An E.U. Political Party Mischaracterizes the Union as an Alliance: Suicide by Mis-Identity

Two weeks before the E.U. election in 2024, far-right parties were projected to do well and thus have more seats in the E.U.’s lower legislative chamber, the European Parliament. Immigration was a key issue in the rising popularity of those parties. Although immigration in both the E.U. and U.S. was in dire need of governmental fixes, the rise of the right in the E.U. came at the expense of the union itself due to an underlying category mistake evinced at least in the European Conservatives and Reformists party. 

Even though it was at the time a political party in the Parliament, the European Conservatives and Reformists party denied its obvious identity as a political party in referring to itself vaguely as a group instead. No doubt according to that party, and other Euroskeptic parties on the right, a mere alliance of countries cannot have political parties, so linguistic gymnastics were resorted to, such that the parties in the European Parliament would be known as “groups,” any of which could be composed of member parties. 

A legislative body, including the E.U.'s parliament,  has political parties even if some call themselves or are called groups whose members are state-level parties. Such "members" are not recognized as such in the Parliament because it does not represent the states; the European Council does that. Even if a party is only in one state, it is a federal party if it exists in and is recognized by the European Parliament because one or more representatives, or Members of Parliament, claim to be of such a party, which in turn is thereby federalized. 

All of such mental twisting was being done of course for ideological purposes so the nobody would dare liken the E.U. to the U.S., or any other empire-scale federal union, such as the former U.S.S.R. Such equivalencies of reason pale next to puffed up egocentricity that wants to claim that a state in one such union is equivalent to an entire union elsewhere in the world. 

Both in terms of scale and the type of federalism, category mistakes have been conveniently promoted by politicians and a willing media in the E.U. and unknowingly parrotted by purblind journalists in the U.S. Because the U.S. began as a military alliance of sovereign counties under the Articles of Confederation and then invented and adopted modern federalism in 1789. those automated journalists should have known at the very least that the E.U. fits modern rather than confederal federalism.

That a union with dual-sovereignty is distinct from a mere alliance is supposedly “unthinkable,” at least it was to Nicola Procaccini, a co-president of the European Conservatives and Reformists party. “It is unthinkable that anyone would argue that the European Union was born as the ECSC and as the European Community, as a federalist state, as a United States of Europe,” he said.[1] However, the E.U. is distinct from the previous European Coal and Steel Cooperative (ECSC) and the European Community. The E.U. began after those two single-issue groups, neither of which included a government—complete with executive, legislative, and judicial governmental bodies, or “arms”/branches. In contrast, the E.U. has not only the European Council, which represents the state governments, but also a parliament, which represents E.U. citizens, the European Court of Justice, and the Commission. Furthermore, governmental sovereignty is divided in the E.U. between the federal and state governments; qualified-majority voting alone involves some sovereignty being at the federal level. So as it turns out, it is not unthinkable, undenkbar, to think of the E.U. as a federal system because it is precisely that—unlike what the ECSC and the EC were.

Procaccini’s nationalist ideology blocked his mind from grasping the fundamental difference that renders the E.U. as a federal system rather than as a mere alliance wherein sovereignty resides with the states. “We want to go back to the original idea of the European Union,” he said, “which is an alliance of nations doing a few things together, doing those things that nation-states alone wouldn’t be able to do in the best way.”[2] Although the latter refers to the principle of subsidiarity, which, like its counterpart in the basic law of the U.S., is valid, it is incorrect that the E.U. was founded in 1993 as an alliance of still-sovereign countries. Instead, the governmental atom of sovereignty was split, just as I was in 1789 in the United States. In other words, Procaccini was conflating the original idea of the ECSC and the EC with that of the European Union. Going back to Althusius’ Politica (1603), the politician was confusing plena (full) with nonplena (not full) federalism.

The distortive cognitive effect of a fervently held ideology had just a week earlier been referred to by Pope Francis in an interview with the American television show, 60 Minutes. Referring to the socially ideological Roman Catholic bishops, the pope said, “conservative is one who clings to something and does not want to see beyond that. It is a suicidal attitude. Because one thing is to take tradition into account, to consider situations from the past, but quite another is to be closed up inside a dogmatic box.”[3] In fact, the pope said that ideology itself is bad. In falsely claiming that the E.U. was an alliance of sovereign nation-states, Procaccini was trapped in an antiquated dogmatic box at odds with the social reality of the E.U.; his view was thus inherently suicidal to that federal system in denying its very existence.

