Articles of Confederation: Fatal Flaw

From 1790 to 1800, Congress met in "Congress Hall." The first 10 amendments to the U.S. Constitution, known as the "Bill of Rights," were also added here.

Philadelphia was the center of the nation from the time of the First Continental Congress1775) until the nation's capitol was moved to the District of Columbia in 1800. For thirteen of those years (from 1775 until the 1788 inauguration of George Washington as the first President under the present Constitution) our governing concept was a confederation of sovereign states. The framework of our rules was a little vague at the beginning of that period, eventually becoming explicit when the Articles of Confederation were ratified in 1781. Later on, when the Constitution was agreed to in 1787, there was another period of ambiguity until the newer rules actually began to apply. Speaking loosely, for thirteen years the country operated along the principles of the Articles of Confederation. For another twelve years, the United States were absorbed in the task of transition from the Articles to the Constitution.

During all the twenty-five years government was in Philadelphia, therefore, Americans were bedeviled by discovering what is unworkable about their original ideal of a loose association of states, discovering next that patchwork repair was not enough, finally after a fresh start, getting used to and revising a newer idea of living under a common central government of their own devising. Although it is commonplace to say the Articles were a weak failure, they did in fact accurately reflect American attitudes at the beginning of a formative period while flaws in those ideas relentlessly surfaced. Correction of demonstrated flaws in the Articles was an important force in shaping a Constitution which would not have been even barely acceptable without those proofs. We got it right, the second time. And we got it right in the environment of Quaker Philadelphia, where tolerant examination of new ideas was more venerated than in any place in the civilized world.

Edwin Corwin's John Marshall and the Constitution (click to buy)

One by one, the main features of the present Constitution can be linked to correction of flaws in the Articles, later giving rise to a busy industry of legal scholars trying to reconstruct Constitutional Intent. Intent, however, cannot be understood without an appreciation of the main political battles being fought at the time, since strong opposing views, which except for slavery are the same disputes in action today, were being promoted, with a view to establishing partisan advantage in later struggles. Fine, everyone can agree it was complex. Still, what was the main flaw in the Articles? What, as they say, is the take-home point?

If there is any generally agreed summary of what was wrong with the Articles of Confederation, it would lie in a paragraph, 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, liked to have it. They were in revolt against central government, not just the King of England. Thirteen years of near-anarchy taught them they must give some limited powers to a central government, but no more than absolutely necessary. Perhaps even the absolutely necessary amount was just a bit too much.

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.

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 word play by history hobbyists, except for one thing.

The issue that Lincoln was raising was 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 proclaimed by them as simply revoking their 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, the Articles clearly stated the Union was to be 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. perpetual, making the Constitution merely a clarification of details. There's no doubt the Articles do say perpetual and no doubt South Carolina signed them. However, there is also no doubt that Alabama, Arkansas, Louisiana, Mississippi, and Texas did not sign the Articles. Six hundred thousand casualties later, this fine legal distinction 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 informed the Constitution.

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. 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.

If Men Were Angels, No Government Would Be Necessary

President James Madison

James Madison, the main force behind the Constitutional Convention of 1787 in Philadelphia, stated the main reason for holding the Convention in one famous summary of human frailty. Having fought an eight-year war for freedom, it had become time to protect against anarchy. A league of states would not work, as thirteen years of the Articles of Confederation had demonstrated. Working with that concept, the States had refused to pay their share of expenses, abused their ability to deal independently with foreigners, dealt unfairly with their neighbors, and capriciously mistreated their own citizens. Just as the nations of Europe are today discovering, a debating society of independent states was no good; you had to have a nation of citizens, not a nation of states. States were no good, and you had to say it out loud, within the limits of getting them to ratify a change.

Two men applied much deeper thinking than that; Benjamin Franklin of Pennsylvania, and John Marshall of Virginia. Both of them had served in their state legislatures, and both were intensely dismayed by the experience. Franklin also had a long period of close-up observation of the British Parliament, suffered personal abuse there, and had ample reason to reflect on the earlier abuses by that Parliament under Cromwell which had so much to do with the English Civil War. Although Marshall was not a member of the Virginia delegation in 1787, he was active in the politics of the group it represented back home. Both Marshall and Franklin had very good reason to be uneasy about the universal misbehavior by representative bodies, whether they were called legislatures, congresses, or parliaments. When people said states misbehaved under the Confederation arrangement, they really meant legislatures misbehaved. Franklin did what he could within the Convention to curb human behavior by enumerating limited powers and balancing the powerful against each other. When he had pushed it as far as he could, he wearily agreed to give the product a try.

The Constitutional provisions which became the heart of what the 1787 Convention wanted to change about the relationship of the national and state governments was in Article I, Section X.

States are forbidden to ...

"emit bills of credit, make anything but gold or silver a legal tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

Some observers, in fact, feel that last clause, protecting the sanctity of contracts was really the nut of the matter. The great bulk of the nation's business was to be conducted as private agreements between two contracting citizens. The State -- and the states -- were to stay out of it, except as referee, to see that both sides kept their agreements.

Marshall had one advantage over Franklin -- youth. Seeing what was needed, and subsequently noticing that the first three Chief Justices had failed to supply it, he accepted John Adams' appointment to be Chief Justice immediately, and devoted his remarkable legal mind to a lifetime of strengthening the role of the Supreme Court as the Federalists had intended, and as the Jeffersonian party had attacked. Marshall promptly found ways to confer on the Court the ability to review and prevent unconstitutional behavior by the Presidents and Congress, the the other two of the three co-equal branches of the national government. But his main task, never completely successful, was to devise hammerlocks for those intransigent state legislatures. Marshall had enemies who were allied with the legislatures, especially Presidents Jefferson, Madison (!) and Jackson, who would gladly have cut his political throat.

