, as Ontario hardly stretches across the continent to present-day British Columbia, that the American delegates at the Constitutional Convention in 1787 would naturally view both Upper and Lower “Canada” together as being equivalent to an American republic being represented at the convention, both in terms of population and extent of territory. However, that Upper and Lower Canada were so culturally different, with different languages being predominant in each, had I been at the convention, I would have urged the other delegates to offer statehood as two states rather than just one. Different states having different languages is of course well-known in the E.U., and even in the U.S., German was just narrowly—by one vote—voted down as the official language of Wisconsin by its legislature. Even today, “brats and beer” have a cultural meaning in Wisconsin (e.g., grilled on the lakeside terrace just outside the Rathskeller bar at the University of Wisconsin) that simply does not exist in Illinois, even just miles from the northern border. Imagine if German were the official language of Wisconsin; the cultural differences between the two American republics would be even greater; but I digress.

When U.S. President Trump broached the idea that Canada could join the U.S. as the 51^st state, some government officials at the state level in the E.U. displayed their abject ignorance of what the U.S. was and is by correcting Trump by insisting that Canada joining the U.S. would actually be a “merger” of two sovereign countries. Actually, each of the states in the U.S., as well as those in the E.U., are semi-sovereign and hold residual sovereignty (whereas the U.S. and E.U. have only delegated, enumerated powers/competencies). Neither Texas nor France is a sovereign country anymore, for both have agreed to delegate some governmental sovereignty to the federal system represented by federal governmental institutions. So the presumptuous, dismissive tone used was actually like primped arrogance on stilts during a flood, and in a Nietzschean sense be viewed as a manifestation of the will to power from resentment rather than as a factual statement.

So, when the prime minister of Canada visited the White House in October 2025, Euronews lied that the “US president even made a joking reference to a ‘merger’ between the two countries.”[1] He would not have used the “merger” to refer to Canada becoming a state. The European journalist was writing as an act of power to reduce the US as if it were equivalent to an E.U. state. Canada is not a united states; neither is Mexico. When an official from the British consulate of Chicago spoke at the University of Wisconsin in the 2000s, before Britain had seceded from being an E.U. state, I asked him about how the possible accession (not merger!) of Turkey would affect the European Union. He replied that it would be like Mexico becoming the 51^st state. He was implicitly rejecting the view that Mexico would merge with the U.S., even though Mexico had incorrectly adopted the nomenclature, “The United States of Mexico.” France or Belgium or Germany could call itself a united states, but those republics are nonetheless states in the E.U., which is equivalent, as an empire-scale union of states, to the U.S.

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1. Malek Fouda, “Trump Says There Is ‘Natural Conflict’ with Canada as He Hosts PM Mark Carney at the Oval Office,” Euronews.com, October 8, 2025.

Certifying a U.S. Presidential Election: A Constitutional Conflict of Interest

That it should go without saying that a constitution providing a government with its basic framework and procedures should not contain any conflicts of interest makes it all the more astonishing when an actual constitution is found to contain a obvious yet undetected conflict of interest that could be exploited by an institutional or officeholder and yet is easy to obviate, or fix. The implication in such a case is that a society can be too comfortable with institutional conflicts of interest without realizing that if such a conflict is exploitable, it is likely that it eventually will be even if not right away. Because U.S. President Don Trump’s pressure on his vice president, Mike Pence, on January 6, 2021 to refuse to certify the votes of the electors in some of the states did not result in any serious proposals to have another office than the vice presidency preside, a societal tolerance for even known conflicts of interests in general and in a constitution more particularly can be inferred. I submit that such a tacit willingness to continue with the status quo can eventually put even a republic itself at risk.

Speaking on January 6, 2024, U.S. Vice President Kamala Harris referred to her constitutional duty of presiding in a joint-session of Congress tasked with certifying the election that she had lost as something she took very seriously. The American people should not have to worry about whether a vice president might exploit the presiding role by resisting or thwarting a peaceful transfer of power. “Today was obviously a very important day,” she said, “and it was about what should be the norm and what the American people should be able to take for granted, which is that one of the most important pillars of our democracy is that there will be a peaceful transfer of power.”[1] Such a transfer lies at the core of representative democracy, so it is important that any risk of any impediment, whether an opportunistic person outside of a constitution or something lying in a constitution itself, be minimized. It is not, in other words, a minor matter.

Simply tasking the loser of an election with presiding over the counting of votes and the announcement of the winner should give anyone pause. At the very least, no one should be duty-bound to perform such a function—which can be thought of as “rubbing one’s face” in the affair, which can feel humiliating to the person.

Furthermore, politically, whether a vice president is a candidate for president as Harris was or is pressured to do the partisan or personal bidding of a president as Pence had been, having a partisan office preside is itself problematic not only for the presidency itself in terms sheer credibility, but also for a vice president in terms of the election process itself. Simply put, the vice president who is running for president or for another term as vice president is an active player in the contest and thus should not preside over the tabulation and certification of the results. As simple as this is to grasp, it must be difficult for enough Americans that the problem has been allowed to persist.

