Philadelphia Reflections

Shaping the Constitution in Philadelphia

After Independence, the weakness of the Federal government dismayed a band of ardent patriots, so under Washington's leadership a stronger Constitution was written. Almost immediately, comrades discovered they had wanted the same thing for different reasons, so during the formative period they struggled to reshape future directions . Moving the Capitol from Philadelphia to the Potomac proved curiously central to all this.

George Washington Demands a Better Constitution

GEORGE Washington was a far more complex person than most people suppose, and he wanted it that way. He was born to be a tall imposing athlete, eventually a bold and dashing soldier. On top of that framework, he carefully constructed a public image of himself as aloof, selfless, inflexibly committed to keeping his word. Parson Weems the biographer may have overdone the image a little, but Washington gave Weems plenty to work with and undoubtedly would have enjoyed overhearing the stories of the cherry tree and tossing the coin across an impossibly wide Potomac. Washington had a bad temper and could remember a grievance for life. He married up, to the richest woman in Virginia.

Potomac River

Growing up along the wide Potomac River, Washington early conceived a life-long ambition to convert the Potomac into America's main highway to the Mississippi. He did indeed live to watch the nation's new capital start to move into the Potomac swamps across from his Mount Vernon mansion, in a city named for him. For now, retiring from military command with great fanfare and farewells after the Revolution, he returned to private life on this Virginia farm. He made an important political mistake along this path, by vowing in public never to return to public life. During the years after the Revolution but before the new Constitution, his attention quickly returned to building canals along the Potomac River, deepening it for transportation, and connecting its headwaters over a portage in Pennsylvania to the headwaters of the Monongahela River -- hence to the Ohio, then the Mississippi, or up the Allegheny River to the Great Lakes. He personally owned 40,000 acres along this river path to the center of North America. The occasion for a national constitutional convention grew out of a meeting with Maryland to reach an agreement about this Potomac vision, which was being blocked by commercial interests in Baltimore. Ultimately, Baltimore won the commercial race; so it was the Baltimore and Ohio Railroad which captured the early commerce to the west. Washington also made deals, ultimately to Baltimore's benefit, with the James River interests, to give them a share of the development of the Chesapeake Bay trade. As a young man, George Washington had acted as a surveyor for most of this region, and as a young soldier had explored the Indian trade to Pittsburgh, actually starting the French and Indian War during this trip. He was to march it again later with Braddock's army. All the while, Washington dreamed of the day. There were competitors; Philadelphia and New York had similar aspirations for their rivers. Take a look at a globe or Google Earth. Comparatively few of the earth's rivers drain too far western beaches. Even today, long-term victory in worldwide water transportation will likely go to one of many eastern rivers linking up with one of the few western ones. The ultimate world-wide goal has yet to be fulfilled for what continues to be the cheapest of all bulk transportation methods.

Washington at age 54 was already richer than most people need to be; a lot of this Potomac dream was a residual of boyhood ambitions enduring into middle age. In a sense, he had the ambition to make his boyhood home the future center of the universe. Although much of his stock in these real estate enterprises resulted in very little extra wealth, he demonstrated his mixture of public spirit combined with ambition by donating the stock in one of the companies to a future national university, to be located across the river near Georgetown. Since that didn't work out, he later placed the nation's capital there. He had consistently been a far bolder dreamer than Cincinnatus, humble Roman citizen-soldier returning to his farm from the wars.

Washington more or less gave up this Potomac ambition for a loftier one. During the Revolution, he had suffered the most infuriating abuse of himself and his soldiers from the state legislatures. Their urgent demands for victories were seldom matched with resources. The Continental Congress representing those state governments in a weak confederation that could not feed and pay its own troops seemed little better. He could be a mean man to cross, but perhaps with General Cromwell in mind, Washington possessed the firmest and most sincere belief in the proper subservience of military to civilian control. These conflicting feelings resulted in earnest obedience to a group of politicians he surely distrusted. This could not be described as hypocrisy; he respected their rank even though he suffered from their behavior. When Congress paid the troops in worthless currency which they promised to redeem after the war, it became clear that either lack of moral fiber or their system of governance led the states and the Congress in the direction of dishonoring their debt to the soldiers. This was a dreadful system, which led to death and suffering among the loyal troops, forcing the General into the humiliating position of assuring the troops Congress would stand by them, while he privately doubted any chance of it. Washington did not easily forgive or forget. Here was a paltry outcome for eight years of war and suffering; this system of organized dishonor must be improved.

He went about achieving his goal in a way that would not occur to most people. He chose a young ambitious agent, James Madison, who had caught his attention in the Virginia legislature, in the Continental Congress, and in the negotiations with Maryland over the development of the Potomac. Washington schemed with the young man for weeks on end about ways and means, opportunities, dangers, and potential enemies. Perhaps he failed to notice some ways where he and Madison fundamentally differed. Madison himself might not have recognized that his years at Princeton in the Quaker state of New Jersey had exposed him to novel ideas like separation of church and state, which were instantly appealing to the two Virginia Episcopalian religious doubters. Many people he admired, Patrick Henry, in particular, wanted the government to be as weak and ineffective as possible. Unfortunately, when Madison's turn later came for assuming the Presidency, he went along with reliance on diplomacy and persuasion until it almost cost America the War of 1812. Acting as Washington's agent in 1788, Madison was assigned to win over the Virginia legislature, make alliances with other states in Congress, identify friends and enemies, make deals. He performed as brilliantly as he would at the Constitutional Convention, so the basic conflict between the soldier President and his politician assistant was glossed over. As long as the original relationship held together, Washington felt it was useful to remain above and aloof, publicly wavering whether this was all a good idea, but fiercely determined to have a nation he could be proud of. There was to be a Constitutional Convention in Philadelphia, but while Washington was invited, he let it be known he was uncertain whether he should accept the invitation. What he really meant was he would preserve his political credibility for a different approach if this one failed. Considered from Madison's viewpoint however, this clearly meant Washington would dump him if things went badly. Meanwhile, the unknown young Madison on several occasions came to Mount Vernon for three days at a time to talk strategy and give the famous General all the scoop. Today, we would describe Madison as a nerd. The aristocratic Gouverneur Morris never thought much of him. Washington needed him, but there is no evidence he thought of him other than as a glorified butler. Little Madison was awkward among the ladies, a problem inconceivable to either Washington or Morris. But that little mind was surely working, all the time.

Madison was in fact a brilliant politician, a dissembler in a different way, but a severe contrast with his mentor. To begin with, he was a scholar. Both as an undergraduate at Princeton and a graduate student working directly with the great Witherspoon himself, Madison was deeply learned in the history of classical republics. He spent an extra year at Princeton, just to be able to study ancient Hebrew with Witherspoon. But he was innately skilled in the darker arts of politics. When votes were needed, he had a way of persuading three or four other members to vote for a measure, while Madison himself would then vote against it to preserve influence with opponents for later skirmishes. In fact, as matters later turned out, it becomes a little uncertain just how convinced Madison was that Washington's strong central government was a totally good idea. Before and after 1787 Madison expressed a conviction that real sovereignty originated in the states, just as the Articles declared. That was a little too fancy for practical men of affairs, who were uncomfortable to discover how literal Madison was after his break with the Federalists. Twenty years younger than the General. he prospered in the image of being personally close to the titan, and he certainly enjoyed the game of politics. The new Constitution was going to be an improvement over the Articles of Confederation, but Madison did not burn for long with indignation about injustice to the troops, or disdain for nasty little politicians in the state legislatures. These were problems to be solved, not offenses to be punished. The new Constitution was a project where he could advance his career, skillfully demonstrating his prowess at negotiation and manipulation. This is not to say he did not believe in his project, but rather to suspect that he was a blank slate on which he allowed Washington to write, and later allowed others to over-write. He was eventually to modify his opinions as a result of new associations and partners, and since he succeeded Jefferson as President, it was personally useful to adjust his viewpoints to his timing. What would never change was that he was an artful politician, while Washington hated, absolutely hated, partisan politics.

This is not just an emotional division between two particular Virginia plantation owners, but an enduring thread running through all elective politics. Washington set the style for generations of citizen leaders in America. In his mind, a person of honor distinguishes himself in some way before he enters public office, so on the basis of that honorable image, presents himself to voters for public office, and naturally is elected to represent their interests. He is expected to compromise where compromise is honorable and publicly acknowledged, in order to achieve one desirable outcome in concert with other outcomes, in some ways inconsistent but still honorable in combination. He reliably will not vote for either issues or candidates in return for some personal consideration other than the worth of the issue or the candidate, with the possible exception of yielding to the clear preferences of his local district. Such a person is not a member of a political organization very long before he encounters another group of colleagues -- who regularly swap votes for personal advantage, join a group who agree to vote as a unit no matter what the merits, and recognize the frequent necessity to talk one way while secretly voting another. The first sort of politician is usually an amateur, the second type is typically a professional politician. Although it seems a violation of ethics and common public welfare, the fact is the professional vote-swapper almost always beats the sappy amateur. The response during the Eighteenth Century was for idealists to condemn and attempt to abolish partisanship and political parties. The American Constitution does not make provision for political parties and other forms of vote-swapping or even anticipate their emergence. Although Madison ignited the process in the United States, Jefferson really organized it; every recent politician except Adlai Stevenson has openly participated in a version of it. That the Constitution has still not been amended to provide for parties seems to reflect a persisting nostalgic hope that somehow we can return to Washington's stance.

Washington's conception of open representative politics was not entirely perfect, either. In order to maintain an image of impartiality, Washington and his imitators isolated themselves in a cloak, holding back their true opinions in a sphinx-like way that hampered negotiation. Unwillingness to be seen swapping votes can lead to an unwillingness to compromise, and in the final analysis, the difference is one of degree. However, the over-riding issue is that each representative or Senator is equal to every other one. When vote-swapping gets started, it leads to placing power over supposed equals in the hands of the more powerful manipulators, masquerading as political leaders. Ultimately, it leads to the adoption of house rules on the very first day of a session which force lesser members to surrender their votes to a speaker or minority leader or committee chairman, when the theory is that there is no such thing as a lesser member. The claim of a party-line politician is that he obeys the will of the party caucus; the reality is usually that he obeys the will of some tough, self-advancing party leader. The final reality is that most legislatures must now deal with thousands of bills per session, leading to the necessity of appointing someone to set priorities, which in turn leads to the power of party leaders over their grudging servants. These various subversions of the equal rights of elected representatives can lead to such discrediting of the system that honorable people may refuse to stand for office, leaving foxes in charge of the hen house. Benjamin Franklin, who was to play an invisibly controlling role in the impending Constitutional Convention, had his own way of coping with the political environment. "Never ask, never refuse, never resign."

Line Dividing East from West Jersey

The difference between what eventually happened to East Jersey and West Jersey after three hundred years illustrates the difference between an outstanding lawyer like William Penn, and the ordinary run of lawyers. Because we focus here on a title to land in real estate transactions, a three-paragraph historical synopsis is necessary. If you've wondered why you need to buy title insurance when you buy a house, read on.

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

William Penn

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

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

The line dividing West and East NJ

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

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

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

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

John, Lord Berkeley

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

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

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

George Carteret

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

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

Concessions and Agreements

Concessions and Agreements

The United States Constitution is a unique achievement, but it had significant precursors, many of which James Madison had studied at Princeton. In the days of difficult ocean travel, almost all colonies were bound by an agreement to maintain loyalty to their European owners in spite of receiving latitude to govern themselves. Charters and documents defining these roles were generally written by the owners, and the colonists could pretty much take them or leave them. In the case of New Jersey in 1664, however, a very formidable lawyer and friend of the King named William Penn was drawing up agreements to his own conditions of sale, taking care that the grant of governing authority he received was favorable. Penn's relationship to the King was unusually good, to say the least. He had more reason to be wary of nit-pickers in the King's administration, trying to anticipate every conceivable disappointment for some successor King.

For his part, Penn wanted to make colonial land attractive to re-sell to religious groups who had experienced harsh government oppression; he wanted no obstacles to his announcing there would be no religious oppression in New Jersey. He was offered the role of sub-king although he hastily rejected any such title, and needed to repeat the formalities of the Charter to define his role and reassure his settlers about that matter. Furthermore, he was dealing with the heirs of Carteret and Berkeley, active participants in North and South Carolina. So Penn's method of achieving basic rights was influenced by prior thinking in the Carolinas, as the thinking of John Locke secondarily influenced matters in Delaware and Pennsylvania. These ideas were incorporated in a New Jersey document called "Concessions and Agreements." The concepts were not wholly the ideas of William Penn, but he did write it, and it does contain many ideas that were uniquely his. Understandings about limits were set down, argued about, and agreed to. The owner risked money, the colonist risked his life. Neither would agree unless a reasonable bargain was struck in advance of any dispute. Furthermore, the main value of a colony was beginning to shift from trading rights to real estate rights. Carteret and Berkeley had not only been principals in both the Carolinas and the Jerseys but had been involved in a number of such investments in Africa and the West Indies; New Jersey was just another business deal. It was conventional for documents of this type to define the method of selection of a governor, the establishment of an assembly of colonists, and some sort of council to attend to day to day affairs. In that era, few colonists would cross the ocean without a guarantee of religious freedom, at least for their own brand of religion. Standard clauses which may sound strange in today's real estate world, were then necessary because it was a transfer of not merely land, but also the terms of government. In the case of the Quaker colonies, many of these stipulations were included in the earlier charter from the King. It seems very likely that Penn hovered around and negotiated these points which he wished to have the King agree to; and then once the land was safely his, Penn repeated and expanded these stipulations with the colonists in his Concessions and Agreements . It wasn't exactly a Constitution, but it reads a lot like the one America adopted a century later.

Proprietors House

Quakers had suffered persecution and imprisonment, and knew exactly what they feared; on the other side, it seems likely Carteret and Berkeley were less interested. So this real estate transfer document conceded almost anything the colonists wanted and the King would stand for, couched in conciliatory phrases. For example, no settler was to be molested for his conscience, and liberty was to be for all time, and for all men and Christians. Elections, by the way, must be annual, and by secret ballot. While law and order must prevail, nevertheless no man is to be imprisoned or molested except by the agreement of twelve men of the neighborhood. On the matter of slavery, no man was to be brought to the colony in bondage, save by his own consent (that is, indentured servants were to be permitted). And in what proved to be a final irony for William Penn, there was to be no imprisonment for debt. Almost all of these innovative ideas survived into the U.S. Constitution a century later, but the most innovative idea of all was to set them all down in a freely-made agreement in writing. This was not merely how a government was organized, it defined the set of conditions under which both sides agreed it would operate.

It was, of course, more than that. It was a set of reassurances to settlers who had been in New Jersey before the English arrived that they, also, would be treated as equals. It was a real estate advertisement to the fearful religious dissenters back in England that it was safe to live here. And it was a reminder to future Kings and Parliaments that this is what they had promised.

The pity and a warning, is that the larger vision of a whole continent governed fairly by common consent may have been too grandiose for a little band of New Jersey Quakers, surrounded as they were by an uncomprehending world. All utopias are helpless when stronger neighbors reject the basic premise. However, it was the expansion of the pacifist concept to the much larger neighboring territory of Pennsylvania that proved to be just too much for such a small group of friends to manage by consensus, particularly when unbelieving immigrants began to outnumber them. But the essential parts of it certainly remained in the minds of delegates to the Constitutional Convention in 1787. When the minutes of the Constitutional Convention speak of the "New Jersey Plan", the Concessions and Agreements was what they had in mind.

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REFERENCES

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Concessions and Agreements of New Jersey 1676: William Penn	New Jersey State Library
Camden After the Fall: Decline and Renewal in a Post-Industrial City: Howard Gillette Jr.: ISBN-13: 978-0812219685	Amazon

Designing the Convention

The Convention and the Continent

THE prevailing notion of the Constitutional Convention once depicted James Madison as seized with the idea of a merger of former colonies into a nation, subsequently selling that concept to George Washington. The General, by this account, was known to be humiliated by the way the Continental Congress mistreated his troops with worthless pay. But recent scholarship emphasizes that Washington noticed Madison in Congress becoming impassioned for raising taxes to pay the troops, was pleased, and reached out to the younger man as his agent. Madison seemed a skillful legislator; many other patriots had been disappointed with the government they had sacrificed to create, but Madison actually led protests within Congress itself. A full generation younger than the General and not at all charismatic, Madison's political effectiveness particularly attracted Washington's attention to him as a skillful manager of committees and legislatures. Washington was upset by Shay's Rebellion in western Massachusetts, which threatened to topple the Massachusetts government, but Shay's frontier disorder was only one example of general restlessness. There was a long background of repeated Indian rebellions in the southern region between Tennessee and Florida, coupled with uneasiness about what France and England were still planning to do to each other in North America. It looked to Washington as though the Articles of Confederation had left the new nation unable to maintain order along thousands of miles of the western frontier. The British clearly seemed reluctant to give up their frontier forts as agreed by the Treaty of Paris, and very likely they were arming and agitating their former Indian allies. Innately rebellious Scotch-Irish, the dominant new settlers of the frontier, were threatening to set up their own government if the American one was too feeble to defend them from the Indians. The Indians for their part were coming to recognize that the former colonies were too weak to keep their promises. With the American Army scattered and nursing its grievances, the sacrifices of eight years of war looked to be in peril.

