Articles of Confederation: Fatal Flaw

During the twenty-five years (1776-1801) government was in Philadelphia, Americans who disliked being ruled by anything really powerful had been bedeviled by repeatedly uncovering something insufficient about a loose association of states. They kept confronting the subtle main problem of depending on unanimous cooperation from all states to obey legitimate mandates of a heavy majority of them. It was perhaps unfair to compel a minority to comply, but much more unfair to empower a minority to thwart a majority. Gradually acknowledging that patchwork repair of their tribal charter of allegiance was not sufficient, and thus adjusting to the idea of living under a common central government, conciliation was sought in devising a model of governance which would get the states out of the road without destroying them, or destroying the Union. Although it is commonplace to say the Articles were a weak failure, they did in fact roughly reflect American attitudes at the beginning of our formative period. By the end of the negotiation, the nature of the final proposal was to define absolutely minimum powers for a national government, enact some minimal prohibitions for the states shown to be necessary by experience, and leaving a vast undefined area of power where the two would have to work out future accommodations. Anticipating later mid-course corrections of demonstrated flaws was an important objective for even a minimalist Constitution, not the least of whose achievements was to create good reason to keep it minimalist. Simplicity keeps it hard to change. Considering the Articles of Confederation and the Constitution as two documents with a continuous goal, we got it right, the second time. And we got it right in the environment of Eighteenth century Quaker Philadelphia, where tolerant examination of new ideas was more venerated than in any other place in the civilized world. With a combination of wisdom and impasse, minor issues were simply left to the future. But that in turn made it possible to define those few issues which must never change. An unexpected virtue of minimalism surfaced eighty years later: many men understood it well enough to die for it.

Edwin Corwin's "John Marshall and the Constitution"

Much has been written about the balance of powers between the three branches of the federal government. However, the real balance of power in the Constitution is between the central government and the constituent states. Balancing power within the central government's branches is a way of preventing one side of this argument from tilting the state/federal balance in its own favor, or slowing down the effect of any victories by one side. From this continuing struggle emerges the explanation for filibusters, the seniority system, the confirmation process for Supreme Court and Cabinet appointments. It also calls into question the Seventeenth Amendment, where the state legislatures lost the power to appoint U.S. Senators. In 1786 the states had all the power, in 2009 state power is much diminished; but it is not entirely gone by any means. The cry for states rights is futile. If states are to wrest power back from the federal government, it will be by the adroit exercise of powers buried within the balanced powers of the federal branches.

While features of the present Constitution can sometimes be linked to correction of flaws in the Articles, one by one amendment never seemed to be enough. Later analysis of Original Intent has often had to contend with the unspoken intent of negotiators to strengthen partisan advantage in later struggles. The political battles being fought at the time, which except for slavery are substantially the same today, were sometimes being promoted for reasons which now seem merely quaint. Fine, everyone can agree it was complex. Still there was a recurring uneasiness: what was the underlying flaw in the Articles? What, as they say, is the take-home point?

One widely accepted summary, probably a correct one, of what was centrally wrong with the Articles of Confederation, lies in a concise observation, which follows, from Edward S. Corwin's book John Marshall and the Constitution:

"The vital defect of the system of government provided by the soon obsolete Articles of Confederation lay in the fact that it operated not upon the individual citizens of the United States but upon the States in their corporate capacities. As a consequence the prescribed duties of any law passed by Congress in pursuance of powers derived from the Articles of Confederation could not be enforced."

And that's how many Revolutionary Americans, possibly most of them, had wanted to have it. They were in revolt against all strong government, not just the King of England. They surely would have applauded Lord Acton's declaration that "All power tends to corrupt, and absolute power corrupts absolutely." Thirteen years of near-anarchy taught them they must at least give some limited powers to a central government, but it was to be no more than absolutely necessary. For some, the Ulster Scots in particular, even the absolutely minimum amount was still just a bit too much.

To revise Professor Corwin's analysis somewhat, the insurmountable obstacle for uniting sovereign states effectively is that they are sovereign, and won't give it up. That no longer concerns America, because the Founding Fathers managed to get around it until the Civil War, and then the Fourteenth Amendment enabled the federal judiciary to attenuate state sovereignty somewhat further without eliminating the architecture of a federation of states. In other words, in two main steps we deprived the states of some sovereignty, but no more than absolutely necessary, and we took more than a century to do it. The European Union currently faces the same obstacle, and this is how we solved it. If they can get the same result in some other peaceful way, good luck to them. Our framers used the language "Congress may...or Congress may not..." They only dared to strip state legislaures of a few powers, the right to issue paper money, the power to interfere in private contracts, and such, as enumerated in Article I, Section X , where the operative phrase is "The states are forbidden to..". The framers were willing to strip Congress of many more specific powers than the states; the Constitution can be read as a proclamation of the powers which any central government simply must possess. There might be other desirable powers, but here is the minimum. After eighty years, individual Southern states asserted their unlimited powers extended to nullification and secession, and because of a perceived need to preserve slavery would not back down. The Constitutional consequence of this national tragedy was the Due Process section of the Fourteenth Amendment, which has since been purported by the Supreme Court to mean that what the federal government may not do, the states may not do, either. However, Due Process traces back to the Magna Charta, and has been so tormented by interpretation that for the purpose stated, it is growing somewhat too elusive to remain useful. For historical reasons, we never gave a fair trial to the original proposal to address the federal/state dilemma. The Constitutional Convention was held in confidence, many delegates changed their minds along the way, and many ideas were more perceived than enunciated. It is plausible that the original strategy originated with Madison's teachers and emerged from many discussions, but there were several delegates in attendance with the sophistication to originate it. In a convention of egotists, there were even a few who would put their ideas in someone else's mouth.

The concept of how to curtail power in a non-violent way, can be called Regulatory Competition. The idea does still work reasonably well with state taxes and corporate regulation. If a state raises a tax, estate tax for example, in a burdensome way, people will flee to a state with more reasonable taxation. Corporations have learned how to shift legal headquarters to Delaware and other states which court them, and in really desperate cases will move factories or whole businesses. There is little doubt this discipline is effective, and little doubt that some cities and states have been punished severely for encouraging an anti-business environment. Whether the Fourteenth Amendment could be cleverly amended to expand this competitive effect without reintroducing segregation or the like, has not been seriously considered, but perhaps it should be. There are however not too many alternatives to consider. As far as advising our European friends is concerned, it would be important to point out that Regulatory Competition completely depends for its effectiveness on freedom to flee to some other state within the union. A common language is a big help to unity, but ability to move is essential, so for practical purposes both are required. Underlying such concessions is a sense of tolerance of cultural differences. That is unfortunately where most such proposed unions have either resorted to violence, or failed to unite. And of course, the power which might otherwise be abused, must then be shifted from the federal, back to the state level. What surfaces is a sort of one-way street. It remains far easier to devolve into little statelets, than to unite for the benefits of scale.

http://www.philadelphia-reflections.com/blog/472.htm

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Perpetual?

George Washington Was he the 11th President of the United States?

We must be indebted to Stanley L. Klos for his recent book called President Who? in which he makes a persuasive case that George Washington was actually the eleventh President of the United States, there having been ten previous Presidents under the Articles of Confederation. The awkward fact that the Articles were not ratified until 1781, is a different sort of issue which possibly helps explain some of the confusion.

In general, the attitude had been that the ten previous Presidents had merely been the presiding officers of Congress, holding an office we might now call Speaker. Indeed, the President under the Constitution doesn't "preside" over anything definable, although the Vice-president clearly presides over the Senate, at least on the infrequent occasions when he is in the room. All of this would seem to be nit-picking wordplay by history hobbyists, except for one thing.

Lincoln raised the issue whether states who ratified the Articles of Confederation, among other documents, were bound in perpetuity to be members of the United States.

Abraham Lincoln was having a hard time finding a reason to challenge South Carolina's right to secede, which was later depicted by the state as simply revoking its previous ratification of the Constitution in 1789. If they could join the Union, they could un-join the Union, so, Goodbye.

Not so, said Lincoln. When South Carolina ratified the Articles of Confederation in 1778, those Articles clearly stated the Union was to be perpetual, or at least the Articles uniting the colonies were to be so. Articles of Confederation: Article XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwords confirmed by the legislatures of every State. That sounds pretty perpetual to most readers, making the Constitution merely a clarification of details, or at most an amendment to the Articles of Confederation. Ratification of the Articles in 1781 suggests the strong inference that the intent of Article XIII was to prevent individual states from making a separate peace with Great Britain, or Britain from claiming conquered territory was no longer American.There's no doubt the Articles do say perpetual and no doubt South Carolina signed them. However, it is equally certain that Alabama, Arkansas, Louisiana, Mississippi, and Texas did not sign the Articles. Six hundred thousand casualties later, this fine legal dispute was settled in Lincoln's favor, but not before the Gettysburg Address further muddled Constitutional Law by proposing in effect that the Declaration of Independence formed the basis for the Constitution. However, a speech at a ceremony hardly qualifies as a national ratification, and the Gettysburg Address did not achieve much acclaim for several more decades, suggesting later politicians were doing some special pleading, To include either the Declaration or the Gettysburg Address in a discussion of Constitutional intent is to ignore a lot of contemporary history. Only the Articles and the Constitution itself can claim to have been intended as a system of governance, with at least some attempt made to obtain a general ratification, followed by long periods of conforming to them, to display even stronger ratification.

The third page from the original text of Abraham Lincoln's first inaugural address with hand-written annotations. [Amplifying text and enhanced image.]

