Find Insurance Online: federalism

Showing posts with label federalism. Show all posts

Wednesday, April 13, 2011

Achieving Balance in American Federalism: On the Crusade of Texas’ Rick Perry

0 comments Posted by Find Insurance Online at 11:34 PM

As the governor, or head of state, of Texas, Rick Perry has been on a crusade to reinvigorate American federalism. Referring to the efforts of officials in the U.S. Government to secure the Mexican border, Perry said, “It is part of that frustrating paradox where Washington neglects their responsibility for areas clearly within their purview, while interfering in other areas in which they’re neither welcome nor authorized.” The chief executive was pointing to a little-noticed point concerning the expansion of the domains in which the federal government is active.

In going into a domain hitherto covered by the state governments, the federal government officials, including legislatures, the president, and even the justices assume that no downside is involved in terms of the federal government being able to cover its traditional realm. For example, in going into education policy, as in enforcing standardized testing, U.S. Government officials assume that the foray has no impact on the ability of the federal government to secure the Mexican border. Hence, Arizona’s effort was resisted. The assumption is erroneous. To the extent the U.S. Government’s actions on the border are insufficient, attention on education has an opportunity cost in terms of foregone attention on how to better secure the border. In short, the “attention pool” is finite even in an expansive federal government, so expanding into domains traditionally (and constitutionally) reserved for the state governments can exacerbate or compromise federal efforts in the traditional areas of the U.S. Government.

Accordingly, Governor Perry has sought to renew, or reinvent, American federalism, “taking an extraordinarily robust view of states’ sovereignty and an extraordinarily restrictive view of the ‘enumerated powers’ listed in Article 1, Section 8 of the [U.S.] Constitution.” (1) Such a renewal would shift the balance of governmental power in American federalism such that the respective domains of power would reflect the dual sovereignty core of federalism. That is, the power of the state governments and the general government would be in balance. As a result, each of the government systems (i.e., of the states and the union) could operate as a check on the other. As Rick Perry observes, federalism is “a critical part of the well-balanced American constitutional order.” (2) Such balance may be inherently elusive in any federal system given the nature of power to move in one direction or the other.

On one side of balance in favor of state governments, the tendency of power in a federal system could be toward dissolution, while once a federal system has crossed a threshold of greater union power, the tendency could be toward eventual consolidation. For example, whereas the E.U. is not in balance because the state governments have more power than does the E.U. apart from the state governments, the U.S. is not in balance because the U.S. Government has nearly consolidated power at the expense of the state governments. Both unions would do well to shift power domains between their two respective governmental systems in the direction of balance.

Federalism is particularly well suited to an “extended republic,” or modern-day empire, such as the U.S. or E.U. Considering that Ireland was a kingdom member of the British empire and a member state of the E.U., while Pennsylvania too was a member of the British empire, the E.U. and U.S. are thus commensurate, as are Ireland (and Britain, the host kingdom of the British empire and a state of the E.U.) and Pennsylvania. In fact, Britain (less Scotland) was a province (before it was split in thirds for political reason) in the Roman empire. Hence by broader implication, the E.U., U.S., British empire and Roman empire are all on the empire level, and their states/kingdoms/provinces (respectively) are on the same level. These two levels are qualitatively and quantitatively different.

Whereas an early-modern kingdom-scale polity can be diverse or homogenous internally, an empire is inherently diverse because its units are or could be reckoned as equivalent to the early-modern kingdom (i.e., the modern countries in Europe and the isomorphic American states based on the British colonies along the east coast of North America). Indeed, the prospect of the United Colonies was referred to on both sides of the Atlantic as “a potential empire” until 1776 when that empire was being realized as an alliance. In other words, the colonies were designed as replicas of the host kingdoms in the sense of the ancient Greek (rather than Roman) colonies. Both Ireland and Pennsylvania were members of the British empire (the kingdom of Britain being itself the host member). While federalism could be applied to Britain, Ireland or Pennsylvania (particularly where there is diversity within them), the system of government is particularly suited to compound polities at the empire-scale, given the inherent diversity at that level (or scale).

Federalism works well at the empire level because the inherent diversity can be accommodated rather than stifled. I suspect that the U.S. being on the empire level is not lost on Governor Perry. Furthermore, he makes explicit the point that the accommodation requisite for a federal balance is not easy, for it takes great tolerance. I submit that such tolerance in turn takes some awareness of the U.S. being on the empire-level (and scale). Referring to the tolerance needed, Governor Perry declares, “I’ll fight to the death for California’s right to decide for themselves how they want to live.” (3) He quickly notes that some of the implications are repugnant to him. For example, he recoils from the prospect of legal gay marriage and marijuana in a semi-sovereign republic of California. Of course, tolerance would be needed across the ideological spectrum.

It could just as well be said that liberal democrats in Massachusetts might recoil in utter disbelief in hearing that Kansas has outlawed abortion after the twentieth week (which occurred in April, 2011). Were more governmental sovereignty shifted to the states from the U.S. Supreme Court, state governments could outlaw abortion outright. Americans would have to confront the question of what they should insist on across the union, for what an American would be entitled to across the union would be narrowed as state governments take on more domains of policy.

It would be interesting to ask Governor Perry whether a fetus’ right to life is something that should be guaranteed to every fetus throughout the union, and if so, whether we would be right back at consolidation under the rubric of everyone’s “we all should stand for X,” where X can mark not only the spot, but the entire carpet. In other words, a balanced federalism means that the citizens of a union tolerate differences that they care about; one must be willing to say, “I don’t agree with that, but if the people of Texas want it, they should have the right to determine their own way of life.” This means taking seriously the empire-scale of the U.S. being constituted by republics.

Indeed, the U.S. Senate’s members are republics, not citizens. That is, that body is, strictly speaking, an international organization wherein the member states have equal suffrage. The U.S. House represents citizens irrespective of their republics and thus is of the species of national government. In this respect, empire-level governance reflects that of its member states even though the two levels are qualitatively different as polities and in terms of scale.

In short, the head of the government of Texas, Rich Perry, is aware of the need for tolerance in restoring the balance to American federalism (has there ever been such a balance?). Lest he is too successful, balance does not mean that the state governments hold most of the power. Hence, the issue is not “state rights.” Rather, the thesis bearing on American federalism hinges on balance as against either dissolution or consolidation. If a shift back to balance does occur, the challenge of design will be on how to safeguard the achievement from going too far in either direction. Theoretically, a design of checks and balances pitting ambition against ambition can conceivably sustain the equilibrium of balance. Perry’s crusade is thus not sufficient, even if it is a good start. As daunting as going into the head-wind of extant concentrated power is, the abstract work needed on design is perhaps even more of a challenge.

Click to add a question or comment on Rick Perry on federalism.