The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured ... by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union.

A.Lincoln, First Inaugural

Even Washington's loyal friends were getting out of hand; Alexander Hamilton and Robert Morris had cooked up the Newburgh cabal, hoping to provoke a military coup -- and a monarchy. Because they surely wanted Washington to be the new King, he could not exactly hate them for it. But it was not at all what he had in mind, and they were too prominent to be ignored. So he had to turn away from his closest advisers toward someone of ability but less stature and thus more likely to be obedient. It alarmed Washington that republican government might be discredited, leaving only a choice between a King and anarchy. Particularly when he reviewed shabby behavior becoming characteristic of state legislatures, something had to be done about a system which proclaimed states to be the ultimate source of sovereignty. Washington decided to get matters started, using Madison as his agent. If things went badly he could save his own prestige for other proposals, and Madison could scarcely defy him as Hamilton surely would. Washington could not afford to lose the support of the two Morrises, and still, expect to accomplish anything major. Madison had been to college and could fill in some of the details; Washington merely knew he wanted a stable government and he did not, he definitely did not, want a king. Many have since asked why he renounced being King so violently; it seems likely he was projecting a public rejection of the Hamilton/Morris concept in a way that did not attack them for proposing it. It was a somewhat awkward maneuver, and to some degree, it backfired and trapped him. But Madison proved a good choice for the role, and things worked out reasonably well for the first few years.

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite.

J.Madison, Federalist#45

Madison was young, vigorous and effective; he held the widespread perception of the Articles of Confederation as the source of the difficulty, and he was a reasonably close neighbor. He was active in Virginia politics at a time when Virginia held defensible claims to what would eventually become nine states. Negotiations for the Northwest Ordinance of 1787 would be going on while the Constitutional Convention was in session, and Virginia was central to both discussions. After conversations at Mount Vernon, a plan was devised and put into action. Washington wanted a central government, strong enough to energize the new nation, but stopping short of a monarchy or military dictatorship. There were other things to expect from a good central government, but it was not initially useful to provoke quarrels. Madison had read many books, knew about details. Between them, these two friendly schemers narrowly convinced the country to go along. As things turned out, issues set aside for later eventually destroyed the friendship between Washington and Madison. Worse still, after seventy years the poorly resolved conflict between national unity and local independence provoked a civil war. Even for a century after that, periodic re-argument of which powers needed to revert to the states, which ones needed to migrate further toward central control, continued to roil a deliberately divided governance.

Constitutional Convention

For immediate purposes, the central problem for the Virginia collaborators was to persuade thirteen state legislatures to give up power for the common good. The Articles of Confederation required unanimous consent of the states for amendment. To pay lip-service to this obstacle, it would be useful to convene a small Constitutional Convention of newly-selected but eminent delegates, rather than face dozens of amendments tip-toeing through the Articles of Confederation, avoiding innumerable traps set by the more numerous Legislatures. In writing the Articles of Confederation, John Dickinson had been a loyal, skillful lawyer acting for his clients. They said Make it Perpetual, and he nearly succeeded. The chosen approach to modification was first to empower eminent leaders without political ambitions and thus, more willing to consent to the loss of power at a local level. Eventual ratification of the final result by the legislatures was definitely unavoidable, but to seek that consent at the end of a process was far preferable because the conciliations could be offered alongside the bitter pills. Divided and quarrelsome states would be at a disadvantage in resisting a finished document which had already anticipated and defused legitimate objections and was the handiwork of a blue-ribbon convention of prominent citizens and heroes. By this strategy, Washington and Madison took advantage of the sad fact that legislatures revert toward mediocrity, as eminent citizens experience its monotonous routine and decline to participate further in it, but will make the required effort for briefly glamorous adventures. Eminently successful citizens are somewhat over-qualified for the job, whose difficulties lesser time-servers are therefore motivated to exaggerate. To use modern parlance, framing the debate sometimes requires changing the debaters. In fact, although he had mainly initiated the movement, Washington refused to participate or endorse it publicly until he was confident the convention would be composed of the most prominent men of the nation. This venture had to be successful, or else he would save his prestige for something with more promise. Making it all work was a task for Madison and Hamilton, who would be replaced if it failed.

John Dickinson

While details were better left hazy, the broad outline of a new proposal had to appeal to almost everyone. Since the new Constitution was intended to shift power from the states to the national government, it was vital for voting power in the national legislature to reflect districts of equal population size, selected directly by popular elections. That was what the Articles of Confederation prescribed. But no appointments by state legislatures, please. In the convention, it became evident that small states would fear being controlled by large ones through almost any arrangement at all. On the other hand, small states were particularly anxious to be defended by a strong national army and navy, which requires a large population size. England, France, and Spain were stated to be the main fear, but small states feared big neighboring states, too. Since the Constitutional convention voted as states, small states were already in the strongest voting position they could ever expect, particularly since the Federalists at the convention needed their votes. Eventually, the agreement was found for the bicameral compromise suggested by John Dickinson of Delaware, which consisted of a Senate selected and presumably voting as states, and a House of Representatives elected in proportion to population; with all bills requiring the concurrence of both houses. From the perspective of two centuries later, we can see that allowing state legislatures to redraw congressional districts gives them the power to "Gerrymander" their election outcomes and hence restores to the populous states some of the internal Congressional power Washington and Madison were trying to take away from them. In the 21st Century, New Jersey is an example among a number of states where it can fairly be said that the decennial redistricting of congressional borders accurately predicts the congressional elections for the following ten years. The congressional seniority system then solidifies the power of local political machines over the core of Congressional politics. However, the irony emerges that Gerrymandering is impossible in the Senate, and hence legislature control over their U.S. Senators has been weak ever since the 17th Amendment established senatorial election by popular vote. That's eventually the opposite of the result originally conceded by the Constitutional Convention, but possibly in accord with the wishes of the Federalists who dominated it.

Electoral College Method for Election of the President

This evolving arrangement of the national legislative bodies seemed in 1787 an improvement over the system for state legislatures because the Federalists believed larger legislatures would contain less corruption because they had more competing for special interests to complain about it. There were skeptics then as now, who wished to weaken the tyranny of the majority so evident in the large states and in the British parliament. To satisfy them, power was redistributed to the executive and judicial branches, which were intentionally selected differently. Here arises the source of the Electoral College for the election of the President. It gives greater weight to small states (and provokes a ruckus among large states whenever the national popular vote is close). Further balance in the bargaining was sought by lifetime appointments to the Judiciary, following selection by the President with the concurrence of the Senate. Without any anticipation in this early bargaining, an unexpectedly large executive bureaucracy promptly flourished under the control of the chief executive, lacking the republicanism so fervently sought by the founders everywhere else. This may be in harmony with the Federalist goal of removing patronage from legislature control, but Appropriations Committee chairmen have since found unofficial ways to assert pressure on the bureaucracy. It's quite an unbalanced expedient. Only in the case of the Defense Department is the balancing will of the Constitutional Convention made clear: the President is commander in chief, only Congress can declare war. Although this difficult process was meant to discourage wars, it mainly discouraged the declaration of wars; other evasions emerged. From placing the command under an elected President, emerges a stronger implicit emphasis on civilian control of the military, loosely linked to the fairly meaningless legislative approval of initiating warfare. There have been more armed conflicts than "declarations" of war, but no one can say how many there might otherwise have been. And there have been no examples of a Congress rejecting a President's urging for war.

And that's about it for what we might call the first phase of the Constitution or the Articles. In 1787 there arose a prevalent feeling that national laws should pre-empt state laws. In view of the need to get state legislatures to ratify the document however, this was withdrawn. The Constitution was designed to take as much power away from the states as could be taken without provoking them into refusing to ratify it. Since ratification did barely squeak through after huge exertions by the Federalists, the Constitution closely approaches the tolerable limit, and cannot be criticized for going any further. Since no other voluntary federation has gone even this far in the subsequent two hundred years, the margin between what is workable and what is achievable must be very narrow. Notice, however, the considerable difference between Congress having the power to overrule any state law, and declaring that any state law which conflicts with Federal law is invalid.

The details of this government structure were spelled out in detail in Sections I through IV. However, just to be sure, Section VI sums it all up in trenchant prose:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Except for some housekeeping details, the structural Constitution ends here and can still be admired as sparse and concise. That final phrase about religious tests for office sounds like a strange afterthought, but in fact, its position and lack of any possible ambiguity serve to remind the nation of grim experience that only religion has caused more problems than factionalism. Madison was particularly strong on this point, having in mind the undue influence the Anglican Church exerted as the established religion of Virginia. There are no qualifications; religion is not to have any part of government power or policy. By tradition, symbolism has not been prohibited. But government as an extension of religion is emphatically excluded, as is religion as an agency of government. Many failures of governments, past and present, can be traced to an irresolution to summon up this degree of emphasis about a principle too absolute to tolerate wordiness.

A Gleam in Washington's Eye

George Washington Taking Oath

On the eve of the Constitutional Convention, the nation was unhappy, confused, and dissatisfied; this wasn't what a victory was supposed to feel like. George Washington wanted a country to be proud of, big enough to discourage enemies, otherwise free of policing, regulation, or monarchy. Eight years of war had taught him it wasn't easy to have both liberty and discipline at the same time. Perhaps America was more unusually blessed, however, defended from invasion by oceans and wilderness, and from greed by a continent of natural resources. If order and justice could be organized, perhaps this by itself would enlist the loyalty of that mixture of classes and nationalities then flocking to our shores. Several important writers were having a strong influence on the era we now call the Enlightenment; David Hume and Adam Smith in Scotland, Edward Gibbon in England, Voltaire and Diderot in France, even Catherine the Great of Russia, with a thousand others including Benjamin Franklin and Robert Morris. Although Washington probably hadn't read them, Adam Smith's The Wealth of Nations showed unvarnished new ways of looking at commerce and politics, while Gibbon's The Decline and Fall of the Roman Empire showed what could happen if idealism gets neglected. Both books were published in the portentous year of 1776, describing many difficulties, but always suggesting problems could somehow be solved. There were plenty of ideas in circulation, but there was no plan.

It must have become obvious to Washington well before the Battle of Yorktown, that the Revolutionary War would not leave us with our problems solved. There was one brief moment as the British Army was withdrawing from Philadelphia in 1778 which seemingly justified boasts our troops had licked 'em. Just after the surrender of a whole British Army at the Battle of Saratoga, the British were also retreating from Philadelphia, and the Lord North offered generous peace terms through the Earl of Carlisle. No doubt the British public was restless after the Burgoyne defeat and the French alliance with America. Because the Carlisle episode is much more familiar in England than in America, perhaps it was a feint or a maneuver to embarrass the Earl of Carlisle or possibly just an exploration of the true state of affairs which were rumored about across a wide ocean. At any event, Gouverneur Morris was the visible American actor in this puzzling episode, but he must have been acting in concert with others. Lord North offered to give us our own elected parliament within a commonwealth; taxation with representation, no less. Morris seems to have dismissed this offer with contempt. But six more years of devastation ensued, surely convincing Washington that bitter defeat was still possible. That reality was concealed behind the graciousness of the French in allowing us to claim American troops had defeated the British at Yorktown. In fact, the preponderance of troop casualties, naval vessels and strategy had been French. The money had been mostly French as well. If that debt nearly bankrupted France, what might it have done to America?

Washington had been an outstanding athlete, soldier, and farmer, but his many travels about the colonies convinced him something more than leadership was needed. You just can't defeat a powerful enemy with short enlistments which give soldiers a legal right to go home on the eve of battle, and no way for the central command to extend the enlistments. To this, Robert Morris added that you can't buy gunpowder without the central power to levy taxes to pay for them. Morris warned him more was needed than a confederation so big others would leave it alone. Even temporary power wasn't enough. National disorganization had been just as bad after the Revolution as before. By 1787, Washington concluded the states just would not surrender power to a central national government unless the people forced them to give it up, and after a brief patriotic fervor, the people mostly wanted to go home for spring plowing. Peacetime also demonstrated another discouraging truth: meaningful improvement of the existing order meant the whole previous leadership class might leave public service to less qualified leaders, watching peace attract mediocrity to political office. Prominent men in the community gathered in a Constitutional Convention recognized the advantages of Union and devising peaceful ways to maintain it. After that transient moment when the memory of the war was fresh, politics could return to the mediocrities of a political class. That's not exactly what is now meant by "We, the People", but it might have to serve. In Washington's view, the voice of the people usually echoed along the lines of Tell us what good it would do to upset the Articles of Confederation, otherwise leave them alone. If you propose the general shape of a new central government, first tell us what it can do better than the states. And then show us how to make dubious state politicians agree to it. The accents of hesitation and defeat echo powerfully.

The hideous French Revolution was soon to demonstrate how unwise it was to look for short-cuts; we need a republic, not a stampeded democracy. George Washington was unsure just what was needed, but he knew a few basic things with certainty. America needed a bargain which everyone was expected to keep. A stronger central government should be provided for, and make it difficult to dissolve.

Repairing Constitutional Defects

James Madison

Out of several thousand proposed ones, there have only been 27 successful amendments to the Constitution in two centuries; it's been intentionally hard to get an amendment passed. The Federalists wanted no amendment process at all; the anti Federalists wanted repeat conventions in which the whole document would be thrown on the table for reconsideration. The original document probably turned out better because of this tension; if it's hard to change, you better do it right the first time. And amendments had better be short and clear.

There will, of course, have to be some mid-course adjustments, most notoriously the XII Amendment, correcting drafting amateurishness which promptly led to all sorts of confusion in the election of the President and Vice-President. It was almost a Gilbert and Sullivan comedy, with the appearance of a tie vote in the 1800 Electoral College between Jefferson and Burr. Since the election campaign had been conducted with the clear intention that Burr would be the vice president on a combined ticket, what was really overlooked was the possibility that ambition would so overwhelm a candidate that he would niggle and cavil about a technicality, essentially trying to steal an election from a running-mate. When Burr later killed Jefferson's enemy Hamilton in a duel, not only was Burr twice disgraced, but the whole episode terminated expectation that gentlemen in a high office could always be depended on to do the right thing. Although philosophical debate can continue whether mankind is inherently good or inherently evil, American law now proclaims a presumed innocence of the accused, while privately assuming universal frailty of everybody.

Sometimes the amendment process has been brushed aside. William Henry Harrison was the first president to die in office, making John Tyler the first vice-president to face certain ambiguities of the Constitution over exactly what had been intended. By that time, the tradition had grown that the vice-presidential candidate was usually a member of the second strongest faction within the winning party. Combining the two makes a stronger ticket but a secretly jealous one. When the contingency of presidential death in office actually happened, there were voices that the vice-president was intended to remain, vice-president, while assuming the extra powers and duties of the president. Rather than have a debate or a Supreme Court wrangle, Tyler settled any such question by simply making himself president, thus establishing an enduring tradition. This solution raised the nit-picker difficulty that still no official succession plan has been provided for a vacant vice-presidential post. Instead of fixing this flaw, it has been ignored. The courts rely on the precedent they have set, which can be defended as constitutionally enshrining common sense, or attacked as refusing to admit making an error.

Somewhat similar corrective themes continue through Amendments XXII (two term Presidential limit), XXV (Presidential succession), XXVII (Congressional compensation). At least when dealing with politicians, it is better to be too specific than too trusting.

The Fourteenth Amendment is clear enough in its many sentences, and noble in intent. But that intention to reverse the original Constitutional tolerance of slavery and the later injustices of Reconstruction is couched in broader language than necessary for that purpose alone. It thus weakens itself by hinting sanctimony, the inclusion of soaring principles. As the grievous wounds of the Civil War have gradually healed, Abolitionists as well as slavers now seem often to have acted with excess, and malice toward some. Others may honorably disagree with this view. Nevertheless, it is quite right to emphasize that just as undue deference should not be accorded to some, undue suspicion should not be inflicted on others.

By a series of amendments, the right to vote has been extended gradually over the centuries. Amendment XXIV (Abolition of poll taxes) probably had other motivations but has the effect of removing a restraint on the vote of poor people, Amendment XIX (Women's suffrage), XXIII (Presidential electors for the District of Columbia), and XXVI (Reducing the voting age to 18) can be characterized as removing discrimination, but also can be seen as a gradual extension of suffrage by those who already have it, to others they have mistrusted for reasons defensible and indefensible. The common goal is to achieve sufficient trust and education to make any restrictions seem unnecessary to everyone while recognizing that continuing immigration of other cultures creates restlessness at the margins. Furthermore, poor people will outnumber rich ones for a long time to come and hence could potentially mistreat the minority. As long as only a minority of the enfranchised population at any level troubles to exercise its right to vote, the level of discomfort with this issue is enough to stimulate progress toward universal suffrage, while satisfaction with gradualism allows time to adjust to it.

