Philadelphia Reflections

The musings of a physician who has served the community for over six decades


Differences Between Europe and North America
Why Can't the Europeans Be More Like Us?

.American and European Unions, Compared(2)

U.S.-EU Comparisons, cont.


Litchfield County, Extended (1771-1775)


FOR four years, the Connecticut settlers considered the apparently peaceful Wyoming Valley of Pennsylvania 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.

Owen Roberts: A Switch in Time

Owen Roberts

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms. He was Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then, he abruptly became the source of one of the most radical revisions of our system of government since the Declaration of Independence. Nothing in his prior career, and nothing afterward in his subsequent civic-minded retirement from the Court, seemed to suggest 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, unexpectedly, capriciously, who knows why.

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 by 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 old argument, by silencing the umpire. No wonder Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners.

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.

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won in a landslide. Immediately after the start of the 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.

Franklin Roosevelt

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. Forever afterward, this change of position was referred to as the switch in time, that saved nine. Since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional, even though it is true that Congress promptly and resoundingly rejected the court-packing proposal.

And furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is federally regulated, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushes to intervene in commerce among the several states, formerly known as the Interstate Commerce clause. Franklin Roosevelt had a certain right to gloat at Jefferson-Jackson Day dinners.

A few weeks before he died, Owen Roberts had all his papers burned. Apparently we will never know whether the present outcome was the result he had in mind. Since he was later the author of Alfred Barnes' will, which strenuously sought to prevent the transfer of the Barnes art collection to Philadelphia County, anything written by a lawyer can apparently be reversed by other lawyers. One would have supposed that either the Original Intent would govern, or else the the opinion of the Supreme Court on what the Constitution means, would prevail. Franklin Roosevelt showed us there is a third possibility: the President can over-rule the Court by intimidating it.


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. There is a strong implication 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. Many of the clauses and even some of the wording of the Constitution is taken directly from the Articles to the Constitution, whereas the claim tracing origin in the Declaration of Independence is based on the conflict between the two in the "All men are created equal" versus the later assignment in the Constitution of only 3/5 of a vote for slaves. The party of Thomas Jefferson can only make the claim that the Declaration made an assertion which was later overturned by the Constitution, only to be reversed again by the Civil War and the Fourteenth Amendment. 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. It may be humanitarian, but it is not good history to assert that a Declaration is Law.
The third page
from the original text of
Abraham Lincoln's first
inaugural address
[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. If it comes to a battle of documents, a respectable case can be made that the beginning of the Revolutionary War was in December, 1775 when the British Parliament passed the Prohibitory Act, effectively declaring war on the rebellious colonies, meanwhile dispatching a war fleet of several hundred ships to America to subdue us.

Philadelphia's Republican Machine

From time to time, someone denounces big-city political machines, making the mistake of describing them as invariably Democrat. Debaters duly object, pointing to Philadelphia's Republican city machine lasting seventy-five years. It was, indeed, a very tough and corrupt organization. Whether it was Republican, is more debatable. The question might be re-phrased: How is it, with Democrats running every other big-city political machine, Philadelphia alone produced a Republican version? The explanation is buried in complex national politics just before the Civil War, when the last and final Whig convention was held in Philadelphia, following which the successors, the Republicans and also the Know-Nothing (American) parties, held their very first conventions here four years later.

James Buchanan

To stir the Philadelphia pot still further, the person who actually won the 1856 Presidential election was James Buchanan, a Democrat from Lancaster County. Just about everything political was happening right here, all at once. Lots of deals were made. The Pennsylvania Republican delegation emerged as Abraham Lincoln's king-maker, and Lincoln as President rewarded Pennsylvania for its keen insight. Appointing cabinet members from Pennsylvania, the new administration naturally steered war contracts to our local industries. Philadelphia politics immediately became Republican in a big way, and after the war the Republicans were then in charge of the national government for fifty years. Philadelphia had created a political machine, and it made no sense patronage-wise for many decades, for it to profess allegiance to any other party than the one it started with.

There thus exists a simple and coherent explanation for Philadelphia's exceptional behavior. A more difficult question to answer beyond dispute is: Why do big-city political machines almost invariably develop a Democrat affiliation? We're going to take a pass on that one, falling back on the observation that municipal politics usually have very little to do with national politics, no matter what Tip O'Neill may have said. Indeed, local politicians mostly wish national politicians would go back to Washington and leave them alone. National politicians certainly reciprocate that feeling, especially if they have a safe district.

But Party unity is periodically stimulated (some would say simulated) when the national figures must come back home from Washington seeking voter approval, searching out support in the clubhouses, fire stations and taprooms that are firmly in control of local warlords. Those warlords care little about foreign affairs, interest rates at the Federal Reserve, or globalization, becoming uneasy when the national politicians to whom they owe nominal fealty drag them into messy subjects like abortion and civil rights. In the clubhouses, there is a tendency to measure national leaders by patronage and pork barrel. In return, the national representative wants to be re-elected. He wants voter turnout, campaign funds, and gerrymandered districts. It's mostly the same in both parties, and in all regions.

The Pennamite Wars: Who Had The Last Word?

King Charles II

Pennsylvania once fought three wars with Connecticut, but nowadays most people in both Connecticut and Pennsylvania have never heard of it. Those who do know, call them the Pennamite Wars. As you might expect, accounts by Connecticut patriots portray the matter as just taking possession of what they owned. Pennsylvania accounts of the wars, on the other hand, describe them as a stout defense against invasion. The matter boils down to the undisputed fact that King Charles II gave what is now the northern third of Pennsylvania to Connecticut in 1662, and in 1681 the same king gave it to William Penn. Eighty years after that, in 1769, Connecticut moved in, and Pennsylvania threw them out. It all happened twice more, and the Continental Congress became distressed that two of the thirteen colonial allies were fighting each other instead of the British. So it had to be resolved in court, and therefore we all have to get a little education in the fine points of real estate law in order to understand why Pennsylvania won the case. In short, Connecticut claimed that Charles II had cruelly and unjustly reversed himself, while the Penn Proprietorship simply maintained they were nonetheless legally entitled to the property.

Let's look at this dumb situation from the lawyers' point of view. If you own some land, but someone says you don't, your first response would be to show that the last owner turned it over to you without strings attached. And then you show that the title passed person-to-person backward in a clear chain of unclouded ownership. As long as this is provable, the critical deciding factor rests on what right the "original" owner had to it, from the Indians, or a King, or government charter. No one can be found to claim ownership earlier than that, so it must be yours.

The critical point is that "the original owner" is therefore the first private (non-governmental) owner. We are so used to this legal convention that it can be upsetting to discover that things were exactly opposite when we had a king -- and that our courts still uphold the monarch's decrees. Kings had a right to do absolutely anything, and that divine right therefore included the ability to revoke private ownership and take the property back, or give it to someone else. Establishing a clear title is now a process of tracing backward to the last moment when someone still had an absolute right to do anything he pleased with it. If what he did was cruel and unjust, too bad.

As soon as you trace your title back to a king or other absolute tyrant, the courtroom situation effectively reverses. At that critical turning point, the important issue stops being what a still-earlier owner intended, and becomes what the final owner said. The last word of the last monarch extinguishes anything intended by anybody earlier. Even after all this ponderous logic is thoroughly explained, perhaps even repeated, the loser of a case goes away dissatisfied and angry. It ain't right.

It is right, of course, since you can't be an absolute monarch if you can't do what you please. If someone was an absolute monarch in the past, whatever he said was his right , and it would be disruptive to overturn in retrospect what seemed perfectly orderly at the time. The whole progress from Magna Carta to American Revolution was to accept old confiscations as final, as the necessary price of putting an end to having any new ones. After the cutoff point, the right to transfer property became the sole discretion of the current owner. The transfer of sovereignty from governmental to individual ownership was a serious main issue in the Revolutionary War.

Pennsylvania thus fought three Pennamite wars with Connecticut over conflicting land grants by kings, and also got into hot but non-military quarrels with Virginia and Maryland over much the same issues. If Pennsylvania had lost these disputes, the Commonwealth would now be little more than an eighth its present size. Pittsburgh would be in Virginia, Scranton would be in Connecticut, and Philadelphia would be a city in Maryland. Perhaps that wouldn't be so bad -- after all, maybe they don't have a city wage tax in Maryland.

What would be very bad, and therefore is the heart of the matter, is that we probably would have undergone two hundred years of contested titles and maybe even shooting wars, as a result of having property ownership in constant dispute. After a couple of generations, it matters less who was right and who was wrong. What begins to matter more is that things get fairly and finally settled so everyone can get on with his life.

Marty Feldstein Forecasts the Future

{Martin Feldstein}
Martin Feldstein

With increasing frequency, the op-ed pages of the Wall Street Journal are opened to important people, or important ideas. On April 28, 2006,Professor Martin Feldstein of Harvard wrote an article which purports to show how it is possible to have the American currency fixed for Americans, but float for foreigners. After reading it twice, I conclude he is saying something rather different, and softening some startling announcements with circumlocution. It is my view that he says the following:

Inflation is not a worry; targeting 2% inflation with adjustments in short-term interest rates will take care of it.

International trade deficits need not be a worry, either, if only the Treasury Department (Could he mean nice old John Snow?) would allow the dollar to float on the international market. Not pure floating, of course, because it is a dirty world out there. The necessary dirty floating might hurt at first, especially American global businesses, but the sooner the boil is lanced, the better we will be. American exports of capital goods, consumer goods, and industrial supplies will especially benefit. Those who worry that trade deficits will weaken the dollar have got it backward a weaker dollar will correct the trade deficit. Yes, some people will be hurt by this.

In particular, high-wage countries like Europe, Canada and Japan will be hurt, possibly severely hurt.

You will be able to tell that this plan has been set in motion when you see an international conference called among low-wage countries. The main purpose will be to reassure them that the U.S. Treasury won't punish them for strengthening their currency.

You will be able to tell this proposal has been rejected, probably for political reasons, if nothing soon happens to soften housing prices. And the word soon is emphasized. Because if they don't soften, they will break.

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.

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.

Andrew 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 where Andrew 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 foreseeably 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 their 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.


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 nullification issues an unmistakable proclamation: to proceed farther, means War.

Oliver Wendell Holmes

That's a somewhat strange outcome for a process started by pacifist Quakers, so the search goes on for a better idea. Distinguished jurists differ on whether to leave things as they are. In a famous exchange, Oliver Wendell Holmes once had dinner with Judge Learned Hand, who on parting extended a lawyer jocularity, "Do justice, Sir, do justice." To which, Holmes then made the somewhat surly response, "That is not my job. My job is to apply the law."

Thus lacking any better approach, it is hard to blame the US Supreme Court for deciding this was something best left unmentioned any more than absolutely necessary. The signal which Justice Harlan gave in the majority opinion on the 1895 Sparf case was the very narrow ruling that a case may not be appealed, solely on the basis that the trial jury was not informed of its right to nullify the law in question. Encouraged by this vague hint, what has evolved has been a growing requirement that incoming jurors take an oath "to uphold the law", officers of the court (ie lawyers)are discouraged from informing a jury of its true power to nullify laws, and Judges are required to inform the jury in their charge that they are to "take the law as the judge lays it down" (ie leave appeals to higher courts). If a jury feel so strongly that it then persists in spite of those restraints, well, you apparently can't stop them. Nobody thinks this is a perfect solution, and aggrieved defendants like the Vietnam War protesters are quite vocal in their belief that the U.S. Supreme Court finally emerged with a visibly asinine principle: a jury does indeed have the right to nullify, but only as long as that jury is unaware it has that right. That's almost an open invitation to perjury if accurate; but while it's not precisely accurate, it comes close to being substantially true.

That's where matters stand, and apparently will stand, until someone finds better arguments than those of Benjamin Franklin, John Jay, Andrew Hamilton -- and William Penn.

Whatever Was George III Thinking?

{George III}
George III

Two troubling questions persist long after the American Revolution has mostly faded into the past: Why was New England so much more rebellious than the rest of the colonies? And, whatever was George III thinking when he blundered into losing an empire? No doubt, he would have answered in a different, unreflective tone in 1776, but the following is what he had to say about it after the war was lost. He seems to emerge as a far more literate and reflective person than the colonists believed of him.

"America is lost! Must we fall beneath the blow? Or have we resources that may repair the mischief? What are those resources? Should they be sought in distant Regions held by precarious Tenure, or shall we seek them at home in the exertions of a new policy?

"The situation of the Kingdom is novel, the policy that is to govern it must be novel likewise, or neither adapted to the real evils of the present moment, or the dreaded ones of the future.

"For a Century past the Colonial Scheme has been the system that has guided the Administration of the British Government. It was thoroughly known that from every Country there always exists an active emigration of unsettled, discontented, or unfortunate People, who failing in their endeavours to live at home, hope to succeed better where there is more employment suitable to their poverty. The establishment of Colonies in America might probably increase the number of this class, but did not create it; in times anterior to that great speculation, Poland contained near 10,000 Scotch Pedlars; within the last thirty years not above 100, occasioned by America offering a more advantageous asylum for them.

"A people spread over an immense tract of fertile land, industrious because free, and rich because industrious, presently became a market for the Manufactures and Commerce of the Mother Country. An importance was soon generated, which from its origin to the late conflict was mischievous to Britain, because it created an expense of blood and treasure worth more at this instant, if it could be at our command, than all we ever received from America. The wars of 1744, of 1756, and 1775, were all entered into from the encouragements given to the speculations of settling the wilds of North America.

"It is to be hoped that by degrees it will be admitted that the Northern Colonies, that is those North of Tobacco, were in reality our very successful rivals in two Articles, the carrying freight trade, and the Newfoundland fishery. While the Sugar Colonies added above three millions a year to the wealth of Britain, the Rice Colonies near a million, and the Tobacco ones almost as much; those more to the north, so far from adding anything to our wealth as Colonies, were trading, fishing, farming Countries, that rivalled us in many branches of our industry, and had actually deprived us of no inconsiderable share of the wealth we reaped by means of the others. This compartative view of our former territories in America is not stated with any idea of lessening the consequence of a future friendship and connection with them; on the contrary it is to be hoped we shall reap more advantages from their trade as friends than ever we could derive from them as Colonies; for there is reason to suppose we actually gained more by them while in actual rebellion, and the common open connection cut off, than when they were in obedience to the Crown; the Newfoundland fishery taken into the Account, there is little doubt of it.

"The East and West Indies are conceived to be the great commercial supports of the Empire; as to the Newfoundland fishery time must tell us what share we shall reserve of it. But there is one observation which is applicable to all three; they depend on very distant territorial possessions, which we have little or no hopes of retaining from their internal strength, we can keep them only by means of a superior Navy. If our marine force sinks, or if in consequence of wars, debts, and taxes, we should in future find ourselves so debilitated as to be involved in a new War, without the means of carrying it on with vigour, in these cases, all distant possessions must fall, let them be as valuable as their warmest panegyrists contend.

"It evidently appears from this slight review of our most important dependencies, that on them we are not to exert that new policy which alone can be the preservation of the British power and consequence. The more important they are already, the less are they fit instruments in that work. No man can be hardy enough to deny that they are insecure; to add therefore to their value by exertions of policy which shall have the effect of directing any stream of capital, industry, or population into those channels, would be to add to a disproportion already an evil. The more we are convinced of the vast importance of those territories, the more we must feel the insecurity of our power; our view therefore ought not to be to increase but preserve them."

In short, King George III of England sounds like a thoughtful, insightful man. Not a heedless, vindictive power freak as portrayed by frenzied revolutionaries, the King expressed a pretty reasonable assessment of his colonies. What he most lacked was recognition that centralized if not one-man rule blocked growing expectations of greater self-rule; expectations propelled by an even bigger revolution, the Industrial Revolution. A Machiavelli or a Bismarck would have seen that Virginia mostly wanted access to Ohio land, while New England wanted maritime dominance; the Quaker colonies were quite satisfied with what they had. It would have been comparatively simple to play one region against another, giving each a little of what it wanted while encouraging cultural diversities which kept them jealous and separate. But His Majesty, yielding to the financial strains of the Seven Year War, and the urgings of his Teutonic mother, united thirteen of his colonies in common rebellion against taxes, military occupation, and high-handedness. The colonies did not want to unite; George III united them. Without unity, their rebellion had no chance.

Quakerism and the Industrial Revolution

Richard Arkwright

The Industrial Revolution had a lot to do with manufacturing cotton cloth by religious dissenters in the neighborhood of Manchester, England in the Eighteenth Century. What needs more emphasis is the remarkable fact that Quakerism and the Industrial Revolution both originated about the same time, in about the same place. True, the industrializing transformation can be seen in England as early as 1650 and as late as 1880. The Industrial Revolution thus extended before Quakerism was even founded, as well as long after most Quakers had migrated to America. No Quaker names are much mentioned except perhaps for Barclay and Lloyd in banking and insurance, and Cadbury in candy. As far as local history in England's industrial midlands is concerned, the name mentioned most is Richard Arkwright, whose behavior, demeanor and beliefs were anything but Quaker.

It is instructive, however, to examine the nature of Arkwright's achievement.
Karl Marx

He seems to have invented nothing, stealing the patents and ideas of others freely, while disgustingly boasting about his rise from rags to riches. Some would say his skill was in organization, others would say he imposed an industrial dictatorship on a reluctant agricultural community. He grew rich by coercing orphans, convicts and others he obviously disdained into long, unpleasant, boring and unwelcome labor that largely benefited him, not them. In the course of his strivings he probably forced Communism to be invented. It is no accident that Karl Marx wrote the Communist Manifesto while in Manchester visiting his friend Friedrich Engels, representing reasonably well the probable attitudes of Arkwright's employees. What Arkwright recognized and focused on was that enormous profits could flow from bringing piecework weaving into factories where machines could do most of the work. Until his time, clothing was mostly made by piecework at home, with middlemen bringing it all together. The trick was to make clothing cheaper by making a lot of it, and making a bigger profit from a lot of small profits. Since the main problem was that peasants intensely disliked indoor confinement around dangerous machines, the industrial revolution in the eyes of Arkwright and his ilk translated into devising ways to tame such semi-wild animals into submission. For their own good.

Charles Babbage

Distinctive among the numerous religious dissenters in the region, the Quakers taught that it was an enjoyable experience to sit indoors in quiet contemplation. Their children were taught to submit to it at an early age, and their elders frequently exclaimed that it was a blessing when everyone remained quiet, enjoying the silence. Out of the multitude of religious dissenters in the first half of the Seventeenth century, three main groups eventually emerged, the Quakers, the Presbyterians, and the Baptists. Only the Quakers taught that silence was productive and enjoyable; the Calvinist sects leaned toward the idea that sitting on hard English oak was good for the soul, training and discipline was what kept 'em in line.


The Quaker idea of fun through day dreaming was peculiarly suitable for the other important feature of the Industrial Revolution that Arkwright and his type were too money-centered to perceive. If workers in a factory were accustomed to sit for hours, thinking about their situation, someone among them was bound to imagine some small improvement to make life more bearable. If such a person was encouraged by example to stand up and announce his insight, eventually the better insights would be adopted for the benefit of all. Two centuries later, the Japanese would call this process one of continuous quality improvement from within the Virtuous Circle. In other cultures, academics now win professional esteem by discovering "win-win behavior", which displaces the zero sum, or win/lose route to success. The novel insight here was that it has become demonstrably possible to prosper without diminishing the prosperity of others. In addition, it was particularly fortunate that many Quaker inhabitants of the Manchester region happened to be watch makers, or artisans of similar trades that easily evolved into the central facilitators of the new revolution -- becoming inventors, machine makers and engineers.

The power of this whole process was relentless, far from limited to cotton weaving. When Charles Babbage sufficiently contemplated the punched-cards carrying the simple instructions of the knitting machines, he made an intellectual leap to the underlying concept of the tabulating machine. Using what were later called IBM cards, he had the forerunner of the stored-program computer. There were plenty of Arkwrights getting rich in the meantime, and plenty of Marxists stirring up rebellion with the slogan that behind every great fortune is a great crime. But the quiet folk were steadily pushing ahead, relentlessly refining the industrial process through a belief in welcoming the suggestions of everyone.

Perfect, the Enemy of Good

One problem with health insurance reform debate is there's so little mention of health. After all, without illness the need for health insurance would vanish. So here, let's begin with the so-called statin drugs, the first really effective treatment for high blood cholesterol. Statin drugs do far more good than merely lowering cholesterol levels. Heart attacks, the commonest cause of death, declined so rapidly in the past ten years it's hard to say how low mortality rates will eventually go. Deaths from strokes, also caused by hardened arteries, declined almost as much and that's the whole purpose of treating cholesterol. Statins didn't do it all; it is about half due to prevention, where smoking cessation, aspirin and other drugs are effective, and half due to rescue treatments, like angioplasty, pacemakers and by-pass operations. But that's why the conquest of arteriosclerosis seems so assured; it doesn't all depend on a single drug which might later have unexpected disadvantages. Eventually, we can reasonably hope for prevention to displace rescue treatment, so maintaining the conquest of this disease should also get cheaper. This is already the most dramatic medical advance since the invention of antibiotics. No sooner do we say the mortality rate from heart attacks is down by 30% than we sense it may be down by 50%. Since it takes several decades to accumulate that rust in your arteries, the death rate from heart attacks may decline for thirty years, as we prevent rust accumulation from beginning in high school. Safety is still a question, but a small one. Right now, elated doctors whisper that perhaps arteriosclerosis has been conquered, don't say it too loud because that's bad luck.