To be clear, sole E.U. competencies, or enumerated domains of political authority, or law, and the union’s voting mechanism of qualified (by E.U. population and by numbers of states) majority instantiate governmental sovereignty that no longer resides with the state governments. The E.U. is thus not an alliance because in an alliance, all governmental sovereignty is retained by the countries. The splitting up of governmental sovereignty between a federal government and state governments is also not confederal; instead, it evinces what scholars of federalism call modern federalism. Both the U.S. and E.U. are cases of that kind of federalism.

Therefore, just as characterizing the U.S. as an alliance is unthinkable, so too should such a characterization of the E.U., so it is ironic that Procaccini’s dogmatic box contains the unthinkable. If allowed to be imposed on the E.U., Genovese’s distorted ideology would place that union in an impossible position—namely, of being contrary to what it is. Hence that ideology can indeed be characterized as suicidal. Now that truly makes the sordid ideology unthinkable, or at least it should be so.

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1. Vincenzo Genovese, “Nicola Procaccini: Reformist Group Seeking Balance of Power Shift in E.U. Parliament,” Euronews, May 24, 2024.
2. Ibid.
3. Norah O’Donnell, “Pope Francis Tells 60 Minutes in Rare Interview: ‘The Globalization of Indifference Is a Very Ugly Disease,” CBSNews.com, May 19, 2024 (accessed May 25, 2024).

Prospects for Civil War in an E.U. State: The Case of Slovakia

As the E.U. was heading toward legislative elections in 2024, the shooting of Slovenia’s prime minister could have served as a wake-up call concerning the silent benefits of having a union that is political, and thus governmental, rather than merely an economic “bloc.” Were civil war likely in Slovakia, given the aggressive political division there, being a semi-sovereign state rather than a fully independent country meant that explicit and implicit buffers existed that could stave off such war. Considering that an assassination had been the trigger for World War I, having a federal system that could quell aggression within a state is no small benefit.

In 2004, Slovakia became an E.U. state, which means that some of its governmental sovereignty went to a federal level. Slovakia’s velvet reputation for having split peacefully from the Czech Republic in the dissolution of Czechoslovakia in 1993 may have masked the ensuing stark political reality under Prime Minister Vladimir Merciar, when Slovakia “found itself at a crossroads, stuck between becoming an autocratic regime with close ties to organized crime or a state based on the rule of law.”[1] In 1995, the country’s secret service kidnapped the president’s son. In 2004, Robert Fico’s political career as a “social democrat fighting corruption and unbridled neoliberalism” was just beginning.[2] Yet after becoming prime minister for the first time in 2006, he was accused “of graft and involvement in the Penta Gorilla affair, Slovakia’s biggest post-communist corruption scandal.”[3] In his second stint as prime minister, he and his government “mainly focused on influencing the judiciary, . . . stopping corruption trials and silencing independent media.”[4] He spoke against the E.U. and Ukraine in the midst of the Russian invasion. With all of the press that Viktor Orban of Hungary was receiving for taking the same positions, it was easy to miss Fico’s stances in the E.U.

Together, Fico and Orban can be viewed as a minority stance in E.U. foreign policy in favor of Russia. With such policy requiring unanimity at the federal level, this minority had the potential of hamstringing any foreign policy at the federal level regarding Russia’s aggression. E.U. states would be free to work at cross purposes, and the power of a united front would be missed. This is an argument for applying qualified majority voting to E.U. foreign policy. Such a stance is more evident than another benefit that the E.U. provides to the states—a benefit highlighted by Slovakia.

The shooting of Fico in May, 2024 stemmed from a climate of hateful political polarization in the state. In the wake of the shooting, some fear of a resulting civil war was voiced in the media. Even though the European Steel and Coal Cooperative had been formed to stave off war between states (most notably involving Germany), the less obvious benefit of the E.U. in being able to step in to stave off war within a state has received little attention. The potential benefit for Europe as a whole resonates with the suggestion made by France’s Macron that the defense capability of the E.U. itself be strengthened. For it to be any good, its deployment would have to be decided by qualified majority vote rather than unanimity. Otherwise, Hungary could use its veto to enable Fico’s party to put away its opposition militarily.