Even Universal Franchise can be viewed with suspicion in a polarized political climate. Currently, a vigorous campaign for mandatory voter identification has been met with an equally vigorous denunciation as an attempt to deny the franchise to the poor. Typically, such proposals require the presentation of some government document with an identification photograph, such as a driver's license, to be presented at the voting place. The uproar this proposal has created has itself created suspicion of motive. Those who have experience with ballot-stuffing in elections refer to their common suspicions as "doing it the old-fashioned way." Citizens who make a few dollars as the poll-watchers report that the traditional procedure is as follows:

At least a third of registered voters do not vote, even in a contested Presidential election, and in big-city off-year primary elections, sometimes a heavy majority do not. In the old-fashioned way, the poll watchers wait for dinner time in a sparsely-attended precinct, with no newspapers or poll-watchers of the opposite party present. The registration lists are produced, and everyone who has not voted is voted for the desired candidate. The ruse is enhanced by driving in busloads of party loyalists, claiming to be the absent registered voter; and after casting their ballots, they are bussed off to another polling place to repeat the performance as often as there is time. Matching identification with the voter registration upsets this "good old way", in a manner which has nothing to do with the inability to afford a driver's license, or similar lame excuses.

Amendment XVI (Income tax) may cause dissatisfaction because America has traditionally . But it really is just a mid-course adjustment in the legal system, since a court had declared income taxation to be unconstitutional, and the Constitution was simply amended to remedy that misapprehension. An implicit point, however, is that as the federal government preempts the sources of taxation for itself, the states are weakened by the need to appeal for revenue. The XVII Amendment (Direct election of Senators) rather severely curtailed the control of the states over the central government, but the XI Amendment strengthened the states by forcing the citizen of a different state to sue a state in its own court. The issue of state and federal control, so central to the original Constitution, nowadays seems to be fading in the public mind.

And finally, we are left to consider the first ten amendments, the so-called Bill of Rights. While Madison always inclined somewhat in that direction, and grew more defiantly libertarian as he got older, the situation he faced when the first Congress convened was daunting. Between final ratification and actual convening of much the same people into the first congress, the states submitted over two hundred petitions for rights to be included in the Constitution by amendment. Thomas Jefferson and Patrick Henry had been tireless in stirring up the demand for rights to protect the individual from the government. Much of this reflected the French Revolution which went on for ten years during this period and drew on affection for France for its assistance to the struggling colonies during their rebellion against Great Britain. Others, of course, only needed to look toward George Washington, who had once heard the screams of Braddock's soldiers as they were tortured to death by the French and their Indian allies at Fort Duquesne. Washington had earlier and personally started the French and Indian War. John Adams was not pleased by torch-lit mobs breaking windows in Philadelphia in sympathy with France. So, as the main leader in the new Congress, Madison had the task of satisfying everybody about the Bill of Rights he had promised. It must be acknowledged that he did a masterful job. Not everybody was convinced it was a natural right of mankind to give everyone everything it might seem desirable to have. Somewhere in this arose the accepted definition of a right as something everyone would give to others, in order to have for himself. Madison was forced to search for common denominators, the maximum -- and minimum -- a number of rights which everyone would agree to. It offended his constitutional craftsmanship to see Congress drowned in a rush to confer greater force than law by saying the same thing in an amendment. Indeed, when some advocates strove to make a dubious right into a constitutional right, almost by definition it was not something everyone would agree to in order to have for himself. Madison did things in his life that may be questioned, but his achievement of condensing this hotch-potch of proposals into ten simple declarations, and then getting a raucous inexperienced congress to pass it -- is a political achievement to be marveled at. Even two centuries later, anyone who proposed opening up the Bill of Rights and recasting it in conformity with more modern understanding, would be hooted out of the room. May that ever remains the case.

Amendments IX (Non-enumerated rights) and X (Rights reserved to the states) deserve a different emphasis. Here lay the promise that the federal government had been proposed to achieve only those things a central government could achieve better; the states could do everything else. For this to be workable, the enumerated rights had to be comprehensive enough to satisfy the Federalists, and not include anything the anti-Federalists thought was improper. The anti Federalists knew very well this included everything the Federalists could possibly get the states to agree to, so the border was inevitably contentious. They got it wrong with slavery, and some of the amendments made mid-course adjustments. Boundary warfare would continue indefinitely in Congress, and sometimes wars and depressions cause proponents to change positions. But the document, freely agreed to by formerly sovereign states, has endured as nothing even remotely comparable has endured.

American Succession

It may seem a startling focus for a famous war hero, but one of the most important precedents George Washington wanted to establish as America's first president, was that he was determined not to die while in office. His original intention was to serve only one four-year term as president, only accepting a second term with considerable concern that it would increase his chances of dying in office. His reasons are perhaps not totally clear since he repeatedly stated his concern that he had promised the American public that he would retire from public office when he resigned his commission as General and was determined to seem a man of his word. While this sounds a little off-key to modern ears, it must be remembered his resignation as General had caused an international stir, even prompting King George III to exclaim that this must be the greatest man who ever lived. Washington may have sincerely thought he was following the pattern of Cincinnatus, the Roman citizen soldier who declined further public life in order to return to his farm. But in retrospect we can see that for a thousand years before Washington's military resignation it was essentially unheard of for a leader with major power to be removed by any means except death. Regardless of where he might have got the idea, Washington was consciously trying to establish a tradition of public service by those who were natural leaders, dutifully responding to the need of the nation, and stepping down when the service was completed. It was an important day for him and for the nation, when he stood before John Adams in 1796, honorably and humbly turning over supreme power to a successor who had been chosen, by others, in a lawful way. Peaceful succession is part of the original intent of the founder of the Constitution, if anything is.

Some have written that Washington was not our first president, but our eleventh if one counts those elected the presiding officers of the Continental Congress, under the Articles of Confederation. But none of them could be said to be the head of state, and absolutely none of them could be confident the public would re-elect them indefinitely. Washington was not so much aiming for a two-term limit as he was setting a pattern for returning the choice to the people after a stated term, and deploring anyone who sought unlimited power for its own sake. The office should seek the man, not the man seek the office, and even if the public got carried away by adulation, the man should in good time step aside. For over a century the two-term tradition was later unchallenged, until Franklin Roosevelt succumbed to exactly the temptations that Washington foresaw. We have seldom amended the Constitution, but after Roosevelt, it was soon amended to emphasize what so many had previously considered it unnecessary to state.

The idea of a fixed term of office has had an unexpected calming effect on partisanship in America. In parliamentary systems like the British, a prime minister answers weekly questions from his opposition, with a full realization that he can be dismissed from office at any moment he angers a majority into a vote of no-confidence. Under the American Constitution, a recent election mandate eats into the stated time in office, making it progressively less rewarding to evict the officer for the residual time before another election does it automatically. America does indeed have an impeachment process, but in fact, it has been rarely employed. In America, if someone is elected for a specific term, it is almost certain he will serve out the full term. There are times when partisanship seems unlimited, but in fact, we probably have less of it than if we encouraged partisan outcry to go on to evicting an incumbent from office.

Washington was not so successful in promoting another component of his ideal statesman. In his view, a district would naturally select the most prominent citizen available to represent the district, since that person would do it more ably than anyone else and give up the office when duty was completed; that was behind the stated ideal of republican government. Madison was for a time persuaded that such choices should be filtered a second time, with the House of Representatives electing Senators from its midst, but that failed to win approval. In the Eighteenth century, the concept of professional bureaucrats and professional politicians had not yet taken hold. In its place was the fear of "ambitious" leaders, who would be held in check by a tradition of underpaying elected representatives, or even of gentlemen of means who would refuse to accept any pay for doing their duty. It proved unanswerable when ambitious men assailed this republican concept by protesting the establishment of aristocracies, oligarchies, and failure of the upper class to understand the needs and anxieties of the common man. This viewpoint eventually replaced the "natural" local leaders with those who had experienced life in a log cabin or endured the purifying experiences of other hardships. The original idea of the founders was to elect leaders who could not be bought; ambitious men could be bought. When political parties made their appearance, a new thought appeared; perhaps ambitious men could be controlled.

As the practical realities of politics in action began to surface, members of elected bodies with varying degrees of ambition and altruism sought refuge from pressures being applied to them. After all, one of the undeniable implications of the Constitution was that every single member of an elected body had just as much power and rights as every other one. Out of this tension emerged the seniority system, another unwritten rule with the power of reality forging it into an implicit rule. In time, everyone would achieve seniority at the same point in his career, and hence the procedural powers necessary to running the place could be assigned with lessened fear of improper pressure. Newcomers regularly complain about the seniority system but eventually yield to it as the least bad accommodation to necessity. But even minor imperfections will be exploited if a system endures long enough. In this case, political parties in the home states are persuaded that the fruits of seniority might be disproportionately available to them if they elect young candidates and keep them in office indefinitely. Eventually, such stalwarts can rise to positions that allow them to reward the home district. This has the interesting consequence of creating political families, whose senior representative acquires the power to select his son or grandson to take his place in the rising chain of command. That's not as bad as an inherited aristocracy, perhaps, but it has several similarities.

Unwritten Constitution

Franklin Roosevelt

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

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

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

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

Article Constitution

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

Benjamin Franklin

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

Owen Roberts

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms, Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then-- the source of one of the most radical revisions of our system of government since the Declaration of Independence. Little in Roberts' earlier career seemed to lead up to this action, and nothing in his subsequent civic-minded retirement from the Court seemed to indicate any particularly radical turn of character had taken place. He has been compared with a famous baseball pitcher who threw right-handed or left-handed at will, and unexpectedly, capriciously, who knows why.

Franklin Roosevelt

The issue went far beyond one clause in the Constitution, but the commerce clause was the focus point. Under the limited and enumerated powers allowed to Congress by the Constitution was :

The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That used to be called the " Interstate Commerce clause" until the Supreme Court announced its decision in the case of Wickard v. Filburn. When linked with the Tenth Amendment, granting to the States the power to regulate everything not specifically granted to the Federal government, this clause in the Constitution was universally taken to mean that the States had control of commerce within their borders, while Congress would control interstate commerce. Wickard v. Filburn took all that power from the states and gave it to Congress, which henceforth would regulate commerce. John Marshall had triumphed again over the hated state legislatures, but the Supreme Court had suddenly lost much of its power to overrule Congress, too. One side had won the argument, by threatening the umpire. The umpire came away less powerful, too. No wonder the jaunty Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners. All three presidents disliked the Supreme Court intensely.

Depression of the 1930s

To describe the background, the 1929 stock market crash was quickly followed by the economic Depression of the 1930s. No financial panic of this magnitude had been seen before, and there was a political stampede to try new and untested solutions. Even government action which actually worsened economic conditions was felt justified if it conveyed to the frightened public the image that its leaders were taking firm action. Since Socialism and Communism were among the solutions being toyed with by the public, many unfortunate actions were felt justified as a way to control the Bolshevik threat, by pre-empting its promises. Many such New Deal actions were declared unconstitutional by the Supreme Court since they involved sweeping federal revisions in the way all commerce, internal to the States as well as interstate, was conducted.

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won "in a landslide". He took this election to mean the public would support him in anything. Immediately after the start of his new term, Roosevelt announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking until he achieved a majority. He was at pains to point out that seven of the nine life incumbents had been appointed by Republican Presidents. This was, of course, the restraint intended by the Constitutional Convention, almost immediately faced by Thomas Jefferson in John Marshall's court. The idea of packing the Court with new appointees was exactly what Jefferson and Jackson had tried to do. In the meantime, the case of Filburn, a dairy farmer, came up. One of the "New Deal" agencies had assigned him a quota of 200 bushels of wheat he could grow on the side, as part of an effort to raise wheat prices by reducing the supply of it. Filburn had raised 400 bushels, but consumed the extra wheat for his own personal use, hardly a matter of interstate commerce. The Court had repeatedly declared laws like this to exceed the interstate commerce limitation and were thus unconstitutional for the Congress to enact.

Well, Owen Roberts changed his position, and Filburn lost his case. But public outcry was resounding, so Congress overwhelmingly defeated Rosevelt's court-packing proposal. Although the Court would thus have won its struggle with the Executive branch if it had remained steadfast, Interstate commerce became All-commerce by the declaration of its most dedicated opponent. Forever afterward, this change of position was referred to as "the switch in time, that saved nine." and the cuteness of that cartoon caption obscured that Roosevelt had been dealt a public slap in the face. Nevertheless, since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional. Furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is regulated out of the District of Columbia, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushed to intervene in commerce. One important footnote to this uproar was that the insurance industry was intensely displeased with the prospect of federal regulation, and within six weeks lobbied through the McCarran Ferguson Act, restoring the "business of insurance" to state regulation. This act skirted the confrontation between Congress and the Supreme Court by prohibiting federal agencies from engaging in insurance regulation, although the pretense was maintained that the executive branch was free to regulate if it could invent a way to do it.

A few weeks before he died, Owen Roberts had all his papers burned, So, we will never know whether all this uproar was the result he had in mind.

An Industrial Nation, or a Plantation Society?

There is a phrase much used in diplomacy and politics, sometimes attributed to Lord Palmerston, sometimes to Cicero.

In politics, there are no permanent friends, no permanent enemies, only accommodations.

Regardless of who coined the adage, it is difficult to imagine either stone-faced George Washington listening with any approval, or politician James Madison displaying the least surprise. The only American scholar of politics and political history available to Washington, Madison eventually evolved into a total politician. The evolution in the underlying core beliefs of these two men, in opposite directions, seems to explain the slow transformation of their Virginia plantation friendship into outright hostility. On one level, their disagreements may be seen as responses to their new roles: Washington created and molded the executive department, and while he helped him do it, Madison himself migrated into the role of leader of Congress. Once there, he was not strong enough to escape the collective power of Congress to mold its leaders into servants, a situation that was not corrected until Henry Clay over-corrected it in the opposite direction. On another level, it is possible to view the two Virginians as having different reactions to the oncoming Industrial Revolution.

Although both were Virginia plantation owners, General Washington's wartime experience was that his own solitary opinion, right or wrong, would ultimately be all that mattered. All that advice he got was simply information-gathering. On the other hand, while the leader of the legislative branch was often able to change legislative opinion, he would be ultimately forced to accept the collective opinion of Congress or resign his leadership of it. That was also true of the Chief Executive Officer, but several steps removed from Congressional decisions, and of the opinion, he must finally accept their final wishes if they seemed to represent the will of the people who voted them into office. Of the two, he was better able to understand what Hamilton was talking about, better able to appreciate that the strength of a nation has an economic base as well as a military one. The mythology of the era has Alexander Hamilton in combat with James Madison, with Washington in the middle but eventually siding with Hamilton. That's true enough, but the greater truth is that these individuals were cast as the symbols of the changing beliefs of the country. It must be conjectured the high adventure of creating a new form of government held the three together, even as many things turned out to be unanticipated. Washington seems more dismayed by gradually perceiving some unwelcome imperatives of the Constitution, while Madison simply set about to make the most of them. Washington believed in character, a personality based on steadfastness, courage, and determination. Adaptability, yes, pliability, no.

James Madison

The official organizing principle of every legislature, Congress, or parliament is that each member has one vote and therefore is the equal of every other member. Washington understood leaders would emerge, able to persuade others. What he did not anticipate was that some would scheme to acquire the power to compel obedience. Unofficial ways to acquire power over colleagues differ among legislatures but have certain recurring features.

Vote-swapping.

The press of business usually requires a division of labor into committees, who soon acquire special expertise. A chairman is selected to handle routine matters, and to negotiate compromises with overlapping committees; the chairman acquires power. Members differ in their degree of interest in almost any topic; those who have little interest in a particular outcome have an opportunity to trade their vote for assistance on some other matter of much greater concern to them; why not? From this evolves the strategy of striving to discover what each voter secretly wants most of all; offering assistance on that favorite topic is the first step in enlisting later support on some other issue. If he wants your help badly enough, he may even vote against something else he really favors. If he wants to be chairman of a committee important to his interest, it may even be possible to force him to vote for something he privately hates. Vote-swapping is the fundamental currency of legislative trading, and it is sometimes a loathsome business. But just try to imagine George Washington swapping votes to become chairman of a committee, or to enact an appropriation; it couldn't happen.

One suspects it did happen, at least once. Washington badly wanted the nation's capital to be across the Potomac River from his plantation. Indeed, he wanted the Potomac River to be the main commercial highway of the nation to the Great Lakes and the Mississippi. He never said he wanted the nation's capital to be named after him, but he did not object a great deal, either. When there was quibbling about the location of the White House, the old surveyor went there himself and laid it out with a surveyor's transit. Washington wanted Virginia to be the biggest most important state in the union; four of the first five presidents were Virginians. And so, when Hamilton and Jefferson negotiated the Compromise of 1790, everyone knew what Washington's feelings were. The revolutionary debts of Virginia became federal debts, in return for relocating the capital from the banks of Delaware to the banks of the Potomac. Robert Morris was fit to be tied. Washington stood aloof and uninvolved. Anyone who has ever been involved in one of these compromises knows that some participants see nothing wrong with it, while others hate themselves forever, for having had anything to do with it. In fact, the legislators most offended by vote-swapping are the ones who once somehow got unwillingly dragged into it, and never entirely forgave themselves. Natural politicians like Madison, however, are irked by those who criticize such a natural and effective process, whose successes are everywhere to be listed. While no one can read the minds of these two founding fathers, there seems little doubt they were on different sides of this enduring division in the personality types of people in public office and therefore headed for a collision whenever a sufficiently major issue arose.

The genius of the evolving American form of government was to leave land ownership in private hands while creating a new power center in banking and finance.