{top quote}
Health insurance to cover absolutely everyone is an attractive goal, but may be an unachievable digression from achievable reforms. {bottom quote}
Dr. Fisher

Sixty years ago medical doctrine was, only two research challenges remain: arteriosclerosis and cancer. That's a little exaggerated, since HIV, schizophrenia, Alzheimers Disease and nuclear explosions would bother us badly even after cancer is cured. But it's certainly high time to redirect the healthcare reform debates to include the massive economic changes going on, independent of any insurance reform. Let's repeat, for emphasis, we won't need universal health insurance if people don't get sick. Or put the same idea in more measured tones: Americans will almost certainly become more resistant to taxation for health insurance as this longevity extension sinks in. It may not matter that Canada, Britain, France and Zanzibar have universal health insurance plans. Americans younger than 35 are already past the political point where the need for health insurance is self-evident to them. The conquest of arteriosclerosis could easily push that resistance level to age 50, because people form their opinions from what they see happening to friends and relatives. Employers wrap their opinion around what they see happening to their employees.

If, then, it can be feared that employers might eventually rebel at sustaining major health insurance costs for employees whose lack of fatal disease is obvious from their personnel records, the present system of employer-based health insurance coverage could crumble. At the very least, it will draw employers to proposals for individual health insurance individually selected and owned, portable between jobs. At that point, another group will rise in rebellion. The employees themselves will resolutely oppose mandatory spending for health insurance they think they don't need. Insurance against the cost of obstetrics and baby shots, yes. After retirement, Medicare will take care of the ills of old age. Costs will progressively concentrate around the first year of life and the last year of life -- ninety years apart. Everything in the middle will depend on how much risk people are willing to take, and that depends in turn on how much the insurance costs. The fate of the whole health insurance industry depends on reducing claims costs, but their track record on that is quite poor. Consequently, their future attempts will likely be quite drastic, making insurance even more unpopular. For all these reasons, it is going to be very difficult to persuade the country to accept any reform that includes the word "mandatory". People may be restless with present forms of health insurance, but it's hard to imagine them switching to any alternative from which there is no retreat.

There's a great deal more to say, but let's veer to a new unwelcome consideration. For sixty years, since the administration of President Harry S. Truman, we have embroiled ourselves in a struggle to achieve health insurance for everybody. Many quite practical solutions to smaller problems have meanwhile been swept aside, as either irrelevant to the Main Thing, or hindrances which reduce the urgency of it. Somehow it has always seemed worth concentrating on the big reform of universal coverage while smaller conflicting improvements are forced to wait for the dust to settle. But the problem of 12 million or more illegal immigrant workers begins to demand solutions which have nothing to do with health insurance, and may make universal coverage impractical for decades to come. Illegal immigrants appearing in the accident rooms of border states were a manageable problem until their numbers grew so substantially. Since we obviously cannot extend free coverage to the whole undeveloped world, no proposal for universal health insurance is viable without a workable feature about non-citizens. Mix in the local politics of the border states and it is entirely possible that the exigencies of overall immigration will prove greater than the need to have a uniform health insurance system. The longer it takes to face this unpleasant reality, the longer we will delay small, non-universal, solutions to health care reform.

Although it is a digression from healthcare, it seems important to make a convincing case that immigration is a serious issue. The terrifying fact is, we have grown to need immigrant labor. The experience we gained in centuries of dealing with new waves of immigrants is not much help in coping with the new phenomenon of transient laborers in massive numbers. Historically, we struggled with bilingual education and crime ghettos, and mostly learned how to deal with that. Now, we need to fear the example of the rich Arab countries where transient foreigners greatly outnumber the citizens. The most extreme result is found in Kuwait, where hardly a single Kuwaiti citizen in gainfully employed; the rich citizens are helpless parasites on the labor of the illegals. Try proposing universal health care in Kuwait and see how much attention it gets. At the risk of being called an insensitive person, I'm afraid that being the richest country in the world may be exactly the reason why we can't do what Europe has done with health care. Meanwhile, this distraction keeps us from doing what we really might be doing.

* * *

In its thirty-year existence, cable television's C-span diligently filmed mountainous archives of mostly boring speeches, hearings and contemporary analyses of our government at work. The true genius of this expensive private philanthropy emerges with hindsight, as old fims which hardly anyone watched at the time can sometimes re-emerge to display what now everyone needs to know. The present case in point is to listen again to the soaring, convincing rhetoric of Bill Clinton's introduction of his Health Plan to Congress in 1993, bringing America to its feet with a realization that something was terribly broken about American health care. And then to be present in the next hour to the fumbling, circular and unconvincing solutions offered by Hillary Clinton before the sly, elaborately courteous, but pointedly probing questions of the Congress in hearings. She improved considerably with practice, but it is not lost on the viewer that she reverted to emphasizing the seriousness of the problem, rather than the aptness of the solution. The Plan was going to spend some money at first, save a lot of money later, but not harm the quality of care in the process. Just how it was going to do that was mainly supported by a passionate wish to do it, because it simply must be done. Total, universal, and hence mandatory, insurance coverage would, must, shall cut costs while it extended decent care to all. All other solutions had been exhaustively examined. Without total universal mandatory insurance coverage, nothing would work.

However, if one problem would make this solution unworkable, it is not necessary to describe twenty others. There are billions of people around the world who do not have American health insurance; obviously we do not expect to extend it to all of them. It would seem that we are talking about extending, giving, or mandating American health insurance to those who are within our borders. Assuming we ignore the handful of foreign tourists who pass through, that mainly means extending coverage to immigrants and those without coverage for brief periods, mainly new employment entrants and those temporarily between jobs. Switching from employer group policies to individually owned and selected policies would solve half the problem, but at the cost of extending income tax deductibility to everyone, hence eventually eliminating it for everyone. It would take a lot of persuading to convince everyone to give up that tax deduction, particularly when it is scarcely mentioned in the persuasion. But then let's look at the other half of the problem; we have 12 or more million illegal immigrants in the country, is someone proposing we mandate health insurance for them? What about next year, when several million immigrants go back home, and are replaced by several million different ones? When you dig into it, this sounds less and less like a health insurance problem, and more like an immigration problem. Would it not seem wise to delay the goal of universal coverage and solve other health problems while other people with other ideas solve the immigration issue?

And then, the issue of raising taxes by eliminating the tax deduction for health insurance. A considerable portion of this revenue source would be absorbed by subsidizing the people who don't currently get the deduction, which not only includes the uninsured but those who currently pay for their own health insurance, mainly the self-employed population. The residual federal reveue gain from the net effect of all this disruption would probably fall fall short of its promises, but even if it produced mountains of federal revenue, would it reduce the cost of medical care? It's pretty hard to see how shifting money from one set of pockets to another would have any effect whatever on the cost of running a hospital or doctor's office or pharmacy.

Whenever the Clintons or their spokesmen fumbled a little, it was possible to believe they did not fully understand the irrelevance of their solution to the problem they denounced. And whenever the Clintons appeared glib and polished, it was possible to believe this was all some sort of ruse. They couldn't win, and others seemed to grasp this before they did. Meanwhile, potentially important progress in the improvement of medical care was totally blocked by insisting that every proposal must meet the test of universal coverage. Tort reform, increasing the share of patient cost responsibility, permitting the interstate sale of health insurance, and -- stop right there, how will that insure the uninsured? By forcing every proposal, large and small, to be measured by whether it led necessarily to universal coverage, the debaters "framed the argument". Fifteen years later, we can see the country did get by without meeting that benchmark, and we also see how many useful improvements were pushed aside for failing to meet the standard of an impossible goal made possible.

Unwritten Constitution

Franklin Roosevelt

After Franklin Roosevelt was elected to the Presidency four times, the 80th Congress reacted by proposing what is now the Twenty-second Amendment of the Constitution, that two terms are all that will be permitted in the future. The supporters of Roosevelt have continued to argue that the Amendment was a mean-spirited insult to a man who was no longer able to defend himself. In their view, the Amendment implies that Roosevelt wished to be a dictator, in the pattern of most dictators from Julius Caesar or even earlier. That would seem an unfairness to a man who apparently had sufficient popularity to be re-elected for as many decades as he lived. Dictators, by contrast, characteristically have a succession problem leading them to believe realistically a blood-bath might ensue in the aftermath of relaxation of iron rule during a transition. That is indeed the usual case; if there were nothing more to it, this Amendment would not have much justification. That is not all there is to it.
George Washington

It might well be said that George Washington started an unwritten rule by voluntarily stepping down after two terms, since he too could have been re-elected as many times as he pleased. Furthermore, political parties as we know them had not then been invented, so he could not have been motivated by the reasons I now wish to explore. He apparently just felt in his bones that a limited period was best, and the nation came to agree with his opinion. Ullyses Grant and Theodore Roosevelt both seem to have toyed with the idea of longer presidency, but retreated in the face of public hostility. Just why the public felt that way is not clear; much was said about Washington's wise words, but that seems unconvincing.
The Constitution

As the country has grown in size, the man we elect to leadership is mainly elected for symbolizing the attitudes of the network of acquaintances he brings along to power. What we know as political parties only partly represent that power network. It is composed of those who seek an agenda that is not currently being addressed, plus those who oppose the agenda that is being pursued. When the combined numbers become a majority, the incumbents are replaced, and the cycle then goes on to repeat itself indefinitely. In that sense, the terms of office state a minimum. It is disruptive to replace governance too soon and too often. The Constitution is silent on the other side of it, of how long is too long, probably because there were no useful models to follow in this first democracy of modern times. We have to surmise that Washington reflected on this question for a period of time before he announced his answer with his own example. Eight years is long enough.

Washington surely had ample opportunity to observe the gradual assumption of power by the network of people who actually carried out public policy, to the point where they bitterly resist the loss of their power which is inevitably the consequence of losing their leader. He may have lost his taste for glory but they have not. Indeed, when you can see signs of their rebellion, you know it is time for the whole lot, to go. It is really pretty hard to see the frail, sick, disabled Roosevelt hungering for more power; it was his cronies who did. That he could be persuaded to make the effort is as good as sign as you can find, that it was well past time for him to retire.

Article Constitution

We live in an age of aphorisms, called bites of sound. The argument might well be reduced to saying that since power corrupts, there does come a time to throw the rascals out. When the new reforming heroes take over, power will similarly corrupt them in time, so we must throw them out, in turn. It's a system we sort of eased our way into, and after a while we came to feel that eight years is about long enough to get your reforms reformed, not quite long enough for corruption to become entrenched. And after two hundred years, we finally got around to making it official. Instead of talking about plumbing inspectors taking bribes, or lobbyists paying for Vicuna coats, or drunken congressmen cavorting in fountains with women of light repute, let's go right to the central figure in the controversy, the man who was indispensable even when he was uremic. The example has to do with patent protection, deemed important enough to write into the third Article of the Constitution, even though term limits were left vague.

Benjamin Franklin

Franklin Roosevelt hated monopoly, as do most of the rest of us. He carried this antipathy to the point of opposition to all patent protection for inventions, which Benjamin Franklin felt promoted innovation, but which FDR saw as creating monopoly. Both tradition and the Third Article stood in the way of his doing much about it, at least overtly. However, he did control the appointment of federal judges, who controlled the enforcement of patents. We are told that all judicial nominees were interviewed privately on their views about patents, and one by one the judiciary was filled with patent-hating judges. Roosevelt as mentioned was elected four times, and it reached the point where it was effectively impossible to enforce any patent. The Eighth Judicial Circuit in Minneapolis did not sustain a single patent until 1969, since Roosevelt appointees continued on the bench long after new presidents, even new political parties, had come and gone. Regardless of how we may feel about trial lawyers and Bleak House lawyers, and litigation -- and even ridiculous assertions of patent protection for the human genome or patents for business methods -- the state of patent protection is most readily demonstrated by the number of patent lawyers. In 1950, there were only ten patent lawyers in Philadelphia, 4000 in the whole country. In 2007, there are four thousand patent lawyers in Philadelphia and over a million nationwide. Whether the instinct is to see this as a good thing or a bad thing, it is certainly proof that the Constitutionally protected right of patent protection was snuffed out by a process entirely contrary to Constitutional intent. And that process, whether saintly or utterly corrupt, was only made possible by flouting the traditional limitation on terms of office.

National Debt, National Blessing

{Alexander Hamilton}
Alexander Hamilton

In 1789 while arguing for the establishment of a National Bank, Alexander Hamilton made one of the most famous counter-intuitive assertions of his controversial career. "A national debt, if it is not excessive, will be to us a national blessing".

The very suggestion of such an idea enraged Thomas Jefferson and his Calvinist adviser, Albert Gallatin. James Madison, ever the political schemer, immediately recognized a new bargaining chip in his move to relocate the national capitol to Virginia. Political parties were promptly invented to mobilize votes on both sides, and the national bank remained a divisive issue for half a century afterwards. Neither a borrower nor a lender be; how could anyone, then or now, say debt was a blessing?

Indeed, that's evidently how the leaders of Singapore, Malaysia, Australia, China and several other prosperous states still feel about it. While not eliminating taxes, these countries accumulated surpluses, and created sovereign-wealth funds. Having paid off the national debt, and still finding a national surplus, what else are you going to do with it?


These countries hired investment advisers to buy stock for the funds, evidently feeling American stocks were the safest bet; it's hard to criticize that conclusion. In the present credit crunch, they are investing five and ten billions per transaction in the equity of America's premier investment banks. So far, they only acquire 5 or 10 percent ownership, but then the credit crisis may not be over yet. For them eventually to acquire 51% controlling ownership somewhere is not at all inconceivable. An ominous sign of where that might lead is found in our own captive pension funds. The state employee pension funds have quickly become captive to unions with their own agenda, with the result that the prosperity of the companies in the portfolio could be sacrificed to the benefit of interest groups. And yet,it wouldn't be so hard for America to do the same thing. If Congress had adopted the Bush proposal of three years ago to create an investment fund for Social Security, we ourselves would soon have what amounts to the largest sovereign wealth fund in the world. Could this be a solution to the weakness of the Federal Reserve in controlling the currency with bank debt? Could we somehow create a common world currency based on a common fund of sovereign wealth funds and with that, create a new definition of wealth based on equity rather than debt? The technical answer to the potential corruption issue would probably lie in stripping the voting power from such shares and then submerging them in a world index fund. The United Nations sound of it nevertheless still boggles the mind. Are people who oppose an equity-based world currency going to be forced like Gallatin to eat their own dusty words when the reality of debt-based currency sinks in? How many of the ambassadors of ideas about such suggestions, both pro and con, would eventually surface as sneaky connivers like Madison, with a hidden side-agenda? After all, in a democracy everyone is expected to marshal every argument, weak or strong, for his own self-interest.

{Federal Reserve}
Federal Reserve

The loss of banks as a tool for the Federal Reserve would undermine the way the Fed does its job. A deeper reality is that many governments really don't want the job to be done perfectly and independently. The European common currency, the Euro, is already irking the French and other national governments who sometimes hanker to inflate away their debts, or deflate their way out of the subsequent inflation. A perfectly automatic currency regulation threatens an important ingredient of the sovereignty of nations, thus the whole concept of nationhood. Somehow, the desire of markets to enhance wealth must come to terms with the desire of governments to re-elect themselves.

It will take more than the present crisis to provide credibility for ideas as wild as substituting equity-based currency for the present debt-based one. Unless someone devises a better-sounding scheme, it seems more likely that financial Jacobins will propose sacrificing the unwelcome intruder. Derivatives, whatever that means, started this mess. Maybe we should make them illegal.

Looking Beyond Cheap Oil


Line Dividing East from West Jersey
King Charles II

Because we focus here on title to land in real estate transactions, a three-paragraph historical synopsis is necessary. If you've wondered why you need to buy title insurance when you buy a house, read on.

Four years after his restoration to the throne in 1660, King Charles II got his brother the Duke of York to conquer New Netherlands by first granting him the land. New Netherlands extended from the Connecticut River to the Delaware River. He added that it was up to the brother to conquer it from the Dutch, who had been in disputed possession since 1614. By much the same pass-the-buck process, the Duke of York then conditionally subdivided that part of it which is now called New Jersey, jointly to Sir George Carteret and John, Lord Berkeley -- who promptly delegated the actual fighting to one Colonel Nicholls. The Jersey name derives from an island in the British Channel, where Carteret had once provided haven from Cromwell for the exiled Charles and James. Nicholls defeated the Dutch on February 10, 1665, although later Dutch attempts at reconquest caused royal clouding of the Berkeley/Carteret titles, with the ultimate result that Berkeley sold his share to a Quaker Edmund Byllinge, and Carteret lost his right to govern but not his right to own, his half of the land.

{William Penn}
William Penn

At this point William Penn entered the picture as one of three Quaker trustees for Byllinge, who had gambling debts. A tenth of this share was given to John Fenwick, the 1675 settler of Salem, to settle his part of the disputes with Byllinge; the rest of it constituted what was to become the oldest American stockholder corporation, The Proprietors of West Jersey. The arrangement up to this point was firmly settled for the southern half of New Jersey by a Quintipartite Deed of July 12, 1676, signed by the three Quaker trustees plus Byllinge and Fenwick. Aside from establishing the Proprietorship, the main point of this deed was the separation of West Jersey from East Jersey (the Carteret part) by a North-South line which still persists as the upper border of Burlington County. The right to govern this land was fully restored in 1680 by a Confirmatory Grant from James, probably after considerable lobbying in London by William Penn.

Presumably in pursuit of this final confirmation, Penn had negotiated a hundred-page agreement with prospective settlers which outlined his plans for governing, called the Concessions and Agreements of March 14, 1677. Although its original purpose was mainly a real estate marketing tool, this landmark document seems not only to have persuaded the Duke of York, but so shaped the thinking of the English colonies that many of its features are readily recognized in the American Constitution of 1787.

{ West and East New Jersey}
Line dividing West and East NJ

The land mass between the North and South Rivers (Hudson and Delaware) only came completely and legally into the hands of Quakers in 1681. At that time Carteret's widow, Lady Elizabeth, sold the northern half (East Jersey) to twelve Quaker proprietors, while the southern half (West Jersey) was already held by thirty-two other Quaker proprietors under the effective leadership of William Penn. It is somewhat uncertain who orchestrated this final consolidation, but there is a strong presumption that it was Penn. Since the main purpose of these business proprietorships was to sell land to immigrants, it was vital to minimize land disputes with accurate records and accurate surveying. With a history behind them of fifteen years of bickering, everybody concerned was surely ready for some peaceful organization. Both groups of proprietors, East and West, found it useful to delegate authority to a council of nine executive proprietors, whose main agent under the circumstances was logically the Surveyor General. For the next three hundred years, the surveyor generals were the men running things in New Jersey. The right of the Proprietors to govern was revoked by Queen Anne in 1702, but their land rights remain undisturbed to the present day, notwithstanding the intervening transfer of national power to the United States of America in 1776-83. Underneath all of this hustling and arranging, with exquisite attention to details, seems to be found the hand of William Penn. Almost immediately after New Jersey was packaged and delivered, King Charles paid off his family debt by turning over the far larger combined land mass of Pennsylvania and Delaware to William Penn, urging him to make himself a vassal king in the process. The Quaker instantly declined such a thing, but the power continues to reside in the final Royal Charter. It's only a conjecture, but it might help explain the strange acquaintance between a dissolute king and an abstemious Quaker to notice that the New Jersey tour de force astoundingly demonstrates how Penn was a man who really could be trusted to get complicated things done with dispatch.

Today, for practical purposes it all amounts to a company named Taylor, Wiseman and Taylor; but we are getting a little ahead of ourselves. To go back to 1684 a surveyed line was clearly needed between the two proprietorships, as declared by the following resolution:

"Award we do hereby declare, that [the line] shall runn from ye north side of ye mouth or Inlet of ye beach of little Egg Harbor north north west and fifty minutes more westerly according to naturall position and not according to ye magnet whose variation is nine degrees westward."

To clarify those quaint words, the survey was not to make the mistake made in the layout of Philadelphia, whose streets had intended to be true north and south but by using Magnetic North are actually twelve degrees off from that. Another important point is probably unclear to modern readers, who know the town of Egg Harbor on the mainland of Barnegat Bay, but are largely unaware that the "beach of Egg Harbor" was what we now call Long Beach Island, on the east side of Barnegat Bay. The southern anchor of The Line was in what we now call Beach Haven, on the north side of the inlet, although beach erosion has put the southern anchor about two miles out to sea, locating a temporary marker in Beach Haven. Hardly anyone seems to be aware of it, but reread the sentence and observe the meaning is actually quite clear. The intent of the northern end of The Line (? the Delaware Water Gap ?) is buried in the obscurity of compass markings, but comes out slightly above Trenton on the Delaware River, extending beyond the river into Pennsylvania until it reached the river again in a crook on the far side of the Delaware Water Gap. Word of mouth has it that William Penn wanted to have both sides of the river although this triangle of Pennsylvania was eventually surrendered. It seems fair to say, the line was roughly intended to run from the Beach Haven ocean inlet to the Delaware Water Gap.

{Lord Berkeley}
John, Lord Berkeley

For its time, the survey of The Line was also a significant engineering achievement. The general plan was to lay out the course of the line in the wilderness until it hit a big boulder, or anything else that was large and heavy. This became a marker along a line of 150 markers which could be used for local surveys and boundaries. After several less accurate attempts, the West/East line was surveyed by John Lawrence in 1743 and stands as the Official Province Division Line. A few years ago, a group of volunteers tried to locate all of the original markers and found 55 of them. The historical project took ten years.