So now Philadelphia has two large, competing, institutions at either end of a long grassy Mall on Sixth Street, Chestnut to Vine. Each has a paid staff, busily organizing new points of view in competition for legal authority as well as visitors. One really must wish that Lincoln had found some other legal theory to justify military action. The Articles of Confederation, which were anyway not fully ratified until 1781, established a military alliance of thirteen otherwise fairly autonomous states. The Constitution, beginning with the words We, the People, created a nation of citizens, in 1788.

There's quite a difference, and the second was emphatically based on dissatisfaction with the first. It thus is a favorite theme for those who argue for a "living" Constitution, in which any change at all is legitimate if enough people clamor for it. My own view of this, if anyone cares, is that our Union is the only example in history where a number of viable sovereign states voluntarily and permanently surrendered their powers to become a "more perfect union". Many others have tried to do the same, starting with the French Revolution and continuing with the United Nations and the European Union. So far, every other attempt has been a failure. So I am very reluctant to see us tinker with the Constitution, because the invisible balances are so subtle and largely unspoken. It may not be perfect, but so far it is unique in being the only one that seems to work. Such pious worship of a mystery seems to offend a lot of people, so let's get a little more pointed.

The greatest enemy of the Constitution at the time it was formed was Thomas Jefferson, the Ambassador to France at the time of the French Revolution, which he much admired. Jefferson was reluctant to confront George Washington, so his resistance to the Constitution was circumspect. However, he formed a political party with a main principle of opposing strong central government. One of the activities of his party was to start to celebrate July 4 as a National holiday, and to downgrade the importance of Washington's birthday as one. There can be little doubt that Washington's birthday has been dropped from the national calendar and replaced by President's Day, while the celebration of July 4 continues to be an occasion for speeches and fireworks. John Adams engaged in a long correspondence with Jefferson after both had stepped down from the Presidency. While the two made their peace with each other on many subjects, Adams never forgave this celebration of the Declaration as a sacred text, when in fact he believed it had little to do with history, and was outspoken in his scorn for its importance. One can only imagine the apoplectic speech Adams would give today if he could come alive and comment on the dilution of Washington's birthday with Lincoln's, diminishing the memory of both. And as for his scorn for dating the beginning of the Revolution to July 4, 1776, when in fact fighting had been going on at Lexington, Concord, Bunker Hill and other places for years, well. Well, it seems high time for some Virginia politician to join with some Massachusetts one, in assessing the historical merits.

http://www.philadelphia-reflections.com/blog/606.htm

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Two Friends Create the Articles of Confederation

John Dickinson had been active in resistance to England's treatment of its colonies, and as early as 1768 had written a book called Letters of a Pennsylvania Farmer which is credited with strongly influencing the colonies in the direction of resistance. When it came time to write the Articles of Confederation, Dickinson was the lawyer selected for the task. His good friend Robert Morris was less outspoken in opposition to the British Ministry's behavior, quite possibly because he was adept in finding work-arounds for his own personal business interests. And possibly he was trying to maintain a neutral negotiating posture, since in a hotly contested election with this as the main issue, he was elected by both sides in the argument. When July 4, 1776 forced the issue, both Dickinson and Morris refused to sign the Declaration, but within a few months, both of them were actively fighting for the Rebellion.

The thirteen colonies united to fight the British King, but many of them were reluctant to unite for any other time or purpose. Rhode Island was perhaps the extreme example of this view of what Independence was supposed to mean, but the feeling existed to some degree in many colonies. Concern for the power of this feeling may have contributed an important reason the Articles placed heavy emphasis on declaring them to be perpetual. Recognition of this intent may have been an important reason why George Washington was later willing to sweep the issue aside, even though he of all people was most concerned to avoid the appearance of acting like a dictator. For this and other reasons, the Articles remained unratified for years. Finally, in 1781 Robert Morris became convinced that failure to ratify was encouraging a failure to cooperate, and successfully pushed ratification through the steps. At that time, Morris was effectively running the country, even providing his own credit and funds to do it. People were unwilling to oppose his wishes, but they were also unwilling to provide the taxes, supplies and troops that Morris thought were being blocked by failure to ratify. Ratification of the Articles accomplished very little except to convince Morris, the Articles were flawed and must be replaced.

Little is known for certain about the evolution of thought in Morris' mind between 1781 and the Constitutional Convention in 1787, although a great deal is known about his other numerous activities. It is clear however, that his experience with the Pennsylvania Legislature had been dismal, while he came to see the flaw in the current Federal government was its inability to raise taxes and consequently, to service national debt. The states were able to levy taxes under the Articles, but erratic. The key to effective government was to reverse the situation; let the national government tax, and let the states spend. The key to such a negotiation would be to limit the national government to spending on a very limited list of vital purposes, but bedazzle the states with a substantially unlimited list. As the accounts to pay for the Revolutionary War were totalled up, it was apparent that the National Government had twice as much debt as the states. It would need twice the taxing power to service such a debt, but presumably wars would be infrequent. Pay this one off, and potentially the need for future federal spending would be small. Indeed, under the presidency of James Monroe the national debt was completely paid off, although briefly. It was almost as if Robert Morris and his pupil Alexander Hamilton had a crystal ball.

Robert Morris was brilliant, and he had six years to fashion his strategy; he also had some help. For one thing, George Washington lived next door for much of that time. By then, almost no one dared confront Washington. Adam Smith had written his book The Wealth of Nations in 1776, and Morris gave the book as presents to his friends. Morris had corresponded with Necker, the genius financier of France, and through his good friend Benjamin Franklin, got insights from the rather advanced British national finance. And James Madison brought the scholarship about politics and statecraft accumulated by Witherspoon, Hume and the Scottish enlightenment.

Once you grasped the central idea, in this environment the strategy almost worked itself out.

http://www.philadelphia-reflections.com/blog/2226.htm

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Washington's Circular Letters

Washington's Circular Letters

Once Cornwallis had surrendered at Yorktown, there was an understandable reluctance of the troops to get killed for a cause they had already achieved. The British monarchy had much longer experience with wars, and fully expected to make advantage of this universal trait of exhausted soldiers at the end of a long war. The colonies could neither be reconciled nor forcibly subdued, that was clear enough. What was not clear was how much national advantage might still be extracted from the peace conference, by bluffs and intransigence. Diplomats are long accustomed to such manipulation, but the new nation only had Benjamin Franklin who would be equal to it. More than that, however, it seems to be a peculiarly American trait to quit before the last card is played. It would be another century before another General destined to be made President could reduce this to a convincing epigram. "In every war there comes a time," said Ulysses S. Grant, " when both sides want to quit. The side that finally wins the war has a general who is too stubborn to quit." In the Revolutionary War, it is Washington and Franklin who stand out as too stubborn to quit when they were determined to win. Both men were leading Masons, and that has something to do with it, but the quality was surely inborn. During the Nineteenth century, it came to be called, simply, Character.

The Revolutionary Army was seldom well-fed, never well armed. Hardly anyone expected the war to last eight years, or the British soldiers to be so brave and effective. Benedict Arnold had seemed like a perfect soldier, but he had turned traitor nearby at West Point. Conditions for wives and children at home were almost universally bad. And the Congress in Philadelphia proved to be willing to inflate the currency, hold back soldiers' pay, and pinch pennies on supplies. Individual colonies always seemed to promise more soldiers than they actually supplied. Not that they were proud of themselves; they skulked. Surely, some state legislatures and some state representatives were worse than others, but it is almost impossible to identify them. They all must have been somewhat complicit, or we would have heard of more of them denouncing each other. It must have been supremely painful for Washington to receive promises of troops and supplies that he privately doubted, and to assure his troops help was forthcoming. The inevitable disillusionment discredited him more than the Governors who put him in that position. The British troops surely shared the reluctance to get killed for war that was over. They partied and roistered in New York, but who knows what general in London might suddenly order an attack on Newburgh, just to make their overall defeat seem less humiliating?

Head Quarters Newburgh NY

In sixteen months of this agony, Washington wrote many letters to state Governors, keeping them informed and asking for their help. The custodians of the Headquarters museum proudly show the various tables and chairs for his aides to translate French and Spanish, to make thirteen copies of just about everything, and careful files of all correspondence. Washington was an organized person, they say, or else his chief of staff was organized. Someone like Alexander Hamilton, perhaps. Out of all this headquarters communication system gradually emerged the system of Circulars. The General was in a position to see huge deficiencies in the government system for which he dedicated his life, and apparently grew haunted by the idea that all this suffering would be for nothing if the government which emerged was anything like what he saw before him. His Circulars to the governors began to take on the quality of outlining what kind of government the United States ought to have. It had to have federal power; the states must give up enough of their own power to the decisions of a single executive. It must pay its debts; a mighty nation does not chisel its creditors. It must suppress the inclination to squabble and think the worst of each other.