The issue was major, all right. It was the question of whether this proud new nation was going to join the Industrial Revolution, with all its smoke and crowding, greed and striving. Or whether it was going to sweep majestically along with the romantic movement of the day, the happy farmer and the noble savage, spreading out on a bountiful endless continent. To some extent, this was an echo of the French Revolution which so enthralled Madison's best friend Thomas Jefferson, drawing the conflict between England and France into our own rather recent revolution. Great Britain was a century ahead of France in the Industrial Revolution, which originated north of Manchester where William Penn's Quakers came from. Yes, factories were sort of polluting and crowded, certainly enough to get Marx and Engels excited. But there was another undeniable truth: England soon got richer, acquired a world empire, had a bigger navy, and was soon to beat Napoleon at Waterloo. It was rather easy to prove to George Washington that an economically stronger nation was likely to be militarily stronger as well. Eventually, the point would even be forcibly brought home to Robert E. Lee. American tourists in Europe today echo the sentiment when they chose a vacation itinerary: no churches, and no museums, please. But to be fair to the Virginians, the point was not at all obvious in 1790. Virginia owned what are now three states, and held significant claims to what is now five more. Why would Virginians have any interest in dirty factories or the grubby strivings of immigrant merchants?

Still another historical curiosity emerges from the twenty-five years of Philadelphia as the new nation's capital, which is really our national epic poem, waiting for its Homer to compose it. Just about everybody at the Convention agreed the national government had to be strengthened; the state legislatures were going to ruin us. Madison, representing the views of the landowner aristocracy, was also afraid the national government could get too strong and ruin them by disturbing private property ownership. Hamilton didn't care about the land, he cared about money; he wouldn't mind a King if one was necessary to get things done. It should be remembered that feudalism was largely based on the king's right to reassign land ownership in return for military support. The genius of the evolving American form of government was to leave land ownership in private hands while creating a new power center in banking and finance. So it eventually evolved that Madison and his friends from Appalachia wanted to limit the powers of the national government strictly to those few areas where we needed it strong; enumerated powers were the result. The Federalists following Hamilton stretched enumerated power as far as it would reach with extra "implied" powers, together with their "emanations and penumbras". If you were to defend the nation, you needed a navy; eventually, it would be implied you needed an air force, maybe atom bombs. Increasing Federalism was the driving force of the Republican Party down to the time of Franklin Roosevelt, indeed down to the moment when the Philadelphian Owen Roberts tipped the Supreme Court majority in favor of eliminating "the commerce clause". Since that time, the Republican descendants of Alexander Hamilton have sought to shrink and restrain federal powers and bureaucracy, while the political descendants of James Madison have sought to populate Virginia with civil servants up to and beyond Piedmont. Both Madison and Hamilton must be turning in the grave about the way this topic evolved. But the power being struggled for is all commercial power; ownership control of land remains off the political table. Perhaps the day will come when fresh land no longer seems unlimited, making monopoly control of it seem more threatening. More likely, the agricultural economy will nearly vanish, taking its power struggles along with it. The paradox emerges that increased productivity will likely shrivel the importance of manufacturing as well, leaving both farm and factory as relics of the past. The test of a constitution is how well it adapts to an unknown future.

On the Subject of Rights

Scotch-Irish Presbyterians of Appalachia

MOST Americans of the 18th century regarded themselves as members of some minority group. The constitutional Founding Fathers, mindful of Cromwell and the English Civil War, were concerned that majority rule might evolve into tyranny. They searched to protect minorities. Because everyone could imagine being outvoted on some dispute, minority status was a universal American concern about democracy. There was a particularly hot political center of Bill of Rights agitation among Scotch-Irish Presbyterians of Appalachia which persists after two centuries, consequently among Southerners and western Pennsylvanians. In those strongly religious days, it seemed self-evident minorities had "divine" rights, conferred by God, which legislatures must not violate, and legislatures repeatedly seemed to agree. As dissenting minorities later became increasingly secular, the language of rights shifted to "natural" rights, without changing much else. Created by the purely logical analysis of the Enlightenment: a right was something anyone would willingly confer to others in order to preserve it for himself. In more contemporary language, the evolving demand is now for "human" rights, whose mystical authority grows from the intensity with which it is demanded. Although "Vox populi" sounds Roman, the concept of infallibility ("Vox Dei"), is an outgrowth of victory in the American Revolution. Underneath semantic wrestling, one essential is demanded: no government, whether by the king or elected majority, may overrule it. The unthreatened majority easily wearies of such agitation and remains more pragmatically concerned with efficiency, peace, and prosperity. Our two political parties began with Bill of Rights outcry, one party appalled by the French Revolution, the other applauding its feisty spirit.

A little rebellion now and then is a good thing . . . .It is a medicine necessary for the sound health of government... God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty . . . . and what country can preserve its liberties, if its rulers are not warned, from time to time, that these people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed, from time to time, with the blood of patriots and tyrants. It is its natural manure.

Thomas Jefferson, 1787

The founders of the American republic arrived at a compromise formula: strengthen majority-rule government to a point where it can be effective, but keep government too weak to tyrannize a minority. This Constitutional effort first grew out of a general perception that the Articles of Confederation were too weak to be effective, so the new federal government must be able to control the states in a small number of specified areas. But having achieved that, a reverse concern immediately arose. Since slaves and poor people would probably always outnumber rich ones, how can a democracy be prevented from freeing slaves, or poor people from voting themselves the property of rich ones? This concern was surely heightened by earlier maneuvering by two Virginians. Madison and Washington pressed to have Convention delegates be made up of prominent people, preferably former officers of the Continental Army. Their plan to ensure ratification was for legislatures to make way before a Convention of celebrities. It probably did not occur to the two Virginia plantation owners that this selection process might seem to be purely motivated to ensure the best interests of rich people. Rich people usually have power, regardless of not having a majority. Except for perhaps Gouverneur Morris, Convention delegates, however, were not aristocrats but self-made men, and with few exceptions successful ones. It remains hard to argue with their instinctive reaction that if laws make it impossible for those who have been successful in the past to become a self-made success, then it is impossible to see anyone achieving success. Eighty years subsequently the slave component of this issue was finally settled, but sectional bitterness took its place.

Chief Justice, John Marshall

The Constitutional Convention weakened the new government to avoid its misuse by a popular majority. They designed separation of its powers, perhaps hoping a balance of power would develop among the Legislative, Executive and Judicial branches, each selected in different ways. As the matter was finally ratified, it seemed a little inadequate. James Madison, in particular, rebelled against the final step of giving the Supreme Court the power to review for constitutionality the laws passed by Congress and signed by the President. It remained for the fourth Chief Justice, John Marshall, to assert judicial review in 1803, sixteen years after the Constitutional Convention. Perhaps with an eye toward symbolism, he did so in a case called Marbury v. Madison.

Marbury v. Madison

This case, strengthened and amplified by later cases with the same outcome, was to enshrine the Constitution as the capstone of the enforcement system of the United States, with all lesser laws consistent with constitutional powers enumerated -- powers implied, and powers are forbidden. This capstone structure, rather than American provincialism so noticed by Europeans, explains why American law has drifted from common law to statutory law, while references in Supreme Court opinions to viewpoints in foreign law are greeted with derision. Foreigners are not given a vote in our system, and our system is grimly determined to recirculate the opinions of its own citizens through the system, especially through the choke-point of the Constitution. In biochemical terms, the Constitution is the rate-limiting factor. It is far too late to try to make it easier to amend the Constitution, just as it is surely too late to eliminate the Electoral College for selecting the President. Too many balance-wheels have been hooked to these fundamentals. Blame it on interest groups if you please, but seriously disturbing these fundamentals will prove unsettling enough to undermine any interest groups that assail them.

James Wilson of Pennsylvania

With the blocking of other avenues to constrain majority rule, the system has possibly provided a new one, which may someday be named after James Wilson of Pennsylvania. Wilson lived at the corner of 3rd and Walnut, making it convenient to sign both the Declaration of Independence and the Constitution. Although he spoke 168 times at the Constitutional Convention, his name is most often associated with the idea that basic legal principles should be part of the general background of all educated citizens. Sometimes referred to as the founding professor of the first law school, the University of Pennsylvania, Wilson recognized that the actual practice of the law soon drifts from legal principles to settling on legal mechanics. Law students eventually come to learn that what matters most is what a judge recently handed down as an important opinion setting a new precedent. Step by step the law moves from principles to precedents, and from early precedents to recent precedents. The system is said to be a higher variant on the scientific method -- hypothesis, tests of the hypothesis, modified hypothesis and then tests of the modified version -- first created by Sir Francis Bacon. The law, in short, drifts away from Original Intent but does so proudly, denying a subversion of original principles but asserting a reasoned response to actual experience. Perhaps, in this enlightening process, new human rights can be discovered. Such as a right to abortion based on a right to privacy, based on something else you will have to read the original opinion to recall. It is not necessary to be a fundamentalist Christian to be alarmed by this process when it travels so far from the choke point of the Constitution, overturning dozens of state laws as it goes. Perhaps the most serious criticism of Roe v. Wade is that only two alternatives exist for those who wish to modify it: either undermine the Supreme Court by packing it with supporters of change or else amend the Constitution, which would be nearly impossible to do. Entirely too many plain non-lawyers who have no objection to abortion have read the Constitution and are now mistrustful. Mistrustful of the reasonings of Justice Blackmun, of the profession which acquiesced to his action, and of the intellectual migration process being defended. Whether they know it or not, they are followers of James Wilson, of 3rd and Walnut, Philadelphia.

Jennifer Nedelsky

Jennifer Nedelsky is a Canadian lawyer who has been active in promoting an alternative to our system of using a constitutional right as a legal "trump card for displeasing laws.", as well as the failed European attempt to invent dozens of new human rights as a way of limiting government power. In Canadian law, a feature is called the "time-limited notwithstanding clause." The legislative branch in Canada is permitted to pass laws which violate a constitutional right, "notwithstanding that right for five years". It is possible to understand the appeal of this legal safety valve, to wait out the popular appeal of a mere fad, or to provide emergency relief in the face of unexpected circumstances. Some of the enduring problems with the legislation passed during the Roosevelt court-packing era might have been more generally acceptable with this clause attached. And it might even address the temptation recently embraced by Rahn Emanuel, that no crisis should ever be wasted. It is true that some appalling legislation does occasionally turn out to be useful. More often, however, it is a well-intended and highly acclaimed law which turns out to create a muddle.

Ultimately, however, we are likely to fall back on the comfort that our Constitution more or less as originally created, has lasted over two hundred years while no other constitution can match that claim. Others have their proposed systems but we have our proven one.

Constitutionality of the Monetary System

The Constitution

In noting that our Constitution has lasted for over two centuries, we assert that this simple short document has largely anticipated everything important to anticipate, including the Industrial Revolution, atomic warfare, and the Information Age, to name a few. When an occasional issue arises that is not only unmentioned in the Constitution but where no one is certain what to do, our system leaves us spiritually adrift. Such an issue is found in o0ur monetary system, where we have been wandering for two hundred years.

The founding fathers worried a great deal that popular majorities would abuse minorities, particularly in the case of the majority poor people voting themselves the property of minority rich ones, or that debtors in the majority might dishonor the rights of creditors. Although we have developed a welter of laws about debt and creditors, bankruptcy and taxation, they are if anything too specific. What is lacking is a few general words in the Constitution about the principles of credit and money. The problem now is the same as it was in 1787; we don't know what to say.

Albert Gallatin

For a very long time, some very well educated people were strongly opposed to the creation of a bank, later to mean a banking system. Alexander Hamilton's proposition that a "national debt is a national treasure" was greeted with horror by several Presidents, as well as by Albert Gallatin, one of the most sophisticated financial thinkers of the time. Underlying this perplexing reaction to the simple proposal to create a bank was surely the perception that making the Federal Government into a substantial debtor creates a powerful ally to all debtors in their eternal struggle with all creditors; the outcome of such an unequal struggle would inevitably be to the disadvantage of creditors. In common parlance, the word capitalist seems to imply a creditor. It took a very long time for it to become understandable that debtors, too, were essential beneficiaries of a capitalist system, but that idea still often meets with dissent. However, when millions of the world population belong to religions which prohibit the payment of interest, it should not be surprising to find many Americans who cannot get their heads around the idea that debtors and creditors need each other to an equal degree.

In the case of inflation, governments have always been somewhat favorable to debauching the currency. Naturally, a major debtor hopes to repay its debt with cheaper money. Since it has more or less always been necessary to use police powers to maintain a common currency, Kings and governments have long been in control of money, whether that means gold bars or beaded wampum. And for the same length of time, governments have been discovered bending the rules in favor of themselves. Bronze has been substituted for gold, the edges of coins have been shaved, the printing presses print paper money unrestrainedly, and the consumer price index has been manipulated to encourage inflation. Political parties have sought votes from debtors by promising to regulate banks, promote silver as a substitute for gold, disadvantage foreign competitors, inhibit or manipulate the value of the currency on foreign exchanges.

Alan Greenspan

For forty years we have operated without any fixed standard for money. Money for all that time has lacked any physical representation or discipline. Money has become a computer notation. At first, it was based on calculations of monetary aggregates, a bewildering concept promoted by Milton Friedman. More recently, it is entirely based on inflation targeting as promoted by Alan Greenspan. With a target of maintaining steady prices, an inflation rate of 2% is set as a specific target for the Federal Reserve. If inflation falls below that target, more money is created; if it rises above that level, less money is created. How much there is of it does not matter; it's beyond calculation. Although this simplified description fills almost any listener with doubts, it seemed vindicated by seventeen years without a notable recession. Even though events beginning in 2007 raise pretty serious doubts, it may still prove to be the best possible monetary system.

Even though this most fundamental of all commercial issues cry out for a simple principle to be stated in the Constitution so that neither populist congressmen not rapacious financiers can ruin us, it is not presently possible even to imagine what a new Constitutional amendment would, should or even could say. Meanwhile, some immense power rests in the hands of shadowy figures whom we blindly trust, for lack of a better idea about how we should select them or what we should instruct them to do.

Signers and Non-Signers of the Constitution

Signers of The Constitution

John Dickinson was active in designing both the Declaration of Independence and the Constitution, but he signed neither one. His position on the Declaration was that England had behaved in an offensive way; but the situation was getting better and it was still possible to patch things up, even with a British fleet in New York harbor displaying hostile intent. His later position on the Constitution is less clear. Dickinson asked George Read to sign his name because he was sick. Whether this was a real illness or a diplomatic illness is not readily known.

Three active delegates made no bones about their opposition to the final product: Edmond Randolph and George Mason of Virginia were not mollified by private assurances that a Bill of Rights was necessary but could be added later. They refused to sign a constitution that did not currently include this most passionate of their demands. There is little doubt of their sincerity, but any politician today would recognize they also needed to protect their flank from Patrick Henry who stayed at home denouncing the whole enterprise. Henry was a powerful speaker, representing the Scotch-Irish Virginia Piedmont area. In Scotland, Ireland, and America, that group had been abused by English kings three times and wanted iron-clad protection against backsliding to English rule or English government models. It's quite possible that Virginia's George Wythe and James McClurg left the convention early in order to avoid the local political consequences of signing the document, or the equally uncomfortable stance of opposing George Washington. The sentiments of Virginia can be surmised when of the seven delegates sent by Virginia, only John Blair joined the two instigators, George Washington and James Madison in announcing their approval. A majority of the Virginia delegation was thus held back on ratification until only one last vote was needed for enactment. Without George Washington, there can be little doubt the whole effort would have failed. Indeed, a case could be made that the location of the District of Columbia and the election of Virginians as four of the first five presidents also has the appearance of trying to persuade the six hundred pound Virginia gorilla to play nice.

Elbridge Gerry of Massachusetts similarly refused to sign any constitution which did not include a Bill of Rights. However, Gerry undermined his stance on principle by inventing the technique of packing his opposition into one voting district (by shifting its borders) so his own party could win narrow majorities in several other districts. This sleazy manipulation of loopholes in the system has become known as Gerrymandering and raises a question perhaps unfairly, of where Gerry actually stood on every other issue in the Constitutional Convention. By contrast, it is impossible to imagine George Washington doing such a thing, and quite possible to imagine he would never again speak to someone who did.

In addition to the three delegates who stayed to the end but refused to sign, an additional four left early to demonstrate their protest: John Lansing and Robert Yates of New York; and Luther Martin and John Mercer of Maryland.

We are left less clear about the opinions of seven more who simply left the convention early (Oliver Ellsworth of Connecticut, William Houston and William Pierce of Georgia, Caleb Strong of Massachusetts, William Houston of New Jersey, and William Davie and Alexander Martin of North Carolina.) The same uncertainty extends to the eighteen delegates who were invited to attend but either refused or regretted their inability to attend: (Erastus Wolcott of Connecticut, Nathaniel Pendleton and George Walton of Georgia, Charles Carroll, Gabriel Duvall, Robert Hanson Harrison, Thomas Sim Lee, and Thomas Stone of Maryland, Francis Dana of Massachusetts, John Pickering and Benjamin West of New Hampshire, Abraham Clark and John Neilson of New Jersey, Richard Caswell and Willie Jones of North Carolina, Henry Laurens of South Carolina, and Patrick Henry, Richard Henry Lee, and Thomas Nelson of Virginia). These men were originally selected because of their local eminence, so some of them may have been unable to spend several months in a City that took days to reach on horseback. On the other hand, we certainly know where Patrick Henry stood, and a large number of other abstentions from certain states suggests more than personal inconvenience was involved. After all, Rhode Island refused even to nominate anyone to the Delegation. In this last case, a political issue was highlighted. The Articles of Confederation which were being replaced not only required unanimous consent to change them, but they affirmed the Articles to be permanent. Under ordinary contract law, that would be dispositive. But George Washington was hell-bent on replacing the Articles of Confederation, so what they said would then no longer matter.

