The Euroskeptic Ideology: Inherently Exogenous to the E.U.

At the root of the matter of Britain's secession from the Union, I submit, is a starkly Euro-skeptic, or Anti-federalist, ideology that viewed the E.U. as a network to which the sovereign state of Britain belongs, as PM David Cameron said before the secession referendum. Unfortunately, this view ran up against the reality of the E.U.'s federal system in which the federal level too had some sovereignty. Even the mechanism of qualified majority voting involves a loss of sovereignty for the state governments. The discordance can be heard in a speech given by William Hague of the British government at the end of May in 2013 in which he advocated that state legislatures should be able to block E.U. laws proposed by the European Commission.[1] At the time, a state legislature could use a “yellow card” to object to a proposal that could presumably be better legislated and enforced at the state level. Hague wanted a “red card” option that a state legislature could use to block legislation. This proposal reflects the Nullification Acts passed by the government of South Carolina in the early 1830s, which prompted the U.S. to resist strongly as the union itself could have unraveled. Aside from the exogenous ideology itself in the E.U., two problems with Hague’s proposal can be identified. I contend that the problems stem from, and thus can point to, the underlying ideology that is inherently at odds with modern federalism, in which dual-sovereignty is a prominent attribute.

Should the state legislatures dominate the EU's legislature?  The British state government says yes. Would the Union wither and die?  (Source: mapperywordpress.com)

Presumably, such a card from just one of the 27 state legislatures could block a proposal. It would be difficult to imagine virtually any law surviving at the E.U. level. Why then have the E.U. at all then? If every state can pick and choose among federal laws, what force would any federal law have on the state level, given that only the enforcement would only be in states in favor of the law? Without any binding force on the states, the federal level cannot act as a check on abuses of power at the state level. This function of federalism would be limited to the states checking the federal government. 

Secondly, Hague was assuming that the European Parliament was not democratic at all, whereas the state legislatures were fully so. However, the members of the European Parliament are directly elected by EU citizens. The representatives represent those constituents rather than states (or state governments). Perhaps the direct representation, which leaves out the state government officials, is why Hague proposed to have the state legislatures essentially replace the European Parliament. To be sure, the legislative districts at the state level are smaller and thus more democratic in this respect, but this point does not render federal legislative bodies like the European Parliament and the U.S. House of Representatives non-democratic. In fact, giving the E.U. voters a direct say at the federal level through their respective representatives is a necessary feature of modern federalism because in it the federal level has at least some sovereignty that does not reduce to that of the states. Put another way, Europeans in the E.U.. are citizens both of their states and the E.U. Accordingly, the people have a right to be represented in both governmental systems--that of the states and the Union. 

1. “William Hague Demands Right to Show ‘Red Card’ to European Union,” The Huffington Post, May 31, 2013.

On the E.U. Debt Crisis: Lessons from the Early U.S.

In the March 2, 2010 issue of The New York Times, Roger Cohen illustrates how useful EU-US comparisons can be.[1] He is careful to compare the E.U. of his time not to the contemporaneous U.S., but, rather, to it a few decades into its founding. In other words, he corrects for the impact of time on political development. This is not to say that the E.U. in 2010 was akin to the U.S. under its Articles of Confederation. The Articles treaty evinced far less integration politically and economically. For example, whereas the Articles sported only a common council of delegates from the states, the E.U. in 2010 had a presidency (the European Council, whose president was Van Rompuy), an executive branch (the E.U. Commission, whose chief executive was Barroso), a bicameral legislature (the E.U. Council (of Ministers) and the E.U. Parliament), and a supreme court (the European Court of Justice, or ECJ). In fact, whereas under the Articles the American republics held governmental sovereignty, the ECJ held in 1963 and again in 1964 that E.U. law is supreme over state law and state constitutions. In short, whereas the Articles did not split the atom of governmental sovereignty, the E.U. in 2010 was a federal system of dual sovereignty. Like that of the U.S., the E.U.'s federal system is itself on the empire level; its republics being commensurate with the early modern kingdoms.

The complete essay is at Essays on Two Federal Empires, available at Amazon.