This is especially damning because the conflict of interest is easy to remove. The chief justice, or any justice, of the U.S. Supreme Court would be a natural fit for the presiding role as the judiciary is not (supposed to be) partisan. Put another way, a sitting president pressuring the vice president to declare some state slates of electors invalid is more likely than pressuring the chief justice to do that same. Institutionally, given the separation of powers in the U.S. Government, reaching out to the chief justice would be much more difficult than trying to pressure a vice president of one’s own administration. Having the chief justice, who swears in presidents, preside over the Congressional counting of the Electoral College votes for president as both the sitting vice president and Speaker of the House look on makes so much sense that it is sad state of affairs when the status quo is almost mindlessly retained even four years after the conflict of interest could have been exploited, with a riotous mob of partisans literally breaching the Capitol to convey additional pressure.

Putting the loser of an election in the position of having to publicly announce the victor is the smoke that points to an underlying constitutional conflict of interest; a mob pressuring a loser on a presidential ticket to abuse the presiding role of the vice president is more like fire than smoke. That the ensuing public discourse did not contain a proposal of a constitutional amendment assigning the task to the chief justice of the U.S. Supreme Court reflects very badly not only on the elected office-holders (and the media), but also on the American people, as it is government ultimately by the people. Perhaps a people gets the government, and constitution, that they deserve, for institutional conflicts of interest should be obviated whether in government, business, or in non-profit institutions.

Neither institutional relations nor processes should contain conflicts of interest that can be exploited because human nature is itself rather inclined to exploit them because of the instinctual urges that manifest as self-, office-, and institutional-interest even at the expense of the interest of the whole. Even though governments and economic systems tend to be based on such interests, the latter don’t have to be encouraged by the ongoing existence of institutional conflicts of interest. Continuing with the status quo can itself be thought of as a choice—one that reflects a certain underlying set of beliefs and assumptions that are valued, and even the extent of basic awareness.  Having seen not only smoke, but even fire, a people can indeed be faulted for having insufficient awareness, and this verdict is perhaps even more damning than that which concerns the naivete concerning human nature being able to withstand conflicts of interest without exploiting them in the long run. The sting of these verdicts hurts all the more when an institutional conflict of interest can be obviated relatively easily with a solution that is, or should be, obvious. Because power is that which is channeled in a political constitution, risking the exploitation of a conflict of interest that is in a constitution is not a smart choice if a viable, ongoing republic is desired.

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1. Aditi Sangal, “Congress Certifies Trump’s 2024 Election Win,” CNN.com, January 6, 2025.

Undermining the U.S. Supreme Court: Non-Jurisprudential Ideology and the U.S. Constitution

As in the case of the Roman Empire, which internal corruption likely weakened and even destroyed centuries after that empire had been a republic, modern republics are also not immune from internal decay. Even though political corruption can go under the radar, especially if systemic rather than merely episodic or around particular office holders, the subtle, gradual impact can be just as destructive than had Carthage defeated Rome’s general, Skippio Africanus, in north Africa. Making subtle decadence all the more embarrassing is the fact that it can be right under the noses of upstanding office-holders. I contend that this is the case with Chief Justice John Roberts of the U.S. Supreme Court.

In his annual report in December, 2024, Roberts “slammed what he described as ‘dangerous’ talk by some officials [in the two other branches, or arms, of the U.S. Government] about ignoring court rulings,” as that could result in a judiciary that is less than independent of the legislative and executive branches and their respective members.[1] Both Republicans and Democrats had “hinted at ignoring rulings in recent years.”[2] To Roberts, that every presidential administration “suffers defeats in the court system—sometimes in cases with major ramifications”[3]—is the main reason why some presidents, including Andrew Jackson, have been tempted to leave it to the high court to enforce its rulings rather than rely on the executive branch. But this explanation ignores something else—something just below Roberts’ nose.

Even as Roberts “lamented that ‘public officials’ . . . had ‘regrettably’ attempted to intimidate judges by ‘suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” the chief justice dismissed the claim of political bias as “inappropriate.”[4] I submit that the claim has sufficient basis to be taken seriously, and, furthermore, that it goes beyond questions about the ethics of particular justices, such as Thomas’ acceptance of vacations and Alito allowing his wife to fly a right-wing flag at one of their houses.

Proverbially with a straight face, the chief justice wrote in his 2024 year-end report that the role of the judicial branch is “to say what the law is.”[5] I submit that the justices do more than that. Just in the media referring to “the conservative 6-3 majority” contains the implicit assumption that there are indeed conservative and liberal justices and that such labels go beyond referring to jurisprudential hermeneutics (i.e., approaches to interpreting the U.S. Constitution) and even what opinions on what law itself is. Emphasizing what the words in the document meant in 1787 versus what they mean today, or privileging the original intent of the delegates at the U.S. Constitutional Convention versus interpreting the text in terms of the modern world are just two examples of how the words conservative and progressive (or liberal) could appropriately be applied to court justices in a way that delimits the extent to which their ideology can play a role.