There remains a need for someone, perhaps in a doctoral thesis, to examine the voluminous correspondence and recollections of the large group of non-signers to assess the true nature of their failure to attend or sign. There was plenty of room for honest disagreement, personal business back at home, illness, or feelings of inadequacy. On the other hand, plenty of other subsequent politicians have exhibited an unwillingness to offend anyone, a hope to seek advantage from both sides, or a habitual tendency of waiting to see who would win before stating an opinion. Politics would be better without such personal inadequacies, but politics would not be politics without them. In fairness to their quandaries, the voting on the Constitution was by states, requiring nine to adopt it. If the vote of their state was a foregone conclusion, some delegates probably had a right to go home and let it happen in their absence. In the case of Alexander Hamilton, here stood the sole New York delegate in attendance at the final signing. Since he had been agitating for this sort of reform for seven years before Madison and Washington convinced each other, it seems possible that others withdrew to let him have the limelight. There is little doubt the single remaining responsibility of the signers was to go home and "deliver" their state for ratification, and Hamilton went at that with a vengeance. Although the moment of final signing appears on portraits and in sculpture, it was only the beginning of the battle for adoption, not the final victory. Indeed the Constitution as we now perceive it did not take more or less final form until the early government shaped its operation in actual practice. Most of that shaping process also took place in Philadelphia, during the first ten years while the seat of government was still located there. In particular, many if not most of the elected members of the First Congress had been members of the Constitutional Convention, returning to Philadelphia to finish the job by writing the Bill of Rights.

Unwritten Features of the Constitution

Considerable anger is sometimes directed toward Judges who find unintended provisions in the Constitution. On the other hand, James Madison and some other Founding Fathers were careful to design the Constitution to create outcomes that are far from explicit.

In their early writings, James Madison and the Federalists who participated in drafting the Constitution repeatedly emphasized their allegiance to republican ideals, republicanism, and a republican form of government. This sounds a little odd today, since obviously they were not alluding to the present Republican and Democratic parties, which had not been created. It seems natural to us to regard a republican form of government as a gradual extension of a democratic one, when the size of the electorate grows so large it cannot be readily managed by voice votes in a town meeting, when therefore it becomes necessary to select proxies, or representatives. That description greatly underestimates the subtlety of the Founding Fathers.

Gouverneur Morris

Two centrally important members of the Convention, James Madison and Gouverneur Morris, felt especially strongly about a feature that does not occur to many others. When the voters in a particular district pick a representative, they are generally trying to choose one who will not only reflect issues of local importance, but one who will be able to persuade representatives of other districts to vote favorably. In this way, representatives tend to be selected who are taller, handsomer, more intelligent, richer, and more famous than the average person in the district being represented. Not by much, perhaps, and sometimes not at all. But as a general thing, the election of representatives tends to create a House of Representatives who are superior in certain ways to the average person being represented. When candidates and political parties engage in public combat, an impression is given that "politicians" are low characters, but that is in fact not usually true. Many factors will discourage the best candidates from participating in disagreeable contests, and many stratagems are employed in an attempt to elect the worse of two candidates. But it is seldom the case that a successful candidate is less attractive or talented than the average person in his district. Republican governments almost always are composed of more distinguished persons than average, exposed to greater temptations perhaps and subject to more detailed scrutiny.

Madison was so taken with this idea that he proposed the Senate should be made up of people drawn from the House of Representatives in a second round of voting, thereby further purifying the result. For various reasons this approach was not adopted by the Convention, but it does have a logic to it, and it clearly illustrates that Madison was looking for results not always explicitly stated. Gouverneur Morris, on the other hand, was openly enthusiastic for this outcome, because he perceived that the government would be largely concerned with the rules of commerce and therefore the selection process would likely lead to a Congress that was richer and more able in those qualities of importance to commerce. On the one hand, America would gain national advantage in the Industrial Revolution then under way, and it would anyway be highly desirable to select richer people. In his later years, Morris was given to blunt and open preference for the smart set, and is often described as a covert aristocrat. At the time of the Convention however it seems likely he was making a perfectly valid point which had escaped many of his colleagues.

James Madison

Both Madison and Morris were seriously concerned about a flaw in the republican form of government. They thought it obvious there would always be more poor people than rich ones. Without some effort to rebalance things, the poor would inevitably destroy the common good by using their numerical strength to redistribute wealth from rich to poor. In doing so, everyone would be worse off, even the poor. The poor were more likely to be uneducated and thus more likely to put their own enrichment ahead of almost any other issue, using their own grievances as a justification. There was almost universal agreement among other members of the Convention, because it was well recognized that the main need for a new constitution had grown out of the egregious conduct of state legislatures under the Articles of Confederation, particularly in watering the currency with paper money, and profligate use of debt forgiveness. It would be impossible to have a prosperous country if it suffered from instability, destruction of merit incentives and respect for the property of others. If debts were capriciously forgiven, no one would lend. With paper currency printed indiscriminately, savings would be impossible.

Political parties

Accordingly, the Convention set about balancing these innate tendencies as well as it could. There was general agreement that election districts with larger population size tended to produce better candidates. Not only employing the reasoning that in a larger district it would be harder to elect an unknown, insignificant person, they felt they could also see examples justifying faith that a larger number of competing internal interests would hold each other in check within the person of their elected representative. An indirect way of accomplishing this was to limit the total number of districts while also providing they be of equal population. Political parties were soon to come forward as a way of raising campaign funds, but nevertheless a person of greater means would have an advantage in a larger district, and persons of greater means could be expected to have greater talents, or would in any event be more likely to resist the pressures for redistributing the wealth of the rich. Members of the Senate were selected by the state governments (at least, as long as state assent was necessary for ratification of the Constitution), but the 17th Amendment changed that to popular election, with a clear resulting decrease of state influence and power. On the other hand, a heavy majority of Senators in the 21st Century continue to be independently wealthy, thereby still accomplishing two original objectives of the founding fathers at one stroke.

5th Amendment

The original working concept of the Federalists was that the skills and prestige of the rich and powerful would promote the owners of property into elective office, and their power would be joined to that of judges, presidents, cabinet officers, and military officers to form an effective counterbalance to the majority voting power of the poor or others who lacked property to protect. The Federalists differed with the anti-Federalists on the source of danger to be guarded against; one group feared impetuous and ignorant greed inciting the multitude, while the other group mainly feared corruption and power-hunger among the powerful few. But both political parties acknowledged that each potential danger was realistic to some degree, and hence there was reason to hope both sides could agree to a balance of power as a sensible check on each other. True, the Fifth Amendment's "takings" clause did specifically provide for just compensation for private property seized by government under Eminent Domain, and the Eleventh Amendment protected state governments against private lawsuits in Federal court, but these seem rather feeble additions to the protections against potential tyrannies of the unpropertied majority, as soon to be seen in the revolutionaries of France. Thus an initial assessment would have to be that protection of the minority with property against legislative assault by the unpropertied majority, was only strong in the short run. But it was likely to succumb in the long run to majoritarian tyranny, as the less educated gradually learned how to use their voting power. To strengthen the balance, therefore, resort was made to limiting the voting franchise to owners of property, and specifically to freehold property, without debt. There was shrewdness to this idea, since it hints at a perception that future class divisions might not lie between rich and poor, but between creditors and debtors. The voting exclusion of females, children and slaves was surely irrelevant to the main issue, based on the 18th Century assumption that any votes from those excluded would anyway be passive, dominated by the male head of household. In any event, the limitation of voting power to freehold property owners was apparently a step too far, and did not last long.

It is not certain how consciously another important feature was considered. State legislatures prior to the Constitution were held in such disdain, that stripping them of the power to corrupt truly important issues was almost a universal goal. Awkwardly, a peaceful transfer of state power over the military and the currency could not be accomplished without securing the agreement of the states who had to ratify the Constitution. This was accomplished by specifying the strictly limited powers of the new Federal government, and ceding control of everything not specifically mentioned, back to the states. One by one, the functions which were vitally important were debated and defended in detail; the list was short. Everything else remained under state control. To go about things in this way had one significant advantage over complete federal control, and Madison specifically anticipated it. If a state government abused its power, the victims of that abuse could escape by relocating to a neighboring state. The potential abuse easiest to understand was a burdensome tax rate. But all of the commercial rules of the new entities called corporations were even more to the point, since rich people could move whole factories and businesses if they perceived enough grievance at home. Powerful people had ways of getting the attention of state governments, their U.S. Congressmen and Senators, and the constituents who voted for them. In New Jersey at present, 4% of the taxpayers pay 76% of state taxes; it is easy to demonstrate that the 4% are moving to other states about as fast as they can. Whether by industry or individually, the residents of a state know very well what their alternatives are in other states, and corporations can negotiate them directly. Whether to bluffing or actually moving, state politicians respond to the threat and which has considerable indirect effect at a national level. The system of checks and balances extends far beyond the words of the Constitution, and well beyond the rules of the Federal government. Its unwritten power extends beyond the control of a handful of Supreme Court justices, spatting over original intent. Its potential weakness, of course, lies in the Court's relative inability to protect what is not stated to be any of its business.

1787 founders

One final point about the unspoken cleverness of our Constitution. Some of its most important powers were either unrecognized or intentionally unmentioned by its originators, to whom we look for original intent. After two centuries, we can see as they could not, that it was not merely the first time thirteen sovereign states gave up their power voluntarily and more or less cooperatively. In two hundred or more years, it begins to look as though nobody else can even imitate it successfully. One therefore hesitates to suggest changes of any sort, for fear some unrecognized balance will become unbalanced. Madison believed that increasing size leads to better government and better candidates for office; few would dispute that our Federal government generally does a better and more professional job than the fifty states which make it up. But stop to consider the United Nations. Invested with as much enthusiasm and much more idealism than our 1787 founders, the U.N. flounders and fumbles, and after fifty years must still be assessed to be a failure. Madison would seemingly have predicted that a bigger organization would be even stronger, even electing an assembly of giants. It hasn't worked out that way, and it is impossible to define what it lacks that the American Constitution has in abundance. By itself, this is the strongest possible argument for what is called original intent, but is really just a fearful plea to -- leave it alone.

Government Features Under Stress

A flexible and adaptable Constitution is not exactly the same as a "Living" Constitution, which has come to imply the courts can amend it without the nation following prescribed procedure for amendment. An exception is made for strictly judicial issues, so some observers prefer to focus on that nebulous boundary. What seems to be missing is a way for the public to express the feeling that liberties are being taken with the Constitution, without reaching for drastic remedies like impeachment. Mr. Dooley famously remarked that the Supreme Court reads the election returns, but it often has more affection for stare decisis than the public does.

Manipulation of the Legislature.

The founding fathers spent much time and energy wrangling about the size of electoral districts, generally agreeing that larger districts produced a better representative. James Madison was persuasive that poor people would always greatly outnumber rich ones and would follow the example of the French Revolution in stripping rich people of their property, with disruptive consequences. Possibly because the Industrial Revolution made a much larger proportion of the population prosperous, or possibly for other reasons, the much-predicted outcome did not significantly occur. Rather, we have seen progressive waves of new immigrants start at the bottom of the economic ladder and work upward in a generation or two. Rather than view poor people as a permanent underclass, we can mostly regard poverty as one stage in a process which usually leads to better positions in society. At the present time, the argument about the relative sizes of the economic classes has devolved into a debate about the optimum size of the immigrant class, which in turn depends mostly on our ability to assimilate those who cannot assimilate themselves. Nevertheless, Hannah Arendt and others have taken Madison at his word and searched the Constitution for clever ways in which that notorious schemer might have had his way. Somehow, the provable fact that affluent classes exercise their right to vote more vigorously than indigents do is taken to be proof of the Madisonian outcome. President Barrack Obama apparently saw some sort of political opportunity in the statistics, and we are therefore likely to hear more about this.

The representatives of the people immediately turn their backs to their elective constituencies after the election and begin to address their new main concern, which is how to deal with their new colleagues.

Influencing elected colleagues is their life; elections are periodic threats to that career.

It can be predicted that Americans will continue to prefer the approach of achieving equality by making poor people richer, to the alternative of making rich people poorer. But it can also be safely predicted that grumbling about republican (representative) government will continue, because of certain features of human nature that were poorly anticipated by the founding fathers. Although it should be obvious we have long outgrown any plausible alternative, the representatives of the people immediately turn their backs to their elective constituencies after the election and begin to address their new main concern, which is how to deal with their new colleagues. If they are fortunate enough to represent a "safe" district, they may not even pause to reflect much on the electorate at election time. They are not to be blamed for this; influencing elected colleagues is their life; elections are periodic threats to that career. It should thus be immediately clear that voters can most readily increase their influence on legislative bodies by maintaining a roughly even balance of political parties within their districts. In a word, gerrymandering has become a far more important obstacle to voter influence than race and social class will ever be. Gerrymandering in the House of Representatives, that is, because the Senate and other districts with immovable boundaries cannot be gerrymandered. Our system requires boundaries to react to population changes; therefore the control of legislative boundaries must somehow be removed from political control. The simplest approach would seem to be to avoid all mention of techniques and specifics, except one. The election should be voided unless it produces a reasonably balanced outcome; one that approximates the vote split of the entire state. Another measurement objective might be to reduce protracted incumbency in cases where boundary adjustments prove impractical.

A sincere representative of the people often finds his worst enemies are the leadership of his own party, seeking to control his vote.

Political families pass these secrets around within the political class, and we become more of an aristocracy than we imagine.

Once elected, a sincere representative of the people often finds his worst enemies are the leadership of his own party, seeking to control his vote. The methods employed to gain power over the freedom of a representative to vote his conscience are numerous, devious and highly effective. The consequence of this game is that experience is so much the master over innocence that families pass these secrets around within the political class, and we become more of an aristocracy than we imagine. No doubt the rules of the chamber evolve over decades or even centuries and respond to realities which most outsiders cannot appreciate. In all probability, the key to making reasonable rule changes is to transform the rules committee into a committee of the whole for a longer time, perhaps a whole week, at the beginning of each session. It is the nature of politicians to scheme in an elaborate game of chess, and it would be unwise to create the chaos of protracted rule modification as part of some devious contraption. But limiting rule changes to a single voice vote at the beginning of a whole legislative season is also unwise.

What might help is drawing the attention of think tanks and colleges to this clandestine issue. In rural state capitols, the first need is for the creation and funding of think tanks, now largely absent. As the newspaper industry experiences relentless shrinkage, philanthropic attention may well be necessary. The assiduous attention of lawmakers to these mundane issues is such that the publication of a few books on the topic might achieve enormous benefit.

Manipulation of the Courts.

The Constitution does not directly mention English Common Law, and strictly read could be held to limit the federal court system to disputes under the statutes and treaties created by the legislative and executive branches. That is, a Court of enumerated powers to match the enumerated powers of the Legislative branch. At present, many lawyers seek to transfer cases to Federal Court because the Judges are superior to state judges. The resulting competition is often salutary, but it is a sad commentary on the typical state judiciary. Since the nation began to function without any statutes passed by the Congress at all, and until the time of the Civil War had less shelf space devoted to all of the accumulated statutes than to the volumes of Common Law, it would have to be assumed it was intended by the Constitutional convention to let the courts themselves decide how much weight to give to the laws of our former masters. In any event, that is about what happened. One by one, as cases came before it, the Supreme Court made references to particular points of common law that became binding on the lower jurisdictions. This unspoken and somewhat obscure process gave rise to a rather questionable concept known as The Law, and therefore sometimes to conflicts between statutes and The Law. The early courts were careful to avoid open conflicts as much as they could, and tended to search for technical and procedural flaws upon which to base their determinations. John Marshall, who did most to forge new concepts of the role of the courts, was particularly careful to avoid open conflicts with clearly specified statutes until he was ready to declare the Supreme Court's right to "review" them. Step by step, the common law was restated to originate with the Court. In time, the findings of the Court became an extension of the Constitution. Americans scoff at the interminable volumes of the proposed European constitution, contrasting them with the few short statements of our own. But if the accumulated findings of the U.S. Supreme Court were appended to the brief preamble we call the Constitution, ours would be far larger. It might claim to be far more flexible but it is also more arbitrary. Flexible or arbitrary, its main weakness is to be so hidden from public view that one bad mistake would cripple its effectiveness. Roe v. Wade came pretty close.

A question has to be raised whether the Supreme Court missed an opportunity to organize and proclaim the organizing principle of Common Law, which in its present form was created by Lord Chancellor Sir Francis Bacon. Picking up on Galileo and other early 16th Century thinkers, Bacon's common law follows the principles of science. A hypothesis is offered, then it is tested and revised hypothesis is offered. Then the new hypothesis is tested and revised. It is called the scientific method, but might just as well be called the legal method. No principle endures unless it withstands continuing testing. The hypothesis from any source is given a respectful hearing, but it is not allowed to stand unless it is lawful. That is unless repeated testing confirms its validity. Statutes, on the other hand, are created by the opinion of half the voters, plus one. We thus have created half the system of the scientific method by passing laws and sending them to the courts for the accumulation of experience. The life of the law said Holmes, has not been logic, it has been experienced. What our system lacks is for some way to recirculate the experience of the courts back to the legislators, for reconsideration.

