George R. Fisher, III, M.D.

Obituary

George R. Fisher, III, M.D.

Age: 97 of Philadelphia, formerly of Haddonfield Dr George Fisher III

Dr. George Ross Fisher of Philadelphia died on March 9, 2023, surrounded by his loving family.

Born in 1925 in Erie, Pennsylvania, to two teachers, George and Margaret Fisher, he grew up in Pittsburgh, later attending The Lawrenceville School and Yale University (graduating early because of the war). He was very proud of the fact that he was the only person who ever graduated from Yale with a Bachelor of Science in English Literature. He attended Columbia University’s College of Physicians and Surgeons where he met the love of his life, fellow medical student, and future renowned Philadelphia radiologist Mary Stuart Blakely. While dating, they entertained themselves by dressing up in evening attire and crashing fancy Manhattan weddings. They married in 1950 and were each other’s true loves, mutual admirers, and life partners until Mary Stuart passed away in 2006. A Columbia faculty member wrote of him, “This young man’s personality is way off the beaten track, and cannot be evaluated by the customary methods.”

After training at the Pennsylvania Hospital in Philadelphia where he was Chief Resident in Medicine, and spending a year at the NIH, he opened a practice in Endocrinology on Spruce Street where he practiced for sixty years. He also consulted regularly for the employees of Strawbridge and Clothier as well as the Hospital for the Mentally Retarded at Stockley, Delaware. He was beloved by his patients, his guiding philosophy being the adage, “Listen to your patient – he’s telling you his diagnosis.” His patients also told him their stories which gave him an education in all things Philadelphia, the city he passionately loved and which he went on to chronicle in this online blog. Many of these blogs were adapted into a history-oriented tour book, Philadelphia Revelations: Twenty Tours of the Delaware Valley.

He was a true Renaissance Man, interested in everything and everyone, remembering everything he read or heard in complete detail, and endowed with a penetrating intellect which cut to the heart of whatever was being discussed, whether it be medicine, history, literature, economics, investments, politics, science or even lawn care for his home in Haddonfield, NJ where he and his wife raised their four children. He was an “early adopter.” Memories of his children from the 1960s include being taken to visit his colleagues working on the UNIVAC computer at Penn; the air-mail version of the London Economist on the dining room table; and his work on developing a proprietary medical office software using Fortran. His dedication to patients and to his profession extended to his many years representing Pennsylvania to the American Medical Association.

After retiring from his practice in 2003, he started his pioneering “just-in-time” Ross & Perry publishing company, which printed more than 300 new and reprint titles, ranging from Flight Manual for the SR-71 Blackbird Spy Plane (his best seller!) to Terse Verse, a collection of a hundred mostly humorous haikus. He authored four books. In 2013 at age 88, he ran as a Republican for New Jersey Assemblyman for the 6th district (he lost).

A gregarious extrovert, he loved meeting his fellow Philadelphians well into his nineties at the Shakespeare Society, the Global Interdependence Center, the College of Physicians, the Right Angle Club, the Union League, the Haddonfield 65 Club, and the Franklin Inn. He faithfully attended Quaker Meeting in Haddonfield NJ for over 60 years. Later in life he was fortunate to be joined in his life, travels, and adventures by his dear friend Dr. Janice Gordon.

He passed away peacefully, held in the Light and surrounded by his family as they sang to him and read aloud the love letters that he and his wife penned throughout their courtship. In addition to his children – George, Miriam, Margaret, and Stuart – he leaves his three children-in-law, eight grandchildren, three great-grandchildren, and his younger brother, John.

A memorial service, followed by a reception, will be held at the Friends Meeting in Haddonfield New Jersey on April 1 at one in the afternoon. Memorial contributions may be sent to Haddonfield Friends Meeting, 47 Friends Avenue, Haddonfield, NJ 08033.

First Amendment: Separation of Church and State

Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. {bottom quote}

The First Amendment

Simplified histories of America often declare that other Western Hemisphere colonists mostly came to plunder and exploit; whereas English Protestant colonists came with families to settle, fleeing religious persecution. That's a considerable condensation of events covering three centuries, but it is true that before the Revolutionary War, eleven of the thirteen American colonies approximated the condition of having established religions. Massachusetts and Virginia, the earliest colonies, had by 1776 even reached the point of rebelliousness against their religious establishments. The three Quaker colonies (New Jersey, Pennsylvania, and Delaware) were late settlements, in existence less than a century before the Revolution, and still comfortable with the notion they were religious utopias. While differing in intensity all colonials respected the habits of thought and forms of speech, natural to utopians residing in a religious environment.