I submit that when Justice Sandra O’Conner wrote the U.S. Supreme Court’s majority opinion before the oral arguments in Bush v. Gore—the ruling that effectively gave George W. Bush the federal presidency—something more political than jurisprudential hermeneutics being applied was in play. That O’Conner had been a Republican in Arizona’s lower house from 1969-1974 may have something to do with why she subsequently wrote the Bush v. Gore opinion for the conservative, Republican-nominated majority before even oral arguments were heard.

Furthermore, that justices who were against abortion constituted the majority opinion that overturned Roe v. Wade (1973) may suggest that a non-juridical ideology played a role, and thus that those justices went beyond merely deciding what the law is to stating what it should be. That the justices who constituted the majority in the Citizens United (2010) case were conservative, and thus likely pro-business, may have meant that the nonjuridical economic ideology of free, unencumbered markets even manifesting with money being free-speech was in play.

On the other ideological side, it is likely that attitudes towards race played a role in the liberal majority’s opinion in Brown v. Topeka Board of Education (1954) that separation is not equal and thus racial segregation in public schools is unconstitutional. Similarly, the finding of an implicit privacy right in the due process clause of the U.S. Constitution in order to render abortion legal in the Roe v. Wade decision may point to an extra-judicial ideology bearing on life and abortion, and even religion, as being in the driver’s seat.

When moral, political, cultural, or even religious ideologies or beliefs are salient in a judicial decision, then the designation of conservative or liberal points to a broader judgment both as concerning the justices themselves and their respective rulings. If such broadly-informed judgment is really what the electorate in a republic should bring to voting, then the implication is that public matters requiring or even just fitting such broad judgment should not be decided by unelected justices. I submit that such deference is precisely the point on which Roberts and his court (as well as other, past courts, including that of Warren) has lapsed. Individual judges and even an entire court can thus be seen as opportunistic in short-circuiting the prerogative that actually belongs to the popular sovereign: the people. This does not mean that the will of a majority of an electorate should trample over individual rights, as a judiciary is rightfully charged with protecting such rights precisely because a majority of an electorate may act heedless of minorities, as can legislatures and even presidents; but defending rights from majoritarian tyranny does not mean or require a judge coloring beyond the jurisprudential lines on a page to impose one’s own exogenous ideology, which anyone could do—hence the deference.

That the U.S. presidency, which unfortunately has been partisan at the expense of the credibility needed to preside, nominates U.S. Supreme Court justices and Republican or Democratic U.S. Senators (and occasionally an Independent) confirm the nominees means not only that politically conservative or liberal justices can be expected to be sitting on the bench, but also, and perhaps more importantly— though unfortunately almost invisible to the naked eye—the selection process itself is culpable in essentially exporting political judgments from the American electorates to the unelected justices. In short, Americans should not be surprised at all that political ideology, infused with moral, economic, and even religious valued beliefs, has such an impact in U.S. Supreme Court decisions. The U.S. Constitution itself is biased in favor of this, and that the amendment process is itself so hard to complete means that the vulnerability to partisanship on the bench that is structural in the document is effectively intractable.

Being human, all too human, all of us would love to imprint our respective ideologies on law, whether statutory or common. So, we should all have the means to do so through the vote. Essentially, I am arguing that popular sovereignty—government by the people rather than vice versa—has unwittingly ceded too much territory to the U.S. Supreme Court under the subterfuge of an expansive notion of judicial interpretation. Ironically, there is thus a silver lining in this respect to the anti-abortion justices imposing their moral or religious beliefs in overturning Roe v. Wade because as a direct result, some state legislatures have voted on legislation bearing on abortion and even the voters in some states have been able to exercise their popular sovereignty by being able to vote directly on the matter via referendi.[6]

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1. John Fritze, “Roberts Warns Against Ignoring Supreme Court Rulings As Tension With Trump Looms,” CNN.com, December 31, 2024.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. That last word is the plural form of referendum; you can blame Latin, and ultimately the Romans whose empire fell at least in part due to corruption within. No human social artifact can be expected to last forever. 

Exfoliating a Hero: On Lincoln's Unconstitutional Overreaching

Lest we get carried away and inadvertantly enshrine our leaders with mythic laurals, it is worthwhile to peel back our societal "remembering" of past figures, such as Abraham Lincoln, who have become larger than life.

Lincoln was a moderate, promising merely not to spread slavery. In his address after being sworn in, he promised not to go after slavery where it existed. Accordingly, radical abolitionists complained. Even so, the 1860 campaign had been viewed, at least in the south, as a referendum on the southern way of life. Lincoln received only 40% of the vote; he was not even on the ballot in ten states.  There were just 33 states in the union at the time. Lincoln's victory suffered from a deficit of legitimacy in some quarters. In fact,he was burned in effigy at a state capitol in the south. With free Kansas becoming a state, the slave states felt that their respective abilities to defend their way of life in the general councils of the union would become even more truncated or dilute. Berift of a sense of influence on general matters that concerned themselves, the confederating republics felt they had no alternative other than secession.