And then he made a mistake. As a way of proving his sincerity, his lack of personal motive, he announced in advance that he was leaving public service forever. Today, every lame duck knows that is a bad idea, even if you mean it. And while he may have sincerely thought he meant it at the time, events show he really didn't mean it. He discovered how little he knew of the technical details of government, and thus how much he needed James Madison's help. He discovered how much he overshadowed anyone else, and so, how no one else would be able to persuade the others to cooperate. Franklin perhaps knew and privately doubted that even Washington could pull it off. Washington's Circulars were driving him straight toward seeking the Presidency he widely proclaimed he did not want and would not accept. And thereby tarnishing the one thing in life he prized more than any other: his word of honor.

http://www.philadelphia-reflections.com/blog/1997.htm

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A Pennsylvania Farmer -- in Delaware

John Dickinson

It is difficult to have a coherent view of the mind of John Dickinson. He was seriously offended by the Townshend Acts, which he rightly perceived to be the work of a few malignant personalities in British high places who were mostly soon replaced. Later on, he refused to be troubled by the inconsequential Tea Act, which he appraised as a face-saving gesture of reconciliation, but more recent historical information demonstrates was more likely aimed at avoiding a vote of no-confidence in Parliament. Unfortunately, Dickinson could not comprehend reckless hotheads among his own neighbors, and reckless hotheads in turn seldom comprehend the measured behavior of Quakers. In any event, although Dickinson played a major role in the Declaration of Independence, he refused to sign it. A few months later, when the British actually invaded the State of Delaware on their way to capturing Philadelphia by way of Chesapeake Bay, Dickinson enlisted as a common soldier, and fought at the Battle of Brandywine. Obviously, he was seriously conflicted.

John Dickinson's Farmhouse

Dickinson had become internationally famous for twelve letters he meant to publish anonymously. The Letters From a Pennsylvania Farmer were written about 1768 out of resistance to the Townshend Acts. Because the three counties which were to become the State of Delaware were then still part of Pennsylvania, many school children have become understandably confused about the actual location of the man who became governor of both states, simultaneously.

The causes of the separation of the two colonies are still a little vague. Delaware schoolchildren are taught the two states separated, but often report they didn't retain much information about why it happened. The Dutch and Swedes who originally settled southern Delaware were not sympathetic with Quaker rule, which could be seen as a reaction to their living here for generations as Dutchmen before William Penn arrived, but then saw the colony sold out from under them. As a further conjecture, there might have been friction with the Quakers over slavery, similar to hostility of other Dutch settlers in northern New Jersey when William Penn purchased that area. This pro-slavery attitude resurfaced in both areas during the Civil War. One alternative theory which has considerable currency in Delaware is local dissension about Quaker pacifism during the Revolutionary War. On a recent visit to Dickinson's home outside Dover, a school teacher was overheard to instruct his flock that the Dutch Delawarians wanted to fight the British King, but the Quakers wouldn't give them guns. "We value peace above our own safety," was the unsatisfying response they received from the Pennsylvania Assembly. But that line of reasoning bumps up against Dickinson's role in local affairs, his ambiguity over the Declaration, and his vacillation in warfare. One would suppose the simultaneous Governor of both states would play a major role in the separation of the two.

Dover Air Force Base

Dickinson's plantation, quite elaborately restored and displayed, is tucked behind the Dover Air Force Base. Perhaps all that aircraft noise will discourage subdevelopment in the area of Dickinson's plantation and the rural atmosphere may persist for years. At the time of the Cuban missile crisis, your correspondent happened to be driving past, observing the sky filled with bombers, just circling and circling until the diplomats settled matters. Since eight-engine bombers are seldom seen around Dover, it has always been my presumption that they came from elsewhere to be refueled at Dover; but that's just a presumption. One of the pilots later told me he was carrying nuclear "eggs" and was completely prepared to take a long trip to deliver them.

To get back to Dickinson's wavering about the Declaration, maybe there was a good reason to waver. Joseph J. Ellis ( in His Excellency, George Washington) relates that after the devastating British defeat at the Battle of Saratoga, Lord North did make an offer to settle the war on American terms. In a proposal patterned after the demands of the separatists in Ireland, America could have its own parliament as long as it maintained trade relationships with England. As an opening offer, that comes pretty close to what the colonists had been demanding. The offer came too late to be accepted, but it might have shortened the war by six years, and we might have a picture of the Queen on our postage stamps.

http://www.philadelphia-reflections.com/blog/1244.htm

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Litchfield County, Extended (1771-1775)

Wilkes-Barre

For four years, the settlers considered the apparently peaceful Wyoming Valley to be part of Litchfield County, Connecticut, and its main little town was called Westmoreland (now Wilkes-Barre, although it still has a Westmoreland Club). However, the high-living, non-Quaker sons of William Penn were ill content to let matters remain that way. Their response was to sell large tracts of land in the area, on condition the purchasers would do whatever fighting was needed to conquer and hold it. The main purchasers were Scotch-Irish from Lancaster County, and the main speculators were prominent Philadelphians with names like Francis, Tilghman, Shippen, Allen, Morris and Biddle. This speculative land sale was to be the source of trouble for decades, because it conflicted with titles to the same land issued by the Susquehanna Company.

The predictable trouble surfaced in 1775, with the Second Pennamite War. Under the command of a man named >Plunkett, 700 Pennsylvania soldiers marched to liberate Wyoming, and were soundly defeated by the Connecticut soldiery under the command of Zebulon Butler. There might have been further fighting in this expanded war, except for the other eleven colonies applying great pressure on these two colonies fighting each other with potential jeopardy to the united rebellion against British rule. While the Penn family were definitely royalist in their sympathies, their colonial property put them in an awkward position with their Scotch-Irish allies, who were, in all colonies, the main leaders in the revolution. The effect was to isolate the Connecticut invaders, even though they were the victors in the fighting.

http://www.philadelphia-reflections.com/blog/569.htm

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U.S. and E.U. Exchange Experiences (1)

The Global Interdependence Center (GIC), founded by Nobelist Lawrence Klein in 1976, brings noted foreign financiers to address Philadelphians interested in finance, and takes those Philadelphians abroad to return the visits. It's a gracious, entertaining, and highly stimulating travel club of very nice folks. Its 25th Annual Monetary and Trade Conference was especially exhilarating. Christian Noyer, President of the Banque de France, gave a description of the rationale and direction of the European common currency. Since he was the Euro's driving force right from the beginning, the experience of hearing him was pretty much like hearing Alexander Hamilton tell the story of the founding of the American banking system. Such a notable event needs to be reported.

Christian Noyer urges that the central concept of the European Union is deliberate, voluntary surrender of national sovereignty -- for a mutually beneficial purpose. The declared purpose of limited surrender of national control of the currency is economic; price stability, lower interest rates, the stimulation of international trade by lowering transaction costs. But the unstated, grander, purpose is the elimination of war. Because the limited technical purpose has been achieved in almost all areas, the grander purpose of eliminating war has not been an accident. With this simple, even humble, declaration it immediately becomes possible for a mildly irritated American audience to understand that European reluctance to become our active military ally grows out of a highly commendable set of motives, and widely differing historical experiences.

As things worked out, the new nations who have recently joined the Union ("The U") are anxious to modernize, because the people of those nations demand modernization and their leaders must agree to achieve it. Inflation, that hitherto inevitable fund-raiser for national goverments, must be eliminated in order to join, and stays eliminated because the other members of The U will not tolerate it in a partner. In his curious way, "price stability" has placed the Union on the side of the people against the locally powerful, although it would be untactful to emphasize it. From the elimination of inflation comes lower interest rates, and from that, a stable currency. From that comes economic growth, for which the political lingo seems to be "modernity". As a consequence of this undeniable success, all nations in the area want to join the Union, and none wants to leave it. If that prevailing attitude doesn't lead to the elimination of what might then be a civil war, it's hard to know what will eliminate it. The marvel of all this skillful analysis is how natural, soft and modest it sounds, feeling like an old soft shoe. Eventual political unification is clearly an old dream in Noyer's head, but for now he seems content with the vindication that it is possible to have a currency without having a country control it. It seems to be a steamroller of economic logic, flattening out the pretenses of merely political power.

No less an economist than Martin Feldstein has written that stable unified currency is doomed in the European context of widely diverse labor markets; Noyer seems pleasantly serene in the face of this argument. He wouldn't say so, of course, but some in the audience got the idea that Noyer probably believes the power of this cooperative idea will eventually discipline the unions the way it disciplined the politicians. One certainly hopes so, for the sake of this smooth, cuddly French aristocrat.

http://www.philadelphia-reflections.com/blog/1229.htm

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U.S. and E.U. Exchange Experiences (2)

America can learn about itself from the E.U.

To see the economic power of unifying the currencies of Europe, and the political attractiveness of its results among the people of those countries, makes it suddenly more clear why our own Civil War is so often said to be about the Union and not about slavery. Unlike our grandfathers in the Civil War, we take the benefits of free interstate commerce for granted, while for them it was still a demonstrated achievement. Lincoln for example, was an ardent Whig, which in those days meant an advocate of helping commerce by the intervention of government. There is even a shadow of present concern that Americans will have so forgotten the lessons of free interstate commerce that they might somehow surrender it for some other blandishment. Certainly, free international trade has its enemies. The abolition of slavery was of course an overdue achievement, too, but perhaps our long slog toward equal rights has allowed this second crusade to overshadow the history of what really was the main one. In case anyone feels impelled to start a quarrel about this viewpoint, let me remind him that Quakers started the abolition movement, right here in Philadelphia, and have nothing to apologize about.