A related benefit of the E.U. with respect to Slovakia does not depend on any additional governmental sovereignty being shifted to the federal level. The fact that some sovereignty had already been delegated to the E.U. by its states means that the likelihood of a civil war in a state is buffered, and thus reduced, simply by being in a federal union that has a legislature, executive branch, and a supreme court. Any one of these governmental branches could take action against Slovakia were civil war to break out. Financial levers alone could do the trick, but so too could informal conversations in the European Council, in which the states themselves, through their respective governors, are the members. As nervous as the E.U. officials are about a war just outside the E.U. is, the prospect of war within the E.U. would surely be galvanizing.

Furthermore, within Slovenia, simply viewing itself as a state rather than a sovereign country could work against forces that would otherwise provoke a civil war. In other words, being a state in a political and economic union is itself a moderating force with respect to political polarization getting out of control. In the early U.S., Shay’s Rebellion in Massachusetts and the Whiskey Rebellion in Pennsylvania were doubtless on the minds of the delegates at the Constitutional Convention in making sure that the U.S. president would be able to call the armies of the then-sovereign states into action to put down rebellions in the future semi-sovereign states. So, there is precedent for the E.U. calling on state militias to quell any rebellions in any of its semi-sovereign states, and even for bolstering a federal military force. As E.U. citizens and residents headed to the polls in 2024, it would be a shame were they to take the E.U. for granted. Going even further, it would be a shame were they to miss an opportunity to voice support for an ever more perfect, and thus strengthened rather than hamstrung, union.

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1, Keno Verseck, “Robert Fico Shooting Highlights Slovakia’s Deep Polarization,” Deutsche Welle, May 17, 2024.
2, Ibid.
3, Ibid.
4, Ibid.

Eurovision Song Contest 2024: On the role of Political Ideology in Inconsistencies

Political preferences can be salient in organizing bodies of entertainment events that are billed as non-political in nature. This broad inconsistency can in turn allow for others—some of which may not be obvious. My objective here is to render such inconsistencies transparent so that other “hidden” inconsistencies can be more easily detected in the future. As a prime case study, I have in mind the European Broadcast Union (EBU), and more particularly its approach to the 2024 Eurovision Song Contest.

Firstly, that contest was impacted by the pro-Palestine protests because Israel was allowed to compete. More basic than the issue of Israel’s military incursion into famine-ravished Gaza at the time is that of why a country in the Middle East was part of a European contest. Consider the blatant contradiction evinced in a statement from Deutsche Welle: “The European Broadcasting Union (EBU), which organizes the pan-continental pop competition, ruled that Israel is allowed to compete.”[1] Clearly, the contest went beyond Europe. Once the proverbial cat is out of the bag, why not allow other non-European countries to compete? I submit, with a nod back to Kant, that the logical inconsistency itself is sordid.

Secondly, although the EBU subsequently claimed that it did not bar the E.U. flag, attendees were refused entry into the venue if they had the flag. The European Commission had protested the flag being signaled out—I would even say being discriminated against. “Ahead of the final, a spokesperson for the European Broadcasting Union said ticket holders would only be allowed to bring and display flags representing participating countries, as well as the rainbow-colored flag, which symbolizes LGBTQ+ communities.”[2] Besides the decision to include the gay flag being political even though the EBU had claimed to be non-political, the choice discredits the argument that the E.U. flag could not be shown because the E.U. is not a country, for an LGBT “community” is a social group rather than being anything close to a country.

Put another way, a pro-LGBT attendee could show the flag of a social issue, whereas a citizen of the E.U. could not show the flag representing the federal citizenship. E.U. citizens even have an E.U. passport! I suspect that the very notion of E.U. citizenship was ideologically repugnant to whomever in the EBU blocked the flag of the federal union. In other words, singling out the E.U. flag fits with a state’s rights, or Euroskeptic ideology that denies that the E.U. is anything more than a trading “bloc.”

