Immobilizing E.U. Holdings of Russian Assets

By invoking Article 122 of the E.U.’s basic law, a clause that had been used most significantly during the Coronavirus pandemic and in the 2022 energy crisis, the E.U. in December, 2025 finally circumvented the twice-threatened veto by the state of Hungary and indefinitely froze €210 billion of assets of the Russian Central Bank that had been within the E.U.’s territory since Russia began its unprovoked invasion of Ukraine nearly four years earlier. I contend that the European Court of Justice, the E.U.’s supreme court, could apply a rational basis in a judicial review of the triggering of the emergency-conditioned article, especially because the Commission invoked the article in order to obviate Hungary’s threatened veto. Because every E.U. state except for Belgium and Hungary were for freezing the assets until Russia such time as Russia ends its militaristic aggression and compensates Ukraine financially for damages the Belgian and Hungarian state governments were violating the informal norm of consensus in the European Council and the Council of Ministers. Like the U.S. Senate, the European Council, which also represents the states, is like a club of sorts. The problem facing the Commission is that violating a norm is not a legal basis for obviating a threatened state-veto by invoking an emergency clause of the E.U.’s basic law, especially if no emergency actually exists after nearly four years of the invasion. Even though I am personally in favor of the E.U. obviating Hungary’s serial obstructionism that may be, at least in part, retaliation against President Von der Leyen’s Commission for having penalized the Hungarian government financially for having violated E.U. law, legal reasoning should not succumb to the gravity of the “black hole” of personal opinion.  There may be nothing so much like a god as a general on a battlefield, with power over life and death, but neither the European Commission nor myself is a general. In short, the Commission’s legal justification in invoking Article 122 is tenuous at best, even though countering Hungary’s Viktor Orbán’s abuse of his state’s veto-power in the European Council and the Council of Ministers was needed for the E.U. to be able to function within its enumerated competencies (i.e., powers).

The reason for indefinitely holding the Russian central bank’s financial assets that have been in the E.U. since the beginning of the invasion is so the E.U. could use those assets as a basis for making loans to Ukraine to bolster the sovereign state’s military position without the E.U. having to issue its own debt. “We are sending a strong signal to Russia that as long as this brutal war of aggression continues, Russia’s costs will continue to rise,” President Von der Leyen said.[1] The objective was to “make sure that our brave neighbour beomes even stronger on the battlefield and at the negotiating table.”[2] According to Euronews, the E.U. was able to shore up “its mightiest leverage,” push back against “external interference” and insulate “the money from the Kremlin’s war machine—all at once.”[3] The external interference was not really external, as this refers to the financially self-interested objection of the state of Belgium and the pro-Russian objection of Viktor Orbán of Hungary. Obviating self-interested states whose governors are willing to go against the other 25 states in the Council is laudable even though this objective can be traced back to the E.U.’s federal system, which must be taken as a given to the ECJ. To be sure, finding a way to do it by invoking an article of the E.U.’s basic law was not an easy task for the Commission.

“At first, the Commission suggested activating Article 31.2 . . . to switch the [6 months] renewal of sanctions from unanimity to qualified majority.”[4] The sanctions include holding the Russian financial assets. The article is vaguely, and thus problematically from the standpoint of constitutional language, based on “strategic interests and objectives.”[5] This wording could potentially enable the E.U., by qualified majority voting, to encroach excessively on governmental sovereignty retained by the states. That any state government could invoke “vital and stated reasons” of “policy”—again too vague—to veto any such bills that are in the strategic interests and objectives of the E.U. as a whole meant that the governor of Hungary could easily invoke its ties to Russia as vital reasons to veto the proposal to freeze the Russian assets indefinitely.

So, the Commission turned to Article 122, which applies qualified-majority voting rather than unanimity in the European Council (and the Council of Ministers) “in a spirit of solidarity . . . appropriate to the economic situation.”[6] Here too, the constitutional language is too vague. Hungary’s Orbán had been fragrantly violating the spirit of solidarity for years, and “economic situation” is so vague that the article could potentially be used to expunge unanimity from the federal level.