On Feb 18, 1861, Jefferson Davis became President of the Confederate States of America. At his swearing in, Dixie, which had been composed by a northerner, was played. The two sides in the continental dispute were closer than they perhaps realized. Both Lincoln and Davis, for example, were from Kentucky originally.  According to the Confederate constitution, Davis had a line item veto and would have had a six year term had the confederacy lasted that long. Astonishingly, international slave trading was outlawed. Even so, there were fundamental differences involved in the dispute. Ironically, had the southern states freed the slaves before firing on Fort Sumpter--depriving Lincoln of his motivational tactic midway through the way--perhaps something resembling the southern way of life in a loose confederacy would have prevailed. The United States would have been left to consolidate to its heart's content.

On the way to his inauguration, Lincoln declared that he would rather be assassinated than to see even one star removed from the flag. Such a stance reflects the "all or none" mentality that accompanies political consolidation. In spite of Lincoln's line in the sand, the War between the Confederated States and the United States began at 4:30am on April 12, 1861.  Technically, it was a war between a federated alliance and a federal government. The opening act was bloodless, even as the war to come was the bloodiest in American history. Siloh alone matched the casualties at Waterloo, and there would be 27 more to come. 51,000 men lost their lives in the three days at Gettysburg alone. The contest between the old and new federal forms exacted a heavy toll in human loss and suffering. Who would have thought that contending distinctions in political theory could be so bloody. Of course, might does not in itself make right, although the passion of the unjustly oppressed can bring about victories disproportionate to the relative lack in number. Furthermore, in this particular case, the respective populations in the federations and the industrialization of several of the union's states gave the forces of modern federalism an advantage not necessarily sourced in the nature of the type.

At the time, the union states had a combined population of 21 million while the confederacy had only 9 million, 4 million of which were slaves and thus not in the fight. In spite of the fact that so many southerners volunteered to enlist that a third of them had to be sent back home, the confederacy was perhaps destined to lose the bellum given the tremendous disadvantage in terms of population. That the conflict lasted until 1865 may point to the extent of resentment that had been allowed to build up throughout the slave states against what was viewed there as an “intrusive” federal government. For example, the devisive tarriff that had nearly caused South Carolina to secede in 1832 was reimposed by the U.S. Government in 1858. As in 1832, the tax was to finance northern industrialization. The states producing cotton and/or rice were left not being able to defend their interests in Washington. Accordingly, that distant government was viewed as encroaching and increasingly foreign. The root of the festering dispute went far beyond the issue of slavery.

To the confederate citizens, the cause involved the rights of their republics as well as their property rights. Slaves, being viewed as property by their "masters"--a decadent conception of slavery unknown to ancient understandings--were thus in play as part of the wider and deeper southern concern with self-determination, which the southerners identified with their respective countries and associated ways of life. Even Lincoln's Emancipation Proclamation, which took effect on January 1, 1863 (almost two years into the war), applied only to slaves in the states that had already left the union (rather than to the five slave states that had remained).

The confederate states were not subject to U.S. law as long as they were part of the confederacy rather than the union. Lincoln's proclamation was thus extra-constitutional, and thus without immediate effect other than to motivate an increasingly weary northern citizenry and armed forces. To be sure, Sherman freed slaves as he blazed a trail to the sea. However, even without the proclamation, he would have deprived the confederates of their "property" along with their other means until they surrendered. Slavery was not outlawed in the United States until 1865, when the thirteenth amendment was ratified by the states (the former confederate states excluded even though they had been re-afixed to the union).  There was some duplicity involved in, "Welcome back to the union! But unfortunately your vote doesn't count yet because you don't agree."

Fundamentally, the "north" and "south" interpreted the United States differently. This is what the war was really about, and the issue went all the way back to the contentious debates in the constitutional convention in 1787. The delegates had hotly debated whether the proposed General Government would consolidate power via "general welfare" spending and the potentially unlimited taxation, irrespective of the question of slavery. The people who wanted to secede viewed the U.S. as more like a confederation than a modern federal government. That is, confederates viewed their states as countries and the U.S. more as an alliance having only strictly defined enumerated powers that a national government. Robert E. Lee, for example, was offered command of the union army. He refused and went with Virginia. He could not draw his sword, he said, against his native country. Virginia had to come first; there was never any question about that. Such a view of Virginia and the other republics was to fade even as they still retained residual sovereignty at least into the twenty-first century.

In general, the southerners feared that the federal government would usurp more and more power from their countries; as things turned out, the fear was not without foundation. Even then, Lincoln declared war against the confederated states even though the U.S. constitution clearly stipulates that Congress is the governmental body in the U.S. Government that declares war.  As the president is the commander in chief, there is a conflict of interest in that office also declaring war. So technically speaking, the war was not constitutional, and thus legal.  Lincoln also suspended habeus corpus, though the constitution allows for this in time of rebellion.  To keep the Maryland from seceding, he locked up thirteen of the state's legislators without trial. 

Chief Justice Taney, who had four years earlier concurred with the Dred Scott decision, said that Lincoln had gone too far beyond the constitution in the powers he was exercising. Taney was on firm ground on the declaration of war. Even so, astonishingly, the president simply ignored the chief justice. From the standpoint of an independent judiciary with teeth, Lincoln was laying a precedent very dangerous to the republic.