Once Martin Luther had let the Protestant genii out of its religious bottle, however, revisionist logic was pursued into its many corners. Ultimately, all Protestant questers found themselves confronting -- not religious dogmatism, but it's opposite -- the secularized eighteenth-century enlightenment. Comparatively few colonists were willing to acknowledge doubts openly about miracles and divinity. However, private doubts were sufficiently prevalent among colonial leaders to engender restlessness about the tyrannies and particularly the rigidities of the dominant religions. To this was added discomfort with self-serving political struggles observable among their preachers, and alarm about occasional wars and persecutions over arguably religious doctrines. Arriving quite late in this evolution of thought -- but not too late to experience a few bloody persecutions themselves -- the Quakers sought to purify their Utopia by eliminating preachers from their worship entirely. Thus, the most central and soon the most prosperous of the colonies made it respectable to criticize religious leaders in general for the many troubles it was believed they provoked.

London Yearly Meeting

Congress Hall

In all wars, diplomatic arts and religious restraints get set aside as insufficient, if not altogether failures for an episode of utter barbarism. In the Revolution, some Quakers split from pacifism and became Free Quakers, many more drifted into Episcopalianism, never to return to pacifism. The Constitutional Convention of 1787 was eventually held in this persisting environment; the previous service in the War counted for something, and the great goal was to strengthen the central government -- for more effective regional defense. A great many leaders were Masons, holding that much can be accomplished by secular leadership, independent of religious reasonings. Neither Washington nor Madison revealed much of their religious positions, although Washington the church attender always declined communion; Franklin and probably Jefferson were at heart deists, believing that God might well exist, but had wound up the universe like a clock to let it run by itself. The New England Calvinist doctrines have since evolved as Unitarianism, which outsiders would say theologically is not greatly different from deism. Physically surrounding the Philadelphia convention was a predominantly Quaker attitude; entirely too often, preachers get you into trouble.

When the first Congress finally met under their new constitution, they immediately confronted over a hundred Constitutional amendments, mostly submitted from the frontier and fomented by Jefferson and Patrick Henry, demanding a bill of rights. The demand within these amendments was overwhelming that the newly-strengthened central government must not intrude into the rights of citizens. Recognizing the power of local community action, states rights must similarly be strengthened. Just where these rights came from was often couched in divine terms for lack of better proof that they were innate, or natural. From a modern perspective, these rights in fact often originated in what theologians call Enthusiasm; the belief that if enough people want something passionately enough, it must have a divine source. The newly minted politicians in the first Congress recognized something had to be done about this uproar. Congress formed a committee to consider matters and appointed as chairman -- James Madison. Obviously, the chief architect of the Constitution would not be thrilled to see his product twisted out of shape by a hundred amendments, but on the other hand, a man from Piedmont Virginia would be careful to placate the likes of Patrick Henry. The ultimate result was the Bill of Rights, and Madison packed considerably more than ten rights into the package, in order to preserve the cadence of the Ten Commandments. The First Amendment, for example, is really six rights, skillfully shaped together to sound more or less like one idea with illustrative examples. Overall freedom of thought comfortably might include freedom of speech (and the press), along with freedom of religion and assembly, and the right to petition for grievances. But what it actually says is that Congress shall not establish a national religion. Since eleven states really had approximated a single established religion, the clear intent was to prohibit a single national religion while tolerating unifications within the various states. Subsequent Supreme Courts have extended the Constitution to apply to the states as well, responding to a growing recognition that religious states had the potential to get so heated as to war with each other. No matter what their doctrines, it seemed wise to deprive organized religions of political power as a firm step toward giving the Constitution itself dominant power over the processes of political selection.

At first however it was pretty clear; one state's brand of religion was not to boss around the religion of another state. Eventually within one state, Virginia for example, the upstate Presbyterian ministers were not to push around the Episcopalian bishops of the Tidewater. Madison and Jefferson saw well enough where political uprisings tended to start in those days, in gathered church meetinghouses. In this way, an Amendment originally promoted to protect religions had evolved into a way to ease them out of political power. The idea of separation of church and state has grown increasingly stronger, to the point where most Americans would agree it defines a viable republic. No doubt, the spectacle of preachers exhorting the same nation in opposite directions during the Civil War, settled what was left of the argument.

For Quakers, the most wrenching, disheartening revelation came when they were themselves in unchallenged local control during the French and Indian War. The purest of motives and the most earnest desire to do the right thing provided no guidance for those in charge of the government when the French and Indians were scalping western settlers and burning their cabins. Yes, the Scotch-Irish settlers of the frontier had unwisely sold liquor and gunpowder to the Indians, and yes, the Quakers of the Eastern part of the state had sought to buffer their own safety from frontier violence by selling more westerly land to combative Celtic immigrant tribes. A similar strategy had worked well enough with the earlier German settlers, but reproachful history was not likely to pacify frontier Scots in the midst of a massacre. The Quaker government was expected to do what all governments are expected to do, protect their people right or wrong. To trace the social contract back to William Penn's friend John Locke was too bland for a religion which prided itself on plain speech. Non-violent pacifism just could not be reconciled with the duties of a government to protect its citizens. The even more comfortably remote Quakers of the London Yearly Meeting then indulged themselves in the luxury of consistent logic; a letter was dispatched to the bewildered Quaker Colonials. They must withdraw from participation in a government which levied war taxes. And they obeyed.