Footnotes:

1. Kevin D. Williamson, “Rick Perry’s Tenth Commandment’s Washington Shall Not Micromanage,” National Review, April 4, 2011, pp. 28-31, p. 28.

2. Ibid., p. 29.

3. Ibid.

Monday, April 11, 2011

The Nineteenth-Century Eclipse of Democratic Governance by Capitalism. Part I: Jacksonian Democracy over Capitalism

0 comments Posted by Find Insurance Online at 12:34 AM

I contend that a trajectory wherein capitalism came to eclipse or capture democratic governance occurred in the nineteenth century in the United States. President Andrew Jackson’s actions in the early 1830s can be viewed as a benchmark wherein government officials were still willing to relegate the interests of capitalists for the good of the whole.

According to Brands, “Andrew Jackson embodied the democratic ethos, by both his humble origins and his reverence for the people as the wellspring of political legitimacy. Jackson waged political war on the pet projects of the big capitalists of his day, smashing the Bank of the United States, vetoing federal funding on roads and canals, and beating down tariff rates.” (1) Actually, Jackson’s object was not to reduce the capitalists of his day; rather, he was attempting to protect the balance between the general and state governments in the federal system.

For example, President Jackson vetoed federal funding for the Mayville road because it was confined to the territory of Missouri. That is, the road did not cross state lines, so it did not involve interstate commerce directly. The state itself had jurisdiction. Had Jackson not vetoed the funding, then interstate commerce “regulation” as spending would have opened the floodgates to Congressional power. Jackson was also rejecting the argument that spending for the general welfare goes beyond the enumerated power domains. In refusing to fund the public works project, Jackson was not acting in the interest of the potential private construction bidders. Hence as a byproduct the president was standing up to capitalists in his effort to contain federal power from encroaching on the state governments.

Second, Jackson feared that having a bank of its own would give the general government in Washington too much power relative to the state governments. For example, the Second Bank of the United States could conceivably print an unlimited number of bank notes to fund its government’s spending “for the general welfare”—eviscerating the enumerated powers in the process. Jackson refused to fund the bank before his re-election. Thus he risked having the financial sector turn against him in an election season. The long term viability of the American federal system was worth more to him than his own continuance in office.

Notably, Jackson was willing to cross Wall Street (something notably absent in President Obama’s financial “reform” law) for the good of the republic’s governance system. Put another way, the president’s protection of the system of democratic governance wherein governments check and balance governments in federalism trumped the particular financial interests of capitalists. By the time of Lincoln’s tight re-election race in 1864, capitalists would find a president willing to use (and defraud) the government to benefit them financially. The balance of power between capitalism and democracy had already shifted.

Click to add a question or comment on Andrew Jackson on federalism and capitalism.

1. Henry W. Brands, American Colossus: The Triumph of Capitalism 1865-1900 (New York: Doubleday, 2010), p. 5

Thursday, April 7, 2011

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

0 comments Posted by Find Insurance Online at 11:36 PM

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.

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.

Click to add a question or comment on the enumerated powers on currency, commerce and taxation.

Tuesday, April 5, 2011

Disentangling the House Republican Health Care Budget: Redistribution, Government and Federalism

0 comments Posted by Find Insurance Online at 10:35 PM

There is a saying in politics. “Elections have consequences.” In 2011, the impact of the 2010 election was particularly obvious in that the Republicans had gained control of the legislatures of Wisconsin and Ohio as well as the U.S. House of Representatives. While the governments of Wisconsin and Ohio were going after public-sector unions (or restricting them to reduce government deficits), the House Republicans had their eyes on health-care. Rep. Paul Ryan, an up and coming Republican from Janesville Wisconsin—a town with high unemployment after the auto plant there closed—was producing a budget that he claimed would cut $5 trillion over 10 years. His proposal reflected, or conflated, two salient traditional Republican aims: to shift power from the U.S. Governments to those of the states and to reduce the size of government. These are distinct, albeit not disparate, goals. Shifting power does not in itself imply or mandate a reduction in the size of government. For example, in shifting public health-care policy, an expansion of government could result if enough states develop programs further-reaching than what Congress had enacted. Of course, as per the nature of federalism, particularly in an empire-scale instance, the resulting health-care programs would differ from republic to republic, given the innate heterogeneity that exists at such a scale.

Because restoring a balance of power to a federal system is distinct from decreasing (or increasing, for that matter) the size of government, it is important to distinguish them in Rep. Ryan’s proposal.

The New York Times points to the two aims in observing that “while saving large sums for the federal government, the proposals on Medicaid and Medicare could shift some costs to beneficiaries and to the states.” Shifting costs to the beneficiaries involves or implies a reduction in the size of government, while shifting costs to the states impacts the balance of power in the federal system. It is in the public interest for such items to be distinguished in debate and legislative votes because the people could want one without the other.

Under Ryan’s proposal, according to the paper, “Medicaid would be transformed into a block grant, with a lump sum of federal money given to the states to care for low-income people. States would be given more discretion over use of the money than they have under the current federal-state partnership.” Even though increased discretion adds to the power of state governments relative to the federal, or general, government, block grants maintain state dependence. In fact, if health-care is not among the enumerated powers of the U.S. Government, it could be argued that lump sum payments to the states for health-care are unconstitutional; otherwise, spending for the general welfare would eviscerate even having enumerated powers at all.

Regarding the “size of government,” The New York Times reports that “(f)or future Medicare beneficiaries — people now under 55 — Mr. Ryan’s proposal calls for the federal government to contribute a specified amount of money toward the premium for private health coverage. Under the traditional Medicare program, the government reimburses doctors and hospitals directly.” The “specified amount” element is “less government” than is an open-ended entitlement.

At the time of Rep. Ryan’s proposal, Medicaid and Medicare were open-ended entitlements. Anyone who met the eligibility criteria was entitled to benefits. Under a fixed lump sum, Republicans say the federal government could better predict and control its costs under Medicaid and Medicare, which as of the beginning of 2011 insured more than 100 million people and accounted for more than one-fifth of the federal budget. Unless the states would pick up the added costs (which would shift the taxing and spending federal balance), beneficiaries of these programs would be at risk for more of the costs if health-care costs rise.

Rep. Jan Schakowsky, a Democrat and a former executive director of the Illinois State Council of Senior Citizens, said “Mr. Ryan and the Republicans are declaring war on entitlements — and war on the elderly and the poor. . . . Beneficiaries will end up paying more.” The New York Times also reports that as of 2011, “(a)bout half of Medicaid recipients are children. Nearly two-thirds of the money spent on Medicaid benefits is [sic] for low-income people who are 65 and older or disabled.” For his part, Rep. Ryan said “he was not cutting Medicaid and Medicare, but rather slowing their growth rate. Furthermore, he insisted that if health costs for a group of patients exceeded the federal payment in a given year, the insurer would have to absorb the cost.” Finally, Rep. Ryan “claimed his proposal is equitable because Medicare would pay less on behalf of higher-income beneficiaries, and they would pay more of the cost of their health coverage.”