Because the judiciary has no means of enforcing its decisions by force, the branch depends on the other branches, and, indeed, the people, resisting the temptation to contravene a judicial decision. The basis of the resisted temptation rests on the court's legitimacy, for the judiciary has no troops of its own. In fact, Bickel refers to the court as the “least dangerous branch” for this reason. Lincoln’s precedent in simply ignoring the court put at risk the system of checks and balances that resides in the separation of powers in the federal government. Fortunately for us, Lincoln’s treatment of the Chief Justice's effort to hold the executive branch within its proper constitutional sphere, as though Taney were a mere bystander, has largely been forgotten.  Yet the expediency of an imperial presidency has indeed been on display since Lincoln as Congress has gradually lost power to the commander in chief. The danger is real, and Lincoln's precedent could yet be used by an ambitious commander in chief who has his or her eye on another country to invade. 

Ironically, Lincoln’s unconstitutional actions at the beginning of the war ironically to save the union could be viewed as confirming the charges made by the confederates against the encroaching nature of the federal government.  Lest we miss the lesson as we remember the bloody war 150 years later in 2011-2015 from the standpoint of the victors, we might take note of the susceptibility of power itself to consolidate, ultimately in one person—indeed, even in a hero. The consolidating proclivity is as much a danger in the modern American empire today as it was in ancient Rome.  

Source: Ken Burns’ The Civil War (PBS)

The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

Section 3 of the 14^th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.

Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14^th Amendment to Donald Trump.

Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. 

After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.

Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.

Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.

Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.

I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14^th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

On the Weakening of the Rule of Law in the United States

When law enforcement (i.e., police) conveniently exclude themselves from obeying law, the contradiction should, I submit, be sufficient for the perpetrators to be fired. It is not enough for their boss to chastise or even suspend the hypocrites, for they are inherently unfit for law enforcement, and should instead be treated as actual or potential criminals. What about when such a sordid mentality comes to proliferate through a police department, especially if it lies beyond the competence of a city government to hold even such a department accountable? What if a local political “law and order” culture tacitly exempts police and goes on to look the other way as the latter render the locality into a police state? I contend that the Phoenix metropolitan area, including the suburbs surrounding Phoenix itself, furnishes us with a case in point.

In a subway station in New York City in October, 2021, two cops shoved a passenger out of the station because he had asked them why they were not wearing masks, which federal law at the time required be worn on subways, light rail, street cars, buses, and indoor subway stations. The alpha male policeman lied in declaring to the passenger that he was “a disturbance,” and subsequently shouted. Sounds like a bully to me. Not exactly a fitting persona for people who can legally kill others, yet how many police departments willow out such misfits?

Whereas the bully component can be dramatic enough to grab headlines in the news, the presumptuous decision made by police employees—and this is what “officers” really are—that the law does not apply to them is noxious in its arrogance. As NYC mayor de Blasio said after viewing the video of the subway incident, “if you’re going to be in law enforcement, you actually have to participate in following the law.”[1] The mayor noted that the police had been given the mask-requirement instructions “a thousand times.” It was not as if the two police employees did not know that they were breaking the rule—and violating a federal regulation!—when they aggressively turned on the passenger who was motivated to see that the law was enforced. Janno Lieber, CEO of the MTA (the metro transit authority) put it well in saying, “I don’t want to see [passengers] being pushed out of the system by people who are not complying with the rules that the federal government sets. Come on, enough.”[2] 

Unfortunately, “Come on, enough” could be said of the Phoenix (Arizona) police department, which the U.S. Justice Department had found guilty of lying to the department about having denied police-accountability protesters their constitutional right of political protest. To knowingly intimidate protesters with excessive shows of guns, police employees and vehicles, and low-flying helicopters reveals an immaturity and lack of judgment on proportionality that de facto de-legitimate a police department even if such qualities are salient in the local culture.

In Phoenix, self-exemption from having to obey federal law had become overwhelmingly salient in the local culture, given the proportion of light-rail and bus passengers who did not wear masks—or wore them only covering their respective chins! Even a significant number of bus drivers had self-exempted themselves from the signs on the buses: “As Per Federal Law, Masks Must be Worn on the Bus.” Calling the mass transit authority (Metro Valley) to report some of the drivers who were disobeying company policy and violating federal law, I was stunned to hear, “Our drivers don’t have to wear masks. Don’t pay attention to the signs on the buses.” A manager of TransDev, one of the bus-operations sub-contractor, left a voicemail informing me that even though masks were required by federal law, the company had no such policy.” Interesting. Company policy trumps federal law. Welcome to Arizona.

In October, 2021, with passengers passing by to pay, this bus driver was violating federal law by refusing to wear a mask. I reminded her that masks are required on city buses. After I took my seat, she made a general announcement that if any (paying) customer on the bus feels unsafe, he can get off and catch the next bus. Notice that the driver had lowered the plexiglass "window" pane and thus was being unsafe (and thus inconsiderate). Her passive aggression in her hostile announcement added insult to injury even though she felt convinced that she was entitled to break federal law. This sense of entitlement backed up by passive (and active) aggression is salient in the local culture. I called in a complaint to the regional transit authority (Metro Valley) against that driver. 