Although the frontier Scots were surely relieved to have non-Quakers assume control of their military duty, the western part of the state has still neither forgotten nor forgiven. In their eyes, Quakers were not fit to be in charge of anything. Quaker wealth, sophistication and education were irrelevant; only Presbyterians are fit to rule. A strong inclination toward pre-destination lurks in that idea. Once more, the attractiveness of clear separation of church and state is reinforced.

The French and Indian War in fact had turned out fairly well; most of its victories were located on the European side of the Ocean, anyway. But twenty years later the Revolutionary War turned into a reassertion of the British conquest of all of North America, not merely the part to the west of the Appalachian mountains. To Americans, this came in the form of a demand for taxes to help pay off the costs of a war which greatly benefitted them. The Quaker colonies did not fully sympathize with rebellion, but they had once given up control of a territory larger than England rather than pay war taxes, so they were resistant to both sides in the dispute. Many prosperous and educated Quakers solved their dilemma by fleeing to Canada, but the ardent Quaker proposal for dealing with a coercive British government was not at all impractical. John Dickinson, in particular, argued that since the British motives were economic, success was most likely to come from economic counter-pressure, adroitly leveraged by three thousand miles of intervening ocean. That was shrewd and potentially effective. But the Scots-Presbyterian position was simpler and more direct. If you want us to fight your war, you are going to have to fight to win. The Virginia Cavaliers were probably more likely to win a conventional war if put in charge, but the blunt and almost savage frontiersmen were ideally suited for what has come to be called guerrilla warfare. Washington was a leader, French money was welcome and Ben Franklin was a diplomat, but the clarion call to this particular battle was the voice of Patrick Henry. All in all, the issue of established religion was far more complicated than merely the affirmation of a right to free exercise of religious belief. What united all the colonies was a recognition that, using the church, an arm of the government was just as likely to cause trouble as conducting the state as an instrument of church interests. Eventually, considering how religious America was at the time, there was remarkably little resistance to the firm separation of Church and State in its Constitution.

Selection of Constitutional Rights for the Bill of Rights

When the First Congress convened in 1789, it confronted more than a hundred proposed amendments to the Constitution, largely stirred up by supporters of Thomas Jefferson who feared any strong government would be too similar to the monarchy we had just discarded. Essentially, Congress dumped these noisy dissatisfactions into the lap of James Madison who had largely constructed the Constitution, constituting a committee with Madison as its chairman. The first ten amendments emerged together as a package, enabling trade-offs and compromises; all subsequent amendments have been taken up individually, one by one. Since members of the First Congress and the Constitutional Convention were largely the same people, much of the durability of the Constitution can be traced to them. And therefore, the tendency of the nation to feel its way into a new idea, sometimes retreating, sometimes plunging ahead, has migrated into the Supreme Court. This result was probably accidental, but nevertheless, the power of the Supreme Court was greatly strengthened by default; it alone can tip-toe out of a Constitutional tangle created by momentary impulses.

After winnowing out duplicates and half-baked ideas, Madison's committee condensed the wildly disparate proposals into ten amendments, supposedly limited to ten by alluding to Ten Commandments which were sufficient for Moses. Three main principles emerged. The Constitution should be parsimonious in granting divine, or natural, rights because what Nature's God had granted was hard to tell but what the judiciary could enforce had limits. But thirdly, granting even these few self-evident rights to slaves might tear the Union apart.

James Madison

So Madison's committee narrowed the legally enforceable human rights to a handful, selecting only those so self-evident they could withstand the tensions of enforcing them. When contemplating the problem of extending mandated rights to slaves, however, there was no obvious solution at all. That made it easier to limit the Federal Government to enforce a handful of enumerated powers, leaving all unspecified matters to the state legislatures to enforce if they could. The boundary might shift with time, but without saying so, the Bill of Rights kept the Union out of the one main foreseeable problem, of slavery. The unmentioned conflict between universal rights and slavery defaulted to the individual states, or to whomever, but definitely not to the Federal Government.

That tap-dance held together for nearly a century, and then it didn't and we had a Civil War. During all that time, the balance of power was steadily shifting from the confederated states to the centralized federal government, and after the Civil War, it shifted still more. However, the southern confederation may have been defeated, but it was not exactly reconciled, nor were the former slaves exactly equalized. Their current drift toward entitled dependency was particularly unexpected.