All of the deeds of property in the State of New Jersey still depend on the original survey and the meticulous notes kept by the Surveyors General of these two Quaker organizations, without whose private records every title to every property would be clouded. With the passage of time, and especially the warfare of the Revolution, other copies of the surveys have disappeared. So, without the need to get ugly about it, these soft-spoken courteous folks retain a form of power it would be hard to match with sticks and stones, guns, threats or legalisms -- the only surviving record of everyone's title to his land. There is little reason to inquire further why these Proprietorships durably survived the revolution which overthrew King George III, and why no one has seen fit to enter serious challenge to their claim of owning the whole state except for what they had already specifically sold.

Let's go back to a point made earlier. In all the complexities of the English Royal Court and uncertainties of an uncharted wilderness, how did a little band of Quakers find themselves with uncontested ownership of a whole American colony? Some of the chaos of the age probably helped. King Charles unleashed his brother's armies in 1664. Also in 1664, Parliament passed the Second Conventicle Act, which provided that not more than five persons were permitted to worship together otherwise than according to the established ritual of the Anglican Church of England. This act might be described as an improvement on the First Conventicle Act of Queen Elizabeth, which provided that no one at all could so worship. However, this prohibition was so extreme it was ignored, whereas the Second Conventicle probably had some popular support. It thus can be imagined why Quakers were suddenly interested in leaving England, and not hard to understand how young William Penn was propelled into leadership by successfully overturning that Act in the Haymarket Case. Penn was both the defendant in the case and the defense lawyer, inventing the common law principle of jury nullification that has so confounded tyranny ever since. To go on with events current at the time, the Great Plague took place in 1665, making London an undesirable place for anybody to live. And finally, George Fox, the founder of Quakerism, took a journey to the new world in 1672, noting that the place now called Burlington, New Jersey was "a most brave country". Taken altogether, it is not hard to suspect this group of fairly wealthy, fairly well educated people developed a collective resolve to buy up the pieces, assemble the parcel, and go away to live on it. Their organization into monthly local meetings, quarterly regional meetings, and annual national meetings was surely a great assistance. From what we know of the broader vision of William Penn, it is fair to speculate his enthusiasm for this communications network first suggested by George Fox, or at least his having a pretty quick recognition how it would assist the emigration venture.

{George Carteret}
George Carteret

George Carteret's widow was the last to sell out her land parcel to the East Jersey Proprietors, presumably drawn from the 1400 immigrants who had arrived in Burlington on five or six ships between 1678 and 1681. In particular, the ship Kent sailed from the Thames in 1677, bearing 230 Quakers, half from Yorkshire, the other half from London settling further south in West Jersey. Before that, Lord Berkeley had sold his half for a thousand pounds to John Fenwick and Edward Billynge, who arrived in Salem on the ship Griffin in 1674. These two soon fell out, with Fenwick taking a tenth of the land and settling around Salem. Billynge got into unspecified difficulties, probably gambling, and turned his property over to his three main creditors, William Penn, Gawen Lawrie, and Nicholas Lucas, who assembled the Proprietorship of West Jersey. Penn's remarkable talent for leadership again emerged in his statement of "Concessions and Agreements" with the Indians and new inhabitants. In another place, we discuss the reasons for thinking this document created the effective basis of the U.S. Constitution. By infusing it with the unspoken word of compromise, Penn created the main model explaining why the ratification of the Constitution remains the only time in history when thirteen independent nations voluntarily gave up sovereignty for the purpose of creating a larger vision -- which then held together for two centuries. But the voluntary union of East and West Jersey certainly has a claim to being earlier, although its claim to sovereignty is weaker.

Perhaps so, but since their interest in power was weaker, their achievement in peaceful negotiation with a secretly Catholic King was surely much greater. If some small group of religious dissidents should today emerge as having quietly and systematically bought up an entire state, however legally, the word conspiracy would be on every tongue. In this case, however, the reaction was peaceful consensus.

Mercantilism Dies Hard

{Mercantilism to  Americans}
Mercantilism to Americans

Whatever mercantilism was supposed to mean can be debated by captive college students; mercantilism to Americans is and was just a bad thing having to do with economics, mentioned only when the speaker is searching for an epithet. Our present understanding of the mercantilist term is that brutal government action, even war, was employed to benefit favored citizen merchants, while the economics of a whole nation of consumers was subverted toward enhancing state power. All of this rapacity was for the betterment of one nation at the expense of its neighbors, and at the expense of its colonies. The surprisingly vague but more modern term of fascism is often substituted, to denote evil uses of government to promote the interest of a combined military and industrial elite, to the general disadvantage of everyone else. Because so many opponents of mercantilism were upset about specific forms of mercantilist activity, Adam Smith is associated with the idea that mercantilism was the opposite of international free trade, and the American founding father are associated with the idea that mercantilism embodied everything we disliked about colonialism. Some prominent 18th Century leaders constructed a body of theory to defend mercantilism, and firmly established the idea that the whole approach was founded on long discredited sophistry. In recent times, the only reputable economist to defend parts of mercantilism was John Maynard Keynes, who approved of the idea of emphasizing third-world exports in order to assist developing countries into a modern economy. Whatever is the underlying idea behind this mercantilist idea that has caused so much trouble, and includes so many disconnected features?
Industrial Revolution

Allow an amateur theory. In my view the fundamental misconception underlying mercantilism was the idea that economic relations between individuals and nations are a zero-sum game; what I gain must be at the expense of someone else's loss. Almost every child believes that, many or even most everyday transactions seem to confirm it, and vast multitudes of mankind believe it to the end of their days. But as part of the Industrial Revolution the counter-intuitive realization began to spread that cooperative behavior, within limits, could sometimes result in all participants becoming better off, harming no one. Perhaps it was even a universal idea. Adam Smith popularized the idea that when two parties freely participate in the free trade of a marketplace, each one can come away from the trade feeling better off; one party would rather have the goods, the other party would rather have the money, and they trade. Multiplied millions of times, the expansion of free trade would enrich whole nations, even the whole world. George Washington may not have understood all that, but he did know that England was injuring him with rules about insisting British subjects must conduct all foreign trade in British sailing vessels, must not manufacture locally, must do this, must not do that.
John Maynard Keynes

Exporting was good, importing was bad, manufacturing was to be concentrated in the mother country, consuming was to be discouraged -- what was the unifying theory behind all this? It would seem to have been the gold standard. Gold was durable, and its supply was limited. It had certain undeniable advantages, but its overall effect was to restrain industrial progress. If the economy is constantly expanding, but the supply of gold is relatively limited, the price or value of everything will go steadily down over time. In George Washington's time that was particularly irksome with regard to the value of his plantation, and his vast land holdings of Ohio land. It was also true of everything else that was reasonably durable. If everything is measured in gold, and gold is limited, then the accumulation of gold is ultimately the only way to accumulate wealth. The English nobility who were profiting from the system might not perceive it, but the colonists could perceive it in their bones. Small wonder that modern banking, economics and innovative finance took root in the American colonies. If not first, at least most vigorously. Small wonder we had a revolution men would die for, while the British were merely annoyed and mystified.

Vast areas of Asia, Africa and the Middle East are still committed to the idea that the only way to get rich is to steal from others; since everyone wants to get rich, everyone steals. Someone has reduced this idea to a simple game theory called the Prisoner's Choice. If two prisoners tattle on each other, both will be severely punished. If both prisoners refuse to testify, both will go free. If one tattles and the other remains mum, the tattler will go free and the loyal comrade will get hanged. Reduced to its simplest level in a series of repeated games, the theory states that it's better for everybody to cooperate most of the time, but you must be willing to play tit for tat if the other party cheats. Be cooperative as much as you can, but never forget to wallop a cheater, and then forgive him later so he can have a chance to play nice. Lots of people will think you are a sucker if you play nice, so unfortunately it is necessary to retaliate -- swiftly and painfully -- when someone cheats. Centuries of American history are explainable with this simple game theory.

And not just with tribesmen and Nazis. When Winston Churchill finally realized that the Bretton Woods Conference was going to mean the end of the British Empire, he was almost tearfully plaintive with his friend Frank Roosevelt, but he said he understood.

And six years later, when Churchill's protege Anthony Eden invaded Egypt over the Suez Canal, Dwight Eisenhower the hero of the Normandy Invasion that saved England, suddenly turned nasty. England would immediately abandon that invasion, or Eisenhower would foreclose on British debts and ruin them.

That was the end of British colonialism, and in a sense it was the final end of the Revolutionary War.

Philadelphia City-County Consolidation of 1854

{Consolidation Map 1854}
Consolidation Map 1854

Philadelphia is still referred to as a city of neighborhoods. Prior to 1854, most of those neighborhoods were towns, boroughs, and townships, until the Act of City County Consolidation merged them all into a countywide city. It was a time of tumultuous growth, with the city population growing from 120,000 to over 500,000 between the 1850 and 1860 census. There can be little doubt that disorderly growth was disruptive for both local loyalties and the ability of the small jurisdictions to cope with their problems, making consolidation politically much more achievable. A century later, there were still two hundred farms left in the county which was otherwise completely urbanized and industrialized. For seventy five years, Philadelphia had the only major urban Republican political machine. By 1900 (and by using some carefully chosen definitions) it was possible to claim that Philadelphia was the richest city in the world, although this dizzy growth came to an abrupt end with the 1929 stock market crash, and the population of Philadelphia now shrinks every year. In answering the question whether consolidation with the suburbs was a good thing or a bad thing, it was clearly a good thing. But since Philadelphia is suffering from decline, it becomes legitimate to ask whether its political boundaries might now be too large.

{Philadelphia Map 1762}
Philadelphia Map 1762

The possible legitimacy of this suggestion is easily demonstrated by a train trip from New York to Washington. The borders of the city on both the north and the south are quickly noticed out the train window, as the place where prosperity ends and slums abruptly begin. In 1854 it was just the other way around, just as is still the case in many European cities like Paris and Madrid. But as the train gets closer to the station in the center of the city, it can also be noticed that the slums of the decaying city do not spread out from a rotten core. Center City reappears as a shining city on a hill, surrounded by a wide band of decay. The dynamic thrusting city once grew out to its political border, and then when population shrank, left a wide ring of abandonment. It had outgrown its blood supply. Prohibitively high gasoline taxes in Europe inhibit the American phenomenon of commuter suburbs. The economic advantage of cheap land overcomes the cost of building high-rise apartments upward, but there is some level of gasoline taxation which overcomes that advantage. Without meaning to impute duplicitous motives to anyone, it really is another legitimate question whether some current "green" environmental concerns might have some urban-suburban real estate competition mixed with concern about global warming. Let's skip hurriedly past that inflammatory observation, however, because the thought before us is not whether to manipulate gas taxes, but whether it might be useful to help post-industrial cities by contracting their political borders.
Philadelphia Map 1860

Before reaching that conclusion, however, it seems worth while to clarify the post-industrial concept. America certainly does have a rust belt of dying cities once centered on "heavy" industry which has now largely migrated abroad to underdeveloped nations. But while it is true that our national balance of trade shows weakness trying to export as much as we import, it is not true at all that we manufacture less that we once did. Rather, manufacturing productivity has increased so substantially that we actually manufacture more goods, but we do it with less manpower and less pollution, too. The productivity revolution is even more advanced in agriculture, which once was the main activity of everyone, but now employs less than 2% of the working population. This is not a quibble or a digression; it is mentioned in order to forestall any idea that cities would resume outward physical growth if only we could manipulate tariffs or monetary exchange rates or elect more protectionist politicians to Congress. Projecting demographics and economics into the far future, the physical diameters of most American cities are unlikely to widen, more likely to shrink. If other cities repeat the Philadelphia pattern, the vacant land for easy exploitation lies in the ruined band of property within the present political boundaries of cities, or if you please, between the prosperous urban center and the prosperous suburban ring.

Many American cities with populations of about 500,000 do need more room to grow, so let them do it just as Philadelphia did a century ago, by annexing suburbs. But there are other cities which have lost at least 500,000 population and thus have available low-cost low-tax land which would mostly enhance the neighborhood if existing structures were leveled to the ground. Curiously, both the shrunken urban core and the bumptious thriving suburbs could compete better for redeveloping this urban desert if the obstacles, mostly political and emotional, of the political boundary could be more easily modified. But that's also just a political problem, and not necessarily an unsolvable one.

Lexington, Concord, and All That

Captain Parker, minuteman

American schoolchildren today, and maybe a majority of Americans even at that time, have found it bewildering that we declared independence fifteen months after the battles at Lexington, Concord, and Bunker Hill, well after George Washington besieged the British in Boston, or Benedict Arnold dragged the captured cannons of Ticonderoga over the mountains to save the day. Just who started our Revolution, and why; and for that matter, when, have been at issue for a long time.
Adams and Jefferson

John Adams and Thomas Jefferson exchanged hot correspondence for fifty years along these lines. Adams was miffed that Jefferson claimed all the credit for a defiant public resolution they both had a hand in writing, when real men in Boston had been getting shot and killed for Liberty years earlier, and Admiral Howe's fleet had even set sail for Staten Island long before that Declaration was printed. To which scolding, might well be added that Abraham Lincoln reached back to "all men are created equal" when he wanted to find Constitutional justification for what was only 3/5 true in 1787, and not true at all on Virginia plantations in 1776. And, of course, was a phrase not echoed in the Constitution. Yes, John Adams had a point, and Thomas Jefferson had other points. But weren't they both in Philadelphia at the same time, working on the same document? Jefferson and Adams were rather probably raking over the coals of the bitter 1800 election, where Jefferson turned Adams out of the White House, and Adams wouldn't even stay around for appearance sake to attend the inauguration of his successor. On another level, they were both likely thinking about the Constitution more than the Declaration of Independence, anyway. Jefferson never liked the Constitution, had been in France when it was written, and preferred to submerge its precedence to a level of temporary revisions to the Declaration of Independence, which stressed unalienable human rights rather than a strengthened central government. It seems unfortunately true that politicians were introducing what is now called "spin". To the extent debate was heated rather than analytical, it could easily become immaterial whether 1774 was before or after 1776.
Samuel Adams

New England eased into rebellion with the Crown without a great deal of documentation of serious grievances; they must mostly be supposed. The fact that resentments were wide-spread lends substance to the idea that subjects of a remote monarchy had grown a little presumptuous, just as unsupervised Governors dispatched to rule them may have strutted authority unwisely. Successive generations of native-born colonists can be expected to have decreasing allegiance to the mother country, particularly after the need for protection from the French subsided, but irritation at quartering British troops persisted. Mercantilism is not intended to be fair; when imposed on foreigners there is more danger of provoking war, when imposed on colonists, appeals to patriotism are mocked as self-serving. Unfortunately, Samuel Adams and John Hancock, the two main leaders of Massachusetts dissension, were not terribly clear about economics, and Hancock was definitely involved in some smuggling. Doctor Joseph Warren was more precise, but unfortunately died rather early. We assume competition in fishing off Newfoundland, and dominance in West Atlantic maritime trade seemed paramount to a region somewhat unsuited to agriculture. The English civil war left vivid memories of how quarrels could get out of hand. More than anything else, it would seem likely the British ministry decided to become more authoritarian, at a time when the colonists were drifting toward feeling more independent. They tested each other, and matters got out of hand.

The Old Dominion of Virginia had an established landed aristocracy, better able than in Massachusetts to say what the ruling class wanted, and what the state was going to do. Tobacco had started to wear out the Virginia soil, and people like Washington were anxious to acquire land in Ohio. This was blocked by a British prohibition of white men settling to the west of the Proclamation Line of 1763 along the Appalachian watershed, a separation intended to reduce friction with the Indians, concentrate English settlements along the seaboard for mercantile reasons, and direct further English immigration to Florida and Canada to hold back Catholic influences. The effect of the Proclamation on Virginians was varied, amounting at the least to feeling they might just as well have lost the French and Indian War. The southern colonies were not in competition with England on manufacturing, but as agricultural exporters, were in frequent conflict with English merchants and bankers. Power and wealth were concentrated in fewer hands in the South, so personalities played a larger role in pubic policy.
Benjamin Franklin in the Cockpit

The colonies were all growing rapidly, with a general sense that governance was getting cumbersome across a wide ocean. Benjamin Franklin was particularly ambitious for more level American versions of the United Kingdom, with Englishmen in the colonies of equal stature in Parliament and elsewhere. With skill, this could be the richest and most powerful nation on earth. As early as the Congress of Albany in 1754, Franklin was proposing a union of the colonies as a step toward full partnership with the British Isles in a transatlantic nation. He continued to pursue that sort of goal for twenty years. Variations of this idea were heard in Parliament. As a mechanism for riding the crest of the Industrial Revolution, this would have been a powerful arrangement for world domination, possibly but not necessarily including visions of world peace. In the Quaker colonies before 1774, Independence from England held little attraction, and merger with New England had less. After all, New England squabbles with Old England about Atlantic maritime trade brought attention to what most of it consisted of: rum and slaves. Philadelphia Quakers had rallied around John Woolman to see the evil of slavery, and had largely succeeded in abolishing it locally. And Philadelphia Quakers were well aware that Quaker Abraham Redwood of Newport, Rhode Island had devised the famous triangular trade of slaves, molasses and rum. Pressure had built up within Quakerism to expel Redwood when he refused to free his slaves, no matter that he was probably the largest philanthropist of the colonies. Before that, relations between the Puritans and Quakers had often been difficult. Quakers believed in freedom of religion for everybody; the Puritans hanged Quakers. The Congregationalists of Connecticut had actually invaded the Wyoming Valley of Pennsylvania, three different times, the last of which was when Washington's army was wintering in Valley Forge. Furthermore, if we must attribute everything to economics, there was no land hunger in Pennsylvania. The Penn family, almost exclusively devoted to selling land, owned thirty million acres; by the time of the Revolution, they had only sold five million. The Penn family got along just fine with the Monarchy. The grievances up in New England were not entirely clear. Perhaps the Puritans should learn how to settle their differences in a more peaceful, and effective, way.
Admiral Howe's Fleet

And then, Admiral Howe with a huge fleet of warships, and his brother General Howe with a huge army, appeared at the beaches of New Jersey. They had orders to impose disciplined governance on every one of the colonies, right away.

Milton Friedman on Capitalism

Population Growth: Constitutional Mathematics

Citizens and academics have little appreciation for the intense attention that politicians devote to the rules. By 1787, James Madison had read everything he could get his hands on related to voting procedures, representation, democratic and republican nuances, recent and past. Consider the size of the legislative body, a seemingly inconsequential matter.

{Constituents per Congressman Representative}
Constituents per Congressman

Remember, one way to prevent a particular decision, is to prevent any decision at all. Those who experience blockade by inaction, therefore legitimately argue that improving a committee means reducing its size. That is not invariably the case, because a committee containing inadequate wisdom will seldom be adequately wise. With effective procedures and experienced leaders, a legislative body of two or three hundred can remain productive and efficient. Whatever the limit is, it is safely larger than anything the Constitutional Convention of 1787 had in mind for the United States Congress. The convention concentrated instead on the number of constituents each congressman should have. Divide that number into the population of the nation, and you arrive at the size of the body without specifying it. It would be two centuries before America itself grew to the size where it was necessary to constrain the number of congressmen down to a manageable size. During the earlier years of the republic there might be concern that "the body" was too small and thus too easily controlled by personal dominance. But the nation would eventually grow to the point where the size of Congress had to be limited to around 500 members; that would eventually reverse some important considerations. If we ever reach a size where both the size of the body and the number of constituents per congressman are both undesirably large, there could be a lot of squirming.

{top quote}
The House of Representatives has remained frozen at 435 since 1913. A law to remain at that size was passed in 1929. {bottom quote}

The focus the founders chose was the number of constituents each representative should have. Here, the argument was that a congressman representing a small group would likely respond to the narrow parochial interests of that small group, while a representative of a large group would more likely have many narrow interests to consider, thus be more likely to represent the interests of the nation as a whole. Natural conflicts between farmers and fishermen would illustrate this dynamic; small districts or less numerous ones would likely split between those representing fishermen and those representing farmers, large districts or more numerous ones would force the representative to respect the interest of both. Small districts would be more partisan, in this view. However, the founders recognized it becomes more difficult to influence a representative who has too many constituents. An amendment was even proposed to limit a congressional district to thirty thousand voters, but it was never ratified. While the electorate hesitated, the country grew to the point where three hundred million inhabitants would produce a House of Representatives of more than twenty-five thousand Congressmen, far too large to operate in anything resembling its present methods. Forced by population growth to choose between an unworkable legislative body, and the originally intended personal familiarity between Congressmen and constituents, the familiarity was sacrificed and political machines came to dominate the selection process, mainly at the level of the nominating primary election. It was probably unnecessary for political parties to become so partisan so soon, but the ultimate result was inevitable in a growing nation. Since many of the non-democratic nations who might consider adopting our system are already larger than we are, there is little doubt that the size limitations of deliberative bodies are presently inhibiting democratic transformations. Eventually, even we will have to confront the issue, and it is past time for us to be discussing what we would like to do.