Furthermore, that Article 122 “bypasses the European Parliament” is also problematic because that democratically elected legislative chamber, the “lower house,” could otherwise act as a check on the Commission and the councils exploiting the article to rid the E.U. of the need for unanimity in the councils. Also, requiring a qualified majority vote in the Parliament would not in itself give the state governments the power to use their respective vetoes in the councils. One of the principal benefits of federalism, as distinct from confederalism, is the mechanism of state-federal checks-and-balances. Considering the American history of consolidation at the expense of the governmental sovereignty retained by the states, the vague constitutional language of Article 122 could be exploited. This is not to say that retaining the state-veto mechanism in the councils is at all healthy for the European federal system. Other means, such as requiring a qualified majority in the European Parliament, are consistent with federalism.

Such a check would be of value in terms of the indefinite freezing of Russian financial assets because the Commission interpreted “appropriate to the economic situation” to be invokable due to a “serious economic impact,” including in “supply disruptions, higher uncertainty, increased risk premia, lower investment and consumer spending,” as well as “non-economic drone incursions, sabotage and disinformation.”[7] Again, higher uncertainty and lower investment and consumer spending provide the Commission with virtually a wide-open door to obviate unanimity in the councils.

Earlier in 2025, the Commission had invoked Article 122 “to set up SAFE which allows member states to directly approve a Commission proposal [by qualified majority rather than unanimously] ‘if severe difficulties arise in the supply of certain produces’ or if a member state is ‘seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control’.”[8] Tellingly, it was the Parliament rather than a state government that objected, which is a telling indication that the Parliament should not have been excluded from the procedure to be followed according to the article.

With regard to the “emergency” said by the Commission to justify invoking Article 122 to indefinitely freeze the Russian financial assets in the E.U., the governor of Belgium, Bart De Wever, “questioned the existence of any EU-wide emergency,” as Russia’s invasion was nearing its fourth anniversary.[9] For instance, only 10% of energy in the E.U. was by that time from Russia.[10] Even though the E.U.’s evident economic woes, coupled with the vague wording of Article 122 and its limited jurisprudence, gave the Commission enough leeway to forge ahead,” using even “the economic situation” to invoke the article is highly problematic, especially as the obvious intent was to undercut the state-veto mechanism, which under the E.U.’s basic law at the time, was valid even though Hungary and Belgium were, for self-interested political and financial reasons, respectively, abusing the mechanism given the norm of consensus in the councils.

The upshot is that the E.U. could do better in tightening its constitutional, or basic-law, language, enlarging the coverage of the Parliament (especially as a check on the Commission). In the meantime, the ECJ should take a look at the Commission’s invoking of Article 122, especially on the Commission’s interpretation that “economic situation” really means “economic emergency,” which actually makes sense so to avoid the article from being invoked for virtually anything, and that an emergency was still the case almost four years after the commencement of the Russian invasion, which does not seem to be a valid claim. In the background is the consolidation by the U.S. of power at the expense of that of the member-states, and the related switch from the state governments appointing U.S. senators to them being elected by the citizens of the states. Citizens of a state may not vote so to protect the remaining governmental sovereignty held by their state, whereas senators appointed by state governors and/or legislatures would naturally have an incentive to keep an eye on the federal division of governmental sovereignty. Nevertheless, the veto power of the E.U.’s state governments, especially as there were 27 at the time of the invocation of Article 122 to freeze Russian assets, is arguably excessive and thus harmful to the E.U. level as well as the federal system itself, which should allow for federal oversight “with teeth” on abuses by state governments, especially in infringing on democracy and liberty.

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1. Jorge Liboreiro, “By Locking in Russian Assets for Good, the EU Is Finally Playing Hardball,” Euronews.com, 13 December 2025.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid.
10. 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.

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. 

Hungary and Texas: Busing Immigrants

Two years after the government of Texas in the U.S. began transferring migrants to other states and to Washington D.C., the government of Hungary announced that it too would bus migrants, but rather than transporting them to other states, the destination would be Brussels exclusively. Although the respective political strategies differ, the two policies both represent the same pressure point in federal systems. The cost of united action at the federal level on public policy is that the states are not as free as otherwise to manifest their respective ideological and cultural views in public policy at the state level. That federal policy or law is often a compromise between the preferences of the states means that political pressure exists not only between states, but between a given state and federal law. This is inherent to federalism because it provides benefits from united action and some ability of states to enact legislation reflecting their respective distinct dominant ideology. Enabling both is one of federalism’s best features, yet it comes with a cost in terms of political tension that is endemic rather than merely episodic. Simply put, no system of government is without drawbacks or downsides. The trick is perhaps in how to manage them so they don’t get so out of control that the federal system itself collapses. In 2024, Viktor Orbán, governor of the E.U. state of Hungary, was testing the limits much more than was Greg Abbott, governor of the U.S. state of Texas, even as Orbán was using Abbott’s playbook.