Whether the beneficiaries or insurance companies pick up the slack, the fact that public funds would not be used means that government would be reduced from what it otherwise would be. Yet if the states pick up the slack, the balance of federalism rather than the size of government would be changed. Moreover, in addition to the size of government (and federalism) elements, the matter of redistributive justice is involved. It is no wonder that these elements are conflated in the public sphere.

I contend that legislative representatives have an obligation to more clearly distinguish the elements of federalism, the size of government, and redistribution in public policy proposals. A desire to shift power to the states can be better distinguished from the questions of redistributive justice and the related matter of the size of government (and latter two can be better distinguished, since, for example, government could be expanded in a way that helps or hurts the poor, for example). Democracy itself would be improved were the people, either directly via a referendum or indirectly through representatives, able to decide on the three elements one by one. In fact, a decision for greater federalism would mean that questions of the size of government and redistribution would be decided on both the state and the federal level.

Click to add a question or comment on the impact of the Republican budget on health-care policy and federalism.

Source: http://www.nytimes.com/2011/04/05/health/policy/05health.html?_r=1&hp

Monday, April 4, 2011

Exfoliating a Hero: On Lincoln's Unconstitutional Overreaching

0 comments Posted by Find Insurance Online at 1:01 PM

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.

Click to add a question or comment (and view them) on Lincoln and the U.S. constitution.

Source: Ken Burns’ The Civil War (PBS)

Monday, March 28, 2011

The Consolidation of Power in the American and Roman Empires: On the Rise and Fall of Empires

0 comments Posted by Find Insurance Online at 10:41 AM

The American federal government was for at least a century, and perhaps even longer, primarily involved in defending the new empire and regulating commerce between the republics (or states more generically). By the dawning of the twenty-first century, the U.S. Government had grown both in scope and in the number of employees on its payroll while the governments of the republics had been reduced to functioning as little more than local governments. In other words, Congress had come to act like a state legislature, while the states had accepted their status as mere localities. This fundamental shift with respect to American federalism, as well as the empire-“kingdom”-city arrangement, bears a striking resemblance to the Roman empire. By implication, this similarity might lead us to some conclusions regarding the future the United States within the larger story of the rise and fall of empires.

During its first two centuries, according to Price and Thonemann (2010, p. 262), “(t)he Roman empire was not, on the whole, governed by Romans. In any given year, the central government sent out a total of around 160 officials for a subject population of 50 million or more—fewer overseas officials than were sent out from Athens to administer its Aegean empire in the fifth century BC. The most important of these officials were the forty-odd provincial governors, appointed by the Senate or the emperor. . . The duties of a governor were not burdensome, being largely confined to provincial jurisdiction and local dispute-resolution. . . . most of the real administration of the empire was undertaken by the local communities themselves.” In other words, the Roman imperial government by in large kept the peace and allowed for commerce between its provinces, or states in modern language, and protected the empire from foreign invasion. Most of the domestic policy, and even implementation of imperial non-military policy (e.g., tax), was done by city officials rather than imperial civil servants. The arrangement in the early U.S. was not exactly the same, for the governors were chosen by the states and served as akin to heads of state akin to the province’s kings in the Roman context. Also, in the American case the state governments, rather than their cities, were the primary political organ within any given state. Even so, the balances of imperial involvement to that of the province or state/city seem to have been similar in the ancient and early-modern cases.

According to Price and Thonemann (2010, p. 262), “The Roman empire was a world of cities. More than three hundred cities are known in the province of Asia alone; across the whole empire, they certainly numbered in the thousands. The cities – or, more precisely, the local civic elites – were responsible for the assessment and collection of taxes, urban and rural police duties, road-building and maintenance and their own food- and water-supply. . . . Cities in the Roman empire, then, were not merely urban conglomerations; they were the indispensable cogs by which the whole imperial machinery turned. In the eastern half of the Roman empire – particularly in Greece, Asia Minor and the Levant – there was a long tradition of city life, and for the most part, Rome simply preserved the pre-existing urban network.” Similarly, the early U.S. Government largely concerned itself with preserving the system and defending it, while state governments (and their subordinate cities) were the indispensable cogs by which the United States functioned.

The comparison has the virtue of not conflating different political categories. Like the United States, the Roman empire was made up of different cultures, or nations, with the predominant political identification of the inhabitants being with the latter—though in both cases this too would change. According to Price and Thonemann (2010, p. 285), “the Roman empire was essentially a world of religious pluralism.” Similarly, John Adams and Thomas Jefferson wrote of the tremendous cultural differences existing between Massachusetts and Virginia. Even two hundred years later, cultural differences between, say, between Massachusetts and Texas for example, are still significant, rivaling such differences between two states of the E.U.

According to Price and Thonemann (2010, p. 267), “(t)he Roman empire of the late Republican period, like the Persian empire, was an incoherent mosaic of different cultures, unified by little more than the common experience of Roman rule.” The ensuring process of Romanization was self-initiated, as people associated Romanness with power. For example, “the new Roman town at Augustodunum was the result of the Gauls’ own enthusiasm for the trappings of civilized city life, rather than any top-down initiative by the central government” (2010, p. 269) “Put simply, the political dominance of Rome made Roman things fashionable. People aspired to be and look Roman, since Roman-ness was associated with power” (2010, pp. 269-70). Similarly, after the civil war between the Confederate States and the U.S. Government, people began to identify themselves first as Americans because of the power that that signified. The union had won the contest, after all. Also like the Roman empire, the extent to which this happened differed by region. “It is clear that the eastern provinces of the Roman empire did not become ‘Romanized’ to anything like the same extent as the western provinces. . . . ’Romanization’ in the west and ‘classicism’ in the east were only in very limited ways conscious articles of policy of the Roman government. Far more important, in both cases, were the needs and aspirations of the provincials themselves” (2010, p. 283). The first hundred years of the United States was remarkably similar. So too, were the expansions in imperial governance as the threats facing the respective empires were seen to be more serious.