Going further back, we got our Constitution more or less right before we convinced the public of the economic benefits of unification; eventually we got a bad Civil War. The Europeans learned that complicated words in a Constitution have consequences, suspiciously loaded the proposed document with interminable conditions, and eventually rejected it. It's an old political trap that a proposal so loaded with attractions will often gather more opposition from objectors to multiple small points than proponents for the big points. Keep it simple, senor. If you expect men to die for that document, they have to be able to recite it. If you must make it complicated, just appoint a Supreme Court and wait a little.

http://www.philadelphia-reflections.com/blog/1230.htm

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World Finance, Columbus Day 2008

Prime Minister Gordon Brown

With voters watching three weeks before the 2008 American presidential election day, finance ministers and their political masters met to decide a basic question: dare they risk disaster to save the existing system, or play it safe by sacrificing small banks to rescue big ones? That is, guess if the situation is so bad only strong rowers can be allowed in the lifeboat, or whether things are really manageable enough to try to save everybody but at the risk of worse consequences for failure. For example the credit default swap mystery; there are $60 trillion notional value insurance policies in existence to cover $20 trillion of bonds. Is that massive double-counting, or an actual disaster so severe it makes every other consideration trivial? Answer quick, please, the ship looks like it might sink. At first it seemed strange a Labor government in England would propose saving only the strong, until you realize that Prime Minister Brown is protected from his Left, while the Democrats in America want to use a fairness argument to win their election. A Republican lame-duck president must do the deciding, a man who has been shown to be both a tough politician and a fearless gambler; playing things safe is not his style. The Dow Jones average soared a thousand points in a day's trading on the prayer that things were finally under control. But take a look around.

Little Iceland and Switzerland are proud to house some enormous banks. But if those banks approach failure, their homeland treasuries are far too small to bail them out.

On the other hand, little Hungary has a negligible banking system, so Hungarians commonly borrow money from foreign banks. The national currency devalued by half in this crisis, so most Hungarian mortgages doubled in price. Reserve systems based on national governments suddenly look obsolete.

Try another approach. Little Ireland went ahead and guaranteed all deposits in its financial institutions. Money from England and the rest of Europe immediately poured in to enjoy that guarantee, forcing other grumpy nations to match the unwise Irish offer. There's a sense that nations are losing control of their affairs.

Europe consists of 27 nations, of which fifteen are in the Euro zone. There's a common currency and a constrained central bank, but can this gaggle of geese possibly agree on concerted action in this crisis? America was once in this situation under the Articles of Confederation, but even after almost losing the Revolutionary War, George Washington was nearly unable to get the colonies to form a union. Even after this experience, the Southern Confederate States later adopted the same system of a central currency without a central government and really did lose their war.

Are we to infer from Prime Minister Brown's attitude toward banks that he might soon suggest ditching little nations in order to save bigger ones?

www.Philadelphia-Reflections.com/blog/1525.htm

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CONSTITUTION I : Turning Colonies into States

The prevailing notion of the Constitutional Convention once depicted James Madison, seized with merging the former colonies into a nation, selling that concept to George Washington. The General, by this account, was known to be humiliated by the way the Continental Congress mistreated his troops with worthless pay. But recent scholarship emphasizes that many other patriots were disappointed with the government they had sacrificed to create. Madison had led protests within Congress itself. A generation younger than the General and not at all charismatic, Madison's political effectiveness first came before Washington's attention as a skillful leader of committees and legislatures. Washington was particularly upset by Shay's Rebellion in western Massachusetts, which actually threatened to topple the Massachusetts government, but Shay's frontier disorder was merely an extreme example of more general restlessness. There was a long background of repeated Indian rebellions in the southern region between Tennessee and Florida, coupled with uneasiness about what France and England were still planning to do to each other in North America. It looked to Washington as though the Articles of Confederation had left the new nation unable to maintain order along thousands of miles of western frontier. The British clearly seemed reluctant to give up their frontier forts as agreed by the Treaty of Paris, and very likely the British were both arming the Indians and agitating them. The innately rebellious Scotch-Irish, the main settlers of the frontier, were threatening to set up their own government if the American one was too feeble to defend them. The Indians for their part were coming to recognize that the former colonies were too weak to keep their promises. With our Army scattered and nursing its own grievances, the sacrifices of eight years of war looked to be in peril. Even Washington's loyal friends were getting out of hand. Not too much earlier, Alexander Hamilton and Robert Morris had cooked up the Newburgh cabal in the hope of provoking a military coup -- and a monarchy. It alarmed Washington that republican government itself was being discredited, leaving only a choice between a King and anarchy. Particularly when he reviewed the shabby behavior seemingly characteristic of state legislatures, something had to be done. Washington decided to set this right, using Madison as his right-hand man. Madison had been to college and could fill in some of the details; Washington only knew he wanted stable government and he did not, he did not, want a king.

Madison was young, vigorous and effective; he had the right perception about the Articles of Confederation as the source of the difficulty; and he was a reasonably close neighbor. After some protracted conversations at Mount Vernon, a plan was devised and put into action. Washington knew he wanted a stronger central government, strong enough to brush aside the quarreling state legislatures and stabilize the new nation, but not so strong as a monarchy or a military dictatorship. There were obviously many other things to be expected from a good central government, but it was not initially useful to pick quarrels about minor things. Madison had read a lot of books, knew about details. These two friendly schemers eventually convinced the country to go along. As things turned out, after a few years several of the issues set aside for later would indeed become seriously troublesome and eventually destroy the friendship between Washington and Madison. Worse still, in seventy years some even deeper issues would provoke a civil war. Even for a century after that, trouble continued to erupt, requiring periodic reconsideration of what powers needed to belong to the states, and what needed to migrate to the federal government.

For immediate purposes, the central problem for the Virginia collaborators was to persuade thirteen state legislatures to give up power for the common good. For this, it would be useful to follow the strategy of convening a Constitutional Convention of newly-selected but eminent delegates, rather than to follow the route of amending the Articles. The amendment approach would directly involve the legislatures in all the preliminary debates and compromises, thus likely failing to surrender enough state power to make a strong nation. The chosen approach was to assemble eminent leaders without political ambitions which would make them unwilling to consent to the loss of local power. Eventual ratification of the final result by the legislatures was unavoidable, but to seek their consent at the end of the process was far preferable. The divided and quarrelsome states would be positioned at a disadvantage in resisting a finished document which had already anticipated and negotiated the main objections, and was the handiwork of a blue-ribbon convention of prominent citizens and heroes. In modern parlance, that is known as framing the debate. In fact, although he had mainly initiated the movement, Washington refused to participate or endorse it publicly until he was confident the convention would be composed of the most prominent men of the nation. This venture had to be successful, or else he would save his prestige for something with more promise. Seeing to it that this was going to work was a task for Madison and Hamilton.

While many details were better left hazy, the broad outline of a new proposal had to appeal to almost everyone. Since the new Constitution was intended to shift power from the states to the national government, it was vital for voting power in the national legislature to reflect population districts of equal size, selected directly by popular elections. No appointments by state legislatures, please. However in the convention, it became evident that small states would fear being controlled by large ones through almost any arrangement, but on the other hand small states were particularly anxious to be defended by a strong national army and navy. England, France and Spain were stated to be the main fear, but small states feared big ones, too. Since the Constitutional convention itself voted as states, small states were already in the strongest voting position they could ever expect, and the Federalists at the convention needed their votes. Eventually, agreement was found for the bicameral compromise suggested by John Dickinson of Delaware, which consisted of a Senate selected and voting as states, and a House of Representatives elected in proportion to population, with all bills requiring the concurrence of both houses. From the perspective of two centuries later, we can retrospectively see that accidentally allowing state legislatures to redraw congressional districts gives them the power to "Gerrymander" election outcomes, and hence restores to the states some of the power Washington and Madison were trying to take away from them. In the 21st Century, New Jersey is an example of a number of states where it can fairly be said that the decennial redistricting of congressional borders accurately predicts the congressional elections for the next ten years. However, the historical irony emerges that Gerrymandering is impossible in the Senate, and hence legislative control over Senators has been weak ever since the 17th Amendment established senatorial election by popular vote. That's eventually the opposite of the result conceded by the Convention, but in accord with the almost certain wishes of the Federalists who dominated it.

This evolving arrangement of the national legislative bodies seemed an improvement over the system for state legislatures, because the Federalists believed corruption was automatically lessened by increasing the size of the legislative body. There were skeptics then as now, and something more was desired to weaken the potential tyranny of the majority always so evident at the state level and in the British parliament. To satisfy this anxiety, some power was redistributed to the executive and judicial branches of government, which were in turn intentionally selected differently. Here is the source of the Electoral College method for election of the President, giving greater weight to the votes of small states (and provoking a ruckus whenever the national popular vote is a close one), while according lifetime appointments to the Judiciary, following selection by the President with the concurrence of the Senate. Without anticipating its emergence, an unexpectedly large bureaucracy has thus come under the control of the executive branch without much of the republicanism so fervently sought by the founders. This may be in general harmony with the Federalist goal of removing patronage from legislature control, but appropriations committee chairmen have since found unofficial ways of asserting power over the bureaucracy. Only in the case of the Defense Department is the will of the constitutional convention made clear: the President is commander in chief, only Congress can declare war. Although this difficult process was meant to discourage wars, it had other features. From placing the command under an elected President, emerges a more explicit emphasis on civilian control of the military, further extended by legislative approval of initiating warfare. Unfortunately, there have been many more armed conflicts than "declarations" of war.

And that's about it for what we might call the first phase of the Constitution. There was a prevalent feeling that national laws should pre-empt state laws. In view of the need to get state legislatures to ratify the document however, this was withdrawn. Phase I of the Constitution was designed to take as much power away from the states as could be taken without provoking them into refusing to ratify it. Since ratification did barely squeak through after huge exertions by the Federalists, the Constitution must come very close to the tolerable limit, and cannot be criticized for going no further. Since no other voluntary federation has gone even this far in the subsequent two hundred years, the margin between what is workable and what is achievable must be very narrow.