It is disconcerting to reflect we have already experienced some examples of the power of the representation issue, and seen it can have some major effects. At the time of the Constitutional Convention, the number of members of the House and Senate was probably too small. The House soon grew to be the more powerful of the two because it had enough members to staff a wider variety of committees; in time the Senate grew more slowly and overtook the overpopulated House in influence. At present, the main problem is that both legislative bodies are being overshadowed by the enormous bureaucracy in the Executive Branch, with much longer average tenure and far less responsiveness to manageable electorates. Indeed, the elected representatives are slowly being forced to pander to the voting power of the bureaucracy in Maryland and Virginia, and the rural bias of state legislatures who have retreated to isolated rural villages in order to avoid press and public scrutiny. Few people could now name their state representatives; in time that will be the destiny of Congressmen and Senators. The representation concern was wide spread at the time of the founding of the country; it was accepted during the 18th Century that republics must remain small to remain republics. Madison found this to be one of the most serious obstacles to agreeing to a national republic, and he took considerable trouble to rebut it. This theory was behind the otherwise peculiar concept which Benjamin Franklin had advanced for many decades, which was that England and British America ought to have separate parliaments, united in allegiance to the same king. There seemed little difference between that commonwealth idea and the design of the Articles of Confederation with thirteen colonies reporting to the Continental Congress, so it was fortuitous that the abject failure of the Articles made it unnecessary to argue the merits of this multi-chamber approach at the Constitutional Convention.

{top quote}
Article the first... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less* than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more** than one Representative for every fifty thousand persons. {bottom quote}
Ratified but Never Acted On

Nevertheless, it was a serious concern, based on clear logic. The anti-Federalists were a national group, ultimately a political party of individualists hostile to overbearing top-down authority. Their cause was hampered by the plain failure of the Articles of Confederation, but nevertheless they were legitimately very restless about a Congress with a weak perception of its duty to represent minorities. The anti-Federalists somehow envisioned each representative as a lawyer defending local interests at court. Indeed, in the days of a strong British monarchy, that was essentially how the British Parliament operated. As the King lost effective power to rule, ministries elected from within the Parliament took over the powers and attitudes of monarchs. In a sense, that was worse, because the districts lost their power to nominate their own representative, who was selected for them by the party leaders -- now acting in the role of substitute King. So that was no good, either, and the anti-Federalists even though collectively a majority, were basically supporters of the Articles of Confederation, and the Articles were a failure. They thus lost the ratification battle, but although soon taking over the government, had no better proposal to make. A few decades later the South seceded and essentially reinstated the Articles of Confederation in their own part of the country; once again the loose confederation idea failed.

In advancing his argument that a large republic was indeed going to be workable, Madison promoted the idea that a large constituency would produce statesmen of distinction. Only a person of great merit, wealth and effectiveness would be well enough known to be elected. Therefore, congressmen with large districts to represent would tend to be rich, well-born and famous. Senators would be even more so because they were selected by legislatures and governors (before the Seventeenth amendment), and thus the entire government would become progressively and permanently made up of the elite. Madison particularly liked this idea, because it seemed to solve what he considered the main flaw of elected government. Poor people would always outnumber rich ones, and would inevitably use their voting power to enrich themselves at the expense of the upper classes. Constructing an elitist government by enlargement of congressional district size was thus a highly elegant design feature. Unfortunately for Madison, the scheme didn't produce that result.

Much has been written about the most famous about-face in American history, when Madison the Federalist founder became Madison the leader of the anti-Federalist faction. Madison, George Washington's trusted Federalist agent, became Jefferson's anti-Federalist agent, and Washington never spoke to him again. Briefly, it has been speculated that the Virginia tobacco plantation culture out of which Madison had emerged, had begun to crumble, undercutting Madison's Virginia base. And it has been speculated that Hamilton's spectacular leadership of the American banking version of the Industrial Revolution unsettled Madison's earlier conviction that the Old Dominion of Virginia could easily rule the new nation. And it has been muttered that Madison, the ever-scheming politician, saw that his own future presidency would be more enhanced by Jefferson's popularity than by Washington's physical leadership in his lame-duck years. There may be still other important considerations in Madison's famous switch which we can only hope historians will be able to uncover. But there seems little doubt that Madison was able to see with his own eyes that the Congress of Merit, Distinction, and Success which he had imagined would result from large congressional districts, had in fact already in Washington's administration begun to deteriorate into the stereotype of professional professional politician which today's satirists and cartoonists are pleased to pillory in their blogs on the Internet. Madison had feared the poor would outvote the rich, but in fact the main form this demographic took was that machine politics and special-interest factionalism essentially drove the natural leadership of gentlemen entirely off the stage. The rules changed; winning this game required aggressive power and organization, not just the offer of service.

{top quote}
A committee containing inadequate wisdom will seldom be adequately wise. {bottom quote}

Over time, the relationship between the Senate and the House of Representatives changed, and the size of the membership had much to do with it. At first, the House was more powerful and prestigious. Direct election by constituents had more prestige than appointment by Legislatures. Later on, the Senate was a more suitable size as a deliberative body than the much larger House; running for election every six years was much to be preferred over running every two years. In the past century, the volume of work forced both bodies to develop a standing committee system. With five hundred members, the House could develop specialists in certain areas, and often a senior member in a safe district could remain in a topic area for thirty or more years. The Senate had fewer members, so each Senator is on several committees. Whatever the merits of a smaller deliberative body, the Senators have increasingly found themselves spread too thin, with new members taking too long to become expert, and older members too tired to keep up with everything. The consequences in both chambers have produced a phenomenon that even Madison never envisioned.

The legislative staff has continued to grow, and has in general grown increasingly professional and proficient at their jobs. In general, the staff went to better Universities and got better grades there than the member they work for, and need not worry about running for election. Often having spent their lives immersed in a legislative topic, they know it cold. Consequently, we have all the makings of a "Yes, Minister," phenomenon in which the people who were not elected are more expert and more academically serene than the member who was elected, and who has the vote. The member and the staff member desperately need each other to succeed, but nevertheless, the potential for secret resentments and secret contempt is present every day in a highly tense environment of constant overwork. The present code word for this underseas warfare is that the Congress is "dysfunctional", a condition no one who has read much history would worry about. When Ronald Reagan introduced the idea of shrinking the government, and the younger George Bush actually tried to do it, the result was leaks to the newspapers and rumors to the effect that a President who had gone to Yale and had an MBA from Harvard, was a bumpkin. Just how serious all this is, and how exaggerated, is hard to say. But it is a concept that would have dominated the thinking of James Madison for months, if it had ever occurred to him. We have entered an era of 1200-page bills, much of which first surfaces in conference committees a few hours before the vote. Only a handful of members and a handful of staff know what is in these bills, and it can sometimes be a month after passage before the press discovers many buried features. The members cannot master these masterworks of legislation, so they get bigger by being patched. And by getting bigger, it is harder to master them. If, as someone like Ronald Reagan would genially remark, we just fired all the staff, then the bills would be reduced to one or two pages. In some ways, legislation would be better, in some ways worse. But it would be different, because maybe it should be different.

Lithuanian Law

The Right Angle Club was recently entertained by its rugby-playing, Kilimajaro-climbing member, John Wetzel, about his two-week stint teaching law students at the University of Vilnius. This ancient Lithuanian institution was founded in the 15th Century by Jesuits, and after a bumpy history of invasions and occupations has now re-established itself. It participates in Erasmus mobility, meaning it is one of 47 European universities which exchange credentials and permit students from any one of them to take courses in any other member of the association; evidently, a similar mobility of faculty is also part of the concept. It sounds like a great idea, which American universities might well consider.

For reasons that are not entirely clear, 75% of the law students at Vilnius are female, and the whole local legal profession is similarly woman-dominated. John made several allusions to the general pulchritude of his students, which a class picture with him confirms. One striking feature of such a picture is how slim the ladies are; this is another European feature our own representatives might consider imitating. Since there are 2500 law students in a country of 3 million inhabitants, whose main industries are agricultural, balance is restored by only admitting 15% of the graduates to a passing grade on the bar examinations. It seems remarkable that studying law remains so popular under the circumstances, but it was explained that most of the graduates end up working for banks or government.

University of Vilnius

If you think about it, a country which is attempting to convert from a Soviet colony to a member state of the European Community has a lot of loose ends to tie up. The title to property is clouded by the experience of confiscation by the government and then return to a free economy; if banks are accepting such collateral, there may well be a lot of legal work to be done to assure its security. Since the thirty-odd members of the European Community all have different legal systems in different languages, all banks and businesses which attempt to operate across borders require partners or consultants in law firms in many countries. While there is a continuous effort being made to establish some uniformity of laws in the various nations of the Community, it takes a fair amount of study just to know what the laws are and how they differ. Therefore, while a handful of lawyers are sufficient to appear in court in disputes and litigation, a great deal more legal background is required, just for businesses to know how they are expected to behave.

Since, as Justice Holmes remarked, the life of the law has not been logic, it has been experience, it emerges that a great deal of effort must be expended to create the logic when there has been no preceding useful experience. The example is offered of American bankruptcy law, which did not exist until Robert Morris forced its creation. Morris had become an enormously wealthy man, and thus created an enormous tower of debts when his speculations failed, amounting to the then-staggering sum of $12 million of debt. They put him in debtors prison on Walnut Street, but that scarcely addressed the real problems of all those creditors tangled up in the mess. Lithuania is in a similar position, and although it has created a bankruptcy law for corporations, there is as yet no bankruptcy law covering individuals, and hence credit cards, etc. are difficult to establish.

There is a notable difference in attitudes between the eastern nations which were former members of the Soviet Union, and are intensely eager to learn more about the evolution of American law, and the more western parts of Europe, where disdain and hostility for American exceptionalism is presently dominant. A moment of reflection about this difference in situation should make Americans more tolerant of western European problems. If the logic of law evolves out of contemplation of experience, it may well be easier to begin without any usable experience, than to begin with centuries of experience which has to be re-examined. It must in fact be a wrenching experience, but one which has the potential to teach Americans a great many things we never had to cope with. The eventual outcome should be a healthy one, providing of course that we can keep our tempers, and acquire a little humility along the path.

Navigation and Mineral Rights

{Delaware Bays}
Delaware Bays

Wee doe alsoe give and grant unto the said William Penn his heires and Assignes The free and undisturbed use and continuance in and passage into and out of all and singular Ports, Harbours, Bayes, Waters, Rivers, Isles and Inletts belonging unto and {or} leading to and from the Country or Islands aforesaid. And all the Soyle, Lands, Feilds, woods underwoods, mountaines, hills, Fenns Isles, Lakes, Rivers, Waters, Rivuletts, Bayes and Inletts scituate or being within or belonging unto the Limitts and bounds aforesaid together with the fishing of all sorts of Fish whales {sturgeons} and all Royall and other Fishes in the Sea Bayes, Inletts, waters or Rivers within the premisses and the Fish therein taken. And alsoe all veines, Mines, and Quarries as well discovered as not discovered, of gold, silver, gemms, and other {pretious} stones and all other whatsoever bee it of stones, mettalls, or of any other thing or matter whatsoever, found or to be found within the Country, Isles, or limitts aforesaid.

Unalienable Rights Before 1776

Magna Carta

In 1976, the bicentennial birthday celebration of the Declaration of Independence contained two major exhibits of its conceptual origins. Mr. H. Ross Perot of Texas loaned his copy of the 1215 Magna Carta, and the Proprietors of West Jersey loaned their 1677 original of William Penn's Concessions and Agreements to the colonists of New Jersey. The purpose of the exhibit was to emphasize the historical origins of the concepts within the Declaration, but even the language of the Concessions is remarkably similar, quite evidently lifted by Jefferson when he was writing. On one point, Penn had the better of Jefferson; he correctly wrote about inalienable rights, while somehow Jefferson gave us unalienable ones.

William Penn

The matter came up recently at a Socrates meeting of the Right Angle Club, where at least one member felt there was no such thing as a natural right, while others wavered. In discussing the rights which the Creator, William Penn and/or Thomas Jefferson may have given us, the various contexts must be held in mind. At the time of declaring our intention to sever relations with Britain's King, there was no Constitution to refer to as a source, and it was impolitic to assert the rights had been given by English kings, like King John. Therefore, the language cleverly short-cuts around the divine right of kings to make a direct connection between the Creator and the colonists. William Penn on the other hand, was a real estate promoter, offering enticements and assurances to prospective colonists who were naturally fearful of risking their lives in sailboats, only to face the possible tyranny of a vassal king who might be even worse than the anointed one. Not only did Penn renounce any suggestion of a Royal role for himself, but went to considerable length describing the legally binding concessions and agreements he was offering. The right of trial by jury, for example, became a right to be punished only by a jury of twelve of one's neighbors. He wasn't talking to lawyers, he was making important distinctions very clear to laymen. These were not rights given by a Divinity who could be trusted, nor something which grew out of Mother Nature. They were the personal promises of William Penn, in personal legal jeopardy of the English courts if he reneged on them. He even had a ready answer for those who discovered religious language in legal documents -- the Quaker belief that, occasional appearances to the contrary notwithstanding, There is That of God, in every man.

H. Ross Perot

As a small side light of the Concessions document, it had long been housed in the little brick hut on Main Street in Burlington NJ, where the Proprietors of West Jersey keep their treasures. The obscurity of these papers was probably their best protection, but the risk of displaying them in Philadelphia at the centennial brought out the need to insure them, hence to appraise their value. The figure of four million dollars was kicked around. Ross Perot might have felt comfortable with this sort of expense as the natural cost of being a rare book collector, but it seemed highly unnatural to Quakers. Sometime afterward, the Surveyor General, William Taylor, was awakened by a call from Burlington neighbors that someone was trying to break in the roof to steal contents of the Proprietorship building. The burglars were unaware that underneath the shingles, the roof was actually made of concrete a foot thick. So the perps were frustrated in their aims, but Bill Taylor was greatly troubled by the implications, actually unable to sleep at night worrying about what was in his custody. So, in time the State of New Jersey constructed a suitable archives building, and the valuable documents were transferred up to Trenton. Time will tell what the Soprano State does with such a valuable possession, but at least the Quakers can now sleep at night.

Lumpers In Constant Combat With Splitters

{James Boswell's Book}
James Boswell's Book

Some colleges produce managers by teaching management theory, but in certain Ivy League colleges it is thought to be more useful to teach how to dominate a committee, eventually perhaps a board of directors, or a board of trustees. The handbook of instruction is James Boswell's Life of Johnson which is a rather large book of verbatim notes that Boswell took of his many lunches at a London club in the 18th Century. Boswell was a quiet mouse privileged to sit in the company of the great Dr. Samuel Johnson, surrounded by the most eminent intellects of the Enlightenment. Boswell carefully manages the background of each episode, describing the issue and the various arguments, and then -- Sam Johnson's booming voice settles the matter. After he speaks, the meeting is over.

{Dr. Samuel Johnson}
Dr. Samuel Johnson

"Why, sir", says Johnson, and then look out for the one-liner to follow. We get the impression that Dr. Johnson used that "Sir" signal to indicate he had enough of these dumb arguments, and soon would come the growled epigram that scatters any token resistance. Boswell may have neglected to record instances where the great Johnson was defeated in debate, who knows. We are left with the distinct impression that if you engaged in lunch table conversation with Sam, you were almost certain to lose. So that's what Ivy League students are being taught: how to win a debate at a committee meeting, in the expectation they would spend much of their lives in committees, boards, and even cabinets. That's how the English-speaking world gets its work done and its decisions made. That's what lunches at the Franklin Inn Club, or the club tables of the Union League, are trying to do for the education of neophytes.
Chauncy Brewster Tinker

As the goggle-eyed student of the great Chauncey Tinker, who gave young Pottle his start in life, it was an awesome performance for me to watch. But the rules of this game never became entirely clear to me, I'm afraid, until the other evening when I listened to Peter Nowell describe in a half-dozen brief paragraphs how he had revolutionized prevailing theories of the cause of cancer. The Franklin Institute then followed the award ceremony by putting on an all-day symposium of notables who run elaborate enterprises in cancer research, essentially funded by the National Institutes of Health, your tax dollars at work again. Last year, the NIH dispensed thirty billion -- you heard me -- dollars in research grants to internationally known research entrepreneurs, and if you can stay awake during their talks, there must be something the matter with you. So far as I could see, they were painstakingly describing every grain of sand on the beach, whereas Peter Nowell made the whole beach electric and clear in ten minutes. Essentially, he was saying that each patient's cancer is caused by a long chain of events, starting with a single mutation within a single cell. All the other cancer cells of a patient are descendants of that first one, which triggered the cascade of chemical events now repeated by the descendants. To stop the process, you probably only have to find a way to break the chain at one vulnerable point. Then you have a cure, without necessarily understanding every other link in the chain.
Peter Nowell

Peter Nowell described himself as a "lumper", admitting that most scientists are "splitters". A splitter quite reasonably attacks a complex problem by isolating one small piece of it at a time; that's really a pretty good way to address overwhelming complexity when you encounter it. But you can be sure that people of that mindset should not be found in a President's cabinet, deciding how to save the world from impending disaster. Whether by their own genetic predisposition or as a result of peer pressure in their profession, they are habitual splitters. And it suddenly occurred to me why Sam Johnson's one-liners always won the argument; he was a lumper. Usually right, sometimes wrong, never in doubt. Witty as a Frenchman, but as quick as a rattlesnake. Cordial, perhaps, unless you disagreed with him.

We need more lumpers. If they get that way from the likes of Chauncey Tinker, we need to print more copies of The Life of Johnson. If they are born that way, maybe we need a breeding farm for lumpers, which is what the Assembly Ball amounts to. But don't get me wrong, we need more splitters, too. They just have to learn their place at the table.

Pennsylvania Likes Private Property Private

William Penn Holding his Charter

William Penn was the largest private landowner in America, maybe the whole world. He owned all of Pennsylvania, with the states of Delaware and New Jersey sort of thrown in. Although he and his descendants tried actively to sell off his real estate from 1684 to 1783, they still held an unsold three fifths of it at the conclusion of the Revolutionary War, which they were forced to sell to the state for about fifteen cents per acre. This bit of history partly explains both the strong feeling this is private, not communal, land despite the existence of 2.3 million acres of state forest system, which is affirmed right alongside the rather inconsistent feeling that raw land is somehow inexhaustible. Early settlers regarded the center of the state as poor farm land, particularly when compared with soil found in Lancaster and Dauphin Counties, or anticipated by settlers going to Ohio and Southern Illinois. A complimentary description is that glaciers descended to about the middle of Pennsylvania, denuding the northern half of topsoil which was then dumped on the southern part as the glaciers receded. Even today, farmers tend to avoid the northern region if they can, reciting the ancient advice from their fathers that "Only a Mennonite can make a go of it, around there."

So, lumbering had a century-long flurry in Central Pennsylvania, exhausting the trees and moving on. But that only related to the top layer of soil; beneath it lay anthracite in the East, and bituminous coal in Western Pennsylvania, supporting the steel industries of the two ends of the state with exuberant railroad development. Even today worldwide, hauling coal is the chief money-maker for railroads. The resulting availability of rail transport promotes the location of heavy industry near coal regions; the 20th Century decline of coal demand ultimately hurried the decline of heavy industry in the state by impairing the railroads.

Beneath all this lie the aquifers, porous caverns of fresh water. And beneath that, largely unsuspected for two centuries, lie the sedementary deposits of a huge inland sea, compressed into petroleum which evaporates into natural gas. All of this is held by huge deposits of semi-porous shale rock, now mostly 8000 feet deep, stretching from Canada to Texas and called the Marcellus shale formation. If it can be economically recovered, there is more natural gas than in Arabia, and there is a similar formation along the near side of the Rocky Mountains in Colorado, stretching up to the Athabasca tar sands in Canada. There is another similar formation in France underneath Paris. No doubt, we will find the whole world has similar huge deposits for which the main problem has always been: how do you get it out?

There's another question, of course, of who owns it. Those who clearly do not own it maintain that everyone owns it. In the western world, most particularly in America, it is our firm belief that if you live on top of it, you own it. Since it is expensive to extract, quarrels like this are usually settled by purchasing mineral rights from the surface owner, who generally could not possibly extract it by himself. Those who assert they have a conflicting right to it because it belongs to everyone, can expect belligerent resistance. At the present time when America faces a critical fifteen year period of dwindling oil supply, ultimately relieved by perfecting alternative energy sources, there is too little time to achieve consensus for any other governance theory. The problem which could possibly gain enough traction to interfere, is the issue of potential damage to others which might result from the extraction of this subsurface treasure. Because of the apparent urgency of decision to extract or go elsewhere to extract, the best we can hope for is some fairly rough justice.

Original Intent and the Miranda Decision

{Ernesto Arturo Miranda}
Ernesto Arturo Miranda

At the lunch table of the Franklin Inn Club recently, the Monday Morning Quarterbacks listened to a debate about Guantanamo Bay, prisoner torture and police brutality; all of which centered on the Supreme Court decision known as Miranda v Arizona. Ernesto Arturo Miranda was convicted without being warned of his right to remain silent, sentenced to 20 to 30 years in prison in 1966. Eventually, the U.S. Supreme Court, with Chief Justice Earl Warren writing a 5-4 decision, overturned the conviction, because Miranda had not been officially warned of his right to remain silent. The case was retried and Miranda was convicted and imprisoned on the basis of other evidence that included no confession.

An important fact about this case was that Congress soon wrote legislation making the reading of "Miranda Rights" unnecessary, but the Supreme Court then declared in the Dickerson case that Congress had no right to overturn a Constitutional right. Some of the subsequent fury about the Miranda case concerned the legal box it came in, with empowering the Supreme Court to create a new right that is not found in the written Constitution. Worse still, declaring it was not even subject to any other challenge by the other branches of government. In the view of some, this was a judicial power grab in a class with Marbury v Madison.