As Euroskeptics would have it, the E.U. would be a confederation, meaning that all of the governmental sovereignty remains with the state governments. Historically, confederations have been used for military alliances, such as those of ancient Athens and Sparta. In contrast, the E.U., like the U.S., includes governmental sovereignty at both the federal and state levels. The qualified majority voting mechanism at the federal level of the E.U. alone involves a delegation of sovereignty from the states because any given state can be bound by federal law even though the state voted against it in the European Council, which, like the U.S. Senate, represents the states. Therefore, E.U. competencies, or enumerated powers, subject to qualified majority voting have been delegated by the states to the federal government. By the way, Euroskeptics are also in denial concerning the fact that a legislature, supreme court, and executive branch at a federal level together constitute a government. Essentially, The EBU fundamentally lacked understanding on the difference between confederalism and modern federalism, and federalism itself, and thus misunderstood the basic nature of the E.U.

That the anti-E.U. ideology is warped relative to the reality of the E.U. resulted in the inconsistencies in allowing in a social issues flag and even the flag of a state in the Middle East yet barring the flag of a government (i.e., a legislature, supreme court, and executive branch) in Europe. To be a citizen thereof and yet be reproved for waving the E.U. flag evinced a basic lack of understanding of what the E.U. is. Ideology can indeed impede and even block understanding. That the EBU would claim to be nonpolitical even as it makes the geo-political assessment to exclude the political flag takes us back to the basic inconsistency.  My main point is that the inconsistencies all stem from political ideology because it tends to warp knowledge and empirical facts to its own ends, confusing an ideal with the way things actually are. Put another way, the self-centered gravity of an ideology can warp knowledge and empirical facts much like black holes warp space and time. This may seem rather profound for a piece on a song contest, but the refusal to allow the federal flag while allowing state flags was not mere entertainment.

1. “Thousands Protest Israel’s Eurovision Participation,” Deutsche Welle, May 10, 2024.
2. “E.U. Slams Eurovision for Banning its Flag from Song Contest,” Deutsche Welle, May 15, 2024.

Chinese President Xi Exploits a Vulnerability of the E.U.

Chinese President Xi Jinping visited Europe in May, 2024 “amid concerns in Europe over Chinese support for Russia’s war in Ukraine and European markets being flooded with cheap Chinese electric vehicles.”[1] Although these matters were at the time properly matters for the E.U. rather than its states, Xi oriented his visit to the state level, and in particular to states including France and Hungary that had “special bilateral relationships” with China.[2] In other words, the Chinese leader sought to exploit the E.U.’s vulnerability wherein state governments have sufficient sovereignty to undermine the federal level. I contend that the state leaders should have refused to meet with Xi, redirecting him to meet with federal officials.

The full essay is at "China Exploits a Vulnerability of the E.U."

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1. Yuchen Li and Wesley Rahn, “Did China’s Xi Jinping Expose Disunity in Europe?” Deutsch Welle (DW.de), May 10, 2024.
2. Ibid.

On the Reputational Capital of a Business Leader on a Societal Stage

Is it better that companies be publicly or privately held? Such a question is of such magnitude that glossy, simplistic answers should be eschewed. This is not to say that the answer is situational in nature. Rather, it is more likely that each comes with pluses and minuses from the perspective of an economic system as a whole. As business “leaders” give their advice, it is important to keep in mind whether any personal or institutional conflicts of interest exist and thus could warp the space itself of the advice. Yes, I am intimating Einstein’s theory of general relativity here. Rather than provide an answer without having studied the matter sufficiently, I will provide a way to look at the advice given by Jamie Dimon, CEO of JPMorgan Chase.

The full essay is at "Reputational Capital of a Business Leader."

On the Role of Agribusiness in Global Warming

Agriculture is a major source of carbon and methane emissions, which in turn are responsible for the general trend of the warming of the planet’s atmosphere and oceans. In fact, agriculture emits more than all of the cars on the roads. 10 percent of the emissions carbon dioxide and methane in the U.S. come from the agricultural sector. Livestock is the biggest source of methane. Cows, for example, emit methane. Methane from a number or sources, including the thawing permafrost, accounted for 30 percent of global warming in 2023. As global population has grown exponentially since the early 1900s, herds of livestock at farms have expanded, at least in the U.S., due to the increasing demand.[1] We are biological animals, and we too must eat. More people means that more food is needed, and the agricultural lobby in the U.S. is not about to let the governments require every resident to become a vegetarian. Indeed, the economic and political power of the large agribusinesses in the U.S. have effectively staved off federal and state regulations regarding emissions. It comes down to population, capitalism, and plutocracy warping democracy.

The full essay is at "On the Role of Agribusiness in Global Warming."