Although Marshall always seemed to win his battles, he did have to exercise caution in the face of Andrew Jackson's ruthless willingness to fight dirty. But probably, in his own view, he could be said to have lost the whole war, if his life's goals could be stated as trying to prevent the country from disintegrating into a civil war by learning to play by fair rules. Lincoln gets credit for saving "The Union" ( that is, national government under the 1787 Constitution), but at the price of 600,000 casualties. Only if you add a further century to the review, can Marshall (and the 1787 Constitution) be viewed as a success.

William Penn: Visionary with Persuasiveness

William Penn

It was a signal and blessed providence which first induced so rare a genius, so excellent and qualified a man as Penn, to obtain and settle such a great tract as Pennsylvania, say 40,000 square miles, as his proper domains. It was a bold conception; and the courage was strong which led him to propose such a grant to himself, in lieu of payments due to his father. He besides manifested the energy and influence of his character in court negotiations, although so unlikely to be a successful courtier by his profession as a Friend, in that he succeeded to attain the grant even against the will and influence of the Duke of York himself who, as he owned New York, desired also to possess the region of Pennsylvania as the right and appendage of his province.

"This memorable event in history, this momentous concern to us, the founding of Pennsylvania, was confirmed to William Penn the Great Seal on the 5th of January, 1681."

-John F. Watson,
Annals of Philadelphia and Pennsylvania in the Olden Time

Delaware's Court of Chancery

Chancery

Georgetown, Delaware is a pretty small town, but it's the county seat so it has a courthouse on the town square, with little roads running off in several directions. The courthouse is surprisingly large and imposing, even more surprising when you wander through cornfields for miles before you suddenly come upon it. The county seat of most counties has a few stores and amenities, but on one occasion I hunted for a barbershop and couldn't find one in Georgetown. This little town square is just about the last place you would expect to run into Sidney Pottier and all the top executives of Walt Disney. But they were there, all right, because this was where the Delaware Court of Chancery meets; the high and mighty of Hollywood's most exalted firm were having a public squabble.

Only a few states still have a court of Chancery, but little Delaware still has a lot of features resembling the original thirteen colonies in colonial times. The state abolished the whipping post only a few decades ago, but they still have a chancellor. The Chancellor is the state's highest legal officer, and four other judges now need to share his workload, which was almost completely within his sole discretion seventy-five years ago. In fact the Chancellor usually heard arguments in his own chambers, later writing out his decisions in longhand. The Court of Chancery does not use juries.

Sir Francis Bacon

Going back to Roman times, the Chancellor was the highest official under the Emperor, and in England the Lord Chancellor is still the head of the bar in a meaningful way. Sir Francis Bacon was the most distinguished British Chancellor, and gave the present shape to a great deal of the present legal system. A court of Chancery is concerned with the legal concept of equity, which is a sense of fairness concerning undeniable problems which do not exactly fit any particular law. The Chancellor is the "Keeper of the King's conscience" concerning obvious wrongs that have no readily obvious remedy. You better be pretty careful who gets appointed to a position like that, with no rules to follow, no supervisor, no jury, dealing with mysterious issues that have no acknowledged solution.

George Read

Delaware's Court of Chancery evolved in steps, with several changes of the state Constitution over two hundred years. As you might guess, a few powerful chancellors shaped the evolution of the job. Going way back to 1792, Delaware changed its Supreme Court from the design of the 1776 Constitution, and George Read was the new Chief Justice. However, it was all a little embarrassing for William Killen, who had been the old Chief Justice, getting a little old. Read refused to have Killen dumped, and in this he was joined by John Dickinson, who had been Killen's law clerk. So Killen was made Chancellor, and a court of Chancery was invented to keep him busy.

Under a new 1831 Constitution, the formation of corporations required separate enabling acts by the Legislature, and limited their existence to twenty years. However, the 1897 Constitution relaxed those requirements and permitted entities to incorporate under a general corporation law and allowed them to be perpetual. By this time, other states were distributing equity cases to the county level, but Delaware was small enough to justify a single state-wide Court. That court was attractive to corporations because it could become specialized in corporate matters, but it retained a pleasing number of equity cases among common citizens, thus maintaining a more generally understandable point of view.

But other states thought they could see what Delaware was up to. In 1899 the American Law Review contained the view that states were having a race to the bottom, and Delaware was "a little community of truck farmers and clam-diggers . . . determined to get her little, tiny, sweet, round baby hand into the grab-bag of sweet things before it is too late." However that may may be, corporations stampeded to incorporate in the State of Delaware, and the equity of their affairs was decided by the Chancellor of that state. In one seventeen year period of time, the U.S. Supreme Court reversed the decision of the Chancellor only once.

Chancery's jurisdiction was complementary to that of the courts of common law. It sought to do justice in cases for which there was no adequate remedy at common law.

A. H. Manchester Modern Legal History of England and Wales, 1750-1950 (1980)

Some legal scholar will have to tell us if it is so, but the direction and moral tone of America's largest industries has apparently been shaped by a small fraternity or perhaps priesthood of tightly related legal families, grimly devoted to their lonely task in rural isolation. The great mover and shaker of the Chancery was Josiah O. Wolcott (1921-1938), the son and father of a three-generation family domination of the court. Most of the other members of the court have very familiar Delaware names, although that is admittedly a common situation in Delaware, especially south of the canal. The peninsula has always been fairly isolated; there are people still alive who can remember when the first highway was built, opening up the region to outsiders. Read the following Chancelleries quotation for a sense of the underlying attitude:

"The majority thus have the power in their hands to impose their will upon the minority in a matter of very vital concern to them. That the source of this power is found in a statute, supplies no reason for clothing it with a superior sanctity, or vesting it with the attributes of tyranny. When the power is sought to be used, therefore, it is competent for any one who conceives himself aggrieved thereby to invoke the processes of a court of equity for protection against its oppressive exercise. When examined by such a court, if it should appear that the power is used in such a way that it violates any of those fundamental principles which it is the special province of equity to assert and protect, its restraining processes will unhesitatingly issue."