In June, 2024, the E.U.’s supreme court, the European Court of Justice, handed down a ruling ordering the E.U. state of Hungary to pay a fine of €200 million for breaking federal laws on asylum plus an additional €1 million per day until the state government passes a law conforming with the federal law.[1] Hungary’s requirement that people seeking asylum must first apply for and be granted travel permits violated the federal law requiring that all of the states have the same procedures for granting asylum. Setting up a confrontation with the high court, essentially challenging its very legitimacy, the Hungarian government “missed the first September deadline for paying the €200 million fine.[2] In fact, the state “also demanded compensation for the billions it says it has spent on border protection, including constructing fences protected by razor wire on its southern borders with Serbia and Croatia.”[3] In other word, the state government wanted to be reimbursed by the E.U. for costs incurred by the state to protect the E.U. border that runs along an edge of the state. Thus situated, Hungary is like Texas. Ideologically too, Hungary’s governor was quite similar to the governor of Texas at the time, Greg Abbott.

In fact, Vicktor Orbán likely got his idea to send illegal immigrants from his state to Brussels from Greg Abbott, who had spent more than $148 as of February 21, 2024 in putting more than 102,000 illegal immigrants on buses bound for other states and Washington, D.C.[4] Texas also spent $10 billion on law enforcement and constructing physical barriers at the U.S. border that runs along the edge of Texas, though reimbursement by the U.S. was not demanded.[5] At a news conference at the state capital Budapest, Hungary’s State Secretary Bence Rétvári accused the E.U. in 2024 of wanting to force the state to allow illegal immigrants into the state, and announced that the state government would “offer these illegal migrants, voluntarily, free of charge, one-way travel to Brussels.”[6] He made the announcement in front of a row of passenger buses that would be bound for the E.U. “headquarters in Belgium.”[7] He said, “If Brussels wants illegal migrants, Brussels can have them.”[8] Interestingly, Texas could have had the same strategy: instead of sending buses to lax states as well as to Washington, D.C., all of the buses could have dropped off their passengers at the Washington Mall—at the U.S. headquarters—as Abbott had been so critical of U.S. immigration policy.

Both cases—that of Hungary and Texas—demonstrate what can happen when state governments in a union differ on a matter of public policy not only with each other, but also from a federal policy or law. The degree of unity that is necessary for a union to continue to exist and function viably comes at the expense of ideological differences between states. This tension is endemic to federalism, as that system of government allows for cultural or ideological diversity between states and benefits to the whole that the combined forces of an empire-scale union can provide. In the E.U., the Hungarian government was quite critical in 2024 of Germany’s more lenient practice in allowing migrants to enter the state, yet at the same time the united force of the E.U. was able to give Europeans more power in resisting Russia’s invasion of Ukraine.  In the U.S., the Texan government was critical of California’s “sanctuary cities” in which illegal aliens were not arrested by state police, yet at the same time the united force of the U.S. was also able to stand up to Russia’s president’s militaristic foray into Ukraine. Both cases demonstrate federal systems that are “living and breathing,” allowing for differences between states, such as on abortion in the U.S. and social policy in the E.U., while enabling both unions to have a significant impact internationally.

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1. Angela Skujins, “’We Never Let Them In’: Hungary’s PM Viktor Orbán Demands New Laws Tackling Migration,” Euronews.com, September 6, 2024.
2. Ibid.
3. Ibid.
4. Sergio Martinez-Beltran, “Texas Has Spent More than $148 Million Busing Migrants to Other Parts of the Country,” The Texas Tribune, February 21, 2024.
5. Ibid.
6. Angela Skujins, “’We Never Let Them In’: Hungary’s PM Viktor Orbán Demands New Laws Tackling Migration,” Euronews.com, September 6, 2024.
7. Ibid.
8. Ibid.