According to Price and Thonemann (2010, p. 304), in the early empire, the Roman government had “operated a somewhat laissez-faire system. Neither emperor nor governors went out looking for trouble. They wanted to maintain good order, but assumed that individual cities would provide the basic fabric of life. The problems facing the empire in the third century made the old system look weak” (2010, p. 305). Likewise, the problems facing the American economy in the 1930s made “the old system look weak.” The New Deal began a trajectory away from laissez-faire capitalism via regulation that involved an extraordinary expansion of the federal government. In the Roman case, “Diocletian divided the provinces into smaller areas, more than doubling the total number of provinces form forty-eight to more than a hundred. For example, the old province of Thrace (north-east Greece and Bulgaria) was divided into four provinces, including ‘Europa’, which contained just twenty-two cities. . . . The provinces were then grouped into twelve large districts: for example, Galliae (covering central-northern France, Belgium, the Netherlands and part of Germany), Africa (central North Africa), or Oriens (all the way from the Tigris to the Red Sea)” (2010, p. 305). Interestingly, the Roman empire had had 48 provinces and the U.S. similarly had 50 as of the beginning of the twenty-first century. Also, the scale of Diocletian’s regions suggests that the scale of at least some of the original provinces matches that of some of the American republics, which are equivalent in scale to European countries (i.e., E.U. states). Whereas medieval kingdoms were much smaller than the early-modern kingdoms (and thus modern European nation-states), the provinces of the Roman empire prior to Diocletian’s work were on the same scale. For instance, “Egypt was a core province; Britannia was a subject territory province, as was Judaea” (2010, p. 289). The combination of such provinces can thus be likened to the U.S. and E.U.—each being empire polities of like scale. In other words, comparing the U.S. to the Roman empire does not involve a scaling category mistake.

Price and Thonemann go on to describe Diocletian’s changes in terms of the imperial government—changes which I contend resemble those of the U.S. Government. “This creation of new provinces and of a new layer of Roman administration greatly increased the number of officials on the Roman payroll” (2010, p. 305). The assumption was that the Roman authorities would be able run things better than the cities had done. Similarly in the American case, the operative assumption was that federal employees were more competent than state employees. This was definitely the case concerning civil rights enforcement; even state officials were not trusted by federal officials.

Based on such likenesses, it is only natural to ask whether the United States will fall under its own weight, if indeed the expansion of the imperial government of Rome played a significant role in the fall of that empire. The U.S. Government’s $14 trillion debt by 2011 may suggest that the weight of the center may indeed suffocate this early-modern and modern incarnation of empire as republics within an extended republic. Were we to ignore the empire-level and scale of the United States altogether, we would miss such lessons (or warnings) that we could learn by comparing our polities to the Roman empire and its provinces. Both instances may be cases of the natural tendency of power to concentrate. When at the imperial level, such consolidation is at odds with the inherent diversity that pervades an empire of cultures. The expansion of the federal government may therefore not be so much due to the idiosyncratic preferences of succeeding generations of American voters, but, rather, the working out of a natural tendency that also ran through the Roman empire. Lest history be consigned to repeat itself, we might ask ourselves whether even learning from this lesson can make any difference, given the nature of power. Perhaps the best that we can hope for from the lesson learned is a delay or postponement of the inevitable, for no empire is exempt from the rise and fall of empires in the course of world history even as it unfolds today.

Click to add a Comment or Question (or View Posted Comments) on the American empire relative to the Roman empire on power and consolidation.

Source: Price, Simon, and Peter Thonemann, The Birth of Classical Europe: A History form Troy to Augustine (New York: Viking, 2010).

Sunday, March 27, 2011

Arrogance on Stilts during a Flood OR an Educated American Electorate: Which Do We Want?

0 comments Posted by Find Insurance Online at 5:41 AM

According to Newsweek, when the magazine asked 1,000 U.S. citizens to take America’s official citizenship test in early 2011, 29 percent "couldn’t name the vice president. Seventy-three percent couldn’t correctly say why we fought the Cold War. Forty-four percent were unable to define the Bill of Rights. And 6 percent couldn’t even circle Independence Day on a calendar. For as long as they’ve existed, Americans have been misunderstanding checks and balances and misidentifying their senators." The magazine's analysis treats all of the questions as equally important. However, I contend that the lack of knowledge on matters such as governmental checks and balances is more problematic than whether a citizen knows the name of his or her U.S. Senator. To take another pair, only 20 percent could name the U.S. President during World War I, while roughly the same percentage could name one of the enumerated powers of the federal government. The second lapse is more serious, for if the electorates do not know the constitutional limits placed on the power of the U.S. Government, the founders' assumption that elections would correct for any encroachment can no longer be relied on in the absense of other checks on the federal government. Given the continued growth in the power of the federal government relative to the state governments during the twentieth century, it could be that the voters are the last remaining wall in the way of complete political consolidation. However, if only one fifth of American citizens know what the federal constitution enumerates for the U.S. Government, how can a majority determine whether that government has overstepped its constitutional authority? Lest we leave this matter up to the U.S. Supreme Court, we might want to be reminded of the institutional/governmental conflict of interest in a branch of one of the governments in federalism contest being the umpire. Ordinarily, one could point to the constitutional amendment process superseding the high court's decisions, but this process involves representatives elected by the citizens, and most of us haven't bothered to study our own federal constitution.

As another example of some ignorance being more harmful than others, Newsweek reports that "(a) 2010 World Public Opinion survey found that Americans want to tackle deficits by cutting foreign aid from what they believe is the current level (27 percent of the budget) to a more prudent 13 percent. The real number is under 1 percent." This ignorance could well mean the demise of the United States, for a $14 or $15 trillion debt held by the federal government alone (Illinois, California, Nevada and Florida having sizable sovereign debts of their own) may well be unsustainable. It is conceivable that American electorates will elect representatives who will placate them by cutting waste to "make a dent" in the deficit (which is the annual increase in the debt), as if that would deal with the problem.

In general terms, the American founding fathers believed that for a republic to endure, its citizens must be virtuous and knowledgeable concerning the republic and the issues of the day. Public education was thus viewed as having a civic as well a vocational and academic function. Hence, American college students typically get an undergraduate degree in the Liberal Arts or Sciences before moving laterally over to a law or medical school for its undergraduate (i.e., first) degree (i.e., the J.D. and M.D.). The E.U.'s states do not require such a broad education at the college level, though their pre-college education is said to be more rigorous than in the American states. In fact, even in making this comparison, even educated Americans suffer from ignorance, as we tend to mistake political categories, such as in likening the U.S. to one of the E.U.'s states rather than to the E.U. Anyone want to guess how many American citizens know of the E.U. at all? I would put the figure at 5 percent, but this could be overly optimistic. To see the category mistake in action among the "best and brightest" in this land of isolationism, consider the following argument presented in Newsweek.