That is a very reassuring viewpoint only when it issues from a person of totally unquestioned integrity, a member of a family that has lived and died in the service of the highest principles of equity and fairness. But to recent graduates of business administration courses in far-off urban centers of greed and striving, it surely sounds quaint and sappy. And many of that sort have found themselves pleading in Georgetown. Just let one of them bribe, muscle, or sneak into the Chancellor's chair some day, and the country is in peril.

Fees for Trial Lawyers, Section 1983 Variety

Abuse

We are indebted to Nicholas D'Alessandro, Jr.,Esq. for opening our eyes to the marvels of "1983 cases". That's lawyer slang for Section 1983, Chapter 21 (Civil Rights), Title 42 (The Public Health and Welfare) of the United States Code. In effect, we are talking about a Reconstruction-era law passed in 1871, to protect ex-slaves from persecution by local Southern governments, acting "under color of law". During the entire first century after its enactment, about 270 lawsuits had been brought under this seemingly unobjectionable law.

Well, last year alone there were over 30,000 cases. The number has been steadily growing in the past twenty years, even though it is commonly believed Reconstruction is a best-forgotten episode in a tragic era of the past. Without significant objection, it is generally accepted that the main stimulus for 1983 cases is the recent and extraordinary feature of awarding full compensation for legal costs of the plaintiff. In other lawsuits, the contingent-fee system awards the lawyer a percentage (usually 33%) of the damages, making it unattractive to pursue minor cases. In an 1983 case, however, a trial lawyer could bill $350 an hour for many hours, while pursuing a case worth $100 in damages. A large proportion of these cases allege a local police officer deprived a citizen of his civil rights in the course of arresting him.

Taken in the aggregate, awarding billions of dollars in fines against local governments can be taken to represent a punishment of the taxpayers for not reigning in their police officers. It represents a signal from the federal government that it believes local law enforcement is too vigorous in the pursuit of minor infractions, and creates an incentive to be less so. Alumni of the Vietnam War protests and other civil disobedience activities are probably sympathetic if they ever find themselves on juries in such cases.

In recent years, a growing source of 1983 cases has been related to local zoning laws and regulation. Many citizens feel they have been stripped of their property rights when forbidden to put a filling station in their front yard. Others darkly suspect local officials of taking secret bribes to re-sell the property to Wal-Mart, when they confront the owner with taking his property by right of eminent domain.In cases like this, the sympathetic jurors are likely to be Jeffersonians, with a hunting rifle hanging above their fireplace. Such fiercely independent people, however, must be given pause by knowing they must appeal the action of local officials to the federal government, acting under a federal law called Section 1983. The frustration must be intensified by learning that the U.S. Supreme Court has declared it will not second-guess a local government unless the action "offends our conscience". A careful search of the records of the Third Federal District (our own) fails to discover a single instance when that conscience was offended enough to intervene.

Supreme Court

But, wait. In 2005, the public flamed up. In keeping with past tradition, the Supreme Court found its conscience was not offended by the exercise of eminent domain by the City of New London, Connecticut. New London is experiencing hard times, potentially made worse by the threatened closure of the nearby submarine base. Accordingly, it seemed in the public interest to condemn some small private properties in order to assemble a large parcel of land for commercial development. Libertarian groups took up the case of Ms. Kelo, a dispossessed small landholder, and carried it to the U. S. Supreme Court, who declared that the eminent domain didn't bother them.

But Kelo v. City of New London bothered a lot of citizens, all over the country. Even making allowance for the hostility to eminent domain which has been growing for decades, and recognizing it is being stirred by ideological groups, the Supreme Court crossed some sort of invisible line. What New London does with its waterfront is of small concern to the rest of the nation, but for the Supreme Court to declare it doesn't really care about trifles is quite another matter. A man's home has always been referred to as his castle in this country, and title to a great many properties is only completely clear if you acknowledge the power of the gun on the mantelpiece. Add to that the recent extraordinary rise in real estate prices, and you can expect small property holders to be highly resistant to state takings. One must be sympathetic with the dilemma of the judiciary in trying to balance such intense attitudes with the general welfare of the community, particularly a community with floundering economics. But a Supreme Court that can't be bothered with trifles, that doesn't worry unless you light a fire under them -- will get a fire lit under them.

Following the Rules

Contrary to press accounts, I did not warn the President about anything and was very respectful of is Constitutional authority on the appointment of federal judges.

Sen. Specter

As the record shows, I have supported every one of President Bush's nominees in the Judiciary Committee and on the Senate floor. I have never and would never apply any litmus test on the abortion issue and, as the record shows, I have voted to confirm Chief Justice Rehnquist, Justice O'Connor, and Justice Kennedy and led the fight to confirm Justice Thomas. . . .

In the lame-duck season after the 2004 Presidential election that is, during that two-month interval between the November election and the January inaugurationSenator Arlen Specter (R, PA) said something or other about upcoming Senatorial confirmations of Federal judges. As the probable next chairman of the Senate Judiciary Committee, but known to be in conflict with most of the Republican party on the subject of legalizing abortion, his influence would bear an important influence on the outcome. The Senate Republican leadership then said something or other which had the basic significance of, "You aren't going to be elected Chairman of the Judiciary Committee unless we know in advance where you are going with this matter." Regardless of the merits, and regardless of its eventual outcome, the episode illustrates a little-understood but crucial moment in the history of any Congress. The moment lasts about five minutes, and it only comes once, every two years.