A few weeks later, I witnessed the same driver again not wearing a mask. At least she had the plexiglass window pane up, though the federal regulation requires masks be worn by operators even behind plexiglass. I had heard back from TransDev, a subcontractor bus-operating company, telling me on my voicemail that the company policy allows drivers to go maskless, even in spite of the federal regulation. Metro Valley customer service had a week earlier informed me similarly that passengers can board the buses even though the company's signs on the buses forbit it as "per federal law." Such entitlement! Such willfulness! Such passive aggression! Such ignorance! A company policy does not outweigh a federal law or regulation. 

Seeing a managerial-level Phoenix policeman walking from his "Supervisor" car to the police substation on Central Ave near Arizona State University’s downtown Phoenix campus, I told him that I had encountered: bus drivers (and light rail security guards) refusing to wear masks and even allowing passengers to ride without wearing masks. I added that the regional transit authority and one of its sub-contractors arrogantly and ignorantly declaring that such passengers can ride and bus drivers need not wear masks.

To my profound, jaw-dropping astonishment, the police patrol manager informed me that “the only real law is Arizona law,” and my governor told us that we don’t have to follow that federal mandate.” Every law and regulation mandates, I said to correct for the man’s ignorant belief that a mandate is optional and does not have the force of law. I pointed out that state governments cannot constitutionally nullify federal law; South Carolina had learned this lesson in 1832. I also cited the Supremacy Clause of the U.S. Constitution. “Where did you learn that?” the policeman asked, “At Yale?” I had told him that I had studied political theory (as well as theology) at Yale. The man’s disdain for higher education was just as salient as was his sordid ignorance, and of course he presumed that he could not be wrong. Unfortunately, the local workforce in general was saturated by unbelievable ignorance that would presume itself to be infallible and lash out as if in getting even.

I reported my conversation as well as the messages from the regional transit authority and its TransDev subcontractor to the office manager of the Phoenix mayor’s office. I even called the city manager’s office and asked for a managerial level employee to return my call. Instead, a misleading intern called me. Meanwhile, nothing changed in the mass transit system. Given the decadence in the local culture, I would have been surprised had anything changed. I was most concerned that the city government would not pounce on such outrageous statements by a police manager concerning federal law. Such utter corruption and an inert local government could produce a toxic, perfect storm beyond the reach of the U.S. Justice Department to counter, for the local police department and regional transit authority (and its two operations sub-contractors) had become infused with the local culture. 

Specifically, I am referring here to the sense of entitlement that laws can be ignored or simply dismissed if they are inconvenient, and the defense mechanism of hostility in the face of having the bloated, self-serving sense of entitlement questioned or contradicted outright. For instance, I called the police non-emergency number in 2021 to report loud bass from cars at a self-serve carwash near where I was living at the time. The offender was still present when the police arrived. To my utter shock, one of the two patrol police employees claimed that no law prohibits loud noise in a residential neighborhood. "The business owner has posted signs--right over there--citing the Arizona statues and the local ordinance number (2-22). Would you take a look?," I countered in a calm voice that belied my real objection to his ignorance. "No, I won't," he objected like a child. So the man-child would not even go to the offending pick-up truck to speak with the young men. While I was waiting for the business owner to call me back, the man-child slowly followed me as if I were a suspect rather than witness reporting an ongoing, almost daily crime that the local police had failed utterly to stamp out. The man-child's sense of entitlement was evident not only in his lying about the law, but also his abject refusal to drive or walk over to one of the signs. He assumed himself infallibly to be on solid ground, from which he then tried to intimidate me (hostility). Getting back at me for what? What sort of sordid mentality invents retribution out of thin air? A week after I had reported the man-child's behavior to his department, I received a call from a patrol supervisor, who was intent on arguing with me by insisting that the sign read "No Trespassing." "I don't doubt that such a sign exists there, but that's not the signs that I was referring to when I said that the signs read 'No loud noise, no revving engines, ...' and at the laws are cited at the bottoms of the signs--one posted at each post." The woman hung up on me. There would be no accountability within that woefully stubborn and corrupt police department, which had lied to the FBI concerning another matter: intimidating protestors who were protesting against police brutality in 2020.  A dysfunctional culture, whether of a locality or an organization, is extremely difficult to cure. 

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[1] Liam Reilly, “NYC Mayor ‘Troubled’ by Video Showing Unmasked Officers Forcibly Removing Masked Subway Commuter,” CNN.com (October 21, 2021).
[2] Ibid.

.U.S. Constitutional Checks and Balances Under Threat: Congressional Oversight

Ambition checked by ambition. The assumption that political ambition can be counted on is the key to the “checks and balances” feature of the U.S. Constitution. Each of the three “arms,” or “branches,” of the federal government is checked by at least one other. This is not to say that the other arm takes over the function or even has greater competence; rather, the other arm is oriented here to providing accountability on abuses of power and investigating cases of gross negligence or incompetence. An offended branch should thus not be permitted to claim that oversight is not appropriate because it interferes with the function the branch. Treating oversight by another arm of the federal government as inherently partisan or illegitimate eviscerates the vital “check and balance” aspect of the U.S. Constitution. 