Several lawyers were at the lunch table on Camac Street, seemingly in agreement that Miranda was a good thing because the core of it was not to forbid unwarned interrogation, but rather a desirable refinement of court procedure to prohibit the introduction of such evidence into a trial. The lawyers pointed out the majority of criminal cases simply skirt this sort of evidence, use other sorts of evidence, and the criminals are routinely sent or not sent to jail without much influence from the Miranda issue. Indeed, Miranda himself was subsequently imprisoned on the basis of evidence which excluded his confession. What's all the fuss about?

And then, the agitated non-lawyers at the lunch table proceeded to display how deeper issues have overtaken this little rule of procedure. This Miranda principle prevents police brutality. Answer: It does not; it only prevents the use of testimony obtained by brutality from being introduced at trial. Secondly, Miranda contains an exception for issues of immediate public safety. Answer: What difference does that make, as long as the authorities refrain from using the confession in court? The chances are good that a person visibly endangering public safety is going to be punished without a confession. Further, the detailed procedures within Miranda encourage fugitives to discard evidence before they are officially arrested in the prescribed way. Answer: If the police officer sees guns or illicit drugs being thrown on the ground, do you think he needs a confession? Well, what about Guantanamo Bay? Answer: What about it? We understand the prisoners are there mainly to obtain information about the conspiracy abroad and to keep them from rejoining it. The alternative would likely be their execution, either by our capturing troops, or by vengeful co-conspirators they had incriminated.

Somehow, this cross-fire seemed unsatisfying. The Miranda decision was made by a 5-4 majority, meaning a switch of a single vote would have reversed the outcome. The private discussions of the justices are secret, but it seems likely that some Justices were swayed by this edict viewed as a simple improvement in court procedure rather than a constitutional upheaval; Justices with that viewpoint feel they know the original intent and approve of it. Others are apprehensive the decision has already migrated from original intent, in an alarming way. Everyone who watches much crime television, and even many police officials feel that Miranda intends for all suspects to be tried on the basis of total isolation from interrogation from start to finish. More reasoned observers are alarmed that the process of discrediting all interrogation will lead to an ongoing disregard of the opinion of lawyers about court procedure, essentially the process of allowing public misunderstanding to overturn legal standards. Chief Justice William Renquist, no less, poured gasoline on this anxiety by declaring that Miranda has "become part of our culture".

What seems to be on display is the mechanism by which Constitutional interpretation drifts from original intent. Not so much a matter of "Judicial Activism" which is "legislating from the bench", it is becoming a matter of non-lawyers confusing and stirring up the crowds until the Justices simply give up the argument. Drift is one thing; virtual bonfires and virtual torch-light parades are quite another.

Political Parties, Absent and Unmentionable

{King George III}
King George III

BECAUSE America had recently revolted to rid itself of King George III, the Constitutional framers of 1787 sought to construct a government forever free from one-man rule. Inefficiency could be accepted but central dictatorial power, never. It is unrealistic however to expect a wind-up toy to keep working forever, and our Constitution creates the same worry. After two centuries, some chinks have appeared.

{Founding Fathers}
Founding Fathers

Political parties existed in 18th Century England and Europe, but the American founding fathers seem not to have worried about them much. Within ten years of Constitutional ratification, however, Thomas Jefferson had created a really partisan party which naturally provoked the creation of its partisan opposite. James Madison was slowly won over to the idea this was inevitable, but George Washington never budged. Although they were once firm friends, when Madison's partisan position became clear to him, Washington essentially never spoke to him again. Andrew Jackson, with the guidance of Martin van Buren carried the partisan idea much further toward its modern characteristics, but it was the two Roosevelts who most fully tested the U.S. Supreme Court's tolerance for concentrating new powers in the Presidency, and Obama who recognized that the quickest way to strengthen the Presidency was to weaken the Legislative branch.

Dramatic episodes of this history are not central to present concerns, which focuses more on the largely unnoticed accumulations of small changes which bring us to our present position. Wars and economic crises induced several presidents, nearly as many Republicans as Democrats, to encourage migrations of power advantage which never quite returned to baseline after each crisis. Primary among these migrations was the erosion of the original assumption of perfect equality among individual members of Congress. A new member of Congress today may tell his constituents he will represent them ably, but when he arrives for work he is figuratively given an office in the basement, and allowed to sit on empty packing cases. This is not accidental; the slights are intentional warnings from the true masters of power to bumptious new egotists, they will get nothing in their new environment unless they earn it. Not a bad idea? This schoolyard bullying is a very bad idea. If your elected representative is less powerful, you are less powerful.

{Houses of Congress}
Houses of Congress

Partisan politics begins with vote-swapping, evolves into a system of concentrating the votes of the members into the hands of party leaders, and ultimately creates the potential for declaring betrayal if the member votes his own mind in defiance of the leader. The rules of the "body" are adopted within moments of the first opening gavel, but they took centuries to evolve and will only significantly change direction on those few occasions when newcomers overpower the old timers, and only then if some rebel among the old timers takes the considerable trouble to help organize them. In the vast majority of cases, after adoption the opportunity to change the rules is then effectively lost for two years. Even the Senate, with six-year staggered terms, has argued that it is a "continuing body" and need not reconsider its rules except in the face of a serious uprising on some particular point. Both houses of Congress place great weight on seniority, for the very good purpose of training unfamiliar newcomers in obscure topics, and for the very bad purpose of concentrating power in "safe" districts where party leaders are able to exercise iron control of the nominating process. Those invisible bosses back home in the district, able to control nominations in safe districts, are the real powers in Congress. They indirectly control the offices and chairmanships which accumulate seniority in Congress; anyone who desires to control Congress must control the local political bosses, few of whom ever stand for election to any office if they can avoid it. In most states, the number of safe districts is a function of controlling the gerrymandering process, which takes place every ten years after a census. Therefore, in most states it is possible to predict the politics of the whole state for a decade, by merely knowing the outcome of the redistricting. The rules for selecting members of the redistricting committee in the state legislatures are quite arcane and almost unbelievably subtle. An inquiring newsman who tries to compile a fifty-state table of the redistricting rules would spend several months doing it, and miss the essential points in a significant number of cases. The newspapers who attempt to pry out the facts of gerrymandering are easily gulled into the misleading belief that a good district is one which is round and compact, leading to a front-page picture showing all districts to be the same physical size. In fact, a good district is one where both parties have a reasonable chance to win, depending for a change, on the quality of their nominee.

So that's how the "Will of Congress" is supposed to work; but the process recently has been far less commendable, and in fact calls into dispute the whole idea of balance of power between the three branches of government. We here concentrate on the Health Reform Bill ("Obamacare") and the Financial Reform Bill ("Dodd-Frank"), which send the same procedural message even though they differ widely in their central topic. At the moment, neither of these important pieces of legislation has been fully subject to judicial review, so the U.S. Supreme Court has not yet encumbered itself with stare decisis of its own creation.

{hree  branches of government}
Three branches of government

In both cases, bills of several thousand pages each were first written by persons who if not unknown, are largely unidentified. It is thus not yet possible to determine whether the authors were affiliated with the Executive Branch or the Legislative one; it is not even possible to be sure they were either elected or appointed to their positions. From all appearances, however, they met and organized their work fairly exclusively within the oversight of the Executive Branch. Some weighty members of the majority party in Congress must have had some involvement, but it seems a near certainty that no members of the minority party were included, and even comparatively few members of highly contested districts, the so-called "Blue Dogs" of the majority party. It seems safe to conjecture that a substantial number either represent special interest affiliates, or else party faithful from safe districts with seniority. The construction of the massive legislation was conducted in such secrecy that even the sympathetic members of the press were excluded, and it would not be surprising to learn that no person alive had read the whole bill carefully before it was "sent" to Congress. It's fair to surmise that no member of Congress except a few limited members of the power elite of the majority party were allowed to read more than scattered fragments of the pending legislation in time to make meaningful changes.

The next step was probably more carefully managed. No matter who wrote it or what it said, a majority of the relevant committees of both houses of Congress had to sign their names as responsible for approving it. Because of the relatively new phenomenon of live national televising of committee procedure, the nation was treated to the sight of congressmen of both parties howling that they were only given a single day to read several thousand pages of previously secret material -- before being forced to sign approval of it by application of unmentioned pressures enabled by the rules of "the body". When party members in contested districts protested that they would be dis-elected for doing so, it does not take much imagination to surmise that they were offered various appointive offices within the bureaucracy as a consolation. As it turned out, the legislation was only passed narrowly on a straight-party vote, so there can be a considerable possibility of its likely failure if the corruptions of politics had been set aside, with members voting on the merits. Nevertheless, since this degree of political hammering did result in a straight-party vote, it leaves the minority party free to overturn the legislation when it can. The prospect of preventing an overturn in succeeding congresses seems to be premised on "fixing" flaws in the legislation through the issuance of regulations before elections can open the way to overturn of the underlying authorization. Legislative overturn, however, is very likely to encounter filibuster in the Senate, which presently requires 40 votes. Even that conventional pathway is booby-trapped in the case of the Dodd-Frank Law. The Economist magazine of London assigned a reporter to read the entire act, and relates that almost every page of it mandates that the Executive Branch ("The Secretary shall") must take rather vague instructions to write regulations five or ten times as long as the Congressional authorization, giving the specifics of the law. The prospect looms of vast numbers of regulations with the force of law but written by the executive branch, emerging long after the Supreme Court considers the central points, years after the authorizing congressmen have had a chance to read it, and well after the public has rendered final judgement with a presidential election. The underlying principle of this legislation is the hope that it will later seem too disruptive to change a law, even though most of it was never considered by the public or its representatives.

{Bill become a Law}
Bill become a Law

The "regulatory process" takes place entirely within the Executive branch. Congress passes what it terms "enabling" legislation, containing language to the effect that the Cabinet Secretary shall investigate as needed, decide as needed, and implement as needed, such regulations as shall be needed to carry out the "Will" of Congress. Since the regulations for two-thousand page bills will almost certainly run to twenty thousand pages of regulations with the force of law, the enabling committee of Congress will be confronted with an impossible task of oversight, and thus will offer few objections. The Appropriations Committees of Congress, on the other hand, are charged with reviewing every government program every year, and have the power to throttle what they disapprove of, by the simple mechanism of cutting off the program's funds. Members of the coveted Appropriations Committees are appointed by seniority, come from safe districts, and are attracted to the work by the associated ability to bestow plums on their home districts. By the nature of their appointment process, unworried by the folks back home but entirely beholden to the party bosses, they have the latitude to throttle anything the leadership of their party wants to throttle badly enough. The outcome of such take-no-prisoners warfare is not likely to improve the welfare of the nation, and therefore it is rare that partisan politics are allowed to go so far.

The three branches of government have become unbalanced. These bills were almost entirely written outside of the Legislative branch, and the ensuing regulations will be written in the Executive branch. The founding fathers certainly never envisioned that sweeping modification will be made in the medical industry and the financial industry, against the wishes of these industries, and in any event without convincing proof that the public is in favor. This is what is fundamentally wrong about taking such important decisions out of the hands of Congress; it threatens to put the public at odds with its government.

{Justice George Sutherland}
Justice George Sutherland

There is no need to go further than this, harsher words will only inflame the reaction further than necessary to justify a pull-back. And yet, the Supreme Court would do us a mercy if it doused these flames; the Supreme Court needs a legal pretext. May we suggest that Justice George Sutherland, who sat on the court seventy years ago, may have sensed the direction of things, short of using a particular word. Justice Sutherland recognized that although it is impractical to waver from the principle that ignorance of the law is no excuse, it is entirely possible for a person of ordinary understanding to read a law in its entirety and still be confused as to its intent. He thus created a legal principle that a law may be void if it is too vague to be understood. In particular, a common criminal may be even less able to make a serious analysis. Therefore, at least in criminal cases, a law may well be void for vagueness. In this case, we are not speaking of criminals as defendants, or civil cases of alleged damage of one party by a defendant. Here, it is the law itself which gives offense by its vagueness, and Congress which created the vagueness is the defendant. Since we have just gone to considerable length to describe the manner in which Congress is possibly the main victim, this situation may be one of the few remaining ones where a Court of Equity is needed. That is, an obvious wrong needs to be corrected, but no statute seems to cover the matter. The Supreme Court might give some thought to convening itself as a special Court of Equity, on the special point of whether this legislation is void for vagueness.

We indicated earlier that one word was missing in this bill of particulars. That would be needed, to expand the charge to void for intentional vagueness, an assessment which is unflinchingly direct. It suggests that somewhere in at least this year's contentious processes, either the Executive Branch or the officers of the congressional majority party , or both, intended to achieve the latitude of imprecision, that is, to do as it pleased. Anyone who supposes the general run of congressmen voluntarily surrendered such latitude in the Health and Finance legislation, has not been watching much television. Given the present vast quantity of annually proposed legislation, roughly 25,000 bills each session, the passage of a small amount of vague legislation might only justify voiding individual laws, whereas an undue amount of it might additionally justify a reprimand. However, engineering laws which are deliberately vague, might rise to the level of impeachment.

Unconstitutionality of Otherwise Desirable Laws

Note: James Madison, the central figure in the design and meaning of the Constitution, the only person allowed to keep a journal of the deliberations, and the main author of the Federalist Papers which explain and defend the final product, was eventually elected President of the United States. As such, he was acutely aware of the intention of the Constitution's limitation of federal powers, which particularly extended to prohibiting the Federal Government from doing otherwise desirable things. On November 3, 2010 the Wall Street Journal republished part of Madison's veto message of March 17, 1817, in which he reminds the Congress and the nation that it was unconstitutional for the Congress to do prohibited things, thereby assuming unenumerated powers.

President James Madison

"The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in Government of the United States."

"The power to regulate commerce among the several States" cannot include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce, without a latitude of construction departing from the ordinary import of terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress."

To refer the power in question to be "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation...It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by law of Congress... Such a view of the Constitution, finally, would have the effect of excluding the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments..."

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the power of Congress as proposed in the bill, I have no option but to withhold my signature from it.."

Postscript: This veto was the last act of Madison's term in office, and probably does not adequately describe the problem or even Madison's view of it. The Louisiana Purchase had dramatized some awkward features of strict construction of the Constitution in areas never before considered or discussed. Albert Gallatin had earlier arranged the work-around of treating the limitation as applying only to the financing of interstate transportation arrangements, and was starting the process of what we now call the "Living Constitution" by progressive circumvention. While following Madison's reasoning, he made the unfortunate choice of circumvention in preference to confronting issues directly through the Amendment process. The Tea Party movement of 2010 could be evidence that this choice is regarded by many as unfortunate. The Constitution has probably not adequately appraised the tendency of legislation to achieve final passage quite near the congested end of an electoral term, leaving little time to respond to Congressional action with the intentionally cumbersome Constitutional Amendment process. If there is a turn-over of party control at that time (which is usually the holiday season), a successful outcome appears still more unlikely in the time available. Fixing such an inadvertent technical problem would not appear to be difficult, and a Blue Ribbon study committee is suggested.

Litchfield to Wilkes Barre, Today

To go from Connecticut to Pennsylvania without going through New York City seems at first a puzzling proposal. After all, New York is in the way. But a couple of centuries ago the Connecticut Yankees really did make it through the mountains, fought three little wars, and briefly made Wilkes Barre into part of Litchfield County. Because there has been comparatively little settlement along the trail, taking the trip today is the same mostly mountainous, journey. There are no Indians, but the mountains and rivers are the same. You still have to cross the Hudson, Delaware and Susquehanna Rivers but it's a beautiful trip at any time, but particularly so during the autumn leaf season. Litchfield to Wilkes Barre: Millions of people live within a day's drive, but it's a good idea to pack a box lunch and fill your tank before leaving.

Locating Corporate Headquarters

Troy Adams

The Right Angle Club was recently entertained by a director of the Greater Philadelphia movement, Troy Adams. One of their main purposes of spending several millions of dollars annually is to try to attract new businesses to Philadelphia. The money, interestingly enough, is contributed by other businesses, many of whom would be competitors of the newly attracted ones. What's the value of this? How do you go about doing it, even if it is a splendid idea?

From the viewpoint of the city government, attracting new businesses means attracting new sources of taxation. It is not surprising therefore that the Chamber of Commerce tends to believe the main obstacle to attracting new business relocations is the tax structure of the locality. That's what the officers of companies under investigation ask about. By and large, the unattractiveness of Philadelphia to such inquiry is not the size of taxes, but their complexity. New businesses are turned off by learning of new types of taxes they had never heard of. It raises suspicion, and existing local businesses are quick to confirm that some of these strange-sounding taxes are objectionable mainly because you forget about them, and then get fined for not submitting a form to pay a small amount. If you get summoned to a hearing, it is even worse than paying the bloody thing. We have, say a lot of companies, branches in dozens of different cities, and we never heard of a tax like that. Of course, a famous sage once remarked that when someone complains it isn't the cost, it's the principle of the thing, well, it's the cost.

{Chamber of Commerce}
Chamber of Commerce

Regulations, requirements, prohibitions, deadlines, reporting requirements and all of that drive you crazy when you are trying to run a business. The cost of the taxes to a businessman is a simple question: do my competitors have to pay the same amount? If it's a level playing field, businesses ordinarily don't care about the money, since they can just raise the prices to the customer to cover it. Businesses, dear friends, don't look at costs the way the rest of us do. For that reason extended a little, businesses are strongly repelled by the existence of corruption, because corruption may or may not be applied equally, on a level playing field.

All of this sounded quite plausible to the Right Anglers, until Buck Scott spoke up. " I beg to disagree, " he said. He remarked that in his experience the decision to move corporate headquarters to a city is determined by one person, or at most four. Whether the decision-maker is the CEO, a big stockholder, or a flunky assigned the task, the decision is usually not made on sensible economic grounds. It is based on the fact that the wife of the decision-maker grew up in Radnor or Chestnut Hill, and likes it here. If you are looking for access to oceon ports, railheads, Interstate Highways, airports, or proximity to big-city labor pools, Philadelphia has everybody beat. That sort of stuff is a given, and so what matters is that the decision maker wants to live here. To a certain extent, our proximity to New York and the District of Columbia is a handicap, since the lady of the family can live here while the corporate headquarters is not too far away, although too far away to be taxed. Buck Scott brought the discussion to a halt, because it was obvious to everyone that he had a strong point.

{Philadelphia Ports}
Philadelphia Ports

On another level, however, there is still debate. The question is whether Philadelphia gains a great deal by having the corporate headquarters located here. The CEO may have invisible value by his socializing frequently with the CEOs of other corporations, but no one was able to defend that as having serious advantages. Since the competitive corporations are paying for this effort to attract new corporate headquarters to the region, there may well be advantages to them which are not immediately evident. What's clearly of value is locating large numbers of employees to the region, since they do generate business activity and hence taxes. Upscale companies have employees who are anxious to find good local schools, crime-free areas in which to live, and an improved environment; getting more of them into our voting pool will result in a better city, without question. Maybe, just maybe, locating the corporate headquarters in the region is a first step in enticing the rest of the company to come here. But it has not yet been demonstrated. Quite possibly, enticing the wives of decision makers to join the social whirl is the first step, and locating the factory here is only a secondary one which follows. Somehow, it begins to seem likely that the people who can influence one step, aren't talking to the people who determine the other.

Jonathan Edwards

Although some churches and mummies are well preserved after thousands of years, and no doubt a few corporations do last a century, the fact is most of them don't last very long. Most new corporations go bankrupt within ten years, and only one (General Electric) of the original thirty members of the Dow-Jones Industrial Average existed in 1900. Members of the Dow may seem the biggest and best, but in fact live on a slippery slope. Not-for-profits, like churches, may do somewhat better, although the handful who approach perpetual status may be rare exceptions. One big reason not to leave a major bequest to any of them, may well be that most will not survive. While we are on this subject, the same reasoning applies to the stock in for-profit corporations. Since few of them thrive for more than seventy-five years, the idea of buying their stock, holding it forgotten in a safety-deposit box, and passing it on intact to heirs, is probably doomed to investment failure. The oldest stockholder company in America is called the Proprietors of West Jersey, founded in 1676 but still meeting once or twice a year. It would be moderately interesting to know how well this investment performed over the years, but Google sounds like a better bet offhand. Just don't hold it too long.

{Cotton Mather}
Cotton Mather

There may be a connection between success as a non-profit and success in the merciless marketplace. Those who have compiled statistics will tell you that steadily withdrawing more than 4% a year from an endowment portfolio, sooner or later leads to a day when there is nothing left. Most trustees expect better results than that, and most managers of non-profits will need more than that, no matter how big the pile was when they started. Sooner or later, markets will decline, mistakes will be made, and the endowment will be exhausted by "emergency" withdrawals which relentlessly withdraw more than 4%. This pitiful decline might be avoided by gathering the managers of influential non-profits together, giving them a stern lecture, and somehow forcing them to live within their means, but offhand nothing sounds more futile. Jonathan Edwards and Cotton Mather were said to be good at haranguing. But since it must be obvious that non-profits usually survive by constantly soliciting fresh endowment funds, what would be the matter with taking a direct approach to that goal. Why not just state in advance that the institution is only intended to do its good work for say fifty years, and then it must turn its residuals over to somebody else? Not many endowments have been limited to a lifetime of fifty years, but in those who have done so, the experience seems to be that most of them immediately set about to raise additional funds to keep the institution from disappearing. The American Enterprise Institute in Washington, for example, started out dispensing about a million dollars a year; last year it dispensed over $30 million. Whether he intended it or not, the message Mr. Olin transmitted was not that think tanks are only good for thirty years. He told his executors in effect, "You have some seed capital with which to start a think tank. Whether it lasts longer than fifty years, is now up to you."