Sen. Arlen Specter, (R) PA

You can't run a parliamentary body without rules. The first item of business, therefore, must be the adoption of rules. With rare exceptions, the traditional set of rules is proposed, and adopted. All done. Don't bother us any more on this topic, because the rules just adopted ordinarily provide major obstacles to change once adopted. Since committee appointments are next on the agenda, and committee membership is vital to legislative effectiveness, and since committee appointments are in the hands of the majority party leadership, this is not the moment for a new legislator to be making trouble. And an old legislator wants to progress toward chairmanship of his prized committee.

Among things which the rules, adopted in a winkling, provide for is whether committee chairmen are elected by the members of the committee, or selected by the leadership. For the most part, this issue is so sensitive, that traditional resolutions of it rely on seniority. Like the selection of a King by elevation of the first-born male offspring of the last one, the seniority system does not always choose the best candidate, but it avoids bloodshed and allows progress toward the business at hand. After all, when committees are evenly divided and hotly contested, the adversary environment will ensure that the chairmen can't get away with much. Conversely in a committee heavily weighted toward one side of a controversial issue, that majority will surely get its way. Either way, it doesn't make as much difference who is chairman as it first seems; you might as well let seniority rule.

The rules of the House of Representatives allow the Rules Committee to limit debate on an issue to a time fixed in advance. Hidden in this rule is the power of the leadership to select who is going to speak, who is going to be excluded. When you elected your local congressman, you probably didn't anticipate he might not be allowed to speak on your favorite topic, but that's the way it works out. In the Senate, on the other hand, there is a rule of unlimited debate by any Senator on any topic, for whatever duration. Or almost. When some Senator has had all the blather he can stand on a topic, he is privileged to rise and say, "Mr. Speaker (vice-President), I move that we vote immediately on this and all pending matters." To which the person in the Chair will reply, "That motion is in order, but it requires an affirmative vote of 60 Senators to be adopted. All in favor, please signify by saying 'Aye.' " That's where filibusters come from, and it's all in the rules.

Rules adopted in the first few minutes of the opening session are very difficult to change once adopted. Creating situations the founding fathers never contemplated, perhaps, but also very hard to argue with under all the turbulent circumstances of a democracy. Or, perhaps, a Republic.

John Dickinson, Quaker Hamlet

John Dickinson

John Dickinson (1732-1808) would probably be better known if his abilities were less complex and numerous. It would have been particularly helpful if he had consistently remained on only one side of the important issues of his day. Born in a Quaker family and buried in a Quaker graveyard, he was for years a notable Episcopalian and soldier. He outwitted John Penn, the Pennsylvania Proprietor who was trying to keep Pennsylvania from sending representatives to the Continental Congress, by having the Pennsylvania representatives hold a meeting in the same small room of Carpenters Hall at the same time as the Congress. But he ultimately refused to sign the Declaration of Independence. Although he was the main author of the Articles of Confederation, the Constitution which replaced it would not have been ratified without his idea of a bicameral Congress. Although he was Governor of Pennsylvania, he was also Governor of Delaware, having been the central figure in the separation of the two states. In fact, for fifteen years he was a member of the Legislature of both states. Dickinson seems in retrospect to have been on every side of every argument, but he was immensely respected in his time.

Two events seem to have been central in the organization of his life. The first was his education as a lawyer. At that time and for a century afterward, lawyers were trained by apprenticeship. Dickinson, however, studied at the London Inns of Court for four years, and was by far the most distinguished lawyer in North America for the rest of his life. Furthermore, he absorbed the principles of the Magna Carta and the approaches of Francis Bacon so thoroughly that he never quite got over his pride in his English heritage. Throughout his leadership of the colonial rebellion he acted as a better Englishman than the English themselves. It would not be hard to imagine Dickinson standing before a firing squad, gritting the words of St. Paul, Civis Romani Sum.

The other pivotal experience was the Battle of Brandywine. Dickinson had been the organizer and chairman of the two main Pennsylvania military organizations, the Pennsylvania Committee of Safety and Defense, and the so-called Associators (today's 111th Infantry, the first battalion of troops in Philadelphia). Both of these peculiar names were a characteristic gesture to conciliating pacifist Quaker feelings. Nevertheless, when Dickinson refused to sign the Declaration, he did temporarily become so unpopular he resigned his military commands. A few months later, when General Howe landed at Elkton at the narrow neck of the Delmarva peninsula, Dickinson enlisted as a common soldier to defend the southern perimeter of the defense line Washington had hastily thrown up to defend Philadelphia. Shortly afterward, Dickinson's friend and neighbor Caesar Rodney made him a Brigadier General in charge of the garrison around Elizabeth New Jersey, but the Battle of Brandywine taught an important lesson. Little states like Delaware and Maryland could not possibly defend themselves without alliance and coordination with the larger states. Delaware was later very active in persuading the other small states to surrender sovereignty in the Constitutional Convention, to be the first to ratify the Constitution, and eventually in the Civil War to remain within the Union in spite of being a slave state. Going back to the Battle of the Brandywine, the lesson was permanently and indelibly taught that a foreign army in Elkton, could gobble up Dover or Baltimore within a week. And that, too, is part of an overarching theme of his life which makes many inconsistencies consistent. He devoutly believed in peace and order within a large nation. If it could not be within the British Empire, at least it had to be more than just a little state consisting of a few counties. Once he finally accepted the idea of separation from England, he devoted his life to achieving a voluntary union of formerly sovereign states. Many large nations have been unified by armed force; ours was and continues to be the only one to do it voluntarily. Dickinson was central to the concept of honest negotiation and necessary compromise, which even today continues to escape the United Nations and the European Union.

