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Peace Treaty of Westphalia 1648
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Europeans, long accustomed to providing Americans with cultural models, sometimes have a little trouble acknowledging the emerging European Union is based on the American design of 1787 Philadelphia. So perhaps it is tactless to emphasize they might encounter some of the same problems. The success of our design is a good reason to imitate it, and may, in fact, be a chief reason to boast about it. But look at it another way. Since we are uncertain why many provisions work so well, we are reluctant to change them; but the proud Europeans cannot be expected to adopt them for a vague reason like that. The main point is to maintain the right degree of vigilance and flexibility, a difficult measurement to make or to transfer to different circumstances. Our Constitution is more right than wrong, so it was intentionally made hard to change. Technically the Constitution has been amended twenty-seven times. Omitting the Bill of Rights, minor technical changes leave us with only five substantial amendments in two centuries, mostly enlargements of the voting franchise. But notice on top of a small base, we have built a legal structure of 100,000 pages of Federal statutes, almost a million pages of regulations, and at least double that number of state laws. Our legal system has many flaws, but smaller ones are easier to change. The great danger for Europeans lies in taking a similarly huge body of multi-nation statutes, then attempting to cram them into a constitution which by definition has been made hard to change. James Madison was not in a position to see this point. Looking for it in The Federalist Papers is futile because they were written to persuade New York to ratify the Constitution, and contain a moderate amount of slant. Add to all that a recognition that the U.S. Supreme Court makes a hundred little amendments every year. It follows it would be bold indeed to list a handful of examples of what the Europeans should avoid at all costs, or omit at their peril. One point seems undeniable, consolidating a number of former colonies is easier than consolidating sovereign nations. Nations start with more sovereignty, so they individually have more power to lose in a consolidation.
The success of our design is a good reason to imitate it, and may in fact be the chief reason to boast of it.
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The people in power in the individual nations of Europe, and the political factions which elected them don't really want to give up power to a central government in Strasbourg and Brussels. They wouldn't be human if they did. Much the same reluctance inspired our thirteen colonies in the Eighteenth Century, and we circumvented it by excluding state officials from the ratifying conventions. Imagine telling that to the Prime Minister of Great Britain. Having multiple sovereignties breeds jealousies, particularly when the issue is governance. Our ratifying process was rancorous, and echoes of it still reverberate. If transitions are too rapid, even from a bad system to a good one, changes can prove disruptive. For ousted incumbents, all transitions are too rapid. The Europeans additionally have a big problem we didn't have, of multiple languages, so harmony will be slower to arrive -- try to imagine a common market in the Tower of Babel. By lacking multiple languages to rally around, we stumbled into a two-party system, which is actually a big improvement over more-or-less proportional representation by multiple parties. Without having any foresight on the issue, we established a system in which "deals" are made internally and voluntarily, between the extremists within each of the two major parties before the November elections, because by then the central issue has become whether the party might not win with a particular candidate standing on a particular platform. The policy positions of the nominees of both major parties draw closer together, and we don't get a revolution when one of them does win, even by a single hanging chad or questionable mortgage. Unfortunately, the candidates are usually so close to the haphazard process of pre-election compromise that they often consider it less binding than the public does. But by major contrast, in an overtly multi-party system a coalition is formed after the election is over, so the "deals" between splinter parties must also be made after the election is over; voters are completely cut out of the most important decision-making. Splinter parties are an easy recourse for nations with many minorities and are to be avoided at all costs. If a unified nation really cannot be constructed without such recourse, perhaps they would be better off with a King. Since political parties were not mentioned in the American Constitution, this advantage of a two-party system has never been widely debated.
Our experience teaches one more important principle, unwritten in the Constitution. The outstanding message of the American experience from 1787 to 1850, especially the twenty year period after Washington's presidency (and quite unforeseen by the Founding Fathers), is that no party in power can see any merit to the rights of the minority until it has itself spent some time out of power. Nor can any party of complainers and reformers see any merit in prudent caution until it has itself spend some time wielding power. Let's suggest a rule to the Europeans: every political faction is untrustworthy until it has spent two terms in office, and then two terms out of office. It would appear it takes even longer for political parties to mature than it does for governments. We achieved this hat trick by starting out with an Electoral College that didn't work very well, most particularly in the tied election of 1800. Once the Electoral College served its purpose of effecting compromise at the Constitutional Convention, we have largely ignored it as a result of the 1800 fiasco. Perhaps another approach is to change it in stages, considering the Articles of Confederation as a preliminary step to enacting a Constitution, as it were. Unfortunately, most European nations can point to several constitutions in their past, without significant progress toward continental unity. It even seems likely the main problem is not in the Constitution at all, but in wider differences between components at the outset. And a long history of struggles in the past, which we forgot when we crossed the ocean because so few wanted to repeat the stormy voyage.