Robert E. Lee

Many post-war expedients were tested to heal these wounds, some of them useful and some, like forcible Reconstruction, disruptive. Two expedients opened new wounds and distracted the country for a century. The first was the intentional weakening of the quality and effectiveness of state governments, to the point where it can now be asserted that state government is the weakest part of our whole government structure. Those who prized universality and efficiency, or who sought greater international power, regarded state legislatures as a hindrance; just look who got us into a Civil War. Consequently, corruption and ineffectiveness were privately tolerated in state legislatures, because discrediting state governments made them easier to ignore. Repairing the resulting imbalance in our overall system is now growing to be one of our greatest problems. Almost no one remembers this was the price of a ratified Constitution, so increasingly that excuse is futile. In fact, in the thirty-seven more recent states to be admitted to the Union, it is not even accurate.

The second response to a sluggish equalization of racial rights was invented by Madison himself. He felt that the ability to migrate from one state to another would discipline any temptation of a state to misbehave. If your state taxes you unfairly, move. If your state government gets too corrupt, first try to throw the rascals out, but in the last extremity, go somewhere else. This concept has worked magnificently in maintaining national interest rates with appropriate local modifications, and we are about to learn whether it will adequately restrain the half dozen states who have pushed the limits of taxes and borrowing. In the case of former slaves, massive out-migration took a century to happen and then it happened all at once, just after World War II. Wave after wave of slave descendants from the rural South got on buses and came to the heart of Northern cities. Overwhelming the ability of weakened local governments to cope, city institutions disintegrated, particularly the public school and justice systems. The consequence is continuing disarray in Washington DC, Baltimore, Detroit -- and Philadelphia -- together with a host of smaller cities like Reading, Newark, Paterson, Wilkes-Barre, and many others, in all of which the unsustainable wave of immigrants added to local industrial and civic problems which had other causes. So now we have two new problems, weakened state government and disruptive migrations, which in other circumstances tended to mitigate each other, but now increasingly make each other worse. Someone must take hold of the issue that applying Madison's concept of competitive states has created a strong state disincentive to deal with poverty.

It took a century for Madison's scheme to break down into war, and Lyndon Johnson was surely quite right to feel a century was long enough to tolerate the disunity of the Civil War. If he could not make people love one another, at least he could enforce the law. State governments were not doing it, so he whipped the Congress into taking it on as a Federal duty, by passing the Civil Rights Act. Half a century has passed with some progress, but surely not an end to the disunity. State governments have been further weakened, but mass migrations have calmed down. In another half century, the slavery issue and its consequences may fully subside. Meanwhile, the reaction of extending federal power continues, now threatening to extend to the medical profession, the finance industry, the automobile industry, and the Internet. Our Constitution continues to survive more or less intact into its third century, and we grow increasingly wary of tinkering with it as we watch most other nations fail to achieve its essential quality. Which is, it survives. Aside from the Bill of Rights and some technical tweaks, there have only been five amendments of any substance. Meanwhile, new federal statutes and regulations grow by a hundred ponderous volumes a year.

Fighting About Taxes So Soon?

THE Constitutional Convention convened in secrecy, so the reasoning behind important provisions are sometimes unwritten. That is particularly true of taxation. Wars created the main reason for abrupt tax increases in the Eighteenth century, whereas present non-war expenditures are larger and steadier. For most people in any era, taxes have always been their main cash expense, but taxes are no longer synonymous with wars. An example of the way the problem has transformed over the centuries appears in Madison's notes, where Rufus King asks What is the meaning of a Direct Tax. The befuddled assembly answered with silence. No one present seemed to know, but since direct taxes were discouraged, perhaps it didn't matter.

Article 1,

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;
. . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

. . . .

Section 2:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

. . . .

Section 9.
. . . . No Capitation or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
. . . . 2. Congress shall have the power to enforce this article by appropriate legislation.

Amendment 16 - Status of Income Tax Clarified (Ratified 2/3/1913)
The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. {bottom quote}

The Constitution, on Direct Taxes

It matters, of course, and leaving it unchanged suggests the Committee on Style either thought it sounded better than "taxing the states directly", or they didn't, and preferred a blurred wording. The purpose of neither changing the wording nor making further reference to direct taxes remains obscure. We are free to recognize that the two linked topics of Taxation and Congressional Representation (using a single verb and including a forceful "shall" for emphasis) announce a major trade-off was being explored, concerning a very sensitive point. The state legislatures were being asked to give up a power they had repeatedly abused, but they still had the power to refuse to ratify the proposed Constitution if the Convention started scolding them. In such a negotiation, all states immediately but privately calculate how much they are willing to pay for concessions, before being forced to take a vote. In the Eurozone negotiations currently being conducted today about a fairly similar issue, there is even deeper doubt about the actual ability of some nations to do what is being asked of them. There is thus the real reason for the Europeans to balance the financial books with something other than money. In the Eighteenth century American case, concessions on the slave trade were used as the surrogate bargaining chip. The Europeans have climate, religion, military position, language, and perhaps other things they could use, because it must be obvious to everyone that money bargaining could be conducted by accountants, with no need to involve chiefs of state. The early American experience seems to show that -- once a union is actually achieved -- income inequality between jealous states immediately began to seem less important, probably because after political union both money and people can pick up and move to a different part of the Union. Before the Union, it was all about money. Only two states fully paid their federal taxes during the Revolution, so problems collecting direct state taxes had been anticipated. To put it another way, New Yorkers do not greatly grumble about indirectly subsidizing Alabama citizens, but even today it would be politically dangerous to propose that New York State should pay a block grant outright (directly) to subsidize the state of Alabama. If enough latitude and diversity between the constituent states are allowed, however, individual persons and corporations can individually decide to move. Under those circumstances, the migration is effectively a plebiscite on the underlying governmental dispute.