John Dickinson was known as the "Penman of the Revolution" in his day because of his persuasive arguments, but the hotheads refused to grasp his wise advice that the King would be more persuaded by economic pressures on his merchants than by Colonials shooting his Redcoats. The Tories and the proprietors, on the other side, never forgave him for denouncing their abuses of power. Super-patriots again distrusted him after he refused to sign the Declaration, while those who were bankrupted by the Revolution resented that at some times, by some definitions, he remained the richest man in Philadelphia. Meanwhile, the really serious Quakers would never forgive any member who organized, led and fought as a soldier, no matter what else he might have done. But none of these resentments really proved that he was being inconsistent.

Perhaps some understanding of Dickinson can be gleaned from the 1779 summary of him in the Diary of John Adams:

"He [Chevalier de la Luzerne] inquired after Mr. Dickinson, and the reason why he disappeared. I explained, as well as I could in French, the inconsistency of the Farmer's Letters, and his perseverance in that inconsistency in Congress, Mr. Dickinson's opposition to the Declaration of Independency. I ventured, as modestly as I could, to let him know that I had the honor to be the principal disputant in Congress against Mr. Dickinson upon that great question; that Mr. Dickinson had the eloquence, the learning, and the ingenuity, on his side of the question; but that I had the hearts of the Americans on mine; and, therefore, my side of the question prevailed. That Mr. Dickinson had a good heart, and an amiable character; but that his opposition to independency had lost him the confidence of the people, who suspected him of timidity and avarice, and that his opposition sprung from those passions; but that he had since turned out with the militia against the British troops, and, I doubted not, might in time regain the confidence of the people."

This statement of John Adams' respect for the Declaration continues his insistence that the critical moment was when Congress decided to act on his proposal, not when Jefferson penned some propaganda for it. The point for Dickinson is best summarized that Adams felt the point of no return had been reached long before July 4, 1776, while Dickinson felt it had not been reached even then. Dickinson was quite right that the artificial fuss over the Tea Act was no reason to go to war. Adams was right that public hysteria had surged to a point where further resisting the public would cost you your ability to lead it. It was the Quaker in Dickinson coming out; he was "morbidly principled". Only when the Redcoats were marching across the neck of Delaware would he concede that events had overtaken logic.

Parliamentary Procedure (1)

John Adams

The Constitution provides that the Vice President of the United States shall be the presiding officer of the Senate. Accordingly, during the Presidency of John Adams, from 1797 to 1801, Thomas Jefferson was the presiding officer of the Senate, down at 6th and Chestnut Streets. According to recent books by Ellis, McCullough and others, it must have been an exciting experience to preside over that particular Senate.

Just what was running through Jefferson's mind during that formative time of Senate procedure is largely left to conjecture. We hear it said that Senate debate was rambling, raucous, and sometimes physical. Since Jefferson himself was the most controversial person in the room, his rulings from the chair may well have been resisted. In any event, Jefferson proceeded to publish the first American Manual of Parliamentary Practice,

Thomas Jefferson

British parliament. An uncut copy of this book is still on the shelves of the Philadelphia Atheneum, a block away. Its contents can be summarized as sensible elaborations of two basic rules: the deliberative body only takes up one topic at a time (discussion of anything which wanders from that topic is ruled non-germane), and the rights of the minority are to be respected. Since America had just concluded an eight-year war with England, it is a little surprising that the behavior of the English Parliament would be considered something to imitate, and by Thomas Jefferson of all People.

It is useful for any deliberative body to have a set of rules, agreed in advance, about how to conduct debate and reach a conclusion. Controversy can get pretty heated at times, and it is then too late to be making rules which might favor one side or the other. Establishing rules in advance is if anything more important than what those rules say. Jefferson was thus quite right in publishing such rules, with the intention that the first act of any newly elected group would be to adopt the rules in the book as the agreed standard for whatever happens to come up later. The uncut version at the Atheneum is symbolic; you don't have to keep discussing procedure if the procedure is agreed.

General Robert

General Robert

wrote a revised version of Jefferson's rules in 1876, familiarly known as Robert's Rules of Order, which now govern the U.S. Congress. The main difference was to accommodate the creation of expert committees--on Ways and Means (taxes), Foreign Relations, health, etc, as the business of Congress grew more complex, and Congress met for longer and longer periods of time. Roberts Rules have thus become a special-purpose rule-book, and bodies like the American Medical Association or the American Bar Association, which meet for short periods yearly, find it more appropriate to use reference committees. A reference committee is sort of a jury, intended to be a representative sample of the larger body, which is selected by the presiding officer to sort out a large amount of business and facilitate debate by the larger group as a whole. A reference committee is better addressed by rules of order written by Mrs. Sturgis or Dr. Davis, than the more famous one by General Robert.

Underlying these seemingly dry technical

AMA

issues is the struggle of an overburdened large group to learn what its own collective opinion is, and to see that it is properly stated. As the agenda grows, it is necessary to designate smaller reference committees to hear testimony and present it fairly to the full convention when it assembles later. The reference committee makes recommendations, but the full body reserves the decision to itself. In this way, the American Medical Association can make several hundred complex decisions in a week, almost universally recognized as representing the current opinion of the whole Association. Every few years, a decision is reversed, but it is remarkably seldom needed.

Eventually, a complex agenda grows to the size where a deliberative body must delegate a certain amount of power to experts, and the

u.s. congress

U.S. Congress is well past that point already. No one surrenders power easily, and Congressmen are correct that a republic elects the specific people it wants to see making the decisions. Therefore, General Robert describes the rules which have evolved to govern the delegation by the elected members, of specific matters to specific committees of its own members. To put it bluntly, a handsome extrovert who got elected to congress is assigned to some unfamiliar topic and expected to learn what it is all about. Rule by seniority makes a lot of sense in such a situation, although obviously some learn faster than others. Accordingly, the deliberative body must have rules which assist the process of weeding out chairmen who acquire seniority faster than they acquire expertise, while at the same time sympathizing with the difficulties they all regularly experience, publicly thrust into unfamiliar topics. Most smaller deliberative bodies do not need the rules which Robert's has evolved to manage seniority difficulties without opening the gates to ruthless power manipulators, unfortunately an over-represented group in politics.