The details of this government structure were spelled out in detail in Sections I through IV. However, just to be sure, Section VI sums it all up in trenchant prose:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Except for some housekeeping details, the Constitution ends here and can still be admired as sparse and concise. That final phrase about religious tests for office sounds like a strange afterthought, but in fact its position and lack of any possible ambiguity serve to remind the nation of grim experience that only religion has caused more problems than factionalism. There are no details; religion is not to have any part of government power or policy. By tradition, symbolism has not been prohibited. But government as an extension of religion is just as emphatically excluded, as is religion as an agent of government. Many failures of governments, past and present, can be traced to irresolution to summon up this degree of emphasis about a principle too absolute to need elaboration.

http://www.philadelphia-reflections.com/blog/1541.htm

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The Decision of Trenton (1782) Under the Articles of Confederation

Trenton Makes the World Takes

As the American Revolution drew to an end, the time arrived to settle the inter-state grievance of Pennsylvania and Connecticut over King Charles II's ambiguity about who owned Pennsylvania's Wyoming Valley, including the city of Wilkes-Barre. If they were all going to be United States citizens, it didn't matter much whether the residents of Wilkes-Barre (as it was now known) were governed by the laws of Connecticut or Pennsylvania. But bloody grievances die hard, and slowly. The genteel debates envisioned by the Articles of Confederation were not not equal to settling blood feuds, but they tried. The two states selected judges to represent them, in a negotiated settlement which took place on neutral ground, Trenton, New Jersey. After protracted testimony and prolonged secret deliberation, the judges emerged with a very brief and unexplained decision: The Wyoming Valley belongs to Pennsylvania. Period.

Almost every scholar of this subject is convinced that the unwritten decision contained two other provisions. Connecticut was given a piece of Ohio, Western Reserve. And the Pennsylvania representatives privately assured the group that the Pennsylvania Legislature would in time recognize the land titles of the Connecticut settlers who were actually resident on Pennsylvania land. Unfortunately, it is hard if not impossible to enforce an agreement that is secret, and the Connecticut claim to Ohio was eventually eliminated, while the Pennsylvania promise to recognize the land titles of people whose ancestors killed our ancestors, was much delayed, watered down, and resented.

http://www.philadelphia-reflections.com/blog/660.htm

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Addressing The Proprietor's Dilemma

William Penn

During the century which elapsed after Charles II gave away Pennsylvania to William Penn, a couple hundred thousand people moved in and changed the place. Transformation of the wilderness explains why the terms of the grant were logical at the time, but proved almost impossible to manage at the time of the Revolution. The Penns with thirty million acres were the largest landholders in America but, big deal, by 1776 only five million acres had been sold in a century.

Charles II had written in the Charter that the Penns could have the land if they could maintain order there, retaining the legal right for the King to recover the land if they didn't. This fall-back provision seems to reflect some doubt about the ability of pacifists to shoot the necessary number of Indians, Frenchmen and Spaniards. On the other hand, the motive for a King delegating away his authority in the first place became clearer when the Penns experienced severe financial strain defending the Northeast corner of the state against the Connecticut invaders. It furthermore helps us understand why Benjamin Franklin received such a cold reception when he was sent to London by the colonists to offer civil authority over the state to the crown. The King didn't want the problems, and particularly didn't want the expense. Ambiguities were of course shared all around. William Penn quite shrewdly saw it was more sensible to treat the Indians decently than to fight with them, and cheaper too; the lesson was not lost on the British crown. But the French posed a much larger world-wide threat to the colony, finding it was rather economical to supply munitions to the Indians on the frontier and stir them up emotionally. The French and Indian War was a small component of the Seven Years War, which proved to be a very costly adventure. Its cost utterly overwhelmed the ability of one family to underwrite local diplomacy in a single colony, and jeopardized the finances of the British Monarch to carry the rest. The resulting need to tax the colonies for their defense sent things downhill, and eventually to the Stamp Act, the Townshend duties, and the Tea Tax. Everyone made lots of mistakes as the whole structure underwent revision, as pacifists are certain will happen in any war. For a pacifist utopian colony, it's all sort of a big pity.

John Penn

With much to lose, the Penn family did pretty well with the resources at hand. By the time of the Revolution, three generations of Penns had divided up ownership shares of the Proprietorship.

Thomas Penn

John Penn was the Governor of the state, residing in his mansion on the Schuylkill called Lansdowne, doing his best to ingratiate the locals. He struggled to be diplomatic when arguing for the decisions actually made by his Uncle Thomas in London. Thomas Penn, on the other hand, was an important friend of the British Ministry, and a notable person in aristocratic England. As the Revolutionary War approached, the problem was how to hold on to 25 million unsold acres, while unsure who was going to win the war.

The strategy adopted was to get out of the business of running local government. John Penn the Governor became a private citizen, just a local real estate agent. He took an oath of allegiance to the Revolutionary government, which in the chaos of the time was equivalent to becoming an American citizen. Meanwhile, the other members of the family remained in England, ready to revise the arrangement if the British won the war. It was all fairly transparent straddling of the issues, which was only even remotely likely to be effective because of the enormous store of goodwill built up over a century. In 1789 revolutionary France, for example, it would not have delayed the tumbrels to the guillotine, five minutes.

Meanwhile, an unexpected difficulty was created. By withdrawing from control of the local government, the Penn family also withdrew from the defense of the state borders against neighboring colonies. Under the circumstances, the Penns were afraid to appeal to the King, while the new government of Pennsylvania found the Articles of Confederation were merely a wartime tribal compact. When the war was finally over, the Penn Proprietors were not left with much of a bargaining position. The new State of Pennsylvania offered, and they accepted, about fifteen cents an acre to surrender their claims. In Delaware, they got essentially nothing for those three counties. Only in New Jersey did the Proprietors' claims remain durable after the new nation was established. The Proprietorship of East Jersey survived into the late 20th century, and the Proprietorship of West Jersey continues to return a small profit even today. The New Jersey curiosity is treated in a separate essay.

http://www.philadelphia-reflections.com/blog/1136.htm

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Grand Union

Grand Union Flag

THERE are a number of supermarkets in Philadelphia called Grand Union Stores, but the grocery conglomerate was founded in 1872. That Union was the North in The American Civil War, and it is reported that life-sized replicas of Abraham Lincoln were once a common feature in the stores. Much earlier than that, the Grand Union was a term that meant the first American national flag, adopted in 1775, and created by a Philadelphia milliner, Margaret Manny. It was, however, quite similar to the flag of the British East India Company, and the Grand Union they were both talking about was the Union of England and Scotland of 1707. The jack of the Grand Union flag, soon to be replaced with a ring of thirteen stars, represented the crosses of England and Scotland, superimposed. When Northern Ireland joined the United Kingdom, the cross of Ireland was superimposed, to give the present form of the Union Jack. In 1775, considerable colonial sentiment still hoped that hostilities would achieve a status for America along the lines of the other members of the United Kingdom.

"Betsy Ross" Flag

Although the number of stripes in the national flag briefly increased to fifteen at the time of admission of Kentucky and Vermont, they reverted to thirteen to symbolize the original thirteen states. After that single exception, only the stars in the jack increased to match the number of current states.

The early use of the Grand Union Flag is in some dispute, but it may possibly have been used by George Washington in the various battles around Boston and Charlestown. It was most certainly flown by John Paul Jones on his ship the Alfred . Because of its resemblance to the flag of the nation we were fighting to overthrow, it is understandable that there would be a desire to change it. That is what happened in 1777, although just who first had the idea is still open to dispute and myth making.

America has had three flag acts:

After Vt, Ky, 15 Stars, 15 Stripes

The Flag Act of June 14, 1777 was passed by the Second Continental Congress (under the Articles of Confederation, of course. June 14 is now called Flag Day.) "Resolved, That the flag of the United States be made of thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new Constellation."

The Flag Act of January 13, 1794 (1 Stat. 341) An Act making an alteration in the Flag of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That from and after the first day of May, Anno Domini, one thousand seven hundred and ninety-five, the flag of the United States, be fifteen stripes alternate red and white. That the Union be fifteen stars, white in a blue field.

The Flag Act of April 4, 1818 (3 Stat. 415) An Act to establish the flag of the United States. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress Assembled, That from and after the fourth day of July next, the flag of the United States be thirteen horizontal stripes, alternate red and white: that the union be twenty stars, white in a blue field. And be it further enacted, That on the admission of every new state into the Union, one star be added to the union of the flag; and that such addition shall take effect of the fourth day of July then next succeeding such admission.

http://www.philadelphia-reflections.com/blog/1700.htm

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Harvard Men Suggest a Cold Place for Yale

The Colonial disputes with Great Britain were settled in 1783, creating great opportunities for the Colonies to resume their disputes with each other. Because of the unfortunate earlier action of the Penn Proprietors in selling land already occupied by Connecticut settlers, the legislatures of Connecticut and Pennsylvania behaved in ways that do them no credit. The situation could easily have led to more armed conflict, and it could even have gone from local war to fragmentation of the nation. So, although New York was close enough to know better, they joined with Massachusetts in offering to consider carving a new state out of Pennsylvania's northeast corner. The proposal was rejected, but the geological idea remains.

The northeast corner was once covered by glacier, and the region remains separated from the rest of Pennsylvania by a "terminal moraine", which is the huge pile of rocks and stones left behind after a glacier recedes. There are thirteen counties of rather desolate woods in this corner, with five or six more counties of moraine. Even today, some upper counties have only five or six thousand residents scattered in little settlements. The whole idea died when people got a chance to walk around and actually look at the region. Although one county is named Wyoming, this was not Wyoming, Fair Wyoming, at all; this was a pile of rocks. Moraines were what the Connecticut settlers were trying to escape.