Differentiating the European Council and Parliament: Meloni of Italy

At the federal level of the E.U., the European Council, like the Senate in the U.S., represents the states, whereas the European Parliament, like the U.S. House of Representatives, represents citizens—that’s right, E.U. citizens. The theory behind this difference is a modification of traditional federalism theory, wherein only the polities in a federation are represented at the federal level. In this traditional way of doing federalism, individuals, or citizens, belong only to the first level of political organization. Althusius’s Political Digest (1603) describes that theory, borrowing a lot from the example of the Holy Roman Empire. The advent of both polities and federal citizens being directly represented at a federal level was born out of compromise during the American Constitutional Convention in 1787. The E.U. replicated the structure, wherein the state governments and E.U. citizens (or legal residents) each have their own channel of access to affect federal law and policy on the federal level. For one of the two to cross over and eclipse the other in its own channel is suboptimal because both vantage points contribute to sound federal law in a way that enables them to protect their respective interests, which are not identical. It is thus not appropriate for a state government, including its governor or head of state, to direct members of Parliament how to vote on a given bill, whether their districts are within or outside of the state.

On July 18, 2024, Giorgia Meloni, the governor of the E.U. state of Italy, “ordered the 24 MEPs,” or members of Parliament of her state-level Fratelli d’Italia, or Brothers of Italy, group “to vote against the re-election of Ursula von der Leyen as president of the European Commission.”[1] I contend that those representatives were instead duty-bound to vote the interests of their respective voters rather than serve as an additional resource for the state government at the federal level, or else to vote along with the rest of the European Conservatives and Reformists Party in the Parliament, rather than as a state group representing the state’s government. This is admittedly a different perspective than that which both American and European media outlets have intentionally or unintentionally absorbed from the Euroskeptic ideology wherein the European Parliament is really even a legislative body and thus does not have its own parties (and interests).

From an American perspective, it would be like the governor of a state ordering representatives of the U.S. House of Representatives to vote a certain way, rather than in line with the wishes or interests of the constituents in the respective districts or the federal-level party recognized by the U.S. House.  The U.S. Senate is where the state governments are to exercise their authority at the federal level even though this line is more direct in the European Council because the heads of the state governments themselves sit in that chamber, rather than separately elected senators. Indeed, Meloni already had her chance to vote against Von der Leyen’s nomination in the European Council—Meloni abstained. For her to order members of Parliament to vote against the nominee essentially doubled Meloni’s, and thus her state government’s, role at the federal level. Not only is this excessive; it also eclipses the voice of the E.U. citizens in the districts of the MEPs who followed Meloni’s order. That is to say, the order upset the balance of inputs—that of the states and the E.U. citizens—feeding into the federal level.

Given the staying power of the principle of unanimity at the federal level as of 2024, the power of the state governments at the federal level was arguably too much anyway for the viability of the E.U.’s functioning at the federal level. Eclipsing the voice of the people by attempting to subordinate their directly elected representatives (even though by party) worsens the imbalance.

In his text, Federal Government, Kenneth Wheare describes a federal system as wheels within a wheel. All of those should be in balance for the system as a whole to function well. I disagree strongly with his claim that a balance of powers between the states and the federal institutions is not necessary. He claims that the state governments need only have one domain of authority that is autonomous of the federal government for the federal system to be viable, but such an imbalance would be tantamount to political consolidation rather than dual-sovereignty, wherein the states are not eclipsed by federal preemption and power. After nearly 250 years, the U.S. federal system was arguably much closer to consolidation than in that union’s first 50 years. After 30 years, the E.U. suffered from the opposite danger: too much state power, and thus a risk of dissolution. Although strong institutional safeguards to prevent eventual consolidation at the expense of viable federalism were advisable in the E.U., given the historical trajectory of the U.S. towards consolidation in an empire in which one size does not fit all, given the different cultures therein, too much of a role for the state governments at the federal level was itself a danger for the E.U. in 2024. The staying power of the principle of unanimity alone threatened to excessively encumber E.U. policy-making and law, and thus fuel Euroskeptic movements toward the dissolution of the union (which is neither a bloc nor an international organization). Furthermore, eclipsing the sacred relationship between the representatives in the Parliament and their respective constituencies, E.U. citizens, worsens the “democracy deficit.” Just as the U.S. House was originally intended as the democratic body at the federal level in the U.S., as U.S. senators were initially chosen by their respective state governments and the president by the Electoral College, the European Parliament can be seen as the sole repository of democracy in the European Union. A look at how the Commission’s president is nominated and elected without E.U. citizens voting on the question and the fact that the European Council represents the state governments rather than their respective peoples directly demonstrate the importance of the Parliament in terms of direct representative democracy at the federal level.