"Most experts agree that the relative complexity of the U.S. political system makes it hard for Americans to keep up. In many European countries, parliaments have proportional representation, and the majority party rules without having to 'share power with a lot of subnational governments,' notes Yale political scientist Jacob Hacker . . . In contrast, we’re saddled with a nonproportional Senate; a tangle of state, local, and federal bureaucracies; and near-constant elections for every imaginable office (judge, sheriff, school-board member, and so on). 'Nobody is competent to understand it all, which you realize every time you vote,' says Michael Schudson . . . 'You know you’re going to come up short, and that discourages you from learning more.' While at Yale, I took a seminar on the politics of American education in the political science department. I don't know if Hacker was on the faculty then, but his ignorance in comparing the U.S. and E.U. is startling. I suspect that he is simply stuck in an old paradigm traditionally used in trans-Atlantic comparitive politics. I contend that the E.U. is just as complex politically as are the U.S. For example, in terms of education alone, just as the American states must deal with local school boards, so too must the European states. Furthermore, just as the American states must deal with federal regulation, so too must the European states. Indeed, the E.U.'s executive branch, the European Commission, has been actively involved in education policy in standardizing the various degrees offered by various state universities. While it is true that some of the E.U.'s states have regional governments that are also involved in education policy, whereas the American states only have counties and localities, the differential amount of complexity is not significant as compared with the basic union-state-locality structure that characterizes both the E.U. and U.S. Newsweek reports that European citizens tend to do significantly better than Americans on citizen questions; the reason is not because the U.S. is somehow more complex. Rather, I would point to the relatively lax schooling in the U.S. and the attitude of American parents (and students) toward academics, self-discipline and homework. Anti-intellectualism thrives amid such disvalues.

In the end, the American plight is one of values, and this transcends love of money and even knowledge. The ignorance reported by Newsweek is kein Zufall (no accident), and it will continue unless knowledge stands up not only to power and money, but also to conceit and the ignorance itself to break the cycle of "I can't be wrong." Ignorance presuming itself as impossibly wrong! This is the tragedy of the American dream--of modernity as having "made it." Of course, we have no need of the classics; they have nothing to teach us! We are the highpoint of human civilization, standing here among our sophisticated technology in the twenty-first century. We are like the Arian Christians who said more than a millennium ago that they could save themselves, as though they were gods on earth. Augustine sought to hammer humility into them by (overstating) the depravity of the fall in creation and mankind. The question for us is perhaps how a crack in arrogance can be found such that ignorance may finally be made uncomfortable in its own presence. Modernity is too comfortable with itself--too convenient wallowing in its own ignorance, which too many American citizens portray as knowledge. A bad smell! Sadly, we have grown so accustomed to it that we can no longer smell it, so we presume it no longer exists. We presume.

Click to add a comment or question (and view published comments) on arrogance and American education.

Source: http://www.newsweek.com/2011/03/20/how-dumb-are-we.html

Friday, March 25, 2011

Medical Marijuana and Drug Trafficking Across State Lines: Of Two Governmental Sovereignties in American Federalism

0 comments Posted by Find Insurance Online at 6:00 AM

"Federal agencies conducted 26 raids on medical marijuana facilities in 13 Montana cities [in mid-March, 2011], as agents seized thousands of marijuana plants and froze about $4 million in bank funds. The raids stunned medical marijuana advocates, many of whom believed the Obama administration's policy was to leave states with medical marijuana laws alone. That belief stemmed from Attorney General Eric Holder's announcement in October 2009 that the pursuit of 'individuals whose actions are in clear and unambiguous compliance' with existing state medical marijuana laws would be the lowest priority of U.S. law enforcement. . . . Montana U.S. Attorney Michael Cotter said there was 'probable cause that the premises were involved in illegal and large-scale trafficking of marijuana. . . . When criminal networks violate federal laws, those involved will be prosecuted.' . . . While 15 states have legalized some form of medical marijuana use, the federal government still considers the drug an illegal controlled substance with a high potential for abuse and no accepted medical use. Justice Department officials contend the focus of investigations involving marijuana is on large-scale drug traffickers and not on individual patients. 'We have made clear that we are not going to look the other way while significant drug-trafficking organizations try and shield their illegal efforts from investigation and prosecution through the pretense that they are medical dispensaries,' Justice Department spokeswoman Jessica Smith said. Marijuana advocates say enforcement of illegal activities involving medical marijuana should fall to the states, not the federal government."

Analysis:

This case illustrates a faulty application of federalism. This is not to say that the U.S. Government should have ignored the drug trafficking or that Montana's statute should be plowed over by the FBI. Rather, the problem lies in a given activity--that of medical use of pot in this case--being simultaneously legal and illegal. This logical contradiction pits one law enforcement agency against another in the same territory. As a result, the citizens, being subject to two governments, are pulled in two directions at once. Just as the states are obliged to recognize the validity of federal statutes, so too the U.S. Government must recognize that of state statutes unless the latter fall within the enumerated powers of the federal government.

While regulating the trafficking of drugs across state lines falls underthe interstate commerce clause, the use of pot for medical purposes--and I would add for any purpose within a state--does not touch the partial sovereignty of the U.S. Government. If the latter is allowed to reach into the domestic domains of the individual state, there is essentially no state left. Such a consolidated empire suffers from the pressures that inevitably arise from central rule over an inherently diverse empire-scale union of republics. Relying on a "lowest priority" from an empire-level official is no guardian at all for state government having any dignity, not to mention force to effect its own laws within its sovereign domain. Moreover, federalism is a system of government that is structural, meaning that it cannot effectively rely on the charity of one government toward the laws of the other. In the example of medical marijuana and drug trafficking, it is significant that the U.S. Government does not distinguish between them. In so doing, the U.S. Government was refusing to accept the validity of the state governments. It as though the U.S. Attorney General were saying to Montana, "You can make a law legalizing medical marijuana but I'm not going to recognize it."

I contend that basic to a system of federalism is the basic respect that the two governments in a given territory have for each other's sovereignty, and thus law-making authority. That the U.S. Government refuses to recognize a state law does not nullify that law, just as nullification by a state, such as South Carolina in 1832, does not invalidate a U.S. statute. Based on the foundation of mutual respect, the respective governments must be held back from trespassing on the other's domains. The rub, as it were, lies in the matter of an umpire to resolve such disputes, for the U.S. Supreme Court is a branch of one of the two governments. It would be telling indeed were that court to affirm that the U.S. Government need not recognize Montana's law. This could very well happen, in which case it would be natural for the disrespected state to seek its independence from the union. I suspect that such a fate awaits the United States, though when I know not. The reason lies ultimately in the arrogance of superior power, as in one who has been able to define the debate without dispute.

Click to add a Comment or Question (or View Posted Comments) on medical marijuana and drug trafficking under federalism.

Source: http://www.usatoday.com/printedition/news/20110318/medmarijuanaraids18_st.art.htm
(John S. Adams, "Medicinal Pot Raids in Mont. Stun Activists," USA Today, March 18, 2011, p. 3A)

Friday, March 11, 2011

The General Welfare Clause: Is the Power of Congress Constitutionally Unlimited?