System Overload

Paper Stress

We may be a nation of laws but not of men, but that does not mean the more laws we have, the better. The United States Congress currently considers about 25,000 bills each year, but at least they have fairly adequate staff to help them, and they work full time, year round. By comparison, it is more appalling to learn that the New Jersey Legislature considers 10-12,000 bills a year since you have to multiply that by fifty on the assumption other states act the same way. And almost more disconcerting to learn that New Jersey passes 300 laws a year, meeting thirty times a year in three-hour sessions. It must then be reflected that new laws are then sent to the executive branch for implementing regulations. The regulatory process ordinarily results in a notice of proposed rule-making, a comment period, evaluation of public comments, and then finally the issuance of final rule-making. The Federal Register publishes all this activity and runs to more than a hundred thousand pages a year. Periodically, the whole business is restated in the Consolidated Code. Even though each enacted law only goes through this process once, quite a large industry is created just to disseminate new laws. In the process, we make a travesty of the ancient doctrine that ignorance of the law is no excuse . No one at all knows what the law is. The legal profession has been driven to specialization and subspecialization, just so one lawyer can claim a comprehensive grasp of a tiny portion of this stuff. Consequently, we see law firms of a thousand or more lawyers emerge in an effort to cover the entire field and keep up with it. Law firms thus are driven into the communication system employed by ant hills and beehives, as well as rising administrative and communication costs. The public is terrified of involvement in a system which was designed to protect their rights and promote their interest, but with charges of $600 per hour can easily bankrupt anyone who has a serious issue. The country watched Richard Nixon and William Clinton accumulate millions of dollars in legal costs; when the President of the United States, himself a lawyer, cannot afford to defend himself, things are reaching some sort of limit.

A few years ago, overcrowding in the Philadelphia prisons got to the point where a Judge Shapiro ordered Mayor Ed Rendell to stop sending any more prisoners to jail until conditions improved. That was fine for convicted felons, but enthusiasm in the rest of the community was restrained. The overloaded judiciary tends to respond to the avalanche of litigation by almost forcing litigants to settle rather than go to trial, and if a trial is unavoidable, to seek a lighter sentence by foregoing a right to trial by jury. Plea-bargaining is routine. Finally, a whole section of this legislative torrent has been moved away from challenge by the concept of "standing". Using the principle that someone may not use the courts to settle a grievance unless he can show some harm to himself has been caused, or some advantage to him would result from winning the case, the concept of standing has been driven by court overload to be ever more strictly applied. I cannot sue my town for having too few school crossing guards since I am too old to need them, and personally no better off if we have lots of them. It thus is inevitable that concerned citizens are driven away from the courts for relief from high-handed behavior by government, or inefficiency, or unnecessary cost. Directed by the courts to further their goals in the legislature, the citizen finds that legislatures can do little except pass more laws. Passing too many laws is already the underlying problem. The political parties have lately chosen to take sides on de-regulation and re-regulation, but this formulation is really intended to influence the relative size of the private and public sectors of the economy. That's quite a different issue from excessive particularization of instructions and warnings, and excessive use of the legal system in both the private and public sectors. There's a concept known as "capricious abuse of judicial process", for which citizens can be punished, but legislatures somehow cannot. Those who designed and sanctified limited government in 1787 when we started with no statutes at all, do not seem to have anticipated the danger of excessive growth.

Constitution V: The Unforeseeable

At the 1787 Constitutional Convention in Philadelphia, the Framers had pride in their accomplishment, but great anxieties about how long it would survive. Few of them would have predicted it would survive for several centuries, unmatched in durability by any of its imitators. A dozen wars and unimaginable changes in the nature of American society have not shaken it. It survived two particularly ominous threats, the Civil War, and the 1937 Roosevelt Court-Packing episode, but more remarkably it survived momentous, unpredictable, changes in our political, social and economic environment.

The Invention of Political Parties.

It emerges in retrospect that the founding of the American republic took place during The Enlightenment, a comparatively brief interlude of general allegiance to rational behavior. Almost all efforts at the representative government for thousands of years had previously developed many political parties, and vicious ones at that. The Framers expected that elected representatives would disagree about policy and decisions, but would refuse to win political arguments by personally attacking the political opponents who expressed disagreement. The Enlightenment was world-wide, but the American version had strong doses of Virginia Cavalier courtesty and Pennsylvania Quaker humility of speech. Scarcely anyone in the former colonies was true to the manner born, and so almost everyone was both self-conscious and a little unrealistic about the mannerisms of gentlemen. Mix that with an aversion to the aristocracy recently rejected, and there emerged a hesitation to declare a true gentleman would want to be elected public representative for any reason except sincere desire to serve the public as a duty, and certainly not to seek raw power itself. George Washington was the particular exemplar of this model. Renouncing personal power at the moment of his greatest military acclaim, Washington was outspoken about his hatred of partisanship. Resigning as the victorious leader of the armed forces, his return to private life was an act that exited notice and admiration from the whole world, which had fully expected him to create a throne and sit on it firmly. He soon refused to come out of retirement to accept the Presidency unless it was offered unanimously, and agreed to only one term of office. After he was persuaded to accept a second term, he adamantly refused a third because he wanted to establish a tradition of voluntary transfers of power. Along that line, he was seriously concerned that he might die in office, preventing him from establishing a tradition of peaceful transfer of power. No one dared suggest political parties in Washington's presence, but the moment John Adams became President, partisan ugliness began. And it was Thomas Jefferson who was itching to begin it. Jefferson never considered waiting patiently for Adams to complete two terms, but began attacking him during the first one. However much Washington wanted to establish an enduring tradition of courtliness, his administration during the Philadelphia years now sticks out as a quaint aberration.

So the republic was started and established for at least Washington's term, with the proclamation that partisan politics of the sort universally seen before and afterward was only to be deplored. This period was the ten-year temporary period when Philadelphia was the nation's capital, so the concept persisted in Philadelphia as the dominant local standard for another fifty years. Meanwhile, the rest of the country degenerated into the deplorable politics of the frontier, the ignoble, and well, the gutter. Even after Philadelphia evolved into a serious player of machine and state politics, enough guilt about naked ambition remained to restrain the Quaker State from its normal role as a national political power. James Buchanan was indeed elected president but is believed to have been a failure. Since then he serves as an example of why politics are inherently dirty, not suitable for the ambition of authentic Philadelphians. Digby Baltzell blames much of this on Quakerism; that's a partial possibility, but ignores its lack of application to non-Philadelphia Quakers like Herbert Hoover and Richard Nixon, and its visible watermarks stamped on Philadelphians of all religions.

Not mentioning parties, the Constitution says nothing about their number or management. Since the original language contemplated the election of individuals, it leans toward all-or-none victories, thereby sparing us debate about proportional representation. We expect a two-party system, although we do not forbid more than two. The purpose of a party is to help people get elected, so can he win? is the decisive question in the selection of a party candidate. Extremists in both parties disqualify themselves by this test, so when the election finally arrives, comparatively little difference separates the two candidates, and losers can accept the winner. Our elections are unlikely to be followed by civil war, are more likely to be followed by legislative cooperation. Consider the situation with proportional representation among a dozen parties spread over the political spectrum: in nations that try it, one party seldom wins a majority and must form coalitions after the election results are known in order to achieve that governing majority. A succinct summary of the difference is that Americans make their deals before the election; countries with proportional representation have the election first and make deals later after the electorate is excluded. In the rare circumstance when the public wants the wrong thing, proportional representation is a way to do the right thing against the wishes of the public. While it is possible to envision a good outcome from such a situation, it is not easy to imagine public approval of it.

The Mysteries of Property

Everyone was once a nomad. When vast unoccupied land stretched in all directions, ownership meant very little; everyone moved at will. A particular water hole had importance, perhaps, but ownership of it merely meant fighting off others who came near; tribal ownership was a matter of having enough friends to help exclude intruders. If the tribe moved away and came back, intruders again had to be thrown out. This was essentially the situation of native American Indians when the Europeans arrived.

Conventions of land ownership existed under English common law in 1787 but were only a step better organized than the Indian conventions. All land belonged to the king, who might cede large estates to loyal nobles, but could also take it back if the vassal proved disloyal. The Magna Carta and the English Civil War could be viewed as steps in the disruptive process of eventually ceding portions of the King's land to individuals permanently, to have and to hold. The concept of private property became embedded in English common law and was carried over into our own Constitution, although the awkwardness of Indian rights created an incentive to be a little vague. English common law was not so much transferred into our system as recognized to "inform" it, a characterization which allowed the Judiciary to adopt, modify or ignore the awkward parts. Although the rules were imprecise, the Framers of the Constitution and John Marshall's court created a hybrid system, with enough flexibility to deal with remnants of the two preceding theories of land ownership, the farmer and the cowboy. Pre-revolutionary Royal caprice was frozen at the moment of independence, followed by successive recorded transfers through an unbroken chain to the present. If you could establish your position to the satisfaction of the courts, it was your land, your property. This seems to have been the basic model the Framers envisioned when they wrote the Constitution and served as a template for other kinds of ownership when they wrote of the sanctity of contracts. Because this uniform theory of ownership contained some delicate threads of reasoning, well recognized to conflict with the attitudes of the earlier Indian owners, and a little stretched when extended to concepts like intellectual property, it was essential to establish it as uncontested. Land ownership at that time was the main place to store wealth, and transforming a limitless continent into the useful property was the main route to acquiring wealth. Money in the form of currency was a tool for facilitating wealth transfers, banking was a step removed and remained contentious for a century. The property was wealth, and more sophisticated definitions of wealth were treated as property organized around the principles of real estate. When the Framers spoke of the sanctity of voluntary contracts they also had in mind preventing the recent abuses of debt forgiveness under state legislatures responding to unfettered majority rule. If the chain of ownership broke at any point, and particularly if contracts were unenforced the Framers had reason to fear the country could fall apart.

The certitudes of the Eighteenth century were also the certitudes of the Nineteenth; and even for most of the Twentieth century, those who challenged it were regarded as nuisances, intellectual triflers, perhaps Bolsheviks. The courts, however, began to observe evolving ideas of society conflicting somewhat with this central core of our law. Small businesses protested the unfairness of competing with big business, unrestrained by governmental antitrust laws. Labor unions rebelled at the situation of worker powerlessness in their eternal struggle for higher wages against huge companies intent on reducing costs. Private companies could not possibly compete against businesses run by the government, but perhaps it would be more profitable for all businesses to be run by the government. One by one, foreign socialist and communist countries have tried it and were competitive failures, but perhaps Singapore and China, or Denmark and the Netherlands, have perfected government ownership to a point where some corporate state could impoverish us if we persist in the old economic model. So far, it has not been necessary to argue justice and logic; the economic failures of other systems make adoption of their legal ideas laughable.

Nevertheless, the premise of unlimited open land is disappearing. Only 2% of workers in the economy work in agriculture. If the land is no longer the unwritten monetary standard, perhaps its requirements should no longer be the tentpole of the legal system. Perhaps the government has a legitimate role in health care, support of the arts, support of the poor and retired, education of the young. An underlying concept seems to be that certain economically unprofitable but desirable activities will not flourish in a property-based economy unless they are identified politically and reimbursed by taxation. Perhaps in an information age, the government is the logical and most efficient management of information. Perhaps if the government interfered more in private transactions, society as a whole would benefit. It can be difficult to tell how much this sort of reasoning is based on changing concepts of private ownership, and how much is a claim of collective rights; the two visions tend to merge in weakening individual control of the property, while enlarging public claims to the same property. Something called Society is claimed to exist and claimed to have rights.

This assault on old attitudes currently achieves prominence in the Green revolution, where residents of urban skyscrapers feel passionately about swamps and mountain tops they have never seen. If an eagle roosts on a farmer's land, somehow it is not the farmer's eagle, it is everybody's eagle. Green revolutionaries need to become far more explicit about their rights to the private property of others if they hope to convince judges that they have a case, but their ardor is not deniable.

Globalization

Peter Aloise

The Right Angle Club recently heard from one of its own members about the complex issues involved in the topic of globalization. Peter Alois defined globalization as the development of an increasingly integrated world marketplace, although enthusiasts call it Free Trade, and opponents say it interferes with Fair Trade. Although there can be local exceptions, globalization generally leads to lower prices, so consumers are pleased, producers are worried. Since Free Trade can be defined as international commerce without government interference, globalization can also be defined as a general reduction of government influence in trade. But whether you love it or fear it, globalization is a reality; it is here.

Hindrances to trade can take many forms, including subsidies to local merchants, who then can underprice foreign competitors. Carrying things to an extreme, the French fairly recently prohibited the use of American words. While the reasoning used to justify this intrusion into private life was the preservation of the beauty of native French phonetics, this unfortunate government adventure calls attention to the possibility that one of the main functions of local languages is to make it difficult for foreigners to understand what is being said. The Anglo-Saxon response tends to note the large expense of teaching foreign languages in our schools, so why doesn't the rest of the world just stop the nonsense and start speaking English?

Dubai Waterfront

There does seem to be something about this issue related to fair play, a thoroughly Anglo-Saxon concept. When corruption of trade practices around the world is ranked, it is notable that both New Zealand and Canada, which are ranked at the top, are former British colonies. Somalia, certainly one of least British of countries, is ranked at the bottom. No doubt the French would be offended by this observation. It is also irksome to Fair Trade advocates (ie Globalization opponents) that national prosperity is also fairly parallel to Free Trade policies, absence of corruption, and so on. It was George Washington (probably ghost-written by James Madison) who most famously framed the American Doctrine: Honesty is the best policy.

Some of the members of the Right Angle Club, an outspoken lot, took up the other side of the proposition. Underpricing by foreigners leads to competitive advantage for them and loss of jobs for Americans. This dislocation is the unfortunate side of creative destruction, and a compassionate government should assist its wounded casualties. Whether it should go to the lengths of raising prices for other Americans by hobbling the foreigners, is a more open question. In the passion of argument, it was mentioned that this country was founded on such principles. Well, it would be hard to find anything written in the Constitution or spoken in its debates which supports that claim. But it must be admitted that the new nation wasted little time in creating new tariff protection for struggling new American manufactures, but took an awfully long time to get rid of what protective tariffs it already had. The confusions of the newly developing Industrial Revolution were perhaps not the best time to develop enduring principles of trade fairs, and thus we should not necessarily be held to them forever. But there is certainly room for the argument that a nation may need a certain set of policies when it is new and struggling, that are not necessarily appropriate when it becomes rich enough to claim to dominate world trade.

Revising, Amending, and Skirting The Constitution

Tiananmen Square

In some foreign countries, people who dislike the government about some issue wait for a clear day and go in the streets to riot. Some of our own younger people who spent a little too much time abroad have likewise occasionally called their friends on a cell phone and agreed to pour out into our town squares to protest. When you try that in Tienanmen Square (1989) or similar places, machine guns can suddenly end the meeting (2,500 dead). We had the Boston Massacre of 1770 (5 people killed) and Kent State of 1970 (4 people killed), where newsmedia somewhat over-dramatized the risk involved. In general, most Americans feel public demonstrations are neither very dangerous nor very useful.

Chief Justice, John Marshall,

One measure of Constitutional effectiveness can be found in just this public attitude. The citizenry has been told and generally believe that methods for addressing grievances have been provided in the legislative, judicial and executive branches, ultimately leading to the Constitution itself as the last point of appeal. The 1787 framers in Philadelphia probably had this design in mind, but it was not until the third Chief Justice, John Marshall, made it his life's work that the elegance of the system became widely appreciated. The Constitution is the capstone of our system; every citizen's grievance can be appealed within it. If things are sufficiently dire, even the Constitution can be changed.

second Constitutional Convention

A second Constitutional Convention could be called, but most lawyers shudder at what chaos might emerge from making multiple changes without waiting to see how a few worked out. For practical purposes, therefore, amending the Constitution is the last recourse when the government goes astray. Amendments don't easily succeed; hundreds were proposed in two hundred years but only two dozen were adopted. In totalitarian countries, millions of amendments might be envisioned, but either nothing significant would be adopted, or nothing significant would be enforced. In our country, it is sufficiently difficult to succeed that frivolous or ill-advised proposals are discarded or modified into less extreme forms by "due process". But enough amendments do succeed to keep the populace out of street protests. Amendments can succeed, if you and the proposal are really serious. So far the only real appeal beyond an amendment has been another amendment.