1. Roger Cohen, “Greece, Europe and Alexander Hamilton,” The New York Times, March 1, 2010. 

The U.S. Supreme Court Deciding Federalism Cases: A Structural Conflict of Interest

Regarding the US Supreme Court being the decider of last resort, Madison’s Report of 1800 reads in part, “this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.”  The government being referred to is the U.S. The parties to the compact are the states.  Therefore, the theory here is that the U.S. Supreme Court can have its say after the U.S. President and the Congress, but not as binding on the States.  John Breckinridge, who sponsored the Kentucky Resolutions in the Kentucky House, wrote, “Who are the judiciary? Who are they, but a part of the servants of the people created by the Federal compact?”[1] The Federal Courts are part of the US Government that was created by the states, so those courts can’t be the final deciders with respect to the states.

The complete essay is at Essays on Two Federal Empires.

1. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), p. 75.

On the Health-Insurance Mandate: Nullification or Judicial Review?

A Republican U.S. President pushes hard for the U.S. Government to play a more active role in K-12 education under the rubric of “No Child Left Behind.” A Democratic U.S. President pushes hard for the U.S. Government to require residents to purchase health-insurance. Some of the same Republicans who cry foul on the insurance mandate insist that “marriage” be federalized through an amendment to the U.S. Constitution. From whichever vantage-point one cares to assume, political consolidation at the expense of federalism seems to be the name of the game in American politics.

Proponents of the health-insurance mandate have argued that Congress acted within its authority under the U.S. constitution’s commerce clause. However, Ken Cuccinelli, the attorney general of Virginia, argued the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service in commerce. Cuccinelli’s complaint suggested that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment rather than enumerated to the purview of the U.S. Government. In other words, the supremacy clause pertains only to powers delegated to the U.S. Government. That government is not supreme where the states are sovereign. The latter is substantial in principle, even if not recognized in practice; all powers not explicitly granted to the federal government remain with the states or the people, according to the Tenth Amendment to the U.S. Constitution.

So it is rather perplexing that the State governments have generally been sleeping through federal encroachments since the time of the CSA-USA war in 1861-1865. As repeated efforts to thwart federal encroachment failed, I suspect the state governments have given up, though several of them seem to have woken up in contesting the federal mandate on health-insurance. Yet the objection is issue-specific, and thus not apt to lead to any fundamental realignment from consolidation back to federalism. Americans tend to be issue- rather than systemic-oriented, and this is reflected in the focus of their elected representatives. Unfortunately, this can mean that no one is left watching the store itself; everyone is debating the particular products on the shelves—and with carefree indifference to even the most relevant history. For instance, the history of nullification has apparently fallen off the shelf, at least with respect to any collective memory.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty. The South Carolina legislature relented (though its succession document would be retrieved in 1858, after the Congress had just passed another tariff on rice and cotton exports. Jackson’s message was that nullification of federal law would mean the dissolution of the Union.

Nevertheless, the governor of Virginia signed a bill into law in 2010 nullifying the federal mandate. The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus reduce the anticipated cost-savings. Similarly, Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — were considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions of public officials at the state level in the twenty-first century seem foolhardy. They were on much firmer ground in contesting the validity of the federal law through the federal courts, which can declare a law of Congress unconstitutional. However, this means is not without drawbacks.  In particular, there is a structural conflict of interest in having the federal high court decide a matter between the government of which the court is a branch and a state government. Not surprisingly, the U.S. Supreme Court has tended historically to interpret the U.S. Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire and finding that that umpire tends to rule in favor of his or her own team. The surprising thing is that onlookers are surprised when this happens.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama. Article 6 of the U.S. Constitution indicates that federal law is superior over state law where there is a conflict, but this doesn’t make sense outside of the federal government’s enumerated powers—for otherwise why even enumerate? To rely on elections for the needed correction is not sufficient, according to Mises. “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain.” It is almost never asked: “Who is the sovereign, the state or the federal government?”—a question put by State Representative Chris N. Herrod, a Republican from Provo, Utah. Technically (but not in practice), both governments have governmental sovereignty in the American federal system; it is not an “either/or” question.

The question is perhaps whether a balance between the two systems of governmental sovereignty within the American system can be restored simply by reacting issue by issue. Is it possible, moreover, for the American people to embrace a constitutional moment wherein the architectonic of the system itself is the issue?

Sources:

Kirk Johnson, “States’ Rights Is Rallying Cry for Lawmakers,” New York Times, March 16, 2010. 

Alexander Mooney, “Virginia Governor to Sign Law Firing Back at Health Care Bill,” CNN, March 24, 2010.