Woodrow Wilson

Woodrow Wilson

made himself a student of these arcane matters, and approved of the idea that, "Congress in Committee, is Congress at work" In recent decades, he would surely have been upset to see the degree to which the power of unelected experts has grown, at the expense of the power of home-made experts who none the less have been elected to exercise power in a general sense. The elected but amateur experts are in a constant struggle with experts provided by special- interest lobbyists, and experts in the bureaucracy who are provided by politicians in the executive branch. Lately, the executive branch is winning, and Congress had better look to its rules.

In this way, we begin to see how Parliamentary rules are different from Parliamentary procedures, although each influences the other. Parliamentary procedures are now a highly stylized, fast-moving game, greatly enjoyed by practiced players. Quick shots are applauded, and bumbling by presiding officers provokes instant indignation. Failure to call for votes in the negative was outlawed in 1604, there's no excuse for doing it this afternoon. Failure to call for debate of a proposal is an oversight too gauche to endure. Raucous "calling for the question" is as rude a form of behavior as taking off your shoe and pounding it on the table. Don't expect to get anywhere if you do things like this in an experienced group of players.

Now, Parliamentary rules are something else. Changing or violating the rules of organization is something only experts attempt, and usually for evil purposes. Politicians sometimes can't be trusted with their own rules. The citizenry will be very sorry if, at a bare minimum, at least members of editorial boards don't get more sophisticated about parliamentary rules.

Lessons For the European Union

alliance

Old Europe is long accustomed to instructing Americans in matters of deeper significance, so they have a little trouble acknowledging that the present formation of the European Union is based on the American design, in Philadelphia, of 1787 and perhaps will encounter some of the same problems. The success of that design is the main motive for imitating it, the difficulties Europeans seek to overcome are the same ones we faced, and the difficulties the Europeans will discover in the future after they do it, will be much the same ones we discovered. They can take it or leave it, but here are a few observations.

The Declaration of Independence

The people in power in the individual nations of Europe, and the political factions which elected them, don't really want to give up their power to a central government in Strasbourg. Exactly the same reluctance inspired our thirteen colonies in the Eighteenth Century. Having multiple sovereign governments, however, soon proves inefficient, costly, and dangerous if you have powerful enemies. Free trade and a common currency seem like good things, but there are plenty of people who will resist them because they currently benefit from tariffs, subsidies, protectionism, even blatant favoritism, and don't want to change the rules in the middle of the game. Furthermore, if transitions are too rapid, even from a bad system to a good one, changes can prove extremely disruptive. The Europeans have a big problem we didn't have, of multiple languages, so harmony will be slower to arrive -- try to imagine a common market union in the Balkans.

" But our experience teaches an important principle, unwritten in the Constitution. The outstanding message of the American experience from 1787 to 1850, quite unforeseen by the Founding Fathers, is that no party in power can see the merit of self-restraint until it has spent some time out of power. Nor can any party of complainers and reformers see the true merit of stability and caution until it has spend some time in power, itself. Let's suggest a rule to the Europeans: every political faction is untrustworthy until it has spent two terms in office, and then two terms out of office.

Maybe even that assessment is too generous; after all, in 1850 we were just getting ready to have our Civil War. You'd certainly hate to think it was essential to have one of them.

Owen Roberts: A Switch in Tim

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms, Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court ? but then, the source of one of the most radical revisions of our system of government since the Declaration of Independence. Little in his prior career seemed to lead up to this action, and nothing in his subsequent civic-minded retirement from the Court seemed to show any radical turn of character had taken place. He has been compared with a famous baseball pitcher who threw right-handed or left-handed at will, and unexpectedly, capriciously ? who knows why.

Franklin Roosevelt

The issue went far beyond one clause in the Constitution, but the ?commerce clause? was the focus point. Under the limited and enumerated powers allowed to Congress but the Constitution was :

?The Congress shall have power?to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. ?

That used to be called the? Interstate commerce clause? until the Supreme Court announced its decision in the case of Wickard v. Filburn. "When linked with the Tenth Amendment, granting to the States the power to regulate everything not specifically granted to the Federal government, this clause in the Constitution was universally taken to mean that the States had control of commerce within their borders, while Congress would control interstate commerce. Wickard v. Filburn took all that power from the states and gave it to Congress, which henceforth would regulate commerce. John Marshall had certainly triumphed over the hated state legislatures, but the Supreme Court suddenly lost its power to overrule Congress, too. One side had won the argument, by silencing the umpire. No wonder Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners.

Depression of the 1930s

To describe the background, the 1929 stock market crash was quickly followed by the economic" Depression of the 1930s. Nothing of this magnitude had been seen before, and there was a stampede to try new and untested solutions. Even government action which actually worsened economic conditions was felt justified if it conveyed to the frightened public the image that its leaders were taking firm action. Since Socialism and Communism were among the solutions grasped for, many unfortunate actions were felt justified as a way to control the Bolshevik threat. Many of these ?New Deal? actions were declared unconstitutional by the Supreme Court, since they involved sweeping revisions in the way all commerce, internal to the States as well as interstate, was conducted.

Justify Full

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won decisively. Immediately after the start of his new term, he announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking. He was at pains to point out that seven of the nine life incumbents had been appointed by Republican Presidents. This was of course the restraint intended by the Constitutional Convention, and the idea of ?packing? the Court with new appointees was exactly what Jefferson and Jackson had tried to do. In the meantime, the case of Filburn, a dairy farmer, came up. One of the New Deal agencies had assigned him a quota of 200 bushels of wheat he could grow on the side, as part of an effort to raise wheat prices by reducing supply. Filburn had raised 400 bushels, but consumed the extra wheat for his own personal use, hardly a matter of interstate commerce. The Court had repeatedly declared laws like this to exceed the interstate commerce limitation, and were thus unconstitutional for the Congress to enact.

