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.
Philadelphia Changes the Nature of Money
Banking changed its fundamentals, on Third Street in Philadelphia, three different times.
Federalism Slowly Conquers the States
Thirteen sovereign colonies voluntarily combined their power for the common good. But for two hundred years, the new federal government kept taking more power for itself.
|Peace Treaty of Westphalia 1648|
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.
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.
|The Records of the Federal Convention of 1787||Farrand's Records|
|Chart of the Thirteen Original Colonies||American History|
|U.S. Constitution||Legal Encyclopedia|
Originally published: Friday, June 23, 2006; most-recently modified: Wednesday, June 05, 2019
|Posted by: Dominic from UK | Dec 20, 2007 10:11 AM|