However, their grandchildren might be unsure. Tremendous deposits of anthracite were soon discovered in the region, and then oil in Bradford County. Present residents of New York City will apparently commute endlessly to escape taxes, so an interstate highway or two would probably quickly make the area into Little Brooklyn.

The central point in all this was beginning to emerge. Since the Constitution was ratified, it simply no longer matters what state you were living in, as long as you can trust the legislature and the courts to be reasonably fair. These two combative legislatures and affiliated courts were once quite obviously behaving in a manner too obscenely partisan to be tolerated. Everybody involved in this mess could see the advantage offered by the ability to appeal to a superior power dominated by the other eleven (now, forty-eight) states. Carving out a separate state was not a compromise, at all. It was a threat, just as unsatisfactory to one combatant as the other.

Although it was clearly time to put aside the grievances and vengeances of a land dispute which had got out of hand, currents of other wild and headstrong ideas continued to swirl into the northeastern corner of Pennsylvania. In April 1786 Ethan Allen himself showed up in this region, wearing full Regimental uniform. He declared he had formed one new state and that with one hundred of his Green Mountain Boys and two hundred riflemen, he could establish another one. There is some reason to suppose Allen was responding to an action of the Susquehanna Company of Connecticut, which had held a meeting the previous September where Oliver Wolcott drafted a constitution for a new state named Westmoreland. William Judd was to be governor, John Franklin lieutenant governor and Ethan Allen was to be in command of the militia. The Assemblies of both Connecticut and Pennsylvania immediately reacted with outrage to renounce the whole State of Westmoreland idea; when John Franklin persisted, he was dragged to Philadelphia and thrown into jail to subdue his rebellious spirit. Nevertheless, the point was dramatized that -- even five years after the Decision of Trenton had supposedly settled the matter, and after all sensible neighbors urgently wanted this dispute terminated -- something else needed to be done to strengthen the Articles of Confederation, or else replace them entirely.

http://www.philadelphia-reflections.com/blog/1108.htm

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Enumerated and Implied Powers

George Washington taking oath

GEORGE Washington wanted a stronger central government to protect the country from enemies foreign and domestic, and he wanted it to be effective and workable; either way, he wanted a country he could be proud of. Eight years of war had taught him that to impose taxes and sacrifices in the national interest, state disunity simply had to be controlled. Following the Revolution, disorganization proved just as hurtful as in times of peace, and unfortunately even more prevalent. But by 1787 Washington also concluded the states would not surrender power unless the people insisted on it. It was up to prominent men in the Constitutional Convention to suggest a list of other advantages of Union. Tell us what good it will do to upset the Confederation. Having proposed the general shape of a central government, tell us what it can do better than the states. And then help rally public support to make the states agree to it. In this sense, blazoning "We , the People" on Philadelphia's Constitution Center is exactly right. But repeating that slogan too emphatically can suggest that the people were encouraged to modify or re-interpret the Constitution whenever they pleased. Here was a bargain that everyone involved was expected to keep. Amendment was provided for, but it was difficult. As would be said in another context, amendment was to be safe, legal, and rare.

We The People

Two small sections, Eight and Nine of Article One, list the separations of state and national sovereignties in very sparing language. The states must avoid using their sovereignty to gain advantage over each other. Defense of the coasts against piracy, and a general postal system are a Federal responsibility. As are open borders between the states, both physical and economic, promoting trade to the advantage of everyone. Uniformity of weights and measures, patents and copyrights, currency and coinage, bankruptcy and naturalization rules permit everyone to aspire to wider and easier markets. Uniform rights unite the various subcultures, so a general prohibition was declared of ex post facto laws and suspension of habeas corpus, degrading the currency, injuring the sanctity of contracts (or by implication injuring all the centuries of legal consensus known as the common law). Everyone knew state legislatures had either ignored or flouted these principles; state interference in these particulars was therefore expressly prohibited. Desirable federal powers were stated in a positive way, and limited to what was stated. However, because there remained doubters even after the Constitution was put into action, the Tenth Amendment was soon added to restate the point:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There were plenty of other negative ways to put all this, but the Constitution said no more than absolutely necessary. Certain powers were essential for a functioning national government, while some few powers would be destructive if the component states exercised them. The framers might have said but did not say: Look at what has happened among the little countries of Europe; that might also happen to us. As Adam Smith had recently warned, avoid economic discriminations against foreigners which are lumped under the heading of Mercantilism; in other words, avoid the use of government power to favor local businesses against competitors outside the political boundaries who therefore have no local influence. Let the several states avoid the expense and nuisance of different coinages, tariffs, licenses and cartels. The inability to assemble parts of manufactures in different jurisdictions, using different rules and regulations, mainly designed to increase prices for the general mass of consumers for the benefit of a few politically well-placed producers, who should enjoy such advantages only if they earn them. In some ways these negative arguments had the greatest persuasive force, because almost everyone could think of some injury inflicted by similar laws. In 1787 it was only recently that our whole nation had suffered from the mercantile rules of Great Britain, who was supposedly a partner with the colonies. Exhortations with this sort of specificity were excluded from the document. Private publications like the Federalist Papers could be more explicit because they were not official parts of the agreement, and thus could be more easily reshaped by the courts. Those who today confine Original Intent to specifics are treading on soft ground.

the Constitutional Convention

It was hard to know where to stop with these arguments. A promise was being made that the nation would prosper with expansions of scale, and in fact it soon did. It was also foreseen that expansion of the right of the federal government to tax would automatically constrict the ability of the states to do so, and in time the state legislatures have been reduced to begging for federal funds. [At the same time, it seems inconceivable that the Constitutional Convention would have condoned the present discordance between the several states in what federal taxes they pay compared with what federal benefits they receive.] The states' inability to levy troops and declare wars has indeed reduced local power to intervene to block hostilities not of local concern. There have been occasions to fear that plebiscites for personal freedom may have sometimes impaired the nation's ability to defend itself. Local gasoline and cigarette tax wars occasionally spring up to exploit differences in state taxation, but in general there remains comparatively little mercantilism at a state level. But regional differences have correspondingly grown, along with the sense of local powerlessness to resist it. The Civil War is only the largest example of a general trend of shifting conflicts into those gaps of jurisdiction unimagined by the framers. Section Eight arguments all rode on the rising tide of the Industrial Revolution; they proved in general to depict correct predictions. But they also persuaded 600,000 young men to die, for or against the Union itself.

http://www.philadelphia-reflections.com/blog/1544.htm

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Human Rights

The Founding Fathers, mindful of Cromwell and the English Civil War, were strongly concerned that majority rule might turn into a tyranny over minorities, and searched for some way to protect minorities. Since everyone could imagine being in a minority on some dispute, it was a universal concern. In those strongly religious days, it seemed self-evident that minorities had certain "divine" rights, conferred by God, which mere legislatures must not violate. As dissenting minorities became increasingly secular, the language shifted to "natural" rights, enshrined by purely logical analysis: there exist some rights anyone would give to others in order to preserve them for himself. In more contemporary language, the demand is now for "human" rights, whose source and authority lie mostly in the intensity with which they are demanded, to a point where some believers actually devote their lives to achieving them. Underneath all this semantic wrestling, one essential of any right is universally demanded: no government, whether by king or elected majority, may overrule it.

The founders of the American republic arrived at a formulation: strengthen central majority-rule government to a point where it can be effective, but keep it too weak for the majority to tyrannize a minority. This effort grew out of general perception that the Articles of Confederation were too weak to be effective, so the federal government must be made supreme over the states. But having achieved that, a new concern would immediately arise. Since slaves and poor people would probably always outnumber rich ones, how can a democracy be prevented from becoming a vehicle for slaves to free themselves, and poor people to vote themselves the property of rich ones? This concern was surely heightened by the earlier maneuvering of Madison and Washington to have the Convention delegates made up of the most prominent people in the colonies. The plan was to ensure the new Constitution would be adopted by the little legislatures making way before a Convention of celebrities. It probably did not occur to the two Virginia plantation owners that this selection process would result in heightened concern for the best interests of rich people, but it probably would not have bothered them much. Except for perhaps Gouvernor Morris, Convention delegates were not aristocrats, but self-made men, and with few exceptions successful ones. It is still hard to argue with their instinctive reaction that if the laws made it impossible to be a self-made success, then it is impossible to see how anyone would achieve success fairly. Eighty years later the slave component of this issue was finally settled, so then perhaps the wariness could be relaxed somewhat. And that certainly did happen.

The approach the Constitutional Convention adopted was to weaken the ability of the new government to be misused by a popular majority. They designed a separation of its powers, hoping that a balance of power would develop among the Legislative, Executive and Judicial branches, each selected in a different way. As the matter was finally adopted and ratified, it seemed a little inadequate. James Madison in particular rebelled against the final step of giving the Supreme Court the power to review the laws passed by Congress and signed by the President, for constitutionality. It remained for the fourth Chief Justice, John Marshall, to assert the judicial review principle successfully in 1803, sixteen years after the Constitutional Convention. In the greatest of ironies, he did so in a case called Marbury v. Madison.