In short, the E.U. state governments should keep their paws off the European Parliament; the European Council and the Council of the E.U. is where state-level officials can affect federal policy and law at the federal level. If anything, the authority of the Parliament should have been strengthened in 2024 relative to the powers of the Commission and especially the European Council (and the Council of the E.U.). At the very least, all of the political groups in the Parliament should have been recognized at the federal level as political parties in themselves rather than as informal groups of state-level parties. In 2024, the drastic imbalance in the federal system in favor of the state governments, whose individual and collective interests are in theory and practice different than that of the E.U. both as a federal system and in terms of federal policy and law, was a major problem that did not need to be worsened by encroachments. From a federal perspective, the governor of the E.U. state of Italy was coloring outside the lines in seeking more influence at the federal level. Objecting to this does not suggest in the least that protections for the state governments against possible federal encroachment, as has happened in the U.S., should be disabled or torn down.

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1. Jorge Liboreiro, “Analysis: Giorgia Meloni’s Façade as a Pragmatic E.U. Leader Has Suddenly Crumbled,” Euronews, July 19, 2024.

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 Israeli Supreme Court’s Conflict of Interest as Unreasonable

Ironically, in making the ruling on New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the country’s basic law that would have removed the judiciary’s authority of judicial review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably exploited a conflict of interest. Basic Law, which is essentially constitutional law, includes the basic architecture of a government, such as how the executive, legislative, and judicial functions are related. Self-interest being a salient feature of human nature, we can assume that the governmental functionaries in each of those functions naturally seek to expand their respective jurisdictions relative to those of the other two. I contend that to give one or two of those areas the last word in altering the division of authority involves a conflict of interest. This applies to a constitutional court. Therefore, even though democracy is served by a judicial decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with entanglements. 

By eight to seven justices, the court ruled “that a government amendment to the so-called reasonableness law should not stand. The bill had stripped the Supreme Court of the power to declare government decisions unreasonable.”[1] That very officials who make government decisions in the Knesset passed the basic law can be seen as problematic. It was essentially a power-grab by the executive/legislative domains at the expense of the judiciary. Although the court “rejected the amendment because it would deal a ‘severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state,’”[2] the naked power-grab could itself be viewed as unreasonable, even taking for granted the element of power-aggrandizing in governing. The court could also have ruled on the basis of there being an institutional and personal conflict of interest, but the court itself could be charged with the same offense in deciding the matter. It is just this conflict of interest that flew below the media’s radar (and got me to writing).

Even though the ruling did not expand the court’s authority, the decision arrested a decrease, and was thus in the personal and institutional interest of the judiciary in terms of power. Just as the majority in the Knesset had acted in its interests, the majority on the court did as well. The matter was thus a power struggle, and thus giving one side the final, definitive say is unfair. The ruling cites the importance of judicial review of laws passed by the Knesset as being in the broader interest of democracy in Israel, but the relatively narrow personal and institutional interests of the justices and their court could be expected to be exploited, and this may be the real reason for the ruling. To be sure, an independent judiciary is indispensable for the executive and legislative functionaries to be held accountable. Although they could argue that the voters could perform that function at election-time, elections do not include sending corrupt officials to jail, and the sitting Prime Minister was charged with corruption judicially at the time that he was steering the bill to passage (which counts as a personal conflict of interest). Even if the court’s democracy argument is solid, the personal and institutional conflicts of interest in the justices resisting a restriction on the purview of their judicial authority are inherently unethical and thus should be obviated if possible. 

The inherency is explained by just how inherent the self-interest to exploit a conflict of interest, whether personal or institutional, is in human nature.[3] Without doubt a conflict of interest that actually has been exploited is unethical because a private or relatively narrow benefit is put before a public or relatively broad benefit or duty.  

In judicial language, strict scrutiny should therefore be applied to unilateral decisions by legislative, executive, or judicial functionaries or “branches,” of government that self-aggrandize authority at the expense of one or two of the other “branches.” I recommend that such conflicts of interest be obviated by putting such matters to the electorate. So this is not merely a rubber-stamp of the majority parties, a 2/3 majority should be required to change Basic Law. Otherwise, we are left with the unsavory alternative of having the contending governmental interests play out their internecine power-struggles on the constitutional stage with one such interest having to have the final word, which is unfair to the other interests. In a democracy, after all, popular sovereignty is more fundamental than governmental sovereignty.