0 comments Posted by Find Insurance Online at 6:12 AM

Art. 1, Sec. 8. of the US Constitution: Congress “shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

Does this clause mean that the US Government can legislate in any way that benefits the Union? According to Thomas Woods, the general welfare clause “was a restriction on the power of the federal government: it had to exercise the powers delegated to it with an eye to the welfare of the country as a whole, not to the particular advantage of one state or section.”[i] That is to say, the Congress could provide for the general welfare of the United States only within its delimited powers listed in the US Constitution.

According to Thomas Jefferson, to interpret “general welfare” as granting the federal government an independent power to “do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”[ii] In other words, why did the constitutional convention delegates bother to list the powers if the Congress could do anything it wanted? James Madison in the 1830s: “(I)t exceeds the possibility of belief” that those who believed in limited government “should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”[iii] In Federalist #41:, Madison writes, “For what purpose could the enumeration of patriculars be inserted, if these and all others were meant to be included in the preceding general power?” He also observed that “(i)f Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, … everything … would be thrown under the power of Congress.”[iv] Therefore, in 1800, he concluded that “(i)n its fair and consistent meaning, [the general welfare clause] cannot enlarge the enumerated powers vested in Congress.”[v] We could generalize to say that any reference–directly or by implication–in the US Constitution to the powers of the Congress must be taken to refer to its enumerated powers or the document must be rendered as nonsensical. The problem thus arises when an enumerated power is stretched beyond its meaning even in a contemporary context. That is to say, we need not be limited to original intent (i.e., of the convention delegates) to find that the US Constitution limits the power of Congress.

Click to add a question or comment (and to view them) on the interaction of the general welfare clause and the enumerated powers on federalism in American constitutional law.

————————————————————————————————————————
[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 25.

[ii] Thomas Jefferson, “Opinion Against the Constitutionality of a National Bank,” in The American Republic: Primary Sources, ed. Bruce Frohmen (Indianapolis: Liberty Fund, 2002), 501.

[iii] Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987), 105.

[iv] Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 129.

[v] James Madison, Virginia Report of 1800, exerpted in Document 5.

The U.S. Supreme Court as a Branch of the U.S. Government: Is There a Conflict of Interest in Federalism Cases?

0 comments Posted by Find Insurance Online at 6:06 AM

As to whether the supreme courts of particular American states, or republics, should be able to declare the general (U.S.) government’s health-insurance mandate unconstitutional in the sense of being an encroachment of the government of the union beyond its enumerated powers, it is typically presumed that the U.S. Supreme Court is the rightful and proper umpire--the court of last resort on disputes on federalism applied to particular legislation. Forgotten is the argument made by Thomas Jefferson against that court’s suitability owing to its institutional conflict of interest in contests between the U.S. Government, of which the U.S. Supreme Court is a branch, and a goverment of one of the several states. Typically, we do not consider how the conflict of interest can be solved. We do not “think outside the box.” Rather, we feel resigned to have branch of one of the parties of the dispute act as the final decider short of a constitutional amendment.

We do not consider, for example, that perhaps a council of the States’ Supreme Court Chief Justices (or their attorney generals) might be a less problematic alternative. We need not throw up our hands and leave it to any state to nullify any federal law it doesn’t like. We can design an umpire of federalism in such a way that the the encroaching tendency of the center is counterbalanced by the interests of the states in deciding the question. That is to say, we ought to design the umpire mechanism in such a way that tilts in the direction of the states, given the tilt of power in the other direction historically and today. It is well worth reviewing Jefferson’s argument so this doesn’t sound so radical. Given our aversion to real change, the need for a constitutional amendment must be backed up by a mainstream figure.

Essentially, Jefferson maintained that there is a conflict of interest in one branch of the US Government–the US Supreme Court–being the ultimate umpire in federalism disputes between a State and the US Government. It is like having a member of one of the two baseball teams playing being the umpire. In college, I was a referee for intermural football. I was stunned when the coordinator of the refs, himself a student, assigned himself to referee the game involving his own fraternity. When I suggested that there is a conflict of interest in his self-assignment, he dismissed my concern out of hand. Sadly, this sort of attitude characterizes Americans in general with respect to institutional conflicts of interest in our government (and between business and government). I contend that we are blind to such ethical problems, and the viability of our federal system of public governance, which includes semi-sovereign States, is paying the price in the form of a massive imbalance.

One might counter that the separation of powers in the US Government make the US Supreme Court independent of the Congress and President. According to Thomas Woods, the separation of powers in the federal government cannot be relied on to distinguish the US Supreme Court’s interest from its basis as a branch of the US Government because the “three federal branches can simply unite against the independence of the states and the reserved rights of the people.”[i] In 1825, Thomas Jefferson wrote, “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”[ii] Jefferson believed that in a dispute between the states and the federal government, the resolution should not come from a branch of the federal government. With the US Supreme Court as the umpire on federalism questions, the states “would inexorably be eclipsed by the federal government.”[iii] Woods observes, “(S)ince the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The [US] Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government.”[iv] For one thing, US Supreme Court justices are selected by the US President and confirmed by US Senators. In this process, even an unconscious “similarity of perspective” is likely to be sought or welcomed even with respect to one’s vantage-point (i.e., perspective). Spencer Roane, a Virginia judge whom Jefferson would have nominated to the US Supreme Court, wrote, “the States never could have committed an act of such egregious folly as to agree that their empire should be altogether appointed and paid by the other party. The [US] Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members… . The [US] Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate… . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.”[v] As a branch of the Federal government, the US Supreme Court justices have at the very least a perspective from the “whole”–meaning the US as a whole–which is the vantage-point of the US Government. This is a background basis of similarity; the nominating President and the confirming Senators are likely to ask questions of a nominee that would show the nominee’s attitude or opinion concerning the power of the US Government (i.e., the power of the President and Senators!). The conflict of interest is clear, yet no one points to it. This is very odd indeed–tantamount to a societal blindspot.

Not unexpectedly, the US Supreme Court has consistently and overwhelmingly decided federalism cases in favor of the US Government. Even the Morrison and Lopez cases on the reach of the interstate commerce clause in the 1990s allow for indirect economic effects from such commerce to justify the jurisdiction of the US Government over those of the States. An indirect effect is just the sort of loophole that the US Government has been using to expand its power. So even the Rhenquist court was pro-US Government vis a vis the States. Joseph Desha, governor of Kentucky in 1825, wrote, “most of the encroachments made by the general government flow through the [US] Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors.”[vi] What amazes me is not so much the historical trend; rather, I’m bewildered by how such an obvious conflict of interest could be allowed to fly for so long under the radar screen of American public consciousness. This really should tell us something about ourselves, and we ought not to be flattered by what we see.

Click to add a question or comment on the ethics of the Supreme Court on federalism cases.

————————————————————————————————————————
[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 4.

[ii]Thomas Jefferson to William B. Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. 10, ed. Paul L. Ford (New York: G. P. Putnam’s Sons, 1899), 355.