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1. Georgina Gustin, “Climate Change and Agriculture,” Yale University, February 22, 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)

Legislation of the U.S. Government during the Civil War: A Case of Unconstitutional Governance?

Lest history be forgotten, it may come around again to bite us when we least expect it.

During the war between the Confederate States and the United States of America, The Legal Tender Act required debtors to accept “greenbacks,” the U.S. Government’s paper currency. The National Bank Act barred state banks from issuing notes, giving the U.S. Government a monopoly on paper currency. Finally, The Internal Revenue Act imposed a federal income tax and other levies. Henry Brands asks, however, whether “greenbacks” fall under the U.S. Constitution’s wording that the federal government can “coin” money. If money was in coin specie when the constitution was written, the meaning could be widened to include new means without necessarily extending the power of that government beyond what was intended.

Brands also asks, “Did the proscription against state bank notes follow from the [interstate] commerce clause, from the elastic clause, or from Treasury secretary Salmon P. Chase’s imagination?” The fact that state banks had been issuing notes even as the U.S. Government was minting silver and gold coins points to, or illustrates, the dual sovereignty element in the American federal system. Ironically, for nearly the first hundred years of the United States (as alliance, confederation and finally a modern federal system), the states had more currency power than do the state governments that use the euro in the E.U. 

In terms of the interstate commerce justification of barring state banks from issuing notes, that justification does not reach such notes being used within a state’s borders. In terms of interstate commerce, mandating a common currency can be covered by the clause. As per the example of the E.U., it is possible to have both a common currency and currencies particular to certain states. In fact, it is possible, as per the European case, to have the particular currencies displace the common currency in the state of the particular currency. However, if, for example, the euro cannot be used in Britain, this restriction of the common currency in a state would detract from the common market (i.e., out-of-states would be discriminated against).  So while the U.S. commerce clause could be interpreted as allowing for state currencies, any such currencies could not be mutually exclusive with the common currency.

As for the income tax, Brands avers that it “seemed a patent violation of the constitutional ban on ‘direct’ taxes not proportioned to population.”  Indeed, a constitutional amendment was deemed necessary for the purpose in the twentieth century. The unlimited potential of the U.S. Government to raise revenue by taxation was not missed on some of the delegates at the constitutional convention in 1787. They worried that that government would crowd out the governments of the states, which would also depend on revenue. These fears were not without foundation. By the twenty-first century, state governments were under popular pressure not to increase taxes in large part because of the taxes already being taken by the federal government.

In general terms, these federal laws enacted during the Civil War can be interpreted as evincing various degrees of encroachment of the U.S. Government. It was such expansion of power that had been in mind when the confederated states seceded from the United States. Even though Lincoln’s 1860 platform affirmed protecting slavery where it existed at the time, southerners feared that the reach of the federal government would continue unabated. The result, they feared, would be the eventual loss of their self-determination and way of life.  This concern transcended the issue of slavery. Accordingly, the states would have perhaps been wiser to free the slaves then fire on Fort Sumpter—the underlying issue would have been made more transparent thusly. Even in the twenty-first century, the trajectory of the U.S. Government in going beyond its enumerated powers is an issue even if other issues tend to get first play.

Source: Henry W. Brands, American Colossus: The Triumph of Capitalism 1865-1900 (New York: Doubleday, 2010), p. 13.

We the People: Invigorating Popular Sovereignty by Referendi

A republic is characterized by the citizenry electing representatives, who in turn legislate (i.e., make law). As an alternative, the citizenry itself could vote directly on legislative proposals. The latter is called direct democracy. Ancient Athens, for example, practiced it. In the United States, the republic form is the prevalent form of government.  In spite of Wilson’s comment made in the constitutional convention that representation “is made necessary only because it is impossible for the people to act collectively,”[1] direct democracy has typically limited to an occasional “referendum” question even though more vital questions could be put to the body politic directly. 

Typically, referendums have tended to do with elections (and thus with representative rather than direct democracy) or with general taxing or spending limits for a government. The rationale for putting general taxing or spending limits up for referendum is that they apply to a government as a whole—this perspective being from that of popular sovereignty (i.e., the citizenry, whose electoral power transcends their government). Rarely, an “issue” is put up to be decided directly by the voters. By 2024, several of the member-states in the U.S. had had referendi on legalizing marijuana. I contend that many more matters of policy could be decided directly by the voters. 