In disputes on oversight between two branches, the benefit of the doubt ought to go with the overseeing branch because it is only natural for human beings to resist being held accountable and so accountability itself needs a boost. I have in mind the case the director of national intelligence, Joe Maguire, blocking the inspector general from sharing an intelligence-whistle-blower’s complaint with Congress in September, 2019.

The contents of the complaint included a phone call between President Trump and another national leader in which Trump made a commitment. Ukraine was relevant. Rep. Adam Schiff, chair of the House Intelligence Committee, had been concerned that Trump’s delay in assistance to Ukraine had been politically motivated. The Democrats had planned to investigate whether Trump’s withholding of military assistance was not to get the Ukrainian government to reduce corruption, but, instead “to coerce the Ukrainian government into pursuing politically motivated investigations” into Joseph Biden, President Obama’s former VP and a contender to run against Trump in 2020 for president.[1]

Providing the U.S. House Intelligence committee with the contents of whistleblower complaint was “generally required by law.”[2] The executive branch insisted that the requirement must involve the funding, administration or operations of an intelligence agency, whereas Democrats maintained that the law did indeed apply. Regardless, Congressional oversight of the executive branch goes beyond particular statutes mandating the providing of whistle-blower complaint information to Congress. Nevertheless, the inspector general, Michael Atkinson, wrote to the committee that the complaint fell within the jurisdiction of the director of national intelligence and “relates to one of the most significant and important of the D.N.I.’s responsibilities to the American people.”[3] Atkinson was conflating a jurisdiction within the executive branch with oversight by another branch of the government. Put another way, oversight does not in itself rid the director of his jurisdiction; rather, oversight investigates the contents within that jurisdiction. Furthermore, that the director of national intelligence has an important job does not mean that it is immune Congressional oversight of the executive arm. I submit that the importance of the job is an argument for a greater need for oversight—not less.

It is as if Atkinson believed that the intelligence agencies were immune from such oversight, and thus from the vital checks-and-balance feature of the U.S. Constitution. For oversight to be viable, the branch of the government being overseen cannot decide whether oversight is allowable. Rather, the branch doing the overseeing can make that assessment and the other branch can contest it in the courts. The judiciary arm would serve as a check against the overseeing arm. In other words, the prerogative in the executive branch of somehow being beyond Congressional oversight stands in the way of the functioning of the checks-and-balances constitutional design. Ambition should not be allowed to bar contending ambition. What employee of a company would claim, “I can’t do my job if there is any supervision of my work!”? What department would claim that it is exempt from oversight from the company’s management because of the nature of the work being performed? Rather than cohere, such a company would eventually break apart.

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1. Julian E. Barnes et al, “Whistle-Blower Complaint Sets Off a Battle Involving Trump,” The New York Times, September 19, 2019.

2. Ibid.

3. Ibid.

Political Power and Jesus' Way: A Dictator Comes to Value the Kingdom of God

Religion and political power can be dangerous if combined and aimed at people deemed to be apostate or heretical. In calling for the Crusades, our Roman Catholic popes put their political power behind the theocratic and political goal of taking back Jerusalem “for Christ.” Those popes and the kings and soldiers who went to war with the Muslims there wittingly or unwittingly violated Jesus’s preachment to love rather than fight enemies. Christianity and political power have not mixed well, historically. The U.S. Constitution forbids the federal government and, presumably, the states, to establish or sponsor a religion or even favor one. Theocracies, such as those in the Calvinist colonies in New England (except for Rhode Island, which allowed freedom of religion), would be excluded as a political form for the Union as well as its member-states. Rather than meaning “sub-unit” or “province” as in Normandy in the E.U. state of France, the American Continental Congress has applied “state” in the generic sense of a polity with a yet-to-be-determined political system. Hence while the Articles of Confederation were in force, before the U.S. Constitution, the states could legally form theocracies. The film, The President (2014), is fictional, but this doesn’t stop its portrayal of a toppled president in hiding from looking realistic, given the cases of Muammar Gaddafi in Libya and Saddam Hussein in Iraq. The character arc of the president while he is in hiding, or “on the run,” captures a generally unknown way in which Jesus’ preaching on how to enter the unknown Kingdom of God can apply to political power in a good way. This is not to advocate theocracy, however. Rather, individuals who wield power, whether in government or business, can come to see the very nature of power differently and gain new insight into the Kingdom of God preached by Jesus.

The full essay is at "The President."

Assessing a “Funded Right” to Education as Constitutional in the U.S.

According to the Texas constitution, the government must provide funds for a “general diffusion of knowledge.” This is a worthy purpose in a representative democracy, as an educated electorate is generally presumed better able to self-govern by voting for candidates and even on policy-oriented referendums. Thomas Jefferson and John Adams had their differences to be sure, but they both believed that an educated and virtuous citizenry is vital to a republic. Accordingly, the “Texas constitution imposes an affirmative obligation to provide adequate financial resources for education, whatever the economic cycle,” according to Mark Trachtenberg, an attorney who represents more than seventy school districts that sued the government of Texas.[1] Altogether, four funding suits were pending in Texas as of January 2012. Five hundred districts, which together educate more than half of all public school students in Texas, were involved in those suits at the time. In 2010, the Texas legislature had cut more than $5 billion from school district budgets. In the wake of the cuts, the districts claimed that they lacked the resources to provide the level of education required by the constitution. One major question is whether the courts are the proper venue for this matter.