This case, strengthened and amplified by later cases with the same effect, was to enshrine the Constitution as the capstone of the legal system in the United States, with all lesser laws consistent with and dependent on constitutional powers enumerated, powers implied, and powers forbidden. This capstone structure, rather than American provincialism so noticed by Europeans, explains why American law has drifted from common law to statutory law, while references in Supreme Court opinions to tendencies in foreign law are greeted with derision. Foreigners were not given a vote in our system, and our system is grimly determined to recirculate the opinions of the voters through the system, especially through the choke-point of the Constitution. In biochemical terms, the Constitution is the rate limiting factor. It is far too late to try to make it easier to amend the Constitution, just as it is surely too late to eliminate the Electoral College for selecting the President. Too many balance-wheels have been hooked to these fundamentals. Blame it on interest groups if you please, but seriously disturbing these fundamentals will surely prove unsettling enough to undermine the interest groups that assail them.

With the blocking of other avenues to overturn majority rule, the system itself has possibly provided a new one, which may some day be named after James Wilson of Pennsylvania. Wilson lived at the corner of 3rd and Walnut, making it convenient to sign both the Declaration of Independence and the Constitution. Although he spoke 168 times at the Constitutional Convention, his name is most often associated with the idea that basic legal principles should be part of the general background of all educated citizens. Sometimes referred to as the founding professor of the first law school, the University of Pennsylvania, Wilson recognized that the actual practice of the law soon drifts away from legal principles and settles on legal mechanics. Law students eventually come to learn that what matters most is what some judge recently handed down as an important opinion which sets a new precedent. Step by step the law moves from principles to precedents, and from early precedents to recent precedents. The system is said to be a variant on the scientific method -- hypothesis, tests of the hypothesis, modified hypothesis and then tests of it -- first created by Sir Francis Bacon. The law, in short, drifts away from Original Intent but does so proudly, not as a subversion of original principles but as a reasoned response to actual experience. Perhaps, in this enlightened process, new human rights can be discovered. Such as a right to abortion, based on a right to privacy, based on something or other you will have to read the original opinion to recall. It is not necessary to be a fundamentalist Christian to be alarmed by this process when it travels so far from the choke point of the Constitution, overturning dozens of state laws as it goes. Entirely too many plain non-lawyers who have no serious objection to abortion have read the Constitution and are now mistrustful of the reasonings of Justice Blackmun, the profession which acquiesced to his action, and the intellectual migration process which is being defended. Whether they know it or not, these are followers of James Wilson, of 3rd and Walnut, Philadelphia.

Jennifer Nedelsky is a Canadian lawyer who has been active in promoting an alternative to our system of using a constitutional right as a legal "trump card for displeasing laws.", as well as the failed European attempt to invent dozens of new human rights as a way of limiting government power. In Canadian law, a feature is called the "time limited notwithstanding clause." The legislative branch in Canada is permitted to pass laws which violate a constitutional right, "not withstanding that right for five years". It is possible to understand the appeal of this legal safety valve, to wait out the popular appeal of a mere fad, or to provide emergency relief in the face of unexpected circumstances. Some of the enduring problems with the legislation passed during the Roosevelt court-packing era might have been more generally acceptable with this clause attached. And it might address the temptation recently voiced by Rahn Emanuel, that no crisis should ever be wasted; it is true that some appalling legislation does occasionally turn out to be useful.

Ultimately, however, we are likely to fall back on the comfort that our Constitution more or less as originally created, has lasted over two hundred years while no other constitution can match that claim. Others have their proposed systems and we have our proven one.

http://www.philadelphia-reflections.com/blog/1554.htm

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Constitutional Liberty

Richard Henry Lee

Something can of course be learned by asking a man's friends, but descriptions given by his enemies are usually briefer. The Lee family of Westmoreland County Virginia were bitter enemies of Robert Morris the Financier of the Revolution, and they surely said unfair things about him. Morris paid as little attention to the Lees as possible, but for generations the Lees had been neighbors of the Washingtons, and could not be brushed aside. Furthermore, they were close to the center of Thomas Jefferson's anti-Federalist party. So insights into the Lee family probably illuminate the main disputes before, during, and after the Revolution. They even illuminate the mixed character of George Washington, who was sometimes exceptional by Virginia standards. Nevertheless, there was the same quality of heedless idealism to be found in Samuel Adams of Massachusetts and Patrick Henry of Virginia which goes beyond the ability of two-feet-on-the-ground revolutionaries like Robert Morris and Benjamin Franklin to understand, or even abide; this conflict runs throughout the history of the American founding. It seemed to baffle even those who switched positions, like James Madison going in one direction, and Thomas Paine, going the other. So, although it therefore cannot be an inborn character, it must quickly acquire very deep roots.

Arthur Lee

Arthur Lee and his brothers William and Richard Henry Lee of Virginia, were passionate rebels of the Patrick Henry ("Give me liberty or give me death") sort, conducting lifelong attacks on Robert Morris. Highborn Tidewater aristocrats, they were ancestors of Virginia's revered General Robert E. Lee. Arthur had even attended Eton College and later studied medicine in England. The Lee brothers started attacking Robert Morris well before his famous abstention from the critical 1776 vote on independence. It's much too easy to shrug the Lees off as landed aristocrats who disdained self-made men, or as passionate Jacobins who hated rich people, or maybe just narrow-minded nuts. Out of their often inaccurate attacks emerges an outline of what a lot of other people thought about Robert Morris. Many of these polar mind-sets outline the main divisions of political strife in America right up to the present. For present purposes, let's try to understand why Morris might risk his substantial fortune in underground smuggling before the war, and then dedicate his huge energies to winning the war -- while at the same time, not only refuse to agree to the Declaration of Independence (he did finally sign it in August 1776), but speak out in public opposition to independence. What explains Morris' apparent double-talk?

Robert Morris Signature

The explanation I choose to accept is that Robert Morris' real feelings were too sophisticated for this particular crisis, reaching clearer expression in his later activities promoting the Articles of Confederation and its revision the United States Constitution. A man given to terse one-liners, Morris said in December 1775 that he joined his fellow Americans in striving for "Constitutional Liberty" but could not join them in promoting independence.

Morris was never explicit about what would achieve Liberty without Independence; possibly something like the independent Irish parliament which English Whigs then supported, or the Scottish local parliament which exists today. Both of them link a single King to a commonwealth. At the time, no one was interested in the political philosophy of a shipping merchant.

But today we are in a position to see no member nation of the British Commonwealth has a written constitution; written constitutions are a comparatively recent innovation and not necessarily an essential one. The American Constitution today continues to argue about original intent and living documents, so it is still possible to prefer the wisdom of a benign King to written constitutions. The British goal seems to be to infuse overarching principles of government so deeply into citizen minds that such principles overwhelm any written commandments, however vague all that may sound to outsiders who prefer to niggle over documents. Not in America, of course, because an immigrant nation like ours cannot grow cultural roots sufficiently deep in a few generations, and must have written rules. Great Britain's recent difficulties with immigrants from the Commonwealth may well reassert the limits of unwritten constitutions; constant questioning of the written American constitution by more recent immigrant groups may become a part of the British life, too.

The Articles of Confederation were written by the eminent lawyer John Dickinson, said to be the man closest to sharing Robert Morris' political philosophy. However, for five years the Articles were un ratified, and Morris began to believe this lack of ratification was the reason the states were so resistant to taxation. So Dickinson gets credit for writing the Articles, but Morris must be seen as their father. Believing the lack of federal taxation was the main difficulty, and blaming the unratified Articles as the reason for it, our businessman man-of-action pushed them through. Unfortunately, with the Articles it didn't work because the taxation problem still remained, so Morris turned his immense energies toward replacing the Articles with something which would work. It does not twist American history a great deal to believe that Robert Morris, Jr. was one of the main driving forces behind both the Articles of Confederation, and the Constitution of the United States. He was neither a lawyer nor a political scientist, and therefore was quite indifferent to who got credit for the documents. As Ronald Reagan was to discover two centuries later, that's one of the best ways to get anything done.

Morris could read; he knew the Articles didn't endorse Federal taxation. But he was apparently convinced an unwritten constitution always contains the latitude to do what simply has to be done; anything else amounts to shooting yourself in the foot. After the Battle of Trenton, when Morris became President of the United States for three months in everything except name, he still blamed his troubles on the inability to levy taxes, which in turn was due to failure of the states to ratify those Articles. So sensible a man as John Dickinson would never assume overly strict interpretation was intended; obviously, a state must confiscate private property when otherwise it cannot survive. After five years of state inaction, Morris abruptly pushed the Articles through to ratification. But he was wrong, it didn't help. When he finally grasped that the explicit limitations on taxation were intentional, intended to override any implicit power in the Articles whatever, he promptly threw his weight behind John Jay, George Washington and James Madison to support a new Constitutional Convention setting it right, especially the national government's ability to levy taxes. Since Washington had by then become his best friend, who actually lived next door in Morris' Market Street house for years, there is not much paper trail of this interaction between these old friends. Once he got his tax mandate at the Convention however, Morris had hardly anything further to say. His frenetic later activity immediately after the Constitution was enacted can almost surely be attributed to lifelong habits of a negotiator, avoiding mention of anything which might distract from his main goal, in this case of ratifying the Congressional right to levy federal taxes, but not abandoning subordinate goals for a moment. What the Lees hated about Morris therefore cannot be easily explained, but certainly one feature of it was his ability to hold his cards. The Lees didn't hold their cards, they flourished them. In their eyes, no gentleman would do anything else.