An important diversion was created by trading away the tax issue in a compromise, seemingly having little to do with main concern about taxes. Madison's notes on the Convention record relatively little discussion of slavery, but there is every reason to suppose the matter was at the front of every Southern mind. Because George Mason of Virginia was known to be delaying matters for the seemingly specious reason of demanding a Bill of Rights, which even James Madison of Virginia could see no purpose to, Mason was the swing vote in the most powerful state delegation at the Convention. Mason almost jumped joyously at the potential resolution of the direct taxation problem in the form of: "Numbers of inhabitants, though not a precise standard of wealth, was sufficiently so for every substantial (i.e. Virginia) purpose." This was a considerable concession for the richest state of the thirteen to make, and it followed the ancient political advice about a trade-off that it seems to have nothing to do with the central issue in dispute. This is something the European debaters must learn: if you are at loggerheads about one issue, trade it off for something unrelated, and call it a compromise. Although Mason would undoubtedly have been gratified to escape a higher tax rate, he nevertheless rejoiced in the alternative of increased voting power by 3/5 of a vote for each slave. Since this was soon touted as the second great compromise of the Convention, he could detect the signals of a binding agreement which the South would exploit for fifty years.

George Mason

At this point in the proceedings, the Convention was still in a mindset of struggling to unify thirteen sovereign republics; naturally, each one also wanted to be sure the taxation was fairly distributed. Virginia not only wanted its own definition of fair shares, but it also wanted enough power in the House of Representatives to maintain that definition. It wanted to avoid any tampering with slavery, and both demands were now agreed to. Direct taxation of the states, with its inherent apportionment issue, was not explicitly linked, but it is hard to believe it went undiscussed. Except for the District of Columbia and the Territories, which are regulated by Congress in many unique ways, Congress now has no power to impose a direct tax upon a state, or otherwise to pick tax winners and losers. Everyone agreed that Congress needed to be able to levy a limited amount of taxes "for the common defense and the General Welfare", but many delegates were uneasy about the apportionment method used in the Articles of Confederation because short of military force there was no sure way to collect them. Going to war against one of the states for non-payment of taxes must have sounded very unattractive after a recent history of having eleven of the thirteen refuse to pay them. Anyway, we had a deal with regard to slavery. And seemingly for those reasons, Congress now has no real power to impose a direct tax upon a state. Rufus King might not have needed to embarrass everyone with his revealing question if the wording meant "impose a tax directly upon a state", because the Constitution says that of course you can, but as a practical matter, of course, you won't.

At present the issue of apportionment of taxes roils the European Community, although in a slightly different form, and they must find a way to solve it. Germany is unwilling to support Greece, the Netherlands unwilling to support the Belgians, and so on. The poor nations cry "fairness" while the rich nations proclaim "merit and hard work", and it was ever thus. Our founding fathers found the solution was to forbid the taxing of nations, except in proportion to the population. That is, to shift the tax from the national level to the individual taxpayer level. Doing so will not make national jealousies disappear, but here it proved to be sufficient. Texans would still rather lose their left leg than pay taxes to support Oklahoma, but when a dust storm or drought appears, Texans are immediately generous to their neighbors in distress. Within the past decade, a Texas law professor published a law review article denouncing the unfairness of a state with twice the population being forced to pay double the taxes. George Mason would have simply smiled and said, "Of course twice as many people pay twice as much tax. And get twice as many Congressmen, too." That's called square dealing, but square dealing is often not quite enough. Some land is not quite as fertile, some people are not as well educated, one state has more seaports than the other. To bring the scales into balance, something more must be added. In that case, it's best if what is offered has nothing to do with either taxes or congressional representation. That's called diplomacy.

And let's not forget one of the features of taxes. A major reason for national taxes has always been to pay for wars. Less of one usually means less of the other.