Judge Benjamin Cardozo

The step provided before an amendment is to appeal to the Supreme Court. That happens about a hundred times a year, with the generally satisfying outcome. Perhaps the only serious criticism of the Supreme Court is the difficulty of "gaining cert.", which is the process of petitioning the Court to take the case, by granting a writ of certiorari. Only about 2% of petitions are allowed to present their arguments, and the Court has protected itself from overwhelming volume by limiting its caseload to instances of conflicts between circuits, and cases involving sovereignty of some sort. For such a selective process to remain acceptable, implicitly the rulings of the various Circuit Courts of Appeal would also have to enjoy general approval. That such is the case is evidenced by the fame and distinction reached by certain Judges of Appeals Courts, like Benjamin Cardozo, Learned Hand, and Richard Posner. In Cardozo's case, he was finally appointed to the Supreme Court, but at such an advanced age and short tenure that his Supreme Court reputation is rather modest; he achieved his reputation as an Appellate Judge. The failure of Robert Bork and several others to achieve Senate ratification illustrates a somewhat different version of the same issue: that the higher courts, not just the Supreme Court, are generally held to do as good a job as human systems allow; supremely gifted judges are not exclusively in the Supreme Court. As you go lower in the court system, more dissatisfaction can be heard, ultimately reaching slander accompanied by knowing grins, such as "You show me a hundred thousand dollars, and I'll show you a Philadelphia judge." Whenever criminals meet justice, such mutterings can be expected. But the point to emphasize is that there are no muttered challenges to the contention that the higher you go in the Judiciary, the more distinguished the judge is likely to be.

That's the federal judiciary, of course. State judiciaries are held in less esteem, although they have the power to put people in jail forever, award multimillion-dollar verdicts and modify the climate of business. Somehow, the prestige of these judicial systems has eroded to the point where a joke can be heard that being a state supreme court justice is a pretty good way to start a law practice. It's hard to know whether prestige has disappeared because of performance, or the reverse. Whether the steady erosion of state legislative power by Congress has resulted in a parallel loss of status in the judiciary is a serious question. In that case, of course, there is very little the judiciary itself can do about it.

Dred Scott

In two hundred years, hundreds of amendments have been submitted to overturn Supreme Court rulings which displeased someone. Only three have succeeded. The first was the overturning of Chisholm v. Georgia by the Eleventh Amendment, reflecting a largely unspoken wish to employ state sovereignty to continue the anti-British animosities of the Revolutionary War. While understandable enough, this approach is most unfortunate. The second is the overturning of the Dred Scott decision on the legitimacy of the Fugitive Slave Law by the Thirteenth Amendment. While the outcome meets general approval, here is another court position which could only be changed by winning a war. And finally, the legitimacy of the graduated income tax as an allowable private taking was established by the Sixteenth Amendment, overturning an entirely legitimate decision in Pollack v. Farmers Loan and Trust that the original Constitution prohibited it. In each case, the desired remedy only existed in changing the Constitution. Dissenters are free under the First Amendment to describe such a Court decision as asinine, but it is going to continue to stand. Some will be tempted to circumvent the whole process in order to achieve their goal, and two examples come to mind. In the court-packing episode of 1937, most impartial observers would agree that the Supreme Court was forced to reverse its decision under threat of coercion by President Franklin Roosevelt. Amendment of the Constitution was a choice open to him, but he chose another way. The Commerce Clause of Article I, Section 8 now continues to read:

The Congress shall have power to .........Regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes

just exactly as it did when for 150 years everyone referred to it as the Interstate Commerce Clause. What has changed is the declaration that Congress may regulate all commerce of any sort, without fear of challenge in the court system. Whatever chances Roosevelt might have had to amend the Interstate Commerce Clause before this uproar, it is clear he could never have achieved its amendment afterward.

The second instance of circumvention is related to the same episode. The insurance industry was highly displeased to find itself regulated by federal agencies, and within six weeks successfully lobbied the McCarran Ferguson Act into law. Congress could not overturn or make an exception to a Supreme Court ruling, but it accomplished the same result by prohibiting federal agencies from taking action in the business of insurance. To maintain regulation for insurance, all of the various states then passed laws establishing insurance regulatory mechanisms, and insurance regulation migrated back to the states. It is now difficult to know whether the same exception could have been created by then re-amending the Constitution. But since the advent of wide-spread current dissatisfaction with health insurance, it pretty clear that an amendment imitating McCarran Ferguson would never pass, today.

John Jay the Chief Justice

Finally, the Eleventh Amendment may not have been such a good idea, either. The dispute in 1793 (although it avoided saying so) was about compelling Americans to pay just debts regardless of the person they owed them to. And that included paying debts to former Loyalists. John Jay the Chief Justice was sent to England to negotiate a treaty to settle this matter, but after both nations ratified the treaty, state laws were passed to supersede it. From this evolved the issue of whether a treaty takes precedence over American laws, and the ensuing battle firmly established the preemption of Congress by treaties. Two hundred years later, when the British are our allies and Revolutionary debts fade in significance, many people are uneasy about such clear-cut deference to treaties. Our unwillingness to join the League of Nations, and sign the Kyoto Agreement, or enter into many other international cooperative ventures are related to uneasiness about the unintended expansive power inherent in the Constitutional location of a foreign treaty, enacted at a time of limited communication. We are doomed by demography to perpetual minority status in world forums but forced by economic success to exert leadership or become a target. There is no immediate emergency, but the prescribed generalities of enacting or enforcing treaties need sober reflection in the era of instant communication.

Population Growth: Constitutional Mathematics

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

Constituents per Congressman

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

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

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

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

Article the first... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less* than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more** than one Representative for every fifty thousand persons.

Ratified but Never Acted On

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

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

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

A committee containing inadequate wisdom will seldom be adequately wise.

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

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

George Washington on the Federal Union

President George Washington

"It is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity, watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can, in any event, be abandoned; and indignantly frowning upon the first dawning of any attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts."

Franklin Endorses the Constitution

Monday Sepr. 17, 1787. In Convention (6th and Chestnut, Philadelphia).

The Engrossed Constitution being read, Doctor. Franklin rose with a Speech in his hand, which he had reduced to writing for his own convenience, and which Mr. Wilson read in the words following:

Mr. President,

Bust of Benjamin Franklin

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, then after I am to doubt my own judgment and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele, a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said, "I don't know how it happens, Sister, but I meet with nobody but myself, that's always in the right"- "Il n'y a que moi quia Toujours reason."

The signing of the Constitution

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It, therefore, astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its error, I sacrifice to the public good--I have never whispered a syllable of them abroad-- Within these walls they were born, and here they shall die--If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partisans in support of them, we might prevent it is being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength and efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people and for the sake of our posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress and confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered.

On the whole, Sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility--and to make manifest our unanimity, put his name to this instrument.

He then moved that the Constitution be signed.

When the last members were signing it, Doctor Franklin looking towards the President's Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issues, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.

States Rights Confront Civil War

Dr. Randall Miller

Dr. Randall Miller of St. Joseph's University recently gave the Union League an interesting insight into the non-military upheavals of America by Congress during the Civil War. (Parenthetically, Dr. Miller is the author of Encyclopedia of Greater Philadelphia, which may give him still greater prominence in these columns when it reaches print.) Lincoln and the military get most of the headlines, but the greatest nation-building activities were products of the Congress, not Abraham Lincoln directly; the President was too busy directing the war to take much lead in other matters. The Republican Party of that time was freshly created, still strong in its idealism around elements of the party platform which really meant something to them. Although Senators John Sherman of Ohio and William P. Fessenden of Maine are remembered by history, most of the activity was conducted by members of the Congress who had reached seniority in committees and hence mostly had died off by the end of the War. It seems like one of history's great unfairnesses that a remarkable transformation of the nation was accomplished by people who are now largely unknown.

So Lincoln gets much of the credit by default, and the idealism and grand plans are lost in the current view that the Civil War was about liberating the slaves. That was, of course, part of it, but the Civil War was in fact mostly fought about the Union, and the Whig principles essential to nation-building. And the transformation was the vision of party politicians in offices which we currently regard as being filled by party hacks in safe seats. That wasn't the case at all; these visionaries knew where they wanted the country to go, and cleverly designed a set of programs to make it happen. Lincoln wanted to win the war; these men wanted to have a new nation emerge, after the war.

Civil War

It almost goes without saying that a Civil War over the secession of rebellious state governments from a Union created by the Constitution was going to weaken state power -- and strengthen Federal control -- if the Unionists won the war. That's what the Republicans wanted, and what the Southerners feared. But, strangely, both sides harbored warm feelings for the Constitution, wanting to preserve much of its essence. The Republicans, therefore, realized that many of the laws which were essential for winning the war, would lose their popularity and hence their force, once victory had been achieved. Reconstruction of the South, for example, was going to be unsustainable as soon as the huge Union Army was demobilized. The liberated slaves were unlikely to migrate to the western wilderness, and so the problems of racial readjustment were going to remain Southern problems for decades to come, without an army of occupation to maintain stability, law, and order. In fact, it was largely Southern whites who migrated to the far West, leaving the situation even more unstable back in the old Confederacy. How was a brave new nation to emerge from this mess?

War measures did help. There was no Federal currency until the War, and so a national system of greenbacks and war bonds helped to unify a vast and far-flung continent. The National Banks, fought over and feared for nearly a century, simply had to be created; all of these national rather than local symbols strengthened the national feeling. Putting 10% tax on state bonds was a pretty good indication that the congressional Republicans knew where they were driving things. The telegraph was of great value to wartime communication; it helped create a virtual community, with national news taking the place of local news.

Up until the Civil War, the main source of Federal income was derived from the sale of land; the new nation had a lot more land than gold. After the war, the nation found itself with taxation as the main source of income. The income tax was a step too far, of course, and it was repealed; but a system of national currency organized a system of national taxes which persisted. The country still had plenty of raw lands, but it was distributed by giving it to railroads in return for national transportation, and to land-grant colleges in return for greater uniformity of culture. Notice the hand of Congress, however. This land was to be surveyed land, not the land between this rock and that creek. Surveyors since the time of William Penn and George Washington were the agents of orderliness, law, and peaceful settlement of disputes. To that extent, surveyors broke up the reliance on local clans and territoriality; peace instead of conquest. The leaders of the North, the Republicans in Congress and the cabinet knew what they wanted; it was that the sacrifices of the war would find a reward in the peace that would follow and that reward would be a new nation.

Notice carefully the second section of the Thirteenth Amendment. The first section freed the slaves. The second section gave to the Federal government the charge of enforcing that liberty. The crafters of words and designers of rules, knew exactly where they wanted to go.

The Constitution

They did their work so well, that it begins to look as though the next few decades will display a crisis, created by going too far, too fast. In all these idealistic schemes, the state government is the enemy. State governments would interfere with Reconstruction; state governments would interfere with land grants and misuse their undisputed control of local law enforcement. State governments would introduce little strategies for restoring the power to tax and control, and to govern. State governments would slowly remember that the Constitution conferred only a few limited powers on the Federal government, and reserved all other powers to the states. The Constitution would never have achieved ratification without this explicit provision in the XII Amendment. And so, step by step, we have achieved some sort of goal by making the state governments into the weakest, most ineffectual, and yes the most corrupt parts of our national system. California, New York, New Jersey, and Michigan lead the way into what seems a certain disaster of enlisting municipal employees into political machines of the worst sort, and bankrupting the states that permit it. Massachusetts, Rhode Island, Maryland and West Virginia are not far behind.

Fanatics could persuade themselves that a solution readily lies in simply going all the way and eliminating state governments. But to do so would destroy James Madison's brilliant insight. The states place a limit on unlimited power from whatever source by offering the citizens a choice: if things get too bad, just move to a nearby state.

George Washington's Cherry Tree, Revisited

American Revolutionary

George Washington Chopping the Cherry Tree

Parson Weems, it seems, was a mercenary type who made up stories because he thought they would sell. Someone should explore the history of this anti-Weems debunking campaign for us, because it has distracted history from what may be a far more important truth about the founding, and the founder, of our country.

The address President Washington sent to his countrymen, published September 19, 1796, will apparently be forever referred to as his Farewell Address, and it is true that one of the important points he was making was the President should have only two terms of office, adding in his particular case the determination not to die while in office and create undesirable precedents for Presidential succession. It is also sometimes stressed that Washington cautioned the nation against all foreign entanglements, although likely he had in mind the particular conflicted loyalty at the time between England which we strongly resembled, and France to whom we owed a debt of gratitude for our independence. Surely he was telling the nation to watch out for its precarious independence, even at the price of disappointing old friends, and not really attempting to look centuries ahead in foreign relations. The point about a third term was a pretty firm one; Washington's greatest achievement in the eyes of the world was to renounce all resemblance to monarchy, which he could have had for the asking.

Farewell Address for George Washington

Much deeper meaning for the address is suggested when you search, let's say with Google, for the origins of the speech's repeated maxim, Honesty is the best policy. It sounds like the sort of thing Ben Franklin would put in his Almanac, but didn't. There are even times in Franklin's life when it might be questioned whether he really believed honesty was always the best choice for every situation, and Franklin's true belief might possibly have been closer to advising that you should strive to avoid getting caught misleading people. The opinion that honesty is the best policy sounds as if it might come from Shakespeare, or Cervante's Don Quixote; something pretty close can be found in both places. It might be much older than that; the phrase and a detailed examination of its merits can be found in the works of Quintilian, 69 AD. George Washington was unlikely to have read any classical Roman essays, but James Madison the favorite student of John Witherspoon at Princeton might well have been familiar with Quintilian. But these stray remarks about honesty are merely scatterings over fifteen centuries, mostly throw-away lines. It is only in the last decades of the Eighteenth Century that the little maxim is found peppered in the speeches of many people, beginning to use it as a cliche to adorn some other point of emphasis.

It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and would be unwise to extend them.

The point begins to catch the imagination that perhaps this flowering of a maxim can be traced to Washington's Farewell Address. It's unlikely that George Washington actually coined the phrase that honesty was the best policy, any more than Franklin Roosevelt coined the motto that all we have to fear is fear itself, or John Kennedy originated the happy phrase that we should ask not what our country can do for us, etc. Our more sophisticated views of Presidential rhetoric are now quite broad enough to accept the existence of ghostwriters and wordsmiths. It is current practice to agree that credit for originating a phrase adheres rightly to the person symbolized later when the phrase enters common parlance. To think otherwise is to become entangled in bickering about who wrote Shakespeare's plays, or who really wrote the various books of the Bible.

President's House Philadelphia

There is, however, historical importance to the speech-writer question in Washington's case. We are told that Washington had asked James Madison to draw up a speech for the occasion of his declining to accept a second term of office in 1792, but the whole matter was reconsidered when various advisors finally persuaded the President that the country needed him at the helm for more than four years. The speech was therefore set aside but revised and re-issued four years later. By this time, however, Washington and Madison had experienced their fateful falling-out, and therefore Madison's arch-enemy Alexander Hamilton did the re-writing. That honesty is the best policy should survive as a centerpiece in an address co-edited by such bitter philosophical enemies, plus some passing reflection on the personalities of the three men, should suffice to dispel most doubt that the sentiment was Washington's and that it must have been held very intensely by him. Madison may well have planted it, and he might very well have got it in turn from Cervantes or Quintilian. David Hume of Scotland might be an even likelier source. But overall it is hard to let go of the idea that Washington seized on it as a summary of something he fiercely believed.

There are differing degrees of and situations for honesty, of course; surely the most trivial is the sort of honesty Parson Weems was imagining in the little lad who would become our greatest leader. It really is not necessary to believe the courage to risk a whipping by a schoolboy is a core value which evolves into the broad economic vision for a nation. The legal profession, for example, may even overvalue absolute precision of wording, sometimes tolerating exquisite accuracy which artfully avoids full disclosure, caveat emptor. The military academies come closer to Washington's meaning by stressing to their graduates that what matters is not what is said, but what is communicated. At the time of the Farewell letter, what agitated Washington most was political partisanship -- political parties -- and overzealous effort to defeat the opinions of honest opponents rather than strive for a resolution of problems by bargain and compromise. In his youth, Washington was a surveyor, deeply impressed by the advantages of getting things straight the first time. Washington was to lose the argument over political parties, but while this defeat was among his greatest disappointments, his resistance still shines like a beacon.

It is hard to discern whether Washington had the depth of economic insight to emphasize the feature of honesty is the best policy which has the greatest importance to the Twenty-first Century. However, it is possible he did, because he was speaking in the midst of Quaker Philadelphia, having centered most of his public life there. Puritan Boston deeply believed that God had commanded honesty in His followers, honesty for its own sake, and the sake of the honest person's soul. But the wealth of Boston was overshadowed by thriving Eighteenth-century Quaker Philadelphia. Honesty to a Quaker was, of course, a good thing in itself, but experience showed that strict honesty in commercial dealings, and friendliness in all dealings, was very good for business. And conversely, the example of success on all sides encourages others to be honest and friendly when perhaps it was not their first inclination; honesty is catching. John Adams was scornful of those who do the right thing for the wrong reason, but this viewpoint gets ignored in the Twenty-first century. What is important for the third world to grasp is not intuitively obvious; they see abundant examples of getting rich at the expense of others, so much so that the third world and much of our own is willing to believe that if you have prospered, you must have stolen. If the third world cannot grasp the higher truth, we despair of ever getting along with them. Indeed, we may need to worry about skeptics increasing in our own midst. If Washington ever wavered, however, no one has told us of it.

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.

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.

WILLIAM BLATHWAYT'S DRAFT OF THE CHARTER OF PENNSYLVANIA

Charles the Second, by the grace of [God] King of England, Scotland, France, and Ireland, Defend[er] of the Faith & Co. To all to whom these presents shall come, greeting.