The incidents of June, 1776 place the Lees in a more favorable light if they are seen as urging instinctive decisions by popular mandate, essentially favoring an unwritten British Constitutional arrangement. The Lees believed the place of a gentleman was at the head of a troop, daring the rest to follow their lead. The British had blockaded Boston, passed the Prohibitory Acts, fought naval battles in the Delaware River in May of that year. A huge British fleet had landed in New York harbor, and the agitated colonists were about to declare war. At the very moment of crisis, that rich Philadelphia merchant had refused to vote for independence. The Virginia tobacco planters were dancing a war dance in a city known for its pacifist Quakers, while their neighbor George Washington was conducting an actual war with the British. It was then revealed that Robert Morris had been participating in a gunpowder smuggling operation known as the Secret Committee, and Morris had made considerable profits from it. While many of his friends defended Morris, it was pretty easy to go wild with indignation about trusting him to sit on a secret espionage committee, unwatched. The very least that could be done was to appoint Arthur Lee, already a member of the Continental Congress, to that Secret Committee to sound the alarm if anything looked funny. The ironic fact seems to be that Morris and the Lees were passionately committed to the same unwritten approach to government, primarily based on trust in personal character, otherwise defined as fidelity to an unwritten tribal code. If you are the right sort of person, you will be with us; if you are not with us, you must not be the right sort of person. Unfortunately, a nation of immigrants may not survive if it adopts such notions.

The Lees had expressed disruptive views of Morris in the past; but they were exactly the sort of clan likely to confront scoundrels whenever facts called for it, and sometimes even when they didn't. The underlying conflicts, fiercely advocating both a strong centralized government and a loose decentralized one but not defining either, continue to run through American politics until the present. Whether Morris ever acknowledged it or not, he ended up on the side of defined contracts, as opposed to a Code of Honor. But he spent his life as a man of his word, because in business your word is your bond; if you are any good, you won't need to cheat. If our Tower of Compromises is to endure, its limits of such agreement must be few, but they must somehow be strictly understood.

http://www.philadelphia-reflections.com/blog/2115.htm

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Father of the Bureaucracy

Robert Morris

Under the Articles of Confederation, America had a President who presided, but there was no executive branch for him to do anything administrative. The day to day business of the nation was conducted by committees of Congress, who mainly contracted out the actual work. Evidently, Robert Morris the businessman had observed this system with displeasure, because it only took him a few days to replace it with departmental employees, reporting to him. The affairs of the nation were evidently in such disarray that there is scarcely any recorded resistance to this astonishing re-arrangement, probably viewed as only one of a series of brisk actions by this foremost businessman of the nation, acting in an emergency and to some extent using his own money. Furthermore, the immediate administrative improvement was apparently so obvious to everyone that the system continued after Morris left office, and was absorbed into the 1787 Constitution without much recorded debate. Without dissent, as we say, the bureaucracy had been created. As the press of business steadily increased the bureaucracy, from a handful of employees to many millions of them, a fourth branch of government was created without any Constitutional mission statement, not one single word. Following directions set by early America's preeminent no-nonsense businessman, control of the bureaucracy was placed within the Executive branch, in time largely located within the District of Columbia, and governed by rules made by the Civil Service Commission. Sometimes this fourth and largest branch of government skirts dangerously close to encouraging insubordination to their politically appointed superiors.

For some reason, the State Department is particularly suspected of such "Yes, Minister" behavior. Increasingly, government subcontractors are relied upon ("privatization"), as growth of public sector work forces a return to the subcontractor approach of two centuries earlier; such subcontractors increasingly find the bureaucracy assumes the role of a second Board of Directors. And for the same reason as before: the work of the central government keeps increasing. At a state and local level, an uncomfortable amount of political funding can be traced to utilities and other corporations who have been awarded legal monopolies, uncomfortably like the mercantilism which our colonist ancestors had found so repugnant to deal with. In the 21st Century we are finally approaching the point where we can foresee the number of people working for some level of government becoming greater than the number of voting citizens, and therefore able to control their income and the nature of their work. When the bureaucracy begins to exert political election power over its elected superiors, elected politicians are almost certain to rebel at what they will surely see as going a step too far. However, on the topic of salary and work environment, they are likely to become allies. Public discontent is already echoed in the growing political movement to limit or shrink the size of government; it would be well to examine and pilot test alternative options, before this one gets us into trouble.

In retrospect, this was one of many features of creating the three branches of government where broader implications went unnoticed in 1787. The British government had three branches, King, Parliament and Judiciary. To create a government consisting of a President, a Congress, and a Judiciary did not then seem like much of a departure. However, the Revolution deposed the King and made the people sovereign. When the real implications of that breezy slogan had to be translated into legislative language serious implications emerged, unexpected then, and now hard to change.

http://www.philadelphia-reflections.com/blog/2168.htm

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Reconsidering All Our Laws

Common Law

A King who conquers a new country theoretically gains the chance to revise all its laws. However thousands of years of experience demonstrate that those who are good at wielding the sword seldom have much interest in, or aptitude for, devising a legal code. Napoleon seems to have been an exception, and Alexander the Great was tutored by Aristotle, but most conquerers have been illiterate in the law. Therefore, earlier conquerors merely extended their native laws into additional territory, or else left the whole business to a permanent priesthood of judges. In this way, an independent judiciary could survive unless, like Thomas a Becket or Thomas More, it grew stubborn about thwarting the wishes of the King. The concept of citizen rights more or less defined feasible limits to what the King was allowed to do. British law went still further, distinguishing between rights of the people and rights of the sovereign. It identified those few things even a King was not allowed to do, as well as those many things he alone must be able to do in order to govern. The latter were collectively called the King's Prerogative. Today, we would call it a job description.

U.S. Codes

Along those lines, the English Civil War had been fought, briefly transferring the power of Prerogative to Parliament, and incidentally clarifying some disadvantages of doing so. Americans, after fighting an eight-year Revolutionary War to be rid of a particular king, had developed a sentiment for eliminating all kings entirely. However, the memory of the English Civil War and subsequent abuses by the Cromwell Parliament restrained that impulse. The alternative idea grew of transferring sovereignty to the people, to be translated into action by their elected representatives in the Legislative branch. Although such sovereignty would be unlimited, the intermediate steps taken by the Legislature could be deliberately slowed down, and particularly worrisome actions might be tangled up in complicated steps of legal process by a vocal minority. Such a complicated system required an umpire, which Chief Justice John Marshall eventually positioned the Supreme Court to be. Conducting elections every two years was a simple way to allow the people to restrain its agents from misbehavior of a more general sort. Since George Washington was confidently expected to be the first President, it was left to him to devise protections against presidential abuse, since he had notoriously and repeatedly expressed his intense dislike of kings. In modern times this system of checks and balances has only been severely tested once, in 1937. Immediately after winning a landslide re-election in 1936, Franklin Roosevelt nevertheless was slapped down hard by public outcry forcing Congress to thwart his Supreme Court-packing scheme.

Sir Francis Bacon

Such subtle, complicated ideas cannot be implemented by writing 6000 words on a piece of paper, and they certainly cannot withstand two hundred fifty years of subsequent nit-picking by dissenters, no matter how carefully crafted the 6000 words may have been. The complexity of the political system it describes would long ago have fallen apart without a million little accommodations and revisions, just as every other nation's constitution has done during that same period of time. And that fine-tuning process was made possible by starting with a more or less blank slate, with thousands of lawyers and legislators debating every particle of common law for more than a century. In 1787 it was decided to adopt English common law as a default position, and to invite a host of legislative bodies to debate and replace any part of it with a "statute". It was a laborious process. Measured by pages of law books, the volume of statutes only grew to equal the volume of common law by the time of the Civil War. The English common law was certainly a good place to start, having been created by Sir Francis Bacon two hundred years earlier as the legal equivalent of the Scientific Method; based on real, adversarily contested case decisions, a hypothesis was created, then tested, revised, and tested again. By actual count, one state legislature only enacted three statutes in the year before the Constitution was ratified; all its other activity was concerned with adjudicating disputes within the boundaries of existing common law. But when the Constitution suddenly rearranged the balances of power in 1787, almost every sentence of common law had to be regarded as potentially requiring modification to reflect the new Constitutional rearrangements. During the first half century there existed great enthusiasm for almost all of the new Constitution except those parts which affected slavery, the fine-tuning was almost universally intended to strengthen it or repair some oversight. If it failed in some way, adversaries were quick to point out the flaws. In short, every lawyer in the nation was involved to some degree for a century in the process of re-writing the English common law for American purposes, in American circumstances, for the grander purpose of strengthening the American commonwealth.

Federal Registry

And everyone knows what happened next. The state legislatures who considered it normal to pass fewer than a dozen laws in a year, started passing fifteen hundred in a year, and kept it up for many years. Today, almost every state legislature considers more than a thousand bills, and passes two or three hundred. Since the colonial legislatures passed few laws and spent most of its time adjudicating disputes about existing law, the character of the law changed as it gradually gave up adjudicating, stopped being like a court. The tendency of early law was to state principles to guide the judges. In recent times, our over-lawyered system specifies all imaginable conditions and exceptions in excruciating detail, so that our laws tend less and less to speak of "reasonable amounts" and more and more to define drunken driving, for example, in milligrams per deciliter of the defendant's blood. We have better measuring devices, so we measure. But who can deny that a legislature accustomed to making judgments itself, will more confidently rely upon the good judgment of courts, than a legislature which spends its time going to committee meetings to consider the testimony of experts, often never visiting a courtroom?

Our lawyers, who once enlisted the efforts of the entire profession for a century into refining the English common law into the American statutory law, are to be encouraged to extend equal effort into the process of turning off the faucet. Or possibly, having done such a good job at this assignment, seek another line of work?

http://www.philadelphia-reflections.com/blog/2169.htm

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