[iii] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[iv] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[v] James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156.

[vi] State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longman’s, Green, 1911), 113.

Thursday, March 10, 2011

Guam Capsizing: Do Voters Want Educated Representatives? Or Are Districts Too Large for Democracy?

0 comments Posted by Find Insurance Online at 4:36 AM

Democrat Georgia Congressman Hank Johnson said during an Armed Services Committee hearing in late March, 2010 that Guam would be in danger were more US troops sent there. “My fear that the whole island will become so overly populated that it will tip over and capsize,” he said in all seriousness. “We don’t anticipate that,” responded Adm. Robert Willard.

Did Hank Johnson's constituents want their representative in the U.S. House of Representatives to be at least nominally educated? Lest one replies with "of course," it could also be that people may want their represenatives to be like them, or at least to reflect what they value. It could be that Rep. Johnson's district was inhabited by people who didn't value education. My hometown is such a place. Going to graduate school is tantamount to evading the real world. The implication is that investing in one's education is to waste one's time on something of little value. Of course, you can't fight ignorance or change people's values where they are convinced that they are correct. It is perhaps not a surprise that representatives could be found in government having that mentality where it is common among constituents.

It is also true that larger the electorate, the less it can make an informed decision regarding the candidates campaigning to represent it. This is why the delegates to the US Constitutional Convention said there is more democracy at the level of state legislatures (e.g., more retail, less wholesale, politics). The EU Parliament has almost 800 reps (newly expanded, though I understand not yet filled), yet is not twice the US population, so the electorates per rep are smaller. However, a governmental body so large is apt to be cumbersome. The state governments in the EU, like those in the US, have smaller districts for their legislative lower houses (and perhaps their senates as well). In smaller districts, the candidates and the elected representative are more apt to be known by a given voter (or by someone the voter knows). Two (or even three) degrees of separation are better than relying on tv commercials, which are geared to presenting a given candidate as he or she wants to be seen. A viable republic ought not rely on a candidate’s preferred self-presentation because judgments in governance involve the actual person–hence the voters ought to know it.

A major implication from my reasoning here is that both American and European state governments ought not allow the balance of power to shift too much to the US and EU level, respectively. On the last day of the U.S. Constitutional Convention, George Washington, who had kept quiet throughout in his role in presiding, asked the delegates if they would make one change. Rather than a U.S. House representative to represent at least 40,000 inhabitants, the minimum should be 30,000 because that would allow for greater democracy. Of course, the setting of a minimum is far different than a maximum; the average district population has never been 30,000. At the turn of the twenty-first century, it was more than 600,000. The constitutional delegates would have thought such an arrangement to evince an aristocrisy, there being so few representatives relative to the population. The average citizen's voice would surely be lost, the designers of the U.S. constitution would be wont to say. I suspect their response would be not just to send more power back to the state governments, but also to urge many of the large and medium states into federal systems themselves. Particularly where a state is heterogeneous, it makes sense for it to have a federal system with states ranging from large metro areas to four or five counties (as in Germany, whose Lander span from Bremen to Bavaria). Unsere grosse Staaten sollten von Deutschland lernen. It could be that in modernity, the West has grown too accustomed to larger and larger electorates. Has the E.U., for example, set any limit to its expansion from the vantage point of its democracy deficit? Furthermore, has the U.S. tackled the problem of how to reconcile the large districts in the U.S. House with the problem of that body itself having too many members? If it continues to be assumed that Congress can and should legislate on virtually anything, the tradeoff between representation and the size of the House must be addressed.

Excessive Federalism in the E.U.'s Airspace?

0 comments Posted by Find Insurance Online at 3:22 AM

The EU has a parliament, a Council/Senate (representing the states), a President, and a Supreme Court (the ECJ). The EU, like the US, is a union of states. I contend that in most issues the US is too consolidated. But the EU might be too dissipated. Each risks a different danger. To be sure, if the tendency of a federal union of republics is toward consolidation, as evinced in the US, the EU ought to be applauded for leaving large chunks of powers at the state level. However, the risk of dissolution may also be realizable in the case of the EU precisely because it has probably not yet crossed the threshold in the balance of power wherein a sufficient proportion is at the federal level–such that consolidation would be the most pressing danger. In other words, the EU might have a different risk management scenerio than the US had as it consolidated from roughly 1860 through the mid twentieth century. The danger of dissolution in the EU could be related to the proclivity of state leaders there to keep a domain “in house” simply for the sake of doing so. The root cause could be the residue from twentieth century European nationalisms, which spawned two world wars and thwarted the development of a union of the states until the last decade of that century. In other words, an ideology of “country” is still extant for most Europeans. That word, I submit, is overused.

As the volcanic ash-cloud from Iceland was bringing flights in the EU to a virtual halt, airline officials were having a hard time hiding their frustration with the situation. On a conference call on April 18, 2010 with airlines hosted by Eurocontrol, the Brussels-based agency that coordinates air traffic management in the EU, one airline representative sharply chastised civil aviation authorities from the states for being inconsistent in applying flight restrictions and stressed that the flight bans were creating “a serious economic issue for us.” Having Eurocontrol responsible for coordinating air traffic in the EU while permitting the states to control their own air space is tantamount to tying the hands of the people at Eurocontrol while expecting them to use their hands to direct air traffic. In other words, the structure is that of a double-bind. While there is some benefit to differential policies across the EU in matters such as an ash-cloud that affects different regions of the EU differently, it makes little sense to open or close airspaces the size of Montana (Germany), Arizona (Spain), and Texas (France). That is, it would be like having each state in the US differentially open and close its airspace. Idaho might be open while Wyoming is closed. Imagine the logistical nightmare for the FAA, particularly should that agency be responsible nonetheless for coordinating the airspace in the US. While it might give the residents of a state of the EU a sense of pride in hearing that “German airspace is closed,” I submit that it is actually quite silly to carve up commercial airspace in such small units (with respect to the airspaces of the EU and US). Transportation technology has relativized state airspaces on both sides of the Atlantic. Whereas it once took days to cross Germany or Montana, today most flights count either state as one of several to be flown over. Of course, states like Texas and California are large enough to support a sufficient number of air-routes to be considered “air-markets” in themselves. However, such a status ought not be overdone, particularly when the FAA has the responsibility of coordinating air traffic across the US region.