ARCHITECTURE OF GOVERNMENT: (4) MAJORITY RULE

Although republican forms of government were almost entirely supplanted by despotism in various guises for two thousand years after Julius Caesar, this neglect of democracy was seldom tinged with criticism of majority rule until the Eighteenth century Enlightenment, when majority rule became more of a possibility. The disturbing discovery that a majority could abuse a minority just as thoroughly as a king might begin to haunt the thoughts and writings of the opponents of despotism. Even the proponents of Vox populi, vox Dei est ("The voice of the people is the voice of God") had difficulty threading a way between accepting the tyranny of the multitude, and rejecting majority rule. It is, therefore, a pity the secrecy of the American Constitutional Convention prevents us from knowing whether the gradations of majority decisions which emerge from a reading of the final document, was the product of a single mind or an evolving consensus. As Alexander Hamilton pointed out in Federalist No. 84 and Federalist No. 85, the language of the Constitution is riddled with exceptions to generalizations which the Convention had reached by majority vote:

Independent of those which relate to the structure of government, we find the following: Article 1, section 3 clause 7-- 'Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States, but the party convicted shall, nevertheless, be liable to indictment, trial, judgment or punishment according to the law.' Section 9, of the same Article, clause 2 -- 'The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.' Clause 3 -- 'No bill of attainder' etc., etc."

Hamilton was, of course, arguing that no Bill of Rights was necessary, because ample latitude had been provided for the writers of rules to make nuanced exceptions when the rules are created, or else amended afterward by the elected legislatures. Nevertheless, a Bill of Rights became the first item of business of the new Congress under the Constitution. Even in the age of the Enlightenment, despotism was still so much the rule that most people could only think in terms of an occasional exception for egregious circumstances. In a sense, this limitation of Royal or other prerogatives began with the Magna Charta of the 12th century, and many Englishmen believed that a Constitution merely exists in order to spell out broad limitations of sovereignty. Many opponents of the Constitution voiced the opinion that a monopoly of the armed forces essentially confers unlimited sovereignty on whatever entity has such military power, so what was left to define was the handful of limitations which rebels would be willing to die to preserve. Many otherwise unexplained provisions of the Constitution are merely implicit statements of this intent. We are fortunate that Hamilton went on to illustrate the nature of the concern about one feature of the internal debate about amendments to the Constitution. There existed an uneasiness that nine states might conspire to surprise the others with an amendment for reasons only known among themselves. Therefore, the Constitution requires a 2/3 vote to introduce an amendment, but a 3/4 vote of the states to ratify it. In at least one uninvolved state therefore, the people outside the conspiracy must have a chance to examine and debate the issue. One must credit at least one doubter among the Founding Fathers with imagining a sly strategy which has never been attempted, and blocking it without accusing anyone of even imagining it.

Unanimous consent is of course qualitatively different from majority rule. The requirement for unanimous consent had proved to paralyze the Articles of Confederation. It implied that no legislation would ever seem so beneficial to a preponderance of the states, that no matter how trivial the injury to a single remaining state, it must not be allowed to pass. Any rule short of unanimity implies that some segment of the population must occasionally suffer some degree of injury in order to serve the best interests of the others. In practice, of course, it means compromise, one regular feature of which is honoring the implicit debt the others owe to the victim state, on later legislation where interests lie in other directions. That comes in various degrees of severity, so in some cases, it may be necessary to insist on a supermajority for enactment, perhaps two thirds, or three fourths. It is no more a shame to defeat a supermajority by one vote than it is to get one vote more than half. And halves come in different guises, half of those present and voting, or half of the eligible members of the whole body. Furthermore, the majorities or supermajorities may come in different venues: a bill must pass both the House and the Senate, and then be signed by the President, who is allowed the face-saving escape of a pocket veto when Congress adjourns. Or combining veto power, combined with a second chance to enlist a vote to over-ride that veto. In the case of Amendments to the Constitution, all of the participating branches of government are given a chance to defeat it. In the case of Judicial actions, decisions are stratified within the Judicial Branch. A district court establishes the facts, an appeal court judges the application of the law, and the Supreme Court can judge the constitutionality of the law. Although these last distinctions do not appear in the Constitution itself, they do reflect the Constitution's intent to introduce subtlety into what is, in general, majority rule. With all of these variants of the strength of a majority or minority, an opportunity is created to vary the degree of pain which a majority might inflict on a minority, or else the damage a minority can inflict on the best interests of the community as a whole. It's called flexibility.

State and Federal Powers: Historical Review

John Dickinson of Delaware

It was expedient to leave certain phrases in the Constitution intentionally vague, but the overall design is clear enough. Just as twenty-eight sovereign European nations now struggle to form a European Union, thirteen formerly sovereign American colonies once struggled to unify for the stronger defense at a reduced cost. Intentionally or not, that created a new and unique culture, reliant on the constant shifting of power among friendly rivals. Everybody was a recent frontiersman, trusting, but suspicious. It still takes newcomers a while to get used to it.