Whereas our truste[d] and well beloved subject William Penn Esquire, sonne and heire of Sir William Penn, deceased, out of a comendable desire to enlarge our English Empire and promote such usefull comodities as may be of benefit to us and our dominions, as also to reduce the Savage Natives by Gentle and just manners to the Love of civill Society and Christian Religion, hath humbly besought leave of us to transport an ample Colony unto a certaine Country hereinafter described in the parte of America not yet cultivated and planted. And hath likewise humbly besought our Royall Ma[jes]tie to give, grant, and confirme all the said Country with certaine priviledges and Jurisdicions requisite for the good govern­ment and safety of the said Country and Colony, to him and his heires for ever. Know yee therefore that wee, favoring the petition and good purpose of the said William Penn, and haveing regard to the memory and merits of his late Father in diverse services and particularly to his conduct, courage, and dircctione {discretion} under our dearest Brother James, Duke of Yorke, in that signall Battle and Victorie fought and obtained against the Dutch Fleet comanded by [illegible word deleted] {The}2 Heer Van Obdam in the yeare 1653. In consideration thereof of our speciall grace, certaine knowledge, and meere motion have given and granted and by this our present Charter for us our heires and successors, doe give and grant unto the said William Penn his heires and Assignes

All that Tract or part of Land of {in}4 America with all the Islands therein contained as the same is bounded on the East by Delaware River from Twelve miles distance Northwards of Newcastle Towne unto the Three and Fortieth degree of Northerne Latitude, If the said River doth extend soe farr northwards. But if the said River shall not extend soe farr northward. then by the said River soe farr as it doth extend, and from the Head of the said River, the Eastern-bounds are to be determined by a Meridian Line to bee drawne from the head of the said River unto the said Three and Fortieth degree; The said Lands {to} extend westward Five degrees in longi­tude to be computed from the said Eastern bounds, and the said Lands to be bounded on the north by the begining of the Three and Fortieth degree of northerne Latitude and on the South by a Circle drawne of {at}5 12 miles distance from Newcastle northwards6 and westwards, unto the begining of the Fortieth degree of northerne Latitude, and then by a streight line westwards to the limit of Longitude above mentioned7

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

And him the said of the countryes7 aforesaid and of all other the premisses saveing alwayes {to us our heirs and successors}8 the Faith and allegiance of the said William Penn his heires and Assignes and of all other {the proprietaries tenants and}9 the inhabitants that are or shall be within the Territories and precincts aforesaid, and {saving alsoe every unto us our Heirs and successors the soveraignty of the aforsd country}10 the sovcrcigncty Dominion thereof due unto us our heires and suc­cessors To have, hold, possesse, and enjoy the said Tract of Land, Coun­try, Isles, Inletts and other the premisses unto the said William Penn his heires and Assignes To the only proper use and behoofe of the said William Penn his heires & Assignes forever To be holden of us our heires and successors Kings of England as of our Castle of Wind­sor in our County of Windsor Berks in Free and comon Soccage by fealty only for all Services and not in Capite or by Knights Service11 Yeilding and paying therefore to us our heires and successors Two Beavere skins to be delivered {at our said Castle of Windsor} on the First day of January in everie year if demanded And alsoe the Fifth part of all gold and silver Oar which shall from time to time happen to be found within the limitts aforesaid {clear of al charges}12 And of our further grace certaine knowledge and meere motion wee have thought fit to erect, and wee doe hereby erect, the {afore}said Country and Islands into a province and Segniory13 and doe call it Pennsilvania and soe from henceforth wee will have it called Pennsilvania14 And forasmuch as wee have hereby made and ordained the aforesaid Wil­liam Penn his heires and Assignes the true and absolute Proprietaries of all the Lands and dominions aforesaid Know yee {therefore} that wee reposeing speciall trust and confidence in the fidelitie, wisdome, Justice and provident circumspection of the said William Penn for us, our heires and successors, Doe grant free, full, and absolute power by virtue of these presents to him and his heires and to his and their Deputies and Leiutenants for the good and happy government of the said Countryes to ordaine, make, enact, and under his and their seals, to publish any Laws whatsoever for the raiseing of money for the publick uses of the said Province or for any other end appertaining either unto the publick state, peace, or safety of the said Country, or unto the private utility of particular persons according unto their best discretions, by and with the advise, assent, and approbation of the Freemen of the said Countryes, or the greater part of them or of their Delegates or Deputies, whome for the enacting of the said Laws when and as often as need shall require {x}15 Wee will that the said William Penn and his heires shall assemble in such sort and forme as to him and them shall seeme best and the same Lawes duely to execute unto and upon all people within the said countryes and limitts thereof {x x}16 And wee doe likewise give and grant unto the said William Penn and his heires and to his and their Deputies and Leiutennts full power17 and authority to appoint and establish any Judges and Jus­tices, Magistrates, and officers whatsoever for what Causes soever for the probates of wills and for the granting of Administrations within the precincts aforesaid and with what power soever and in such forme as {to} the said William Penn or his heires shall seeme most convenient Alsoe to remit, release, pardon, and abolish, whether before Judgment or after all Crimes and offences whatsoever committed within the said Country against the said Laws Treason and willfull and malicious murders onely excepted18 and in those cases to grant repreives untill our pleasured may bee knowne therein and to doe all and everie other thing and things which unto the compleat establishment of Justice unto Courts and Tribunalls formes of Judicature and manner of proceedings doe belong Altho in these presents expresse mention be not made thereof And by Judges by them delegated to award proc-esse hold please7 and determine in all the said Courts and Tribunalls all actions, suits, and causes whatsoever as well Criminall as Civill per-sonall reall and mixt which Laws soe as aforesaid to be published Our pleasure is and so wee enjoyne, require, and command shall be most absolute and available in Law and that all the Leige people {and subjects} of us our heires and Successors doe observe and keepe the same unavoidably19 in those parts soe farr as they concerne them under the paine therein expressed {or to be expressed} Provided. Neverthelesse that the said Laws be consonant to reason and bee not repugnant or contrarie but as neare as conveniently may bee agreeable to the Laws, Statutes, and rights of this our Kingdome of England And saveing and reserveing to us our heires and successors the re­ceiving, hearing, and determining of the appeale & appeales of all or any person or persons of in or belonging to the Territories aforesaid or touching any Judgment to be there made or given And forasmuch as in the government of soe great a Country sudden accidents doe often happen whereunto it will be necessary to apply a Remedy before the Freeholders of the said Province or their Delegates or Deputies can be assembled to the makeing of laws neither will it bee convenient that instantly upon everie such emergent occasion soe great a multi­tude should be called together Therefore for the better government of the said Country wee will and ordaine and by these presents for us, our heires, and Successrs Doe grant unto the said William Penn and his heires by themselves or by their magistrates and Officers in that behalf duely to bee ordained as aforesaid to make and constitute fit and wholsome ordinances from time to time within the said Country to be kept and observed as well for the preservation of the peace as for the better government of the people there inhabiting and pub-lickly to notifie the same to all persons whome the same doth or any way may concerne Which ordinances our will and pleasure is shall be kept {observed} inviolably within the said Province under paines therein to be expressed {[illegible deletion]} Soe as the said ordinances be consonant to reason and bee not repugnant nor contrarie but soe farr as conveniently may bee agreeable with the Laws of our King-dome of England and soe as the said Ordinances be not extended in am sort to bind, charge, or take away the right or interest of any person or persons of or in20 their Life members2' Freehold goods or Chatties22 And our further Will and pleasure is that the [illegible deletion] Laws for regulateing and governing of propertie within the said province as well for the descent and enjoyment of Lands as likewise for the enjoyment and possession {succession} of goods and Chatties and likewise as to the treasone and {to} Felonies shall be and continue the same as they shall bee for the time being by the generall course of the Law in our Kingdome of England untill the said Laws shall bee altered by the said William Penn his heires or Assignes and by the Freemen of the said Province their Delegates or Deputies or the greater part of them23 {x x x And to the end the said William Penn or his24 Heirs, or other the Planters, Owners, or Inhabitants of the said Province, may not at any time hereafter, by misconstruction of the Powers aforesaid, through inadvertancy or design, depart from that faith & due allegiance wch bv the Laws of this Our Realm of England, they & all Our subjects in Our Dominions & Territoryes always owe to Us, our Heirs, & Successors, by colour of any Extent or Largeness of [illegible deletion] {Powers} hereby given or pretended to be given Or by force or colour of any Laws hereafter to be made in the said Province {by virtue of any such Powers} Our further Will & Pleasure is, That a Transcript or Duplicate of all Laws, wch shall be so as aforesaid made &: pub­lished, within the said Province, shall within 5. years after the making thereof be transmitted & delivered to the Privy Councill for the time being of Us, Our Heirs & Successors. And if any of the said Laws, within the Space of 6. months, after that they shall be so transmitted &.- delivered be declared by Us, Our Heirs, or Successors, in Our or their Privy Councill, inconsistent wth the Sovereignety or lawful Pre­rogative of Us, Our Heirs, or Successors, or contrary to the Faith & Allegiance due by the Legal Governm1 of this Realm from the said Wm Penn, or his Heirs, or of the Planters or of the Planters, & Inhabitants of the said Province, And that thereupon any of the said Laws shall be adjudged & declared to be voyd by Us, Our Heirs, or Successors, by order of their, or Our Privy Councill, or by our or their Signet & Sign Manuel, that, {under our or their Privy Seal that} then, & from thenceforth, such Laws concerning wch such Judgement & Declaration shall be made, shall become voyd, & otherwayes the said Laws so transmitted shall remain 8c stand in full force, according to the true intent 8c meaning thereof.}25 Furthermore that this new Collony may the more happyly increase by the multitude of people resorting thither Therefore wee for us our heires and successors Do give and grant by these presents power License and libertie unto all the Leigh people and subjects both pres­ent and fur the future for26 us our heires and successors Excepting those who shall bee specially forbidden to transport themselves and Familyes unto the said Country with such convenient shipping as by the Laws of this our Kingdome of England they ought to use and27 with fiting provisions paying onely the customes therefore due and there to settle themselves dwell and inhabite and plant for there public and their owne private advantage.28 And furthermore that our subjects may be the rather encouraged to undertake this expedition with the ready and chearfull mindes Know yee that wee of our especiall grace certaine knowledge and meere motion doe give and grant by vertue of these presents aswell unto the said William Penn and his heires As to all others who shall from time to time29 repaire {un}to the said Country with a purpose to inhabite there or to trade with the natives of there said Country full License to lade and freight in any ports whatsoever of us our heires and Successors {[illegible deletion]}30 {according to the Laws cstab made or to be made within our kingdome of England}31 and unto32 the said Country by them their Servants or33 Assignes to transport all and singular their goods wares34 and merchandizes As likewise all sorts of graine whatsoever and all other things whatsoever necessary for Food or cloathing not prohibited by the Laws ef and Statutes of our King-domes and Dominions to be carryed out of the said Kingdoms without any let or molestation of us our heires and successors {or} of any the officers of us our heires and successors (saveing alwayes to us our heires and successors the legall impositions customes and other duties and payments for the said wares and merchandize by any Law or statute due or to be due to us our heires and successors)35 {and pro­vided also that nothing}36 And wee do further for us our heires and Successors give and grant unto the said William Penn his heires and Assignes Free and absolute power to divide the said Country and Islands into Townes hundreds and Countyes and to erect and incor­porate Townes into Burroughs and Burroughs into Cityes and to make and constitute Faires and Marketts therein with all other con­venient Priviledges and Immunities according to the Meritt of the Inhabitants and the Fitness of the places to doe all and every other thing and things touching the premisses which to him or them shall seeme meet and requisite37 Albeit they be such as of their owne nature [in the margin: Quare] might otherwise require a more Especiall Comandment and warrant then in these presents is expressed.38 Wee will alsoe and by these presents For us our heires and Successors Wee doe give and Grant Lyscence by this our Charter Unto the said William Penn his heires and Assignes and to all the Inhabitants and dwellers in the province aforesaid both present and to come to import or unlade by themselves or their Servants Factors or Assignes all merchandizes and Goods whatsoever that shall arise of the Fruits and Comodities of the said Province either by Land or Sea into any of the ports of us our heires & successors in our Kingdome of England and not into any other Countrey whatsoever And we give him Full power to dispose of the said Goods in the said Ports And if need be within One Veare next after the Unladeing of the same to Lade the said merchandizes and Goods againe into the same or other shipps and to export the same into any other Countreyes either of our Dominions or Foreigne according to Law Provided {alwayes} that they pay such Customes and Impositions subsidies and duties For the same to us our heires and successors as The rest of our subjects of our Kingdome of England {for the time being} shalbe bound to pay39 And doe Ob­serve the Acts of Navigation and other lawes in that behalf made And furthermore of our more ample and speciall Grace Certaine Knowledge and meere motion Wee doe for us our heires and succes­sors Grant Unto the said William Penn his heires and Assignes Full and absolute power and Authority to make erect and Constitute within the said Province & the Isles and Isletts aforesaid {such} and soe many Sea Ports Harbours Creekes Havens Keyes and other places For discharge & unladeing of Goods and Merchandizes40 out of the Shipps Boates and Other Vessells and ladeing them41 and in such and soe many places and with such rights Jurisdictions Liberties and Prive-lidges Unto the said Ports belonging as to him or them shall seeme most expedient And that all and singuler the shipps Boates and other Vessells which shall come For Merchandize and Trade unto the said Province or out of the same shall depart shalbe laden or Unladen only at such ports as shall be soe erected and constituted by the said William Penn his heires or42 Assignes any use Custome or other thing to the ontrary notwithstanding43 Provided that the said William Penn and his heires and the Leiftennants & Governors for the time being shall admitt and receive in and about {all} such Ports havens Creekes and keyes all Officers and their deputies who shall from time to time be appointed For that Purpose by the Farmers or Comissioners of our Customes For the time being44 And Wee do further appoint and Ordayne And by these prsents for Us our heires and Successors Wee do grant unto the sayd William Penn his heires and assignes that he the sayd William Penn his heires and assignes may from time to time for ever have and enjoy the Customes and subsidies in the Ports Harbours and other Creekes and places aforesayd within the Province aforesaid payable or due for Merchandizes and Wares there to be laded and unladed the said Customes and Subsidies to be reasonably assessed (upon any occasion) by themselves and the People there as aforesaid to be Assembled to whom We give power by these presents for us our heires and successors upon just cause and in a due propor­tion to assesse and impose the same Saveing unto Us Our heires and Successors such impositions and Customes {as} by Act of Parliament are and shall be appointed45 And it is Our further Will and pleasure that the sayd William Penn his heires Successors46 and assignes shall from time to time Constitute and appoint an Attorney or Agent to reside in or neare Our City of London who shall make knowne the place where he shall dwell or may be found unto the Clerkes of Our Privie Councell for the time being or one of them and shall be ready to appeare in any of Our Courts at Westminster to answer for any misdemeanors that shall be committed or by any wilfull default or neglect permitted by the said William Penn his heires47 or assignes against the {our} Laws of {Trade or} Navigacon {or otherwise against the true intent of these presents.}48 and after it shall be ascertained in any of Our said Courts what damages Wee or our {heires or} Succes­sors shall have susteyned by such default or neglect the sayd William Penn his heires and assignes shall pay the same within one yeare after such taxation and demand thereof for {from} such Attorney Or in case there shall be noe such Attorney by the space of One yeare {after such taxation}19 or {in case}50 such Attorney shall not make payment of such damages within the space of a yeare51 {& answer such other forfeitures and penalties {within the sayd time} as by the Acts of Parliament in England are or shall be provided}52 according to the true intent and meaneing of these presents Then it shall be lawfull for Us Our heires and Successors to seise and resume the government of the sayd Province or Countrey and the same to retaine until pay­ment shall be made thereof But Notwithstanding any such Seisure or resumption of the Government Nothing concerning the propriety or ownershipp of any Lands tenements or other hereditaments or goods or chattells of any the Adventurers Planters or Owners {other then the respective offenders}53 there shall be any way affected or molested thereby Provided alwayes and Our Will and pleasure is that neither the sayd William Penn nor his heires nor any other the Inhabitants of the said Province shall at any time hereafter trade or {have or}54 maintaine any commerce to or {correspondance}55 with any other King Prince or state in Europe {or their or with any of their subjects}56 who shall then be in Warr against Us Our heires or Successors Nor shall the sayd William Penn or his heires or any other the Inhabitants of the said Province make Warr or do any act of hostility against any other King Prince or state in Europe {or any of their subjects}57 who shall then be in League or amity with us Our heires or Succes­sors:58 {x x x} {x x x And because in so remote a Country, & situate [illegible deletion] {near so59} many barbarous Nations, the Incursions as well of the Savages themselves, as of other Enemies, Pirates & Robbers, may probably be feared: Therefore we have given, & for Us, Our Heirs & Successors doe give Power by these Presents unto the sakl Lord Baltcmorc, said {W. Penn,} his Heirs, & Assigns, by themselves, or their Captains, or other their officers, to leavy, muster, & traine, all sorts of Men, of what Condition, or wheresoever born in the said Province of Mary-land {Pennsilvania},60 for the time being, & to make war, & pursue the Enemyes & Robbers aforesaid, aswell