Source: http://www.nytimes.com/2010/04/19/world/europe/19ash.html?ref=world

Wednesday, March 9, 2011

A Look Inside the EU: Germany’s Cold Feet in Helping Greece

0 comments Posted by Find Insurance Online at 5:06 AM

In the wake of Greece’s announcement that it would indeed need a bailout, Angela Merkel’s coalition partners suddenly got cold feet. Germany was slated to provide 8.4 billion euros out of the EU’s total contribution of 30 billion. Leaders of the FDP feared that the payout would ruin that party’s hopes of providing tax relief. The German Foreign Minister Guido Westerwelle,told ZDF television, “It has yet to be agreed that Greece will actually get assistance from Europe at all.” He added: “We will not write a blank cheque”. FDP deputy leader Andreas Pinkwart said it would be “a slap in the face of German employees” if the government would give billions of euros to Athens, and tell Germans “there’s no money left for easing their tax burden.” The FDP’s finance expert Hermann Otto Solms also criticized Finance Minister Schaeuble’s plans. “It was wrong to put the pot of honey in the middle of the table right from the start,” he said. “That was a signal for the Greeks to just help themselves.” The right thing to do would have been to offer Greece no help and direct them straight to the IMF, Solms told the Passauer Neue Presse daily.
The government’s role in the rescue package also received criticism from Chancellor Merkel’s second coalition partner, the CSU party, which is based in the region of Bavaria. CSU parliamentary leader Hans-Peter Friedrich said his party would prefer Athens to leave the eurozone and solve its problems by “re-introducing its former national currency, the Drachme, at a devalued rate of exchange.” Friedrich’s opinion was echoed by economist Joachim Starbaty from Tuebingen University. Greece was “no longer competitive within the eurozone,” he said. “It’s impossible for the country to repay its debts and the loans it now receives because its economy will be unable to accumulate surpluses for a long time “, he said. “Devaluing a national currency is the only chance for Greece to regain its competitiveness. Starbaty announced he would lodge an official complaint with Germany’s Constitutional Court should parliament in Berlin give the green light to the bailout package.

However, the German financial houses were very powerful at the time, and they could have pushed Merkel into going ahead with the deal anyway. Germany’s financial institutions held some €28 billion, or $37 billion, in Greek bonds. About half of it had been downgraded by S & P to junk. Indeed, 14 billion is more than the 8.3 billion that Germany is set to pay as part of the EU rescue. Deutsche Bank’s chief financial officer, Stefan Krause, indicated that the bank would feel the effects of a deeper Greek crisis. “We don’t have much exposure to Greece directly. We are not concerned,” Mr. Krause said during a conference call with analysts. He added, “We could not completely isolate ourselves if the situation gets worse.”

Analysis:

Germany’s direct exposure to Greek debt provides another reason why the Greece's financial problems were very much Europe’s problems. “It’s not just a question of paying for Greece’s luxury pensions. There are intrinsically strong German interests as well,” said Alessandro Leipold, former acting director of the I.M.F.’s European Department. Even so, the politics within Germany shouldn’t be ignored either. The ability of one state to pull out of the EU’s attempted bailout of another of its states illustrates the EU’s vulnerability in having so much authority continue to reside with the state governments. Ultimately, the risk is one of dissolution of the union. To be sure, giving the EU too much power would risk consolidation–something that the US is in risk of “achieving.” The trick is to create and perpetuate a federal balance of power, wherein the two governments for each bit of territory can check each other. The FDP’s interest in giving the residents in the state of Germany tax relief suggests that states will indeed look out for themselves at the expense of other states, even if one is going bankrupt. Starbaty’s reference to the “eurozone” ignores that the EU is not just a “zone” wherein there is the euro currency. Even for the states having the euro, the EU is much more. In fact, becuase the EU’s ECJ (European Court of Justice) has decided that EU basic law trumps state basic law, it is not clear to me that the Starbaty is going to the correct court. That is, an EU court has the jurisdiction to decide on the EU’s assistance to one of its states, even if the EU is counting on its state governments for the funding. There has been such reliance in US history, and as Hamilton attested, it did not work out well. Unfortunately, getting away from that problem led the US on a track too close to consolidation.

Perhaps the US and EU can learn from each other. The EU is now where the US was in its first fifty or so years. That is, the EU has passed the Articles of Confederation stage, as the Articles did not have a legislature (i.e., EU Parliament), a President, an executive branch (i.e., the European Commission), and a supreme court (i.e., the ECJ). Even so, the EU’s governmental institutions are weak relative to those of the states. This makes it difficult for the EU to effectively respond to a crisis in one of its states because another state, such as Germany, can thwart a viable solution. In short, the EU needs to move closer to the middle in achieving a federal balance of power. As the US has already overshot it, perhaps the EU can showcase how federalism at the empire level (i.e., a union consisting of nation-states) can work.

Sources:
http://www.dw-world.de/dw/article/0,,5506597,00.html ; http://www.nytimes.com/2010/04/29/business/global/29banks.html?pagewanted=1

State Debt Bailouts in the E.U.: Not a Replica of the American Case

0 comments Posted by Find Insurance Online at 4:19 AM

In the fall of 2008, European politicians were pointing to the bad finance in America as putting the entire world at risk financially. In May, 2010, however, the E.U. had its own financial crisis and bailout. The added problem in arriving at a coordinated response given the relative power held by the state governments meant that the debt crisis in the E.U. could have been the contagion more likely to spread. Whereas in the U.S., the U.S. Government’s treasury secretary and the Federal Reserve Chairman orchastrated the bailout at a dizzying pace, the more balanced federalism of the E.U. meant that the leaders of the state governments were the active players. In other words, even though the E.U. evinces a more balanced division of power between the union and state governments than is is the case in the decentralized-consolidated modern incarnation of American "federalism," the ability of the Europeans to tackle the problem of several of its states hemmoraging in public debt attests to the messiness that is inherent in a well-balanced federal system. Even so, the consolidated condition of American government meant that states in trouble such as Florida, Illinois and California had to fend for themselves because neither the U.S. Government nor the Federal Reserve was under pressure to come to their aid. The Federal Reserve, for example, had printing hundreds of billions of dollars to assuage the U.S. Government's growing appetite for debt. However, when U.S. Senators asked Chairman Bernanke about doing likewise for the trouble state governments, he replied that the Fed was not autorized to do it. This asymmetry itself pushes the system even closer to the consolidated end of the political spectrum. As some of the U.S. Constitutional Convention delegates warned in 1787 even when the U.S. consisted of just thirteen republics, it is difficult for a central government to have sufficient energy throughout an empire-scale "extended republic." The E.U. following its first fifty years was better able to cover the inherent diversity there, yet not yet sufficient to support its unified aims (such as a common currency backed up by coordinated fiscal policy).

In short, the financial problems that occasioned the huge financial bailouts is hardly an American quagmire. Just as the E.U. and U.S. have different divisions of power in their applications of modern federalism, the processes and solutions themselves must undoubtedly differ as well. In the end, hard choices irrespective of the federal systems involved will need to be made at the expense of instant gratification in order for a sustainable (i.e., real) fiscal trajectory in the West to be realized. The struggle is perhaps against expediency in a time of apparent plenty.

Find Insurance Online

Pages

Followers