Who Paid for the Revolutionary War?

Poker Game

There's a saying in poker circles: never play against someone with lots more money than you have. The American Revolutionary War can be thought of as just that sort of poker game. The British could afford to lose what they lost, while somewhat smaller debts were quite enough to overwhelm the French. The cost of any war is a guess, because it cannot account for death and destruction it provokes. But after a few years, it could be observed the British were holding the British Empire, while the French were left with the desolation of their own revolution. The Americans held most of a continent, free and clear, in return for their sacrifices, although their physical sacrifice was the greatest of the three main war participants.

{Pierre Augustin Caron de Beaumarchais,}
Pierre Augustin Caron de Beaumarchais,

Leaving the British aside, much of the money paid for the war passed through the hands of Robert Morris and Pierre Beaumarchais, so in one sense they paid for at least the munitions part of the war. At the time, Beaumarchais was penniless from a lawsuit, so he was a judgment proof manager of a dummy corporation, Roderiguez Hortales et Cie. The real payors were the French Government of 1 million livres, the Spanish Government of 1 million, and 1 million from several adventurous individuals. On the American side, Robert Morris was often personally responsible for defaults, as a result of the Continental currency made worthless from printing-press inflation. In a dramatic moment, Morris stepped forward and announced he and a few friends would stand behind the debts. Not only was Morris a wealthy man, but he was largely running the United States government. Among other considerations, he had a fairly good chance of inducing the government to raise taxes to pay its own debts before he would have to assume them. Many people doubted that ability, however. Even Morris' wealth would have been insufficient to carry the whole burden, so the guarantee he made must be seen as a form of default insurance or credit default swap, containing a high degree of risk. Regardless of details, if Great Britain won the war, both Morris and Beaumarchais would have been impoverished, and probably imprisoned. The main difference was that Beaumarchais was already broke.

Morris never forgot the message, that the real security backing the loans was the wealth of the North American continent. That's what America gained by winning, and that's what it would have lost if England won. If you win a war, buy real estate.

Private Sector Disciplines Congress

{Adam Smith}
Adam Smith

Two centuries after our present narrative, when President William Clinton once proposed a financial adventure, Robert Rubin replied, "The bond market won't let you do it." In this way, the former Wall Street investment banker educated his politician boss that the most powerful wealth of any nation is hidden, locked up in homes, businesses, infrastructure, population education and other long-term assets. Such wealth normally transforms into cash only when the Treasury borrows it (usually by selling government bonds) because by Constitutional intention the alternative of raising taxes is essentially confiscatory. By contrast, the use of bonds requires only an agreement on price. Bond use is thereby related to supply and demand, with the government generally selling bonds and the public generally buying them. The government sells as many bonds as it pleases, but the price received will immediately sink if too many bonds are for sale. Viewed another way, bond prices announce the market's daily assessment of probable government solvency, because the isolated bond market is solely interested in the probability of being repaid.

{top quote}
In modern wars, the longest purse must generally determine the event. {bottom quote}
George Washington, May, 1780

In 1779 there was no bond market, so Robert Morris set about creating one. Acting then as only a private citizen, but faced with his government being run into the ground, Robert Morris proposed the creation of a "bank", the Bank of Pennsylvania, created, owned and managed by private citizens. The first bank in the nation didn't take retail deposits and was unlike banks we have today in other ways. Modelled more like a bond fund of the Twenty-first century, the Bank of Pennsylvania got its funds through fairly large subscriptions from wealthy people. Robert Morris himself was probably the heaviest subscriber. A bond market was thus created, with subscriptions flooding in when the public was pleased with its government, and flooding out when the public didn't like the looks of things. Naturally there was a profit: the bonds the bank sold to subscribers were priced higher than the bonds the bank bought from the government. In this way, the public was assured the process of setting prices remained in neutral hands. The government could print bonds freely, but the Bank of Pennsylvania couldn't buy them unless somebody gave it some money, and that wouldn't happen unless prices rose to the "market clearing level," of agreement between potential buyers and sellers. The nature of the deal didn't change much when later banks got their funds from deposits, and one later enduring feature also didn't change: Governments hate banks, because banks are in a position to frustrate governments intent on spending what they please.

{Jacques Necker}
Jacques Necker

Quite soon, the public could be visualized as composed of debtors and creditors; the two main political parties have mostly had a matching composition. Progressive politicians, like Albert Gallatin, Thomas Jefferson, Andrew Jackson, Robert LaFollett, William Jennings Bryan, Woodrow Wilson and Barack Obama have demonized banks, often threatening to nationalize or eliminate what is basically a neutral book keeping function. Adam Smith had written The Wealth of Nations three years earlier; Morris gave copies to friends and had obviously read the book, as had Alexander Hamilton. Morris also entered into excited correspondence with Jacques Necker, the Swiss/ French banking genius, but Necker soon died, leaving it uncertain how much influence he had on America. This group of people gave us a system in which the public markets set the price of currency, not the other way around. In the 1779 case, galloping inflation quickly came under control and goods soon reappeared in the markets, although the continuing war exerted relentless pressure until 1783 for the government to do more borrowing.

{Bank of Pennsylvania}
Bank of Pennsylvania

In another irony, during the year he was totally out of office (conservatives were restored to power in the October 1780 election), Morris enjoyed his greatest personal prosperity and exerted almost total personal control of the currency; it was fruitless to accuse him of using government office for private gain when he held no office. During this brief interval Morris also created the first American corporate conglomerate, the series of partnerships called Peter Whitesides and Company. At least as profitable were his personal relationships with the French Ambassador Luzerne and the emissary from Havana, Juan de Miralles, who introduced him to large pools of investment capital from abroad. His American businesses became almost too numerous to count, again highlighting his prodigious ability to work. Meanwhile, his social life was as active as anyone's, extending his hospitality and affability world-wide, and anticipating a return to public life. All of this took about a year.

During this period, his sole civic activity was the Bank of Pennsylvania. As a bank it had a relatively short life. As a subtlety of government, it would be hard to find its equal in any other empowerment of the people. Many centuries of history had formerly taught the lesson that public office was the way to get seriously rich. Morris flaunted a brand new American banner: public corruption was a waste of time, like any other zero-sum game.

Morris at the Constitutional Convention

{Constitutional Convention 1787}
Constitutional Convention 1787

TRUE, George Washington was the presiding officer of the Constitutional Convention. But Pennsylvania was the host delegation, so the role of presiding host should have fallen to Benjamin Franklin, the President of Pennsylvania. However, Franklin was getting elderly and turned the job over to Robert Morris, who among other things was rich enough to host some necessary parties. The rules of decorum at that time thus kept Washington and Morris out of the floor debates. The proceedings were in any event kept secret, so occasional frowns or encouraging smiles are not recorded for history.

But Morris had been an active debater in the Assembly and other meetings, so he knew enough to line up a consensus in advance for the matters he thought were essential. Obviously, Morris was strongly in favor of giving the national government power to levy taxes for defense purposes, and Washington whose troops had suffered severely from the inability of the Continental Congress to pay them, also regarded this taxing power as the central reason for changing the rules. By making it the central argument for holding the convention at all, Washington, Franklin and Morris had made taxation power a foregone conclusion. And by giving them what they wanted from the outset, the rest of the convention was in a position to do almost anything else it wanted without open comment from the Titans. The sense of this trade-off was captured by Gouverneur Morris, the editor of the Constitution, in Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
This formulation had the effect of greatly empowering James Madison, the only participant who had studied the inside details intensively, and cared about every comma. It also encourages the military to believe that federal taxation was mainly their entitlement, whereas those whose main goals are defined as "the general Welfare" tend to regard defense spending as an unnecessary deduction from their share.

{Constitutional Convention 1787}
Pawn Broker Sign

Most of the convention delegates had experience with state legislatures, and Franklin and Morris had spent decades struggling with the weaknesses of legislators. A wink or a quip in a tavern was as good as an hour's speech for reminding the delegates what they already knew about human nature. What was designed was a dual system of powers of taxation, with federal oversight of balanced state budgets combined with a federal power to tax on its own in emergencies or unforeseen situations. Since the members of the first few congresses after 1789 were largely the same people as the members of the constitutional convention, many details of this balance were worked out over a few following years. State powers to tax and borrow were tightly constrained, only the federal government could tax and borrow without limit. Since government borrowing is merely the power to defer taxes until later, the borrower of last resort was the U.S. Congress, alone empowered to encumber the wealth of the whole nation in a federal pawn shop window called the funded National Debt. For almost two centuries, this pawn shop window seemed able to support any imaginable expense. Today, we monitor this as the ratio of national debt to Gross Domestic Product (GDP), and we now have a clearer idea what level of that ratio flirts with hopeless inability to pay the federal government's debt. The experts say it's close to a 60% ratio, and unfortunately almost every nation on earth now exceeds that limit. The system continues to lack an unchallenged definition of its limit, but the system is nevertheless still Morris's system, wrapped in a mountain of descriptive detail by Alexander Hamilton. If a nation borrows more than that and clearly will never repay it, that nation is to some degree a slave to its creditors, with war its only hope if creditors are unrelenting. Perhaps another way to refine the thought is to say that if the nation wishes to mortgage everything it owns down to the last shoe button, the creditors will only accept additional debt if it is proposed by someone with the power to pawn the last shoe button. To foreigners, the proof of who has what power is much more certain if written down. Morris's protege Alexander Hamilton went ever further: "credit" is established when creditors can see that somebody is in the habit of getting the nation's bills paid, and "credit" is injured whenever anyone in charge, welches.

Union, Now and Forever

BIG nations gobble up small ones, so small ones band together. As George Washington observed, when you are strong the others leave you alone. But other forces sometimes make smallness seem more attractive, especially if the nation is already uniform in religion, language and culture. Nations search for an ideal size for both War and Peace, and discover they praise two incompatible sizes. Both the American Revolution of 1776 and today's struggles of the European Union fit a common formula: banding together for military security, then pulling back from declining Liberty. American experience of a Civil War after eighty years under the Constitution suggests the margin for error is narrow. And enduring; even in the Twenty-first century it is striking that both little Scotland and that little bit of little Belgium that is Flemish seem willing to sacrifice major economic benefits for what seems to outsiders a minor step for Liberty. But the whole point of the Constitutional Convention then seems to emerge: Nine years previously, thirteen separate sovereignties had been more or less hustled into a military alliance by the appearance of a hostile British fleet. That war was now over, the thirteen had grown accustomed to living together, but the Articles of Confederation had not foreseen a large nation clearly enough in 1776. The Articles did not even provide for an executive branch. In the chaotic conditions of 1787, a calmer choice could be made between breaking apart and unifying, for a different set of reasons based on Peace and Prosperity rather than war: Either surrender some aspects of state power to a real union, or let each contentious state confront its future, unsupported. In many ways it was the vision of Liberty which changed between times of peace and times of war. In 1860 the stakes were higher than in 1787 but the issues were mixed. Industrializing states in the northern part viewed the Union as an economic opportunity. Purely agricultural southern American states were not so sure; in the end, preferring the older set of rules, they took their leap. To the amazement of Southern leaders the North was ready to die to preserve that Union, and so the demands of warfare reasserted themselves.

{Europe Colonies}

Geography doubtless imposes variable limits for both war and peaceful prosperity, anywhere. Some nations have therefore banded together for military reasons then split apart in local quarrels, more or less regularly. Thirteen American colonies had been afraid to confront Britannia alone, but somewhat overconfidently took on that challenge as a confederation. At the other extreme, little Rhode Island even refused to send delegates to the Constitutional Convention, fearing big neighbors more than remote British rule. Fortunately, similar possessiveness about local perks was unable to collect enough political power to dominate other states. After a year by the time of the state ratifying conventions, however, it was a closer call. Peace and prosperity: getting bigger discourages predators, but getting smaller offers sole possession of what you have. Since the United States grew in jumps through most of its history, it probably learned intangible things from alternating episodes of being too big and then too small. Frederick Jackson Turner's thesis of the advancing frontier as shaper of culture is not greatly different in the essence of its argument.
13 Colonies

When ideas of Union first gained traction, both the thirteen American colonies in the Eighteenth century and the twenty-five nations of the Euro zone in the Twenty First, were dominated by the memory of war. The American objective was the simple one of military parity with a common enemy. The nations of the European Union had a longer view; a seemingly endless cycle of bloody wars sustained their conviction that other wars would inevitably follow unless they did something innovative. National unification on the American model sounded ideal but difficult. Perhaps the habits of cooperation and trade would lead to it. The unexpected decline of the Soviet empire further reduced the fear of war. Pride may also have led to over-reaching; twenty-five is comfortably larger than thirteen, which up to that time was the largest nation merger to survive. But twenty-five is smaller and thus more manageable than the present American fifty. To begin the process with monetary union might produce quick benefits from a source too mysterious to produce much public resistance. Nobody could think of a war started by a monetary dispute.

{Justice Blackmun}
Justice Blackmun

Of course the Europeans expected difficulties from speaking many languages, but they probably still underestimate how far the legal profession has already gone in confining nuanced words to a single meaning; it is essential to their trade. When many languages split off from a common stem, many unaccepted interpretations re-emerge when they are later re-combined. Even without the nuance problem, translation into many languages is a serious expense, which is at least as burdensome as currency exchanges were among multiple sovereignties. By contrast two centuries earlier, the American revolutionaries shared a single language, but soon found espionage was an unusually serious problem. Even their enemy spoke English, so sometimes improved clarity itself creates unexpected problems. Indeed, in American disputes about Original Intent we repeatedly encounter the tenacity of people believing a document says what they want it to say. Vigorous legal advocates think they are paid to marshall every argument weak or strong. Staying within the English language, the evolution of U.S. Supreme Court interpretations often turns on subtle differences in meaning of simple words. Penumbras and emanations from the word "Privacy" in Roe v. Wade soon force our judges to decide whether abortion within a right of privacy is simply too far from common understanding of English, in a double way. Both in the discovery of a right to privacy within a document which does not use the word, and then in the inclusion of abortion within that, Justice Blackmun clearly overestimated the capacity of excited citizens to be flexible. Much more surely, he would have overestimated public willingness to grasp his meaning in two-step translations of a foreign language. Since this famous decision is destined to stand or fall, depending on public tolerance for such wordplay, having almost every citizen confidently understanding English is at least one advantage. Parenthetically, we will need every advantage possible. The really serious box which Justice Blackmun put us in, was to invent a Constitutional mandate which thus can only be compromised in a Constitutional amendment. In almost every other conflict, the system of checks and balances permits either the Congress or the state legislatures to soften the conflict with conciliatory modification. Constitutional amendment is already difficult to achieve; inflaming the religious passions of the forty-odd bodies who must agree to amendment makes amendment nearly impossible.

{Burned at the stake}

By contrast with important language confusions, "hatreds between nations" are often mentioned as an obstacle to unification but the claim seems largely bogus. Argot and slang are commonly invented to conceal the opinions of a minority group. Over thousands of years, this purpose of "jiving" a secret code among conspirators has been perfected exquisitely. It's hard to overcome, easy to teach children. But the memory of actual wars really dies out rather quickly, not least because atrocities are so hideous, mankind wants to forget them. I was seventy years old before someone told me I had ancestors burned at the stake. By whom? By someone who has also been dead for four hundred years, not likely to seem threatening to me. Over the fifty years since the Second World War, I have run into former German and Japanese soldiers; they now seem pretty benign. One American former prisoner of war was forced to stand at attention while his Japanese captor pulled out his gold teeth with pliers; he told this story with a faint smile. It is one of the benevolences of biology that we are born without memories, and a second is the biological impossibility of remembering the feeling of pain without first re-dramatizing the experience for future reference. Once actual onlookers stop grinding the grievance axe, it should be possible to get on with devising a European constitution, provided it contains a meaningful equivalent of our First Amendment.

{Helen of Troy}
Helen of Troy

It's an important point for a proposal unifying two dozen different priesthoods and a number of nations wholly defined by a single religion. A workable constitution for them must contain a strict separation of church and state, because ballads, epic poems, and traditions are synthetic, quite different from actual experiences. Helen of Troy may or may not have had a face that launched a thousand ships, but Homer's Iliad certainly glorified more hatred than she did; who can say whether the poem portrays the truth? That's the war side of things; the Odyssey is powerful in evoking the special virtues leading to prosperous nationhood. Because you can't argue or reason with epic myth, it is the many exaggerated glorifications and exaggerated condemnations by them which supply endurance to patriotic myths, easily reducing macroeconomists of the European Central Bank to tears of frustration. Because the best of these epics stand alone as powerful literature, their propaganda strength is all the more difficult to deconstruct with mere logic. Quoting Arnold Toynbee, it is not weaknesses, but overextension of their finest qualities, which usually brings nations down.

{Euro zone symbolic}
Euro Zone

While true grievances seldom pose obstacles of their own, they do often misdirect political leadership from what is best for their countries. European Unification had a primary goal of eliminating future wars, but its leaders decided the peace goal was achievable only by indirection, and began first with monetary tools for prosperity. That takes a long time; America was still fumbling monetarily until the end of the Civil War. So while starting with small victories seems a plausible route to big victories, in fact it drains much of the idealism out of revolutions by avoiding the cataclysmic issues which justify great sacrifices. Even worse, it here made the financial disaster of the Euro symbolic of tawdry hazards on the road to Prosperity, raising issues of corruption and self advancement, rather than idealistic sacrifice. At least when you struggle for national security, every day you survive is another victory. There is of course no room in past struggles for Americans to gloat over their superior approach to permanent Union. But a defeat is a defeat, and the Euro mess could become a big defeat.

{Ron Paul}
Congressman Ron Paul

From a commentator's perspective, currency matters are difficult to understand and explain. For contrast, the Battle of Normandy is thrilling and awe-inspiring; every death is the death of a hero. But rises in productivity and the risk implications of volatility, seem hopelessly confusing to an economics beginner. Worse still, there exists real uncertainty among experts. We now have currency which has no backing in precious metals, and is really just a book entry. That's useful for transactions, less certainly useful for a storehouse of value. Mr. Ron Paul ran for President of the United States challenging the whole Federal Reserve concept, and a possibility must be admitted that his speeches have a grain of truth. We trust our bankers to devise a workable system of exchange without gold and silver, and readily admit that Mr. Bernanke knows more about it than we do. But. But the world economy nearly collapsed utterly a few years ago, and you know, Dr. Ron Paul might just have a valid point or two. Europe has not yet emerged into a fit environment for enjoying a monetary Crusade to a World Without War. For striking contrast, just go to any Civil War movie. And watch those teen aged soldier boys charge up the hill, ready to die for the Union.


A Study of History Arnold J. Toynbee ISBN-13: 978-0195050806 Amazon

Penman of the Constitution

{Gouverneur Morris}
Gouverneur Morris

THE Constitution is the product of many minds, its ideas have many sources. But final phrasing of the unified document can largely be traced to a lawyer, Gouverneur Morris. The Constitutional Convention would announce a topic, argue for days about different resolutions of it, and then vote on or amend a composite resolution ( unless the matter was deferred to another day of earnest wrangling.) After months of deliberation, that jumble of resolutions made quite a pile. The Convention then turned it all over to Gouverneur Morris for smooth editing and uniformity. Although Morris had arrived a month late for the Convention, he still had time to rise and speak his views more than any other delegate, 173 times. But comparatively few of his ideas identifiably survived the voting; by Convention's end the delegates were most likely listening for elegance and poise, increasingly expecting the final edit to be his. He finished the task in four days, and the full convention only changed a few words before accepting it. This assembly needed a lawyer who would sincerely follow the intent of his client, rather than yield to the slightest temptation to warp it with his own views. The convention had heard his opinion about almost everything, were thus alerted to uninvited slants. He gave them what they asked for, wording it for persuading the nation, as he himself had been persuaded by what the delegates wanted. The remarkable degree to which he had faithfully served his client's wishes, rather than his own, only emerged twenty years later. During the War of 1812, he disavowed the Constitution he had written.

{top quote}
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. {bottom quote}
Preamble to the Constitution

Morris mostly shortened what the delegates had said. A word here, a phrase there, sometimes whole sentences were removed. After that, rearrangement, and substitution of more precise verbs. This lion of the drawing room, this duelist of the salon, undoubtedly had an enjoyable time twitting his less accomplished clients with brisk capsules of what, of course, they had meant to say. To remember that he was outshining Benjamin Franklin and most of the other recognized wits of the continent, is to savor the fun of it all. Of all people in the Enlightenment, Franklin was certainly Gouverneur's equal in sparkling exchanges of debate. Here, he did not even try.