Since the elected representatives represent the citizenry, the former should not be presumed as having the definitive right of such decision. Deciding on matters of general policy are primarily value-judgements, rather than requiring expertise.  Issues such as abortion, gay marriage, the Bush tax cuts, and the Iraq and Afghanistan wars could—and I would argue should—be decided by the voters directly. Beyond issues, the voters could decide more general governance questions, such as whether federalism should be continued. Such a question could lead to more specific proposals at the next election. 

For example, if the majority of American voters want the US to be of federalism, representatives could work on not only constitutional amendments, but also proposals for the voters on which broad areas of power would be transferred back to the states (or the voters could be asked—assuming a majority still want federalism—whether X or Y areas of power should be transferred back to the States). Should elected representatives counter that we should not trust the people to make such decisions, I would argue that it is nonsensical for an agent to contend that his principal is somehow inferior to himself. In a representative democracy, the representatives are the agents of the people; it is not the other way around.

In short, I contend that popular sovereignty ought to be strengthened rather than vitiated. Elected representatives are best suited to working out the technical details rather than deciding broad questions of policy.  An election campaign is a bricollage of factors; it is rare for a victor to be able to claim a mandate on a particular issue. In fact, a representative may be elected for reasons having nothing to do with his or her positions on “the issues.” 

The midterm election of 2010, for example, could have been informed by a mix of factors; it was not even clear whether people voting Republican, for example, were saying yes to that party’s platform or no to the previous two years of legislation (which was informed by both Democratic and Republican law-makers—neither party being able to enact its platform as given).  Even voters blaming the Democratic Party for the resulting legislation is not strictly speaking accurate, as compromises had to be made with Republicans.  So an election of representatives is a broad brush that cannot be divined as a mandate on particular issues.  

Regarding particular policies—even foreign policy, such as whether the US Government should continue to support Israel—the only way to know if there is a mandate is to put the matters up for decision by the voters. Political parties could have a say on how the questions are worded so they are objective (or two versions could be provided). Courts would still be able to declare the resulting law unconstitutional, but even here constitutional amendment is possible.  Even in terms of amendments, the voters, rather than their constitutional delegates or state or federal representatives, could decide directly.  

For example, the voters could decide whether US Senators should continue to be elected, or whether they should be appointed by the state governments or be the governors themselves (the US Senate being like the European Council of the E.U.). The voters could also decide whether abortion should be decided by the state or U.S. courts, or directly by the voters—by state or US—as an amendment.

At the very least, basic decisions would be made that have been mired in disputes between governmental institutions and/or government officials. We are depending much too much on elected and appointed government officials to “make” policy. Ultimately, the will of the people should be freed up and exercised beyond the confines of simply electing representatives—being subject only to the judiciary protecting individual rights (which can be overruled by constitutional amendment, which can be of the people).  Sadly, those in power—the elected representatives—will naturally and ironically resist efforts to expand the will of the people. 

Because the election of a representative involves many elements, an elected representative could easily get around interpreting his or her victory as a mandate to expand the will of the people.  This is precisely part of the problem, and it maintains the monopoly of power that our elected representatives enjoy.  I suspect this is no accident. Hence I am not optimistic on any expansion of popular sovereignty any time soon.  Even so, I hope my thoughts here are thought-provoking. 

Although not the best person to quote, Richard Nixon pointed in one of his books to the need for political development: “In terms of material progress, the twentieth century has been the best in history, but in terms of political progress the record has been disappointing.”[2]  

What I am suggesting is that our political system is so antiquated that were it to develop as technology has, our use of elections could make quite a leap forward.  In spite of all the technological change, we tend to hold very rigidly to the way things have “always been done” in politics.  It is time for politics to catch up. In fact, the technological progress could facilitate the expansion of popular sovereignty.  For example, voters could surf the internet for information before voting on general policy areas. The challenge may well be in how to enable illiterate voters to be able to take part.  As one possibility, voters could vote at desks (as in a classroom) while a reader reads through the questions on the ballot. My point is that we can begin to think outside the box and shake loose our assumptions.

1. James Madison, Notes in the Federal Convention of 1787. New York: Norton, 1987, p. 74.
2. Richard Nixon, 1999 Victory Without War, New York: Simon and Schuster, 1988, p. 16.

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.