Maybe even that assessment is too generous to our own history; after all, in 1860 we had our Civil War. You'd certainly hate to think it was essential to have one of those until you reflect that Europe really has had four or five major wars during the past two hundred years. Could it actually be true that a peaceful union leads to further peace? George Washington denounced standing armies, while Dwight Eisenhower warned of the military-industrial complex. Perhaps both of them were warning that war-like behavior leads more quickly to war, by eliminating preliminary steps.
REFERENCES
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AMA Logo
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ABOUT ten years ago, I first encountered the use of the term "Human Rights". Seated as a member of the House of Delegates of the American Medical Association, I was distracted when a late resolution was passed around for urgent consideration. Such resolutions require a supermajority to be introduced as a business of the House, either two thirds, or three-quarters of the attendees, and a little speech by the author explaining the "reason for lateness". The resolution was a one-line request for endorsement of the concept of Human Rights by the American Medical Association. The stammering explanation for lateness (as distinguished from holding it over to the next meeting) was that it was self-evident that the Association would favor human rights and immediately place it on the "Consent Calendar" for approval without voting on it. Like everyone else in the room, I looked to my seatmate neighbor to ask what this was all about. No one knew, so the author was asked to explain. Well, it was about human rights, not animal rights or corporate rights, and was otherwise so self-evident it needed no further explanation. Just what was in the mind of others seated in that room I cannot say, but to me, the resolution seemed like nonsense, whose author seemed very innocent and naive. In any event, the resolution was dismissed, the paper discarded, and we went on to the medical issues we were there to discuss.
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Bill of Rights
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the committee to prepare the Bill of Rights, it is easily possible that he felt the same way about the ninety rights he decided to delete. The handful of rights which survived into the Bill of Rights seem to have been limited to preventing outrages (freedom of speech, assembly, petition for grievances, press, religion) which the British had committed during the Revolutionary War. The rest of the proposed rights would have to go through the process, one by one, of establishing that violations had indeed been numerous and notorious. By contrast in the recent construction of the Bill of Rights for the European Community, a far more relaxed attitude was in evidence. They are fifty pages long, including such things as the right to work half time when an employer wants you to work full time. The best I could say about that would be it is micro-management. The worst would be to imagine that a great many people who voted for it were displaying a deliberate intention to make the European Union unworkable, and that must have been at least a majority, if not a super-majority. Without more willingness to compromise than this, the EU seems doomed.
In fact, the whole concept of prosecution for human rights violation is too vague to be useful. When individuals commit outrageous crimes, the matter can normally be handled under the criminal code, with the offense defined and appropriate punishment described in advance. Murder and torture are not commonly affected by whether or not rights have been violated. On the other hand, offenses by component national states are usually regarded as acts of war; if Ghengis Kahn were accidentally admitted to the EU, the punishment would start with expulsion from the Union, and surely go on to war, essentially the same outcome. A nation which was able to deal with the Iroquois and the Comanche tribes surely has no nightmares about Nebraska electing Pol Pot as governor. The human rights advocates have simply got to make a more plausible case for revolutions in our criminal justice system, if they are to be taken seriously.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
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The Third Amendment
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The Third Amendment to the Constitution received a few moments of attention during the War of 1812, and the Civil War, but has only been litigated once during a strike of prison guards in New York state. It is, however, the somewhat fanciful basis for the right of privacy, devised for Roe v. Wade, and related this to the controversy over abortion rights.
It would appear that requisitioning the homes of private citizens was largely an expense-saving feature of the peacetime standing armies of European nobility, and thus agitated the opponents of aristocracy and feudalism. Its expense-sparing feature was a source of discontent during the French and Indian War, with its long wilderness border making housing difficult to find. The memories of people living near the frontier were long, however, and Charles Pinckney introduced to the Constitutional Convention one of a great many ill-considered motions which were defeated by that body, opposing the quartering of troops in peacetime. This action was taken up in demagogic style by the Anti-federalist faction, and during the ratification process, quite an issue was made of woeful inadequacy of a Constitution which failed to protect a nation's defenseless households, etc., etc. Matters reached a point where Madison was afraid not to include the matter in the Bill of Rights.
The matter may come up again, however, not merely in abortion controversies, but related to the increasing tendency to wage undeclared wars. Apparently, it was Madison's intent to throw the issue into the Executive Branch in the case of "time of war". No declaration of war was made in the Civil War, or in several other conflicts so that the issue which remains unresolved is what to do about undeclared wars, wars against terrorism, and other conditions which are not exactly either peace or war.
Judiciary Act of 1789. Sec. 25.
That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceedings upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution.
But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.