{John Peter Zenger}
John Peter Zenger

Where did this apparition come from? He was almost but not quite a lord of the manor, referring to his extensive riverfront estate in the Bronx called Morrisania, which dated back seven generations in America and ultimately belonged to him, but the title went to his half-brother. He was unquestionably a member of that small society which settled America before the English colonization. Even George Washington was only a fourth-generation American. The Morris side of the family had included two Royal Governors of New York, including the one who tried to imprison Peter Zenger for telling the truth. Gouverneur was his mother's family name, one of the Huguenots who settled New Rochelle in 1663. Under the circumstances, it is not surprising that his mother was a loyalist, and his half-brother a lieutenant General in the British Army. Gouverneur Morris was a brilliant student of law, unusually tall and handsome for the era. He was as tall as George Washington, and Houdon used him as a body model for a statue of the General. Among the ladies, he created a sensation wherever he went. At an early age, however, he spilled a kettle of hot water on his right arm, which killed the nerve and mummified the flesh. The pain must have been severe, with not even an aspirin to help, and the physical deformity put an end to a big man's dreams of military valor. To a young mind, the physical deformity probably seemed more disfiguring than it needed to be, in addition to diminishing his own ideas of himself. He turned to the law, where he was probably a fiercer litigant than he needed to be. And more of a rebel.

The timing of circumstances drove him out of Morrisania, then out of Manhattan, as the invading British cleared the way for occupation of New York City. Then up the Hudson River to Kingston, and on to the scene of the Battle of Saratoga. He had been elected to the Continental Congress but stayed in the battlegrounds of New York during the early part of the Revolution, helping to run the rebel government there, and making acquaintance with George Washington, whom he soon began to worship as the ideal aristocrat in a war he could not actively join as a combatant himself. With Saratoga completely changing the military outlook for the rebellion, Morris was charged up, ready to assume his duties as a member of the Continental Congress. By that time, Congress had retreated to York, Pennsylvania, George Washington was in Valley Forge, and the hope was to regroup and drive the British from Philadelphia. For all intents and purposes Robert Morris the Philadelphia merchant, no relative of Gouverneur, was running the rebel government from his country home in Manheim, a suburb of Lancaster. After presenting himself to Robert, Gouverneur was given the assignment of visiting the camps at Valley Forge and reporting what to do about the deplorable condition of the Army and its encampment. By that time, both the British and the French had about decided that the war was going to be decided in Europe on European battlefields, so the armies and armadas in America were probably in the wrong place for decisive action. Lord North had reason to be disappointed in Burgoyne's performance at Saratoga, and Howe's abandonment of orders, even though by a close call he had captured the American Capital of Philadelphia. Consequently, Lord North added the appearance of still another defeat by withdrawing from Philadelphia, deciding in the process to dispatch the Earl of Carlisle to offer generous peace terms to the colonies. Carlisle showed up in Philadelphia and was more or less lost to sight among rich borderline loyalists of Society Hill like the Powels. His offer to allow the Americans to have their own parliament within a commonwealth nominally headed by the Monarch, went nowhere. The Colonist Revolutionaries were being offered what they had asked for, in the form of taxation with representation. To have it more or less snubbed by the colonists was certainly a public relations defeat to be added to losing Philadelphia and Saratoga. In this confused and misleading set of circumstances, Gouverneur sent several official rejections of the diplomatic overture, and wrote a series of contemptuous newspaper articles denouncing the idea. It seems inconceivable that Gouverneur would take this on without the approval of Washington, Robert Morris, or the Continental Congress, to all of whom he had ready access. But if anyone could do such a thing on his own responsibility, it was Morris. One hopes that future historians will apply serious effort to clarifying these otherwise unexplainable actions.
Roger Sherman of Connecticut

With of course the indispensable help of retrospect, some would say Gouverneur Morris had committed a massive blunder. The Revolutionary War went on for six more years, the Southern half of the colonies were devastated, and the post-war chaos came very near destroying the starving little rebellion. The alternative of accepting the peace offer might have allowed America and Canada to become the world powers they did become; but the French Revolution or at least the Napoleonic Wars might never have happened, the World Wars of the Twentieth century might have turned out entirely differently, and on and on. Historians consider hypothetical versions of history to be unseemly daydreams ("counterfactuals"), but it seems safe to suppose Gouverneur Morris changed history appreciably in 1778. Whether he did so as someone's agent, or on his own, possibly remains to be discovered in the trunks of letters of the time. Whether the deceptive atmosphere of impending Colonial victory was strong enough to justify such wrongheaded decisions, is the sort of thing which is forever debatable.

While most of the credit for the style of the Constitution must go to Gouverneur Morris, there is a record of a significant argument which Madison resisted and lost, about the document style. During the debates about the Bill of Rights, Roger Sherman of Connecticut rose to object to Madison's intention to revise the Constitution to reflect the sense of the amendments, deleting the language of the original, and inserting what purports to be the sense of the amended version. That is definitely the common practice today for organization by-laws and revisions of statutes; it is less certain whether it was common practice at the end of the 18th Century. In any event, Sherman was violently opposed to doing it that way with amendments to the Constitution. After putting up a fight, Madison eventually gave up the argument. So the 1789 document continues to exist in its original form, and the fineness of Morris' elegant language is permanently on display. It may even help the Supreme Court in its sometimes convoluted interpreting the original intent of the framers. In any event, we now substitute the unspoken process of amending the Constitution by Supreme Court decision, about a hundred times every year. By preserving the original language, the citizens have preserved their own ability to have an opinion about how it may have wandered.


Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution : Richard Brookhiser: ISBN-13: 978-0743256025 Amazon

Publius (James Madison) Explains the Proposed Constitution

Publius (James Madison)

NEW York's ratification of the Constitution could expect a close vote, so Alexander Hamilton organized the publication of The Federalist Papers to drum up support. He recruited two allies, James Madison and John Jay, to assist under the pen name of "Publius" . Federalist # 10 was written by James Madison, and is often spoken of as containing the central organizing theme, which is that larger nations are harder to dominate by political parties ("factions"), and hence a single strong Union of thirteen was more stable than a loose confederacy of many small nations. At about the same time, George Clinton was publishing Anti-Federalist Papers under the pen name "Cato", opposing ratification. Clinton argued that small homogeneous nations were less likely to split internally than bigger ones who already had more conflicting viewpoints. Both arguments are somewhat true, of course. Which argument you prefer depends on which kind of splitting you predict. Federalist # 10 has also been read as explaining the absence of political parties in the Constitutional plan, but a careful reading is convincing that Madison was saying political factions were deplorable but inevitable, not that they would never arise. Failure to mention them in the Constitution may have grown out of reluctance to expand debate, or else reluctance to give political parties some status they had not fought for.

Since it would be necessary for the state legislatures to ratify the Constitution, the arguments Madison could use before the vote were necessarily conciliatory, conceivably even somewhat contrived. However, since "Federalism" was settled early in the Convention (Madison's notes put it at June 21), it was the cornerstone around which everything else was built. By the end of the Convention in November, it no longer mattered whether the arguments of Federalist #10 were sincerely Madison's views or not; they had been adopted by the Convention as its own.

Few delegates at the convention needed to argue that a bigger nation was better. The Delegates had usually been selected to improve the Articles of Confederation, not to defend them. In the ratification process that would not be the case. The wisdom of getting bigger had to be confronted and balanced against the increased risk of falling apart. Centuries later, it is not certain why Colonial America then believed the advantages of union had grown more attractive than the risks. Or why kings were suddenly so undesirable; at the time, all nations had kings. The easiest assumption to make is that discovery of the New World continents was itself the main reason relative risks seemed reversed; cheap land and abundant resources lessen the reasons to envy them. Hard experiences have since tempered the enthusiasm of America for that notion, but a succession of new challenges replaced it. The Industrial Revolution offered new rewards, but also new ways to control them. A century of expanding frontiers repeatedly did the same thing. Industrial power led America to a brief fantasy of Manifest Destiny. The atom bomb provoked mutually assured destruction to restrain it. Even today, the computer revolution presents new opportunities for wealth while supplying electronic remedies for brute power. Madison's theme has adapted and persisted. America has been fairly consistently able to devise sources of new wealth, and to match them with new ways of maintaining stability. Usually the new challenge will require new ways to quiet the disruption it causes. Foreign ideas contain a lot of affection for central controls, and are to be treated with suspicion until new immigrants get used to our ideas. Immigration must not overwhelm our power to resist the ideas we abandoned in 1787. The secret formula for resisting dictatorship seems to be no more than a grim determination to resist it, no matter what, combined with the spreading realization that somehow in the past, that grim determination has been all it took.

To repeat: As nations grow larger, they do indeed grow harder to govern and some will look for strong monarchs to control them. But America stumbled on another way. In mild cases, persuasion may be enough; just read some history. Sometimes the persuasion can be sly, even contrived. But ultimately, the frontiersman will defend his cabin by himself, and make his own rules to do it if he must. Well before Madison was on the political stage, after fighting against monarchy for many years, America was having no more monarchy. Mere mention of it made George Washington grow livid. So Madison was really claiming we had here a safe way to enlarge the nation without resorting to tyranny. If we somehow got too big, we could always split apart along older boundaries. When the Civil War showed that approach wasn't nearly as peaceful as we hoped, it was at least preferable to returning to monarchy. As long as a country firmly believes anything is preferable to monarchy, monarchy won't stand much chance.

Law of the Sea

UN Logo

Oceans cover two thirds of the Earth's surface. Since global warming is melting the ice caps at an accelerating rate, probably even more of the Earth will be covered by ocean a century from now. In the days when a cannon shot could travel three miles, it became generally agreed that a nation would hold sovereignty for three miles out to sea. A decade or so ago, that was extended to 200 miles by some international body, but few people remember that. Three miles from the coast, that's it. But the underlying reality, then and now, has always been that if you can't defend a piece of land, you may not keep it very long.

Although satellites probably make it possible to survey boundaries on the ocean floor with some accuracy, land/surface markings are more at the mercy of tides. Even though it's possible to survey ownership rights of some sort on the ocean floor, the personalities of sea captains are probably going to set the practical boundaries of ocean kingdoms for quite some time to come. If a land nation reaches for power that is not to the taste of the Captain, he just goes somewhere else to land. Enormously expensive oil drilling platforms are sitting ducks, sort of held for ransom. They can seek the advice of maritime lawyers, but it's likely the most meaningful appeal will long continue to be a call to the naval power which dominates the region. It's nevertheless useful to watch diplomatic minds at work, just to be aware of what they are up to. Because what they want to do is to change the rules of the game.

In essence, the Law of the Sea advocates begin with the premise that since no one owns the ocean, everybody owns it. It's not entirely clear why one assertion follows the other, but that's the basis for the claim. Since they think they own it, they think they can pass laws controlling it, can share in any profits from it, and ultimately can sell it to the highest bidder. Since all of this is highly debatable, many wars have been fought for less. The same ideas once dominated the disposition of our own western wilderness. Essentially, President Lincoln wanted to pay for the Civil War by selling land, as well as creating land grant colleges, transcontinental railroads and other assorted boodle. So he sold off, or gave away, quite a lot of it. Every time you sell land to someone, he develops a reason to defend your original right to say you owned it. But governments, including Lincoln, change the rules for their own benefit. Lincoln sold land, but it still remained part of America. If he had sold a part of America to China, it would be called alienation. You don't hear about very much of that happening. Alienation generally means war. And the suggestion that something of great value should be nationalized or internationalized generally means that somebody doesn't own it, but wants to have a piece of it, free.

The history of the Treaty of Westphalia, the United States Constitution, the European Union -- and for that matter, the French, Russian and Chinese Revolutions -- warn that it is very hard to develop a fair system of governance for uninhabited space. The present proposal under the Law of the Sea offers each cooperating nation one vote. That could be modified by adjusting the votes by population size, as the constitution did in 1787, or it could be changed to bicameral as John Dickinson insisted at the Constitutional Convention, Representatives chosen by population, Senators chosen by states, and both must agree. Unfortunately, even that can be tinkered with. In the contested tie for President in 1800, Madison himself devised the strategy of changing Virginia's internal vote from "winner take all" to "each vote counted separately", which broke the tie because John Jay refused to do the same thing for New York and thus lost the election for Aaron Burr. The surviving moral of this story is that it doesn't pay to be fair about anything in politics. Everybody seems to avoid the plain reality that important decisions between nations are made by the nation with the strongest military force. That's crude and unfair, maybe, but unlikely to change much. Which leads to another truism: it's going to be a long time before we can expect strong nations to submit to supra-national control systems. That's why the uniting of thirteen independent colonies in 1787 was so unique, so difficult to achieve, and such a lasting credit to those who made it happen.

Personalities Who Wrote the Constitution
James Madison

The windows of Independence Hall were nailed shut and the delegates to the Convention sworn to secrecy. James Madison kept the official minutes and only released them years later. We may never be certain who was responsible for every feature, particularly the parts devised at home or in neighboring taprooms. That's the way they wanted it to be, however.

We easily notice the most influential men in each state were selectively chosen to attend, but it is hard to say whether that was done to increase the chances of state ratification, or whether it was intended to "stack" the votes in favor of rich and powerful. Perhaps some of both motives played a part, but primarily George Washington had state ratification in mind. As matters turned out, class frictions were more pronounced during and after the ratification than they were when the delegates were chosen. The Constitution encouraged the rise of the common man far more quickly than was anticipated. Almost every feature of the Constitution was considered for its effect on state ratification, whereas redistributionist ideas were largely unmentioned in the surviving records.

{George Washington}
George Washington

Although many patriots had similar feelings, George Washington stands above all others as the driving force behind calling the Convention. The experiences of seeing Congress reluctant to pay starving troops who had saved the nation, and the resulting mutinies, were almost too much for him to bear, and would have driven many other commanders to far more extreme actions in his place. James Madison, a generation younger than Washington, felt almost as strongly but could never have brought the Convention around to proposing a whole new structure of government. Washington needed a younger man to be his agent, and picked this one out as the jockey for his racehorse. Washington wanted to preside, and to glower at anyone who seemed to be saying the wrong things. Perhaps at some critical moment his active intervention might save the day; he wanted to preserve that opportunity. Furthermore, Washington had not gone to college and felt he needed a scholar to suggest what the Greeks and Romans had done in similar circumstances. Particularly the Romans, whom Washington greatly admired.

Madison was short and socially awkward, still unmarried at age 36, much in awe of the towering General with his commanding demeanor. In spite of their obvious differences, they were both rich Virginia slave-holding planters; each regarded the other as the right sort. Madison was a Princeton graduate, in the days when that exposed him to Quaker beliefs and to teachers who had been prominent in the Scottish enlightenment. At that time, Virginia was by far the largest state, West Virginia and Kentucky had not yet been split off, and Virginia still held viable claims to the five states which were to become the Northwest Territory. Virginia firmly believed it had a right to run things in America.

{Alexander Hamilton}
Alexander Hamilton

Alexander Hamilton had been Washington's chief aide during the Revolution; their only conflict had been his demand to be released from headquarters duty to expose himself to the enemy in flamboyant manner on the parapets of Yorktown. Hamilton the sharp-nosed little elf was a ladies man, to put it mildly. Even Martha Washington giggled about his behavior at parties. The New York delegation was split with divisions, and often Hamilton was the only New York delegate present at the Convention. It was usually quite enough. He organized the New York Federalist party and the Bank of New York, seeming to run around and be everywhere at once. In some ways, he was to Robert Morris what Madison was to Washington. That's where he got his financial ideas, but without need for encouragement he ran around and got a million things done. There are portraits of him, but his real likeness is best captured in action by the elfin statue of him in Philadelphia's Constitution Center.

{Robert Morris Jr.}
Robert Morris Jr.

Robert Morris Jr. was one of the richest men in America. Living near the waterfront of Philadelphia in a mansion, one of several he owned, Morris had arrived as a ten year-old orphan and soon became a partner of the richest Quaker merchant by his astonishing energy and brilliance. When revolution had been proposed, Morris declared he was entirely satisfied with a king, but soon signed Thomas Jefferson's Declaration of Independence, and devastated the British merchant marine with his privateers and gunpowder smuggling in conjunction with the French playwright Beaumarchais, an equally remarkable man on the other side of the Atlantic. By the time of the battle of Trenton, Morris was essentially running the entire American government. He threw out the committee system and instituted the departmental bureaucratic system now still in use, all within a week of taking office. When the amateur Pennsylvania legislature created a devastating inflation of paper money, leading to riots in the streets of Philadelphia, Morris brought the inflation to a halt by offering to finance the Revolution out of his own pocket. Living next door to George Washington, they became fast friends. Morris founded the first bank, selling bonds instead of using deposits, and then the second bank, using deposits in the modern way. He was much taken by Adam Smith, and gave copies of The Wealth of Nations to influential friends. He engaged in a lively correspondence with Necker the French financier, which was cut off by Necker's death but probably formed the basis for what is now known as Hamilton's financial plan for the nation. Morris, accused only of recklessness rather than dishonesty later went to debtor's prison, tainted with the really dishonest finances of his partners, Governor Mifflin and comptroller John Nicholson. Morris repaid nine of the twelve million dollars he owed before being released by changes in the Bankruptcy Law which he suggested while in jail. During the Constitutional Convention, he seldom made a speech, but was continually seen ducking in and out of conferences which very likely improved the future of the nation. With Washington running the Army and Franklin running the diplomatic mission in Paris, Morris is one of the three men about whom it can be said the Revolution could not have been won without him.

{Gouverneur John Morris}
Gouverneur Morris

And finally, Gouverneur Morris, as "Lord of the Manor" the only titled aristocrat at the Convention, going back several generations before the English settlement of America. Morris was displaced by the British occupation of New York, and became Robert Morris' lawyer. He was as tall as George Washington, but had both an arm and a leg badly injured in accidents; somehow, his many lady friends found it enhanced his attractiveness. Gouverneur is referred to as the "Penman of the Constitution", actually the editor.

{Rodger Sherman}
Roger Sherman
Issues were brought up, debated and voted on as single items, and it was Morris' job to weave the numerous points into the coherent document we now recognize as the Constitution. He was unusually succinct, unfailingly able to find the single verb that defined a sentence, and his felicity with language accounts for much of the affection we hold for the Constitution. Roger Sherman of Connecticut violently opposed the interdiction of amendments when they came, demanding the Amendments be placed in a separate section. He thus preserved the original language, a very happy circumstance for later readers.

{Benjamin Franklin}
Benjamin Franklin

So there you have the authors we can identify. It would be astonishing if Benjamin Franklin could sit there for months without saying a word, and he probably didn't. That old fox was in the habit of placing his words in the mouth of someone else so he could maneuver around any opposition. And he certainly waited until the last moment of hesitation, urging his colleagues to doubt their infallibility a little, and vote for the best they could probably produce.

{John Marshall}
John Marshall
Before closing the book however, we must remember John Marshall, not even a delegate in Philadelphia. Marshall became Chief Justice twelve years later and set about building the American judicial system on a few sparse words. That he had been thinking about it a long time, is reflected in the discovery that he had advocated the right of the Supreme Court to declare acts of Congress unconstitutional -- in 1788, fourteen years before Marbury v. Madison was decided.

Political Effects of Increasing Population

{Washington got down off the platform and debated the Constitution}
Washington got down off the platform and debated the Constitution

The only time George Washington got down off the platform and debated the Constitution, was near the end of the Convention. The topic was the maximum size of Congressional districts. He strongly urged the Convention to limit the size of a district to thirty thousand inhabitants. Since then, the population has grown in both absolute and relative size, so the average Congressional district now contains 600,000 citizens. Madison had contributed the idea that a larger state or district would likely contain more diversity, hence fairness, and it would likely contain more citizens of high intellectual distinction. It seems likely Washington had heard him say that, and held a strongly contrary view. Washington seems to have won this argument, since after more than two centuries of steady growth, few today would hold the quality of congressional representation has improved. Or, that over the centuries of experience, larger states have tended to produce more distinguished Senators. Or that dense urban populations have produced unusually brilliant Congressmen. Indeed, there is a defensible position that the rest of the nation has a prejudice against politicians with urban backgrounds, and reach a private determination not to advance their interests. That by itself might conceivably discourage urban politicians from seeking leadership positions, or even notable political positions of any sort. In the long run perhaps it doesn't matter what the underlying reasons are, what truly matters is the evidence that legitimate urban interests are somehow being injured by our system of governance.

Perhaps a case could be built that this should be so, and is therefore a product of good governmental design. It can easily be shown that taxes per capita rise steadily with population density, probably secondary to the rising cost of a safe and sanitary environment. Urban centers are the normal place to expect immigrants to concentrate, almost surely as a result of slum creation when previously dominant populations flee to the suburbs. These residents are almost surely fleeing to areas of less crime, lower taxes, and better public education. All three of these issues are products of government, which was presumably designed to enhance their attractiveness.

A case can be made in the other direction, too, although it sounds more like a Medieval walled city being praised. Transportation and defense are easier, and more esoteric enhancements to industry formation like talent clusters and capital formation, are encouraged. Once you get away from subsistence farming, it's easier to feed and water an urban population and take away its trash. All this has a cost of course, which can roughly be summarized as the cost of air conditioning and sanitizing one of Charles Dickens' Victorian smog basins until it looks like Canary Wharf or Rockefeller Center. There is of course the unspoken preference for the military heroes who defend us in their spare time. Everyone would prefer to be defended by hunters and fishermen, than by garment workers who normally prefer violin quartets as recreation. Since the threat of war is never quite extinguished, this by itself might explain the political dominance of the outdoorsman. Even the trial lawyer is not an adequate defender of the faith; his bespoke tailoring would be tattered and torn, without the bailiffs standing silently behind him, ready to supply the muscle.

It this a fair assessment of our experience with district size, or equal apportionment of two senators per state in the other body of Congress?

