Philadelphia Legal Scene
The American legal profession grew up in this town, creating institutions and traditions that set the style for everyone else. Boston, New York and Washington have lots of influential lawyers, but Philadelphia shapes the legal profession.
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The Constitution provides that the Vice President of the United States shall be the presiding officer of the Senate. Accordingly, during the Presidency of John Adams, from 1797 to 1801, Thomas Jefferson was the presiding officer of the U.S. Senate, down at 6th and Chestnut Streets. According to recent books by Ellis, McCullough and others, it must have been an exciting experience to preside over that particular Senate.
Just what was running through Jefferson's mind during that formative time of Senate procedure is largely left to conjecture. We hear it said that Senate debate was rambling, raucous, and sometimes physical. Since Jefferson himself was the most controversial person in the room, his rulings from the chair may well have been resisted. In any event, Jefferson proceeded to publish the first American Manual of Parliamentary Practice,
patterned after the rules of procedure of the British parliament. An uncut copy of this book is still on the shelves of the Philadelphia Atheneum, a block away. Its contents can be summarized as sensible elaborations of two basic rules: the deliberative body only takes up one topic at a time (discussion of anything which wanders from that topic is ruled non-germane), and the rights of the minority are to be respected. Since America had just concluded an eight-year war with England, it is a little surprising that the behavior of the English Parliament would be considered something to imitate, and by Thomas Jefferson, of all people. It is vital for any deliberative body to have a set of rules, agreed in advance, about how to conduct debate and reach a conclusion. Controversy can get pretty heated at times, and it is then too late to be making rules which might favor one side or the other. Establishing rules in advance is if anything more important than what those rules say. Jefferson was thus quite right in publishing such rules, with the intention that the first act of any newly elected group would be to adopt the rules in the book as the agreed standard for whatever happens to come up later. The uncut version at the Atheneum is symbolic; you don't have to keep discussing procedure if the procedure is agreed.
|General Henry M. Robert|
General Henry M. Robert wrote a revised version of Jefferson's rules in 1876, familiarly known as Robert's Rules of Order, which now govern the U.S. Congress. The main difference was to accommodate the creation of expert committees--on Ways and Means (taxes), Foreign Relations, health, etc, as the business of Congress grew more complex, and Congress met for longer and longer periods of time. Roberts Rules have thus become a special-purpose rule-book, and bodies like the American Medical Association or the American Bar Association, which meet for short periods yearly, find it more appropriate to substitute the use of "reference" committees. A reference committee is sort of a jury, intended to be a representative sample of the larger body, which is selected by the presiding officer to sort out a large amount of business and facilitate debate by the larger group as a whole. A reference committee system is better addressed by rules of order written by Mrs. Sturgis or Dr. Davis, than the more famous one by General Robert.
Underlying these seemingly dry technical issues is the struggle of an overburdened large group
to learn what its own collective opinion is, and to see that it is properly stated. As the agenda grows, it is necessary to designate smaller reference committees to hear testimony and present it fairly to the full convention when it assembles later. The referenced committee makes recommendations, but the full body reserves the decision to itself. In this way, the American Medical Association can make several hundred complex decisions in a week, almost universally recognized as representing the current opinion of the whole Association. Every few years, a decision is reversed, but remarkably seldom .
Eventually, a complex agenda grows to the size where a deliberative body must delegate a certain amount of power to experts, and the
U.S. Congress is well past that point already. It must consider an average of 25,000 bills per session. The typical state legislature considers an average of 10,000 bills; without a set of rules, nothing can be accomplished within such an overburdened agenda. No one surrenders power easily, and Congressmen are correct to insist that a republic elects the specific people it wants to see making the decisions, and lets them organize their own process. Therefore, General Robert describes the intentionally obscure rules which have evolved to govern the delegation by the elected members, of specific matters to specific committees of its own members. To put it bluntly, some handsome extrovert who happens to have got himself elected to Congress can be assigned to some unfamiliar topic and expected to learn what it is all about, with his power constrained until he does. Rule by seniority makes a lot of sense in such a situation, although obviously, some learn faster than others. Accordingly, the deliberative body must have rules which assist the process of weeding out chairmen who acquire seniority faster than they acquire expertise, while at the same time sympathizing with the difficulties all members regularly experience, publicly thrust into unfamiliar topics. Most smaller deliberative bodies do not need the rules which Robert's have evolved to manage seniority difficulties without opening the gates to ruthless power manipulators, unfortunately, but commonly an over-represented group in politics.
made himself a student of these arcane matters, and approved of the idea that, "Congress in Committee, is Congress at work" In recent decades, he would surely have been upset to see the degree to which the power of unelected experts has grown, at the expense of the power of home-made experts who none the less have been elected to exercise power in a general sense. The elected but amateur experts are in a constant struggle with experts provided by special- interest lobbyists, and experts in the bureaucracy who are provided by politicians in the executive branch. Lately, the executive branch is winning, and Congress had better look to its rules.
In this way, we begin to see how Parliamentary rules are different from Parliamentary procedure, although each influences the other. Parliamentary procedure is now a highly stylized, fast-moving game, greatly enjoyed by practiced players. Quick shots are applauded, and bumbling by presiding officers provokes instant indignation. Failure to call for votes in the negative was outlawed in 1604, there's no excuse for doing it this afternoon. Failure to call for debate of a proposal is an oversight too gauche to endure. Raucous "calling for the question" is as rude a form of behavior as taking off your shoe and pounding it on the table. Don't expect to get anywhere if you do things like this within an experienced group of players.
Now, modifying Parliamentary rules is something else. Changing or deliberately violating the rules of an organization is something only experts attempt, and usually with evil intent. Politicians sometimes can't be trusted with their own rules. The citizenry will be very sorry if, at a bare minimum, at least members of newsmedia editorial boards don't get more sophisticated about parliamentary rules, instantly sensing that something is up when someone wants to "modernize" them. The most egregious proposals of all are the ones which blandly propose to "bring the rules into conformity with current practice." Reflecting on such purring argument for a moment, it emerges that someone has been violating the rules for some time, and wishes to be condoned for it.
In one very important respect, Parliamentary procedure is accidentally mismatched to our legislative system. We elect a President or a Governor or a Mayor for a set period of time, and only remove him from office for egregious misbehavior, and in the case of Presidents only once in our history. In a Parliamentary system of government, by contrast, every Prime Minister expects to be removed by a vote of lack of confidence, which is a possibility every single day he is in office. The strategy of springing a trap could well underlie every proposal or budget measure; every move by the opposition could turn out to be a move in a chess game whose goal is to overturn the government. Consequently, Parliamentary debates are remarkably snide and uncivil in a Parliamentary system; no one dares to give an inch. In the American system, disorderly and mean-spirited remarks by the opposition are simply a nuisance, best ignored by the party in control. After two hundred years, our own legislative bodies have been slipping back a little into the savage reckless language heard in Parliaments abroad. Since the most important unwritten word in the Constitution is "compromise", one looks forward to the day when the voting public inflicts an unmistakable punishment for legislative intransigence. As Winston Churchill once growled, it's "Half foreign, and thoroughly reprehensible."
Originally published: Thursday, June 06, 2002; most-recently modified: Friday, May 31, 2019