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Section 25 (In Full)
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Oliver Ellsworth was a scion of several old Connecticut families, had nine children who were not only distinguished themselves, but whose descendants were similarly gifted, rich, and important members of New England society. The Ellsworth give every sign of possessing a very good gene pool. Unfortunately, Oliver's last years were agonized by some disease which gave him constant and sometimes excruciating pain making him terse and abrupt; eventually, he had to resign as Chief Justice after an unbearable recrudescence of his disease. His career almost reads as if he designed it to prepare the Chief Justice's role for his own enjoyment, but instead had to turn it over to John Marshall to enjoy. Associate Justice Joseph Story's career, in turn, reads as though he had been groomed to evangelize Ellsworth and Marshall's Constitutional achievements. Without Story's prolific writing all this Judicial revolution would merely have taken second place in public attention, competing with convulsive political battles, the shooting of Hamilton by Burr, wars and near-wars with European powers, dramatic increases in the population and land mass of the United States, a populace delirious with notions of its own sovereignty, and The Industrial Revolution. Publicity might not have been necessary in a calm, peaceful world, one with time and communication systems allowing public notice of what was happening.
Oliver Ellsworth had been a member of the Continental Congress, was an ardent rebel against British rule, had a flourishing law practice in Windsor, Connecticut, and later in George Washington's presidency was a leader in promoting Hamilton's economic and banking upheaval. He was, so to speak, Mr. Federalist. During the First Congress, he quickly invented and exercised the role we now would describe as Senate majority leader. Like others who had participated in the political science seminar we now call the Constitutional Convention, he had already formed his political beliefs, and when Congress finally opened, he hit the ground running. To understand Ellsworth however, is to understand his deeply-held preference for secrecy, which his opponents characterized as deviousness. He much preferred private negotiations to persuasive oratory, and for five years was able to prevent the Senate from having either minutes or visitors. In this instance, he began his negotiations about the Judiciary Act with James Madison, ostensibly about the Bill of Rights, which was the main activity in the House of Representatives at the moment. No wonder Senator Maclay of Pennsylvania said of Ellsworth, "He will absolutely say anything, nor can I believe he has a particle of principle in his composition," and "I can in truth pronounce him one of the most uncandid men I ever knew possessing such abilities."
On four occasions during the Constitutional Convention, Madison had proposed and been defeated on motions to create Congressional Review of State Laws, that is, the ability of Congress to declare State Laws unconstitutional. Ellsworth, fearing it would jeopardize state ratification of the new constitution, opposed and helped defeat the motions. Now, things were different, and Ellsworth negotiated Senate agreement to much the same idea, provided it could be changed to Judicial Review, and also provided the House of Representatives would agree to pass the Judiciary Act currently under development in the Senate. The deal was made, and both bills were duly passed. Whether Madison or anyone else understood what was in the Judiciary Act, is now unclear. Accordingly, the two-sentence Section 25 of the Judiciary Act of 1789 is appended for individual reader appraisal. In essence, it says the U.S. Supreme Court may hold unconstitutional a decision of a state supreme court to reject an appeal from an unconstitutional act. That is, the 25th section of a bill to organize and coordinate the Federal and State Court systems contained a mysteriously written, two sentence, a transformation of Congressional Review into Judicial Review. From this point onward, the U.S. Supreme Court was empowered -- by Congress -- to declare state laws unconstitutional. Wrapped in the same bicameral deal was an implicit subtle shift in emphasis of the Bill of Rights from protecting the States from the federal government, to one of protecting the people from any and all government over-reaching. It was a noble achievement, facilitated by some questionable maneuvers by the umpires to help it along.
State and Federal Powers: Historical Review
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John Dickinson of Delaware
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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.
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Delegates
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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.
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Insurance Monopoly
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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.
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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.
Originally the "lower counties" of Pennsylvania, and thus one of three Quaker colonies founded by William Penn, Delaware has developed its own set of traditions and history.
Start in Philadelphia, take two days to tour around Delaware Bay. Down the New Jersey side to Cape May, ferry over to Lewes, tour up to Dover and New Castle, visit Winterthur, Longwood Gardens, Brandywine Battlefield and art museum, then back to Philadelphia. Try it!
Millions of eye patients have been asked to read the passage from Franklin's autobiography, "I walked up Market Street, etc." which is commonly printed on eye-test cards. Here's your chance to do it.
In 1751, the Pennsylvania Hospital at 8th and Spruce was 'way out in the country. Now it is in the center of a city, but the area still remains dominated by medical institutions.
Grievances provoking the American Revolutionary War left many Philadelphians unprovoked. Loyalists often fled to Canada, especially Kingston, Ontario. Decades later the flow of dissidents reversed, Canadian anti-royalists taking refuge south of the border.