So the primary reason for uniting thirteen colonies was for a stronger defense. As even the three Quaker colonies of New Jersey, Pennsylvania and Delaware could see, if you are strong, others will leave you alone. In time, the unification of many inconsequential behaviors created a common culture of important ones; and in time that common culture strengthened defense. At first, it seemingly made little practical difference locally whether construction standards, legal standards, language and education standards and the like were unified or not. Except, that in the aggregate, it forged a common culture.
The practice of Medicine was certainly one of those occupations where it mattered very little whether we were a unified nation. Unification of medical care offered a few benefits, but mostly it didn't matter much, right up to 1920 or so. Even then I would offer the opinion, that unification of the several states (with consequent Free Trade) only made a big difference to health insurance, and still made little difference to the rest of medical care. In fact, there are still about fifteen states with too little population density to provide comfortable actuarial soundness for health insurance, as can readily be observed in the political behavior of their U.S. Senators. Although the number of low-population states gets smaller as the population grows, there are even so perhaps only ten big states where multiple health insurance companies can effectively compete within a single state border. Quite naturally the big-state insurers expect one day to eat up the small ones. By contrast, the nation as a whole, the gigantic population entity which Obamacare seeks to address, has far too many people spread out over far too large an area, to be confident we could unify them into one single program. Dividing the country into six or seven regions would be a much safer bet. That's the real message of the failure of the Computerized Insurance Exchanges -- far too much volume. And the coming failure of the Computerized Medical Record -- with too much complexity. With unlimited money, it can be done, because diseases are disappearing and computers are improving. But why struggle so hard?
It is at least fifteen years too early, and mostly serves the interest of insurance companies, if they can survive the experience. At the same time, we are at least fifteen years away from growing the smallest states to the point where we could decentralize. It's really a situation very similar to the one John Dickinson identified, James Madison briefly acknowledged, and where Benjamin Franklin improvised a solution. In their case, it was a bicameral legislature. In the case of medical care, it could be an administrative division of revenue from the expenditure. It could be the cure of a half-dozen chronic diseases. It could be six regional Obamacare. But creating one big national insurance company during a severe financial recession is something we will be lucky to survive.

Returning to the Constitutional Convention, an additional feature was added to the tentative 1787 document to respond to protests from small component states. They objected that whatever the big-state motives might be, small states would always be dominated by populous ones with more congressmen if a unicameral Legislature is made up of congressmen elected by the population. Pennsylvania had recently had a bad experience with a unicameral legislature. So a compromise bicameral legislature (with differing electoral composition in the two houses) was added to protect small-state freedoms from big domineering neighbors. Even after the Constitution was agreed to and signed, the states in ratifying it still insisted on a Bill of Rights, especially the Tenth Amendment, elevating certain citizen prerogatives above any form of political infringement, by any kind of a majority. These particular points were "rights"; individuals were even to be insulated from their own local state government. The larger the power of government, the less they trusted it.

John Dickinson of Delaware, the smallest state, soon made the essential point abundantly clear to a startled James Madison, when he pulled him aside in a corridor of Independence Hall, and uttered words to the effect of, "Do you want a Union, or don't you?", speaking on behalf of a coalition of small states. It was probably galling to Dickinson that Madison had never really considered the matter, and went about the Constitutional Convention airing the opinion that, of course, the big states would run things. Dickinson, who had been Governor of two states at once, had observed the effect of this attitude and wasn't going to have more of it.

Delegates

Benjamin Franklin, who for over 40 years had been working on a plan for a union of thirteen colonies (since 1745, long ago producing the first American political cartoon for the Albany Conference), devised the compromise. It was essentially a bicameral legislature -- with undiminished relative power in the Senate for small states. In this backroom negotiation, it was pretty clear Franklin held the support of two powerful but mostly silent big-state delegates, Robert Morris and George Washington. These were the three men of whom it could be said, the Revolution would never have been won without each of them. In 1787 they were still the dominant figures in diplomacy, finance, and the military. All three were deeply committed to a workable Union, each for somewhat different reasons. Now that a workable Union was finally within sight, parochial squabbles about states rights were not going to be allowed to destroy their dream of unity.

And so it comes about, they gave us a Federal government with a few enumerated powers, ruling a collection of state governments with regional power over everything else. And since big-state/small-state squabbles are unending, almost any other solution to some problem repeatedly, seemed preferable to disturbing what holds it all together. On the other hand, the Industrial Revolution was beginning at about the same time, and people who recognized the power of larger markets almost immediately set about attacking state-dominated arrangements, systematically weakening them for a century, and redoubling the attack during the Progressive era at the end of the 19th Century. Attacks on what seemed like an abuse of state power, the power to retain slavery, and later the power to perpetuate white racism, were claimed to justify this attrition of states rights. The ghost of the Civil War hung over all these arguments, restraining those who pushed them too far.