Well, Owen Roberts changed his position, Filburn lost his case, and Congress resoundingly defeated the court-packing law. Forever afterward, this change of position was referred to as ?the switch in time, that saved nine.? And since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional. And furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is regulated in the District of Columbia, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushes to intervene in ? commerce.

A few weeks before he died, Owen Roberts had all his papers burned, So we will never know whether this was the result he had in mind.

Seventeenth Amendment

Seventeenth Amendment

The Seventeenth Amendment of the "Constitution provides for the direct election of U.S. Senators; prior to that, the states could decide for themselves how to select their Senators. The Amendment was proposed in 1912 and ratified in 1913. Today, so little is written about this matter that most people do not have an opinion whether the Amendment was good or bad, necessary or unnecessary, Indeed, few contestants on TV quiz shows would be able to tell you what the Amendment was about. It would be hard to find a person who would, without further study, be opposed to a reaffirmation of "The Senate of the United States" shall be composed of two Senators from each State, elected by the people thereof, for six years; and such Senators shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."

Constitutional Convention

If you search for reasons -- why in the world would there be a fuss about this topic, 125 years after the "Constitutional Convention -- several plausible reasons are stated, all of them amounting to legislature incompetence. Such as deadlocks resulting in vacancies remaining unfilled, influence by corrupt political organizations and special interests through purchase of legislature seats, and neglect of duties by legislators because of politics. Even though news of these matters has failed to persist in the national recollection, they seem plausible enough; it sounds like local politics, all right. But the plausibility was there in 1787, too, and the founding fathers must have expected something like that when they let the States select their Senators as they pleased. Mostly, of course, by the State Legislators selecting one of their own members to go to Washington.

John Marshall

We have here a tilting of our governance from a Republic toward a Democracy, following the philosophy of "John Marshall, of all people, that the behavior of all State legislatures everywhere will inevitably lead to mischief. Just a minute, please, let's give this a little thought. Surely the vast amounts of campaign money required to run for a Senate seat compare with the amount a special interest would have to spend to buy a majority in the Legislature of a State. As a practical matter, most special interests have lost interest in State politics and spend their money in Washington -- except for those few special interests that are exclusively State regulated. This comes down to the insurance and real estate industries, with insurance only there because of the McCarran Ferguson Act. This isn't only because of the Seventeenth Amendment, it also has to do with Franklin Roosevelt's Supreme Court attempt, which will be discussed elsewhere.

Greek philosopher Plato

The idea of a Republic, originally set down by the Greek philosopher Plato, was that a small group of elite philosophers (you will have to forgive his professional biases) who meet together occasionally, would be better able to pick a member of their group for higher responsibilities, than would the populace. The inner circle would know who was an alcoholic, a phony, a pervert, a coward or a loafer, whereas these qualities can be concealed from mass audiences long enough to get elected. Such an in-group in a legislature may pick a bad person, or deliberately reject a good one, but they do it on purpose, not because they are fooled. The issue of direct election of Senators comes down to whether you think it is more likely that a legislature will be corrupt, or the voting population will be ignorant. Hard choice.

Meanwhile, election to the State legislature has been reduced to an inconsequential backwater, almost guaranteed to have an adverse effect on the members. There was a time when people who wanted to be U.S. Senator knew they must first run for the Legislature, where their skills could be tested, and perfected. National affairs became State affairs, with legislators well aware that they could unseat a Senator whose national behavior displeased them. There are many States, Pennsylvania among them, who collectively pay far more federal taxes than they receive in federal benefits. Call it pork barrel if you like, the present degree of interstate wealth redistribution could not possibly continue if we repealed the XVII Amendment.

Patent Pending

Constitution

Most of the members of the Constitutional Convention of 1787 were also members of the early Senate and Congress during the time when Philadelphia was seat of government. The Constitution had made provision for copyrights and patents "for a limited time", and the early Congresses fixed a reasonable time as seventeen years. A couple of years ago, Congressman Bono sponsored a law, widely supposed to be for the benefit of her constituent Walt Disney extending the time to 99 years. Since the creation of monopolies for a limited time was stated to be for the purpose of encouraging innovation, lawsuits were promptly filed with the contention that 99 years was essentially unlimited, and in any event would throttle innovation. In the Eldred case, the U.S. Supreme Court reluctantly held that it was up to Congress to decide how long was a limited time, meanwhile expressing its dismay at the earlier Congress which had allowed the time to be so extended by what is widely reported to be a log-rolling contest among lobbyists. The disgust of the Supreme Court was very thinly disguised in its opinion, which quite obviously hoped for Congress to take another look at what it had done.

So now the question arises, of how such a strange provision got to be in the Constitution in the first place. The members of the convention were mostly farmers and plantation owners, quite recently returned to civilian life after struggling with King George III over governmental intrusion into trade and commerce. Why ever would these people, who were otherwise so parsimonious in their rules and principles, think to intervene in patents and copyrights? It has been suggested that Thomas Jefferson, who was a writer and an inventor, might have been the source of this provision. Unfortunately, Jefferson was three thousand miles away during all of the Constitutional Convention, and was quite dismayed with the completed Constitution when he later returned.

It's a job for some graduate student in American History, looking around for something to write his thesis about. James Madison kept extensive secret diaries of the interior arguments at the Convention, and Benjamin Franklin's Collected works run to over eighty volumes. Surely, among all those scribblings by quill pens, can be found some revealing references to the originator of the bizarre little patent clause. And if it turns out to have been anyone except Ben Franklin, it will be a great surprise. Surely there is a broad hint in the fact that for many years the Franklin Institute essentially was the U.S. Patent Office. Just think for a moment of the value of holding a patent on the invention of electricity. Makes Microsoft seem rather trivial. And as for a comparison with Mickey Mouse, well, really.