In the first place, the Founding Fathers took little account of political parties. Small states will almost always fear big neighbors, and will band together to defend smallness against bigness. John Dickinson put this proposition to James Madison in the most direct of all possible ways, as a political fact of life. As a leading representative of a large state, Madison was stunned to learn for the first time, what small states had always muttered among themselves. Small states are always looking for allies against invaders, and in the intervals between invasions, were on the constant lookout to prevent neighboring large allies from dominating small ones. They are alert to signs that one big neighbor was about to be replaced by a different one. In the beginning, the big states were Virginia, Massachusetts and Pennsylvania. Today, they are Texas, California and New York. Whatever the shifts in the future, and however torpid the medium-sized states will be, you can be certain that Rhode Island, Delaware and Vermont will adjust their positions to recognize the shift. This is their game, and they are good at it. Ever since Dickinson collared Madison in the corridor of Independence Hall, they have owned the U.S. Senate, and all the Senate can do for them.

The big states of Texas, California and New York will be as oblivious of the small states as Madison's Virginia once was. They will consider themselves entitled to leadership, and will alternate between swapping power, and betraying each other. The much deplored lack of civility in politics today is mainly a reflection of the present stalemate at this level. Since none of the big states is close to a majority of votes, the present political "action" is on the level of forming coalitions of medium-sized states. When the big states can't win for themselves, they ordinarily pay off the spear-carriers. The Constitution was designed to empower the large states in the House of Representatives, where they have large delegations. At this level, un-anticipated events took place, because local party bosses were able to control the urban political machine at the primary elections. The resulting urban political machines thus had to be dealt with, at the state and national levels. The trade-off which mostly resulted was for the local machines to assist the national party in other states through alliances with other big-city machines, mostly in selecting Presidential candidates. In return, the national organization assists the financial partners of the local machines. The power of labor unions is fast fading in this role, but other beneficiaries would surprise most people. More than a hundred years ago, the Philadelphia political machine invented the system of single-payer graft at the behest of some trolley-car magnates. Growing tired of petty graft from the local tavern owners on their trolley lines, they approached the mayor with the proposal of a single payment of graft in return for the power to assign it in whatever way the political boss chose to do. Ever since that time, utilities have been the main source of urban political funding, currently reaching out to health insurance companies as tame political contributors. Small wonder that health insurance in return has been taking the strange national twists and turns we all read about.

Massachusetts Makes Something Clear
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 be prevented from 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, without loopholes for weasels. Uniform rights unite the various subcultures, so a general prohibition of ex post facto laws and suspension of habeas corpuswas declared, along with 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.

These prohibitions were not put in there because they were theoretically possible. They were there because the sins described had happened many times, and the sinners agreed to them because denial was useless.

There were plenty of other negative ways to put all this, but the Constitution restrained itself. 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; the same thing 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 could be treading on soft ground.

{the Constitutional Convention}
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 unlikely 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.

Which is Better: Big Nations or Small Ones?

BIG nations easily gobble up small ones, so small ones band together. As George Washington famously observed, when you are strong the others leave you alone. But other forces make smallness seem attractive, especially if the nation is already uniform in religion, language and culture. Most nations search for an ideal size for both Peace and Prosperity, and find they need two different sizes, and have to choose. Both the American Revolution of 1776 and present struggles of the European Union fit a common formula: banding together for military security, then pulling back for greater independence. American experience of a subsequent Civil War eighty years later suggests the margin for error is narrow.

{Europe Colonies}
Europe Colonies

Geography doubtless imposes limits for both peace and prosperity. Some nations have therefore banded together for military reasons then split apart in local quarrels, more or less regularly. The thirteen American colonies had been afraid to confront Britannia alone, but somewhat overconfidently took on that challenge as a confederation of thirteen. At the other extreme, little Rhode Island even refused to send delegates to the Constitutional Convention, for fear the other twelve would want to share its revenues from the coastal road through their state. Similar possessiveness has at least not been reported about the narrow defile through the northern end of the equally small State of Delaware, but one glance at a map is sufficient to expect similar restlessness from the region which for decades protected its secrets of mushroom cultivation. Peace and prosperity: getting bigger discourages predators, but getting smaller offers sole possession. Since the United States grew in jumps through most of its history, it probably learned intangible things from its alternating episodes as too big and then too small. Frederick Jackson Turner's thesis of the frontier as a shaper of culture is fairly similar.

13 Colonies

When ideas of Union first gained traction, both the thirteen American colonies and the twenty-five nations of the Euro zone were afraid of war. The American objective was the simple one of military parity with a common enemy. The nations of the European Union had a longer view; a seemingly endless history of bloody wars sustained their conviction that other wars would inevitably follow unless they did something innovative. National unification on the American model would be ideal, but perhaps the habits of cooperation and trade would lead to that. The unexpected decline of the Soviet empire further reduced the threat to European peace. Pride may also have led to over-reaching; twenty-five is comfortably larger than thirteen, which up to that time was the largest nation merger to survive. But twenty-five is smaller and thus more manageable than the present American fifty. To begin the Euro process with monetary union might produce quick benefits from a source too mysterious to produce much public resistance. Nobody could think of a war started by a monetary dispute.

{Justice Blackmun}
Justice Blackmun

Of course the Europeans would expect to cope with the difficulties of speaking many languages. The American colonies mostly shared a single language. Even their enemy spoke English. In this particular, the Europeans seem to have underestimated the language-induced difficulties of maintaining a common understanding of what their Constitution meant to people. Indeed in American Judicial disputes about Original Intent, we repeatedly encounter the tenacity of people to believe a document says what they want it to say. Staying within a single English language, the inflammatory evolution of U.S. Supreme Court interpretations often turns on subtle differences in meaning of simple words, since vigorous legal advocates think they are paid to marshall every argument weak or strong. Penumbras and emanations from the word "Privacy" in Roe v. Wade force our judges to decide whether the inclusion of abortion within a right of privacy is simply too far from common understanding of English, in a double sense. Both in the discovery of a right to privacy within a document which does not use the word, and in the inclusion of abortion within that, Justice Blackmun clearly overestimated the capacity of citizens to understand what they did not want to understand. How much more surely would he have overestimated public willingness to grasp his meaning in two-step translations from a foreign language. Since this famous decision is destined to stand or fall, depending on public tolerance for such wordplay, having almost every citizen confidently understanding English is a decided advantage in achieving consensus about its wisdom. It seems almost unnecessary to point out how many European languages are derived from Latin or German, and how seldom such migrations of meaning have sharpened the precision of the originals.


By contrast with important language confusions, "hatreds between nations" are often mentioned as an obstacle to unification but seem largely bogus. Argot and slang are commonly invented to conceal the opinions of a minority group. Over thousands of years, this purpose of "jiving" a secret code among conspirators has been perfected exquisitely. It's hard to overcome, easy to teach children. But the memory of actual wars really dies out rather quickly, not least because atrocities are so hideous, mankind wants to forget them. I was seventy years old before someone told me I had ancestors burned at the stake. By whom? By someone who has also been dead for four hundred years, not likely to seem threatening. Over the fifty years since the Second World War, I have run into former German and Japanese soldiers; they now seem pretty benign. One American former prisoner of war was forced to stand at attention while his Japanese captor pulled out his gold teeth with pliers; he told this story with a faint smile. It is one of the benevolences of biology that we are born without memories, and a second is the impossibility of remembering the feeling of pain without first dramatizing the experience for future reference. Once actual onlookers stop grinding the grievance axe, it should be possible to get on with devising a European constitution, provided it contains the equivalent of our First Amendment.

From a commentator's perspective, currency matters are difficult to understand and explain. For contrast, the Battle of Normandy is thrilling and awe-inspiring; every death is the death of a hero. But rises in productivity, the risk implications of volatility, even the way the value of bonds goes down while their interest rate rises, seem hopelessly confusing to a beginner. Worse still, there exists real uncertainty. We now have currency which has no backing in precious metals, and is really just a book entry. That's useful for transactions, but certainly less useful as a storehouse of value. Mr. Ron Paul ran for President of the United States challenging the whole Federal Reserve concept, and a possibility must be admitted that he had a grain of truth in his speeches. We trust our bankers to devise a workable system of exchange without gold and silver, and readily admit that Mr. Bernanke knows more than we do. But. The world economy nearly collapsed utterly a few years ago, and you know, Mr. Ron Paul might just have a valid point or two. There has not yet emerged any fit environment for enjoying a monetary Crusade to a World Without War. For striking contrast, go to any Civil War movie and watch those teen aged soldier boys charge up the hill, ready to die for the Union.

Void for Vagueness?

The three branches of government have become unbalanced. Obamacare and the Dodd-Frank Bill were almost entirely written outside of the Legislative branch, and their ensuing regulations will also be written in the Executive branch. The founding fathers certainly never envisioned such sweeping modifications would be made in the medical and financial industries, against the wishes of these industries, and in any event without convincing demonstration the public either understood or was in favor. This is what is fundamentally wrong about taking such important decisions out of the hands of Congress; it leaves the public wondering who makes these puzzling laws.

{Justice George Sutherland}
Justice George Sutherland

There is no need to go further than this, harsh words will only inflame the reaction more than necessary to justify a pull-back. And yet, the Supreme Court would certainly do us a mercy if it doused these flames; perhaps the Supreme Court needs a legal pretext. May we suggest that Justice George Sutherland, who sat on the court seventy years ago, may have sensed a similar direction to things, short of using a particular word. Justice Sutherland recognized that although it is impractical to waver from the principle that ignorance of the law is no excuse, it is nowadays entirely possible for a person of ordinary understanding to read a law in its entirety and still remain confused as to its overall intent. Sutherland thus created a legal principle that a law may be void if it is too vague to be understood. We might also add "too carelessly written", and/or "too obscurely constructed". In particular, said Sutherland, a common criminal may be even less able to make a serious analysis of the case against him. Therefore, at least in criminal cases, a law may well be void for vagueness. In this case, we are not speaking of criminals as defendants, or civil cases of alleged damage of another party by a defendant. Here, it is the law itself which gives offense by its vagueness, and Congress which created the vagueness is the defendant. Since we have just gone to considerable length to describe the manner in which Congress is itself ultimately the main victim, this situation may be one of the few remaining ones where a Court of Equity is needed. That is, an obvious wrong needs to be corrected, but no statute seems to cover the matter. The Supreme Court might give some thought to convening itself as a special Court of Equity, on the special point of whether this legislation is void for vagueness.

We indicated earlier that one word was missing in this bill of particulars. That would be needed, to expand the charge to void for intentional vagueness, an assessment which is unflinchingly direct. It suggests that somewhere in at least this year's contentious processes, either the Executive Branch or the officers of the congressional majority party, or both, intended to achieve the latitude of imprecision, that is, to do as it pleased. Anyone who supposes the general run of congressmen voluntarily surrendered such latitude in the Health or Finance legislation, has not been watching much television. Given the present vast quantity of annually proposed legislation, roughly 25,000 bills each session, the passage of a small amount of vague legislation might only justify voiding individual laws, whereas an undue amount of it might additionally justify a reprimand. However, engineering laws which are deliberately vague, might rise to the level of impeachment.

The following final rule of the regulations of the Affordable Care Act, is reproduced Verbatum in order to illustrate the nature of the problem. It might not be the best instance to select for a lawsuit, but it is a handy example of how turgid regulatory language can completely baffle the people compelled to obey, and therefore gives regulators a freer hand to act as they please without challenge. Without implying this particular lack of clarity is deliberate, at the very least it illustrates how little effort was devoted to making it clear. If ignorance of the law is no excuse, a person who actually reads it has a diminished excuse for not understanding it, while remaining no wiser. In view of this injury, its authors equitably should be subject to discipline for careless composition.

Washington's Real Motivations

Washington could occasionally display a wicked temper, but in general he was a reserved and dignified man. Physically large and unusually athletic, he tended to dominate by glaring at people rather than debating them. And so, after a lifetime of leadership and distinction, he seldom engaged in arguments. As a consequence of this studied behavior it is possible to have many opinions about his underlying thoughts, except one: he always seems to come out on the winning side. It certainly was effective: he was Commander in Chief, The President and probably the instigator of the Constitutional Convention, and the First President of the United States. To decide whether he got what he wanted means deciding what he wanted, and he hardly ever stated it.

Conrad Black, the newspaperman who went to jail, stated the Canadian point of view, which is perhaps extreme. Black's view was "the Americans" first got the British to help them throw out the French, and then twenty years later got the French to help them throw out the British. These two statements are undoubtedly true if abbreviated. Added to them was the plain history that Washington had personally started the French and Indian War. One has to wonder what was in his mind when the French aristocrat LaFayette came to join him. And later on, what he thought of Thomas Jefferson's love affair with the French Revolution. Or what he thought of the antics of the French ambassador "Citizen Genet".

Washington didn't like the Indians, and he put down the radicals of the Whiskey Rebellion with extreme prejudice. Is it so hard to perceive the barons of Runneymede acting any differently?

Law of Perpetuities

It may be a surprise, but the concept of a Limiting Factor (the Law of Perpetuity) may once again intrude the U.S. Supreme Court into the Affordable Care Act. It may also be a little hard to follow, so pay attention to what would ordinarily be regarded as a dry subject.

The concept of a limiting factor makes modern law, and possibly modern economics, possible. Several centuries ago, well before the US Constitution was written, lawyers came to see that many things are only possible if you don't carry them too far. The operation of compound interest is an example. In ordinary human commerce, the tendency of compound interest to rise over time leads to an eightfold rise over one lifetime of 84 years (48 in 1901 to 84 in 2017). A 200-year lifetime would lead to even more rise, to the point where one dollar invested at birth at 7% would pay for the entire average medical cost of a lifetime of $350,000 expressed in year 2000 dollars. But quite obviously, if some scientist discovered a drug which lengthened life that much, something in the law would have to be changed to hold the economic world together.

So, about three hundred years go, some English judge laid down the Law of Perpetuity, stating that Trust Funds may not endure for more than one lifetime, plus 21 years. It's proved to be a useful limiting factor, not likely to be changed easily. Congress might feel empowered to change it, but too much of modern commerce revolves around this definition of perpetuity, for the public to permit tampering without huge uproar. Notice the flexible wording: 21 years plus one life expectancy. Changing life expectancy would not invalidate the law.

A century ago, life expectancy was thirty years shorter, five doublings at 7%. And now it is more than eight doublings, or in effect (2,4,8,16,32,,64,128,-->)256 times the original number. But that doesn't matter, because the law only effectively states its limit is 2 doublings (four times as much) more than the life expectancy at birth. A century ago, that implied two hundred-fifty-fold increase more than the starting amount at birth, and today it implies a thousand times. Inflation chugs along at 3% simple interest in both cases, at a growth rate doubling in 24 years (72/3). That's three doublings at simple interest a century ago, versus four doublings today. The important present difference is the thousand-fold compounded gain, compared with only 256-fold compounded at 7% a century ago, a seven-hundred fold difference in the base price. The problem we have, nevertheless still threatens less than forces opposed to changing the Perpetuity age limits.

To summarize, compound interest on Medicare-linked investment has gained six or seven hundred-fold over inflation in a century, as a result of medical progress bumping against mathematical principles. This difference is not likely to change in the coming century, because longevity at birth would have to increase to age two hundred to overwhelm the judges into changing the age limits of such a fundamental law. If net Medicare-linked costs rise to approach that level, moreover, this revenue opportunity might disappear.

There is no reason to avoid exploiting this opportunity while it lasts. It presents a quick and dirty solution to the present urgent problem, which is to find alternative proposals for reforming transition to healthcare financing, in case the Affordable Care Act is suddenly repealed. At the present time, the opportunity to reduce the effective cost of transition lies in the gap between the average age of death and the Law of Perpetuity -- about twenty years. At 7%, that's two doublings, or four-fold profitability. The question becomes whether to raise the termination limit of the Health Savings Accounts above its present level of the age of Medicare attainment. The natural instinct would be to terminate the HSA at death, but the Perpetuity law would permit 21 years more. Since the life and health of the depositor has very little bearing on this subject, Congress has the opportunity to allow Trust funds to continue to earn investment interest after death, until either its Medicare funding debts are extinguished, or the birthdate of the deceased depositor reaches 104 and is terminated by the unchanged Law of Perpetuity. The effect of doing this would multiply the funds for transition by 400%, and largely solve the problem if the Trust applied all funds to the debt incurred when offered the opportunity to choose. When we get to that subject, the transition is the big obstacle for three reasons: 1) There may not be enough money to do it. 2) The transition may take too long if it is constrained by available funds. 3) And the courts may find some reason to block it.

As a non-lawyer, I can see no technical reason why this could not be done, but some reason might be invented for political reasons. Unanticipated problems might arise, but under present law the challenge would probably come through the State courts, using the Tenth Amendment as a basis. If the adoption of the idea is voluntary with the States, or if demonstration projects are employed, conflict between jurisdictions is very likely, and the U.S.Supreme Court would have to settle the conflict. This split approach might satisfy both State and Federal proponents enough to remove the obstacle, because the Wickard v. Fillmore decision still rankles after eighty years, and after much longer than that from the Civil War, memory of which still greatly affects the regional popularity of federalism.

Several other ways to pay for the transition costs, or shorten the transition time, will be offered in later chapters. But only this simple change is required early in the process, and so only this proposal will transform transition from a plan to a process. It has always bothered me for complete transition to take nearly a century, during which interval there would be many changes of political control of Congress. In turn, those transitions offer a chance to smother central concepts in a welter of obfuscation. And that applies to all transitions, suggesting original planning should always be followed. To a certain degree, that has sometimes proved useful, but the transition in this particularly vexed case is going too far with it. So having major alternative approaches, and thus creating opportunities for later innovation, seems on balance a worth-while addition.

The Protestant Revolution

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Litchfield County, Extended (1771-1775)
American RevolutionaryConnecticut won the Second Pennamite War, occupying Pennsylvania territory for four years. The American Revolution caused the other colonies to put a stop to the fighting.

Owen Roberts: A Switch in Time
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If you get careless with your words, you may have to renounce them. The Articles of Confederation were stated to be perpetual, so maybe the Constitution is impertinent. Maybe someone would say it was treason.

Philadelphia's Republican Machine
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The Pennamite Wars: Who Had The Last Word?
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Marty Feldstein Forecasts the Future
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Jury Nullification
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Whatever Was George III Thinking?
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Quakerism and the Industrial Revolution
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Perfect, the Enemy of Good
Health insurance to cover absolutely everyone is admirable, but may also be an unachievable digression from less glamorous but achievable reforms.

Unwritten Constitution
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National Debt, National Blessing
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Looking Beyond Cheap Oil
Working topic: There's plenty of world oil for centuries to come, but cheap oil is mainly found in the Middle East. Even expensive oil would be cheap after a huge investment in transportation, pre-processing and refining. The geopolitical strategy would be to bite this bullet for American consumption, while forcing peace on the rest of the world by its continued dependence on the Middle East. The logical outcome of this thinking is to establish permanent Middle East military bases.

Line Dividing East from West Jersey
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Mercantilism Dies Hard
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Philadelphia City-County Consolidation of 1854
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Lexington, Concord, and All That
{Captain Parker, minuteman} What was the point of declaring independence, when the colonies had already been at war with England for over a year?

Milton Friedman on Capitalism
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Population Growth: Constitutional Mathematics
It makes a big difference how many congressmen there are, and how many constituents they have. The problem was addressed in 1792, but it got lost.

Lithuanian Law
American lawyers teaching law students in Lithuania illustrate the strange difference between the hunger of some Europeans for American leadership, and the rejection of American culture by others.

Navigation and Mineral Rights
Since the Delaware Bay and River were shared by colonies, it was essential that the rights to navigate be defined. Later on, the issues became bridges and tolls, fishing and channel deepening.

Unalienable Rights Before 1776
American RevolutionaryLawyers commonly say the Declaration of Independence "informs" the Constitution. But prior informing was performed by William Penn, the Roman Empire, and Hammurabi.

Lumpers In Constant Combat With Splitters
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Pennsylvania Likes Private Property Private
American RevolutionaryThe King used to own the whole country. William Penn got us used to the idea that my property is mine, not the King's.

Original Intent and the Miranda Decision
Right before our eyes, we can watch the Miranda decision migrate away from original intent.

Political Parties, Absent and Unmentionable
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Unconstitutionality of Otherwise Desirable Laws
American RevolutionaryPresident James Madison's veto message on Internal Improvements Bill (March 3,1817) makes a powerful statement about states rights and the limitation of federal powers.

Litchfield to Wilkes Barre, Today

Locating Corporate Headquarters
American RevolutionaryEvery year, millions of dollars are spent by cities to induce corporations to relocate their headquarters. Does it work? Is it a goal worth pursuing?

Although most founders of institutions look far into the future, the fact is comparatively few corporations, for-profit or not-for-profit, last longer than seventy-five years.

Who Paid for the Revolutionary War?
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Private Sector Disciplines Congress
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Morris at the Constitutional Convention
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Union, Now and Forever
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Penman of the Constitution
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Publius (James Madison) Explains the Proposed Constitution
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Law of the Sea
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Personalities Who Wrote the Constitution
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Political Effects of Increasing Population
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Massachusetts Makes Something Clear
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Which is Better: Big Nations or Small Ones?
American Revolutionary

Void for Vagueness?

Washington's Real Motivations

Law of Perpetuities
New blog 2016-12-22 19:52:29 description

The Protestant Revolution
New blog 2017-03-11 20:45:28 description