Critics of the lawsuits say it is the prerogative of legislatures to make the call on school funding. From a democratic standpoint, the representatives of the people should decide, rather than a few unelected judges. “There are more-appropriate venues for a vigorous and informed public debate about the state’s spending priorities,” according to Colorado’s head of state, John Hickenlooper.[2] Meanwhile, Washington’s Supreme Court ruled that the Washington legislature must come up with a plan for additional educational spending. The ruling can be interpreted as an indictment ultimately against Washington citizens, as they had elected the legislators who had insufficiently (in the justices’ view) funded general education. It is ironic that unelected justices would find the people as having been insufficient in seeing to it that the republic of Washington would remain viable with respect to “government of the people” and “government by the people.”

Constitutionally speaking, whether basic law (i.e., a constitution) should contain substantive funding requirements is an interesting question. If so, then the courts have every right to intervene, as part of their role is to interpret constitutions. The underlying question may be whether substantive rights, such as the right of free speech, should be expanded to what we might call “funded rights,” such as the right a funded education. In a “funded right,” the funding itself is moved up from being a matter of policy to being a function of government. Other “funded rights” could be “access to funded health-care,” food-stamps and guaranteed housing. Such “funded rights” can be justified as basic in terms of human rights. Furthermore, the “funded right” to a job, which may be implied in the Full Employment Congressional Act of 1946, could be written into a constitution.

In short, “funding rights” can be oriented to a “floor” of sorts below which neither a republic nor a human being can survive. Taking such rights out of the policy arena by elevating them to basic law constitutionally would protect the vulnerable from the momentary selfishness of the “haves”—particularly, the “one percent.” That is to say, a social contract that is not a mere reflection of the wealthy can perhaps exist and be protected even when under moneyed political pressure. After all, the courts are supposed to protect the rights of the individual (and minority) against the tyranny of the majority (Madison). Whereas it is clear that humans need medical care, food and shelter to survive, perhaps part of the dispute in Texas is whether a republic really needs an educated citizenry to be viable—or is it just a cherry on the sundae? Relative to medicine, food and shelter, a general education is certainly not necessary, even if it is important. The question is perhaps whether constitutional protections extend to the latter—or even whether they include that which is necessary but not necessarily in the foreseeable interests of the “haves.”

1. Nathan Koppel, “Schools Sue States For More Money,” The Wall Street Journal, January 7-8, 2012. 
2. Ibid.

Health-Care Insurance Reform: A Spectrum of Alternatives with Respect to Federalism

So not to work at cross-purposes, public policy at the federal level of a federal republic should not be at odds with federalism. Put another way, public policy enacted into law that weakens the constitutional archetecture of a governmental system undercuts  is neither prudent nor wise. Heath insurance reform provides us with a case in point. 

In 2009, the U.S. Senate’s majority leader, Harry Reid, proposed a government-run “public” health-care insurance option with an “escape hatch.”   “A state could refuse to participate in the public insurance plan by adopting a law to opt out.”[1] While this proposal would barr a State refusing the public option from participating in the coops that are also a part of Reid’s proposal, the basic “opt out” arrangement is in line with federalism and, moreover, with the inherent heterogenious or diverse nature of an empire spanning across and continent and beyond. In contrast, Olympia Snowe’s preference for “a fallback, safety-net plan” that would trigger the public option in States where insurance companies fail to offer affordable plans is antithetical to federalism because the States would have no choice in whether the plan was triggered.

The approach most in line with federalism would be for the health-plans to be designed in the State governments, with the U.S. Government focused on matters that the States cannot (not will not) do, such as presenting a united foreign policy to the world.  If there is a lowest common denominator for health-care in the US as per the fundamental principles of the Union, a basic program passed by the U.S. Government would be consistent with also having State plans.   Next closest, the U.S. Government would supply money for health-care, which the State governments would decide how to spend.  Even less in line with federalism would be the design of the programs being done by Congress and the WH, with separate opt-outs for the public and coop insurance plans.   Reid’s proposal was less in line with federalism, and finally, as least in line with it, was Snowe’s preference.

1. Robert Pear and David M. Herszenhorn, "Public Option Push in Senate Comes with Escape Hatch," The New York Times, October 26, 2009.

On Term Limits & Representation in the U.S.: The Anti-Federalist View

In the New York convention for ratifying the U.S. Constitution, Melancton Smith favored having the state legislatures rotating their U.S. Senators rather than keeping the same men in the Senate for life. "It is a circumstance strongly in favor of rotation, that it will have a tendency to diffuse a more general spirit of emulation, and to bring forward into office the genius and abilities of the continent. If the office is to be perpetually confined to a few, other men of equal talents and virtue, but not possessed of so extensive an influence, may be discouraged from aspiring to it."[1] This argument could easily be applied to the people electing U.S. Senators.

The complete essay is at Essays on Two Federal Empires.

1. Herbert J. Storing, The Anti-Federalist (Chicago: University of Chicago Press, 1985), p. 348.