Jury Nullification

Tom Monteverde

We must be grateful to the distinguished litigator, "Tom Monteverde, for bringing up the topic of the importance of the jury in American history. Juries seldom realize how much power they can have if they unite on a common purpose. In fact, juries have the implicit right to veto almost anything the rest of government does, by rendering it unenforceable.

William Penn

The right to a jury trial originated in the" Magna Carta in 1215, but a jury's essentially unlimited power was established four centuries later by Quakers. This legal revolution grew out of the 1670 Hay-market case, where the defendant was William Penn. Penn was accused of the awesome crime of preaching Quakerism to an unlawful assembly, and while he freely admitted his guilt he challenged the righteousness of such a law. The jury refused to convict him. The judge thus faced a defendant who said he was guilty and a jury that said he wasn't. So, the exasperated judge responded -- by putting the jury in jail without food.

Ed Bushell

The juror Edward Bushell appealed to the Court of Common Pleas, where the problem took on new dimensions. The Justices certainly didn't want juries flouting the law, but nevertheless couldn't condone a jury being punished for its verdict. "Chief Justice Vaughn decided that intimidating a jury was worse than extending its powers, so the verdict of Not Guilty was upheld, and Penn was set free. Essentially, Vaughn agreed that any jury that couldn't acquit was not really a jury. In this way, the legal principle of Jury Nullification of a Law was created. A verdict of not guilty couldn't make William Penn innocent, because he pleaded guilty. A verdict of not guilty, under these circumstances, meant the law had been rejected. Jury nullification thus got to be part of English Common Law, hence ultimately part of the American judicial system.

Alexander Hamilton

This piece of common law was a pointed restatement of just who was entitled to make laws in a nation, whether or not nominally it was ruled by a king, or a congress. Repeated British evasion of the principles of jury trial became an important reason the American colonists eventually went to war for independence. The "1735 trial of Peter Zenger was an instance whereAndrew Hamilton, the original "Philadelphia Lawyer", convinced a jury that a British law against newspapers criticizing public officials for improper conduct was too outrageous to deserve enforcement in their court. In that case, defiance became even more likely when the judge instructed the annoyed jury that "the truth is no defense". Benjamin Franklin's Pennsylvania Gazette was here quick to come to the side of jury nullification, saying, "If it is not the law, it ought to be law, and will always be law wherever justice prevails."

John Hancock

The Zenger case is often stated to be the origin of the Freedom of the Press in our Constitution fifty years later, but in fact the First Amendment merely provides that Congress shall pass no laws like that. Hamilton had persuaded the Zenger jury they already had the power to stop enforcement of such tyranny, and the First Amendment could be seen as trying to prevent enactment of laws that foreseeable incite a jury to revolt.

The Navigation Acts of the British government, for example, were predictably offensive to the American colonists, whose randomly chosen representatives on juries then rendered unenforceable with a wide-spread refusal to convict. This in turn provoked the British ministry. John Adams made a particularly famous defense of "John Hancock who was being punished with confiscation of his ship and a fine of triple the cargo's value. Adams was later singled out as the only named American rebel the British refused to exempt from hanging if they caught him. As everyone knows, Hancock was the first to step up and sign the Declaration of Independence, because by 1776 there was widespread colonial outrage over the British strategem of transferring cases to the (non-jury) Admiralty Court. Many colonists who privately regarded Hancock as a smuggler were roused to rebellion by the British government thus denying a defendant his right to a jury trial, especially by a jury almost certain not to convict him. To taxation without representation was added the obscenity of enforcement without due process. John Jay, the first Chief Justice of the Supreme Court of the newly created United States, ruled in 1794 that "the Jury has the right to determine the law as well as the facts." And Thomas Jefferson built a whole political party on the right of common people to overturn their government, somewhat softening it is true when he saw where the French Revolution was going. Jury Nullification then lay fairly dormant for fifty years. But since the founding of the Republic and the reputation of many of the most prominent founders was based on it, there was scarcely need for emphasis.

Slave

And then, the Fugitive Slave Law " of 1850 began to sink in. It became evident that juries in the Northern states would routinely refuse to convict anyone under that law, or under the Dred Scott decision, or any other similar mandate of any branch of government. In effect, Northern juries threw down the gauntlet that if you wanted to preserve the right of trial by jury, you had better stop prosecuting those who flouted the Fugitive Slave law. In even broader terms, if you want to preserve a national government, you better be cautious about strong arming any impassioned local consensus. A rough translation of that in detail was that no filibuster, no log-rolling, no compromises, no oratory, no threats or other maneuvers in Congress were going to compel Northern juries to enforce slavery within their boundaries of control. All statutes lose some of their majesty when the congressional voting process is intensely examined, and public scrutiny of this law's passage had been particularly searching. Even if Southern congressmen were successful in passing such laws, it wasn't going to have any effect around here. The leaders of Southern states quickly got a related message, and their own translation of it was, we have got to declare our independence from this system of government that won't enforce its own laws. If juries can nullify, then states can nullify, and national union was coming to an end. Both sides disagreed so strongly on one issue they were willing, for the second time, to risk war for it.

Ku Klax Klan

The idea should be resisted that Jury Nullification is always a good thing. After the Civil War, many of the activities of the Ku Klux Klan "were tolerated by sympathetic juries. Many lynch mobs of the Wild Wild West were encouraged in the name of law and order. Prohibition of alcohol by the Volstead Act was imposed on one part of society by another, and Jury Nullification effectively endorsed rum-running, racketeering, and organized crime. The use of marijuana and abortion are two further examples where disagreement is so strong that compromise eludes us. What is at stake here is protecting the rights of a minority, within a society run by majority. If minority belief is strong enough, jury nullificatio