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1. Rob Picheta, Amir Tal, and Lauren Izso, “Israel’s Top Court Strikes Down Key Part of Judicial Overhaul, Reigniting Divisions as War Rages,” CNN.com, January 2, 2024.
2.  Ibid.

3. Skip Worden, Institutional Conflicts of Interest, available on Amazon.

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 Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power

In the E.U., the state governments and federal institutions can ask the European Court of Justice (the ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting for a dispute to winds its way formally through district and appellate courts may be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to decide whether the former U.S. president Donald Trump had any immunity from criminal prosecution of his involvement in the riot at the U.S. Capitol that interrupted the formal counting by a joint session of Congress of the Electoral College presidential ballots. The trial was set to begin the following March, and the question of the former president’s immunity had to be decided before the trial could begin. Hence the “extraordinary request,” which I contend should not be extraordinary given the time frame and the important role of the highest court in safeguarding American democracy from domestic threats.

The prosecutor asked the U.S. Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump is not immune from “the election subversion prosecution case.”[1] Trump’s lawyers had argued that Trump’s actions in speaking outside the White House on January 6, 2020 were part of his official duties because he was protecting the American democratic system from alleged vote-fixing by Democrats. Chutkan rejected that argument, pointing out that the speech was oriented to Trump’s re-election and thus was not part of a president’s official duties—efforts to secure another term extend beyond the performance of the office within the current term of office.  Essentially, applying to continue in an office is not a function of the office. Chutkan classified Trump’s speech as falling under the rubric of campaign speeches even though the election had passed because he was using the speech to try be re-elected by Congress (by disputing the authenticity of several state electoral ballots).

To be sure, it was not as if Trump went with the option that he was considering of surrounding the Capitol with tanks—something President Nixon had also considered doing in 1974 during the Watergate scandal, which by the way ended up prompting him to resign. Instead, Trump was trying to throw the election to the Congress by pressuring it to vote on the validity of several of the Electoral College ballots that had been submitted by the state governments to be counted. The U.S. Constitution does give Congress a role in presidential elections, both in certifying the ballots and electing a president outright if no candidate gets a majority of the Electoral College votes. Had there been evidence of significant election fraud that would justify Congressional votes on the Electoral College ballots from several key states such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened while staying within the constitutional framework. It was Trump’s way of applying pressure, by instigating a mob to disrupt the official counting, that resulted in the federal indictments that run just short of insurrection. By the way, I asked a judge on the D.C. district court why he thought Trump had not been indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and a conviction based expressly on it necessary for someone to be barred from running for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado is looking at that now,” he added, presumably without there being a trial. It’s a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge was doing in lieu of a trial on the facts decided by a jury.

Perhaps even more than the presumption of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents is vital to American democracy. Writing to the U.S. Supreme Court, the prosecutors with the special counsel insisted that “nothing could be more vital to our democracy” than holding a former U.S. president accountable for breaking a law.[2] Indeed, a “cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”[3] Many democracies have turned into military dictatorships precisely because the peaceful transfer of power was not respected. With a past of rule by kings, both domestic and colonial, many African countries have had trouble with the peaceful transfer of power. As a result, the foreign direct investment of multinational corporations has not been as large as the continent would need to develop economically. Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent of a president getting away with having violated the U.S. Constitution could begin a slippery slope downward. More than sufficient grounds existed in 2023 for the U.S. Supreme Court to fast-track the question of Trump’s immunity.

The question of whether the trial could go forward was subject to time constraints; were the trial date of March, 2024 delayed pending the question of Trump’s immunity from prosecution going through the lengthy appellate process, the question of Trump’s guilt could still be unanswered by the next presidential election, in early November, 2024. Even though several presidential candidates were insisting that they would support a convicted felon for president, presumably voters would want to know whether Trump had committed a crime in attempting to thwart the results of the 2020 presidential election before casting their respective ballots.

Hence, the prosecutors wrote to the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024. . . . It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”[4] The public importance has to do with the electorate having as much information as possible concerning the charges against the presidential candidate before going to the polls that upcoming November.

The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.

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1. Hannah Rabinowitz and Devan Cole, “Special Counsel goes Directly to Supreme Court to Resolve Whether Trump Has Immunity from Prosecution,” CNN.com, December 11, 2023.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).