However, the driving force was industrialization, with enlarged businesses pushing back against the confinement of single-state regulation within a market that was larger than that. This restlessness with confining boundaries was in turn driven by railroads and the telegraph, improving communication and enlarging markets, which offered new opportunities to dominate state governments, and when necessary the political power weakens them. One by one, industries found ways to escape state regulation, although the insurance industry was the most resistant, whereas local tradesmen like physicians found it more congenial to side with state and local governments. The 1929 crash and the Franklin Roosevelt New Deal greatly accelerated this dichotomy, as did the two World Wars and the Progressive movement from Teddy Roosevelt to Woodrow Wilson. The Founding Fathers were said to have got what they wanted, which was a continuous tension between two forces, supporting both large and small governments; with neither of them completely winning the battle.

Insurance Monopoly

The medical profession further evolved from a small town trade into a prosperous profession during the 20th century, but the practice of medicine remained comfortably local. Even junior faculty members who move between medical schools quickly come to realize their national attitudes are somewhat out of touch with local realities. For doctors, state licensure and state regulation remained quite adequate, and state-regulated health insurance companies paid generously. State-limited health insurance companies had a somewhat less comfortable time of it, but the ferocity of state-limited insurance lobbying, as exemplified by the McCarran Ferguson Act, perpetuated it. The medical profession watched uneasily as the growth of employer-paid insurance extended the power of large employers over health insurance companies beyond state boundaries, and thus in turn over what had been medical profession's kingdom, the hospitals. And the medical profession also had to watch increasing congeniality with big government extend through businesses, unions and universities, fueled by overhead allowances of federal research grants and finally in 1965, federal health insurance programs. Nobody likes his regulator, but national organizations inevitably prefer a single regulator to fifty different ones. Furthermore, everybody could see that health care suddenly had lots of money, and naturally, everybody wanted some.

There is nothing naturally inter-state about medical care -- except health insurance. {bottom quote}

It was all very well to pretend that health care was out-growing local-state regulation, but those on the inside could uneasily watch the federal/state competition for control, with the federal government repeatedly stacking the deck more in its own favor. Aside from federal program interventions, there is still nothing naturally inter-state about medical care -- except health insurance. Doctors, hospitals, and patients all tend to remain local, but insurance can easily cross state lines if regulation permits. Even in insurance, small states have difficulty maintaining actuarial stability, driving health insurance toward one-state monopolies. With a few big-state exceptions, even most health insurance companies prefer single-state monopoly status to federal regulation because it facilitates marketing. To praise the virtues of insurance competition is fine, but if sharing the local market means struggling for adequate risk reserves, nationwide regulation will inevitably lead to domination by a few big-state insurance companies. Small-state insurers would enjoy access to a national market; but blocked from it, they need to retain a local monopoly to survive. Fleeting thought might be given to Constitutional Amendment, but there are probably always going to be enough states which consider themselves small, to block the two-thirds requirement for Amendment. Imposing nationwide uniformity by force would possibly improve standards, but uniformity is increasing rather than decreasing, so the argument is not a strong one.

To be fair about it, there was not a strong case for state regulation, either. It could have been argued that uniformity and reduced administrative costs favored central regulation over-dispersed control, because of improved efficiency; and few would have argued about it. Until the ACA insurance exchanges crashed of their own weight around the ears of hapless creators, that is, unable to do what Amazon seems to do every day, and raising quite a few embarrassing recollections. Recollections of the mess the Sherman Antitrust Act inflicted on local medical charity in Maricopa County, Arizona. Recollections of the "Spruce Goose" airplane that Howard Hughes made so big it couldn't fly. Recollections of the gigantic traffic jam strangling the District of Columbia every weekend. And, reminders that 2500 pages of legislation remain to be converted into 20,000 pages of regulations which it would take a lifetime to understand. Suddenly, let's face it, retaining state regulation of health care, or not rocking the boat, gets a lot better press. It might even work better than the national kind, especially in an environment where no one expected a perfect solution, and just about everyone had heard of the Curse of Bigness. When we first discovered that use of health insurance added 10% to the cost of health care, it had seemed like an easy place to extract 2% of the Gross Domestic Product for better things, just by streamlining administration. But after the health exchange fiasco, some people begin to wonder if 10% is just what it costs to use insurance to pay for healthcare. If that is the case, perhaps we should look at other ways of paying our bills, not just a different regulator. Nobody would pay 10% just to have his bills paid, if he understood what he was doing.

Philadelphia Reflections

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

Obituary

George R. Fisher, III, M.D.

First Amendment: Separation of Church and State

Selection of Constitutional Rights for the Bill of Rights

Fighting About Taxes So Soon?

ARCHITECTURE OF GOVERNMENT: (4) MAJORITY RULE

State and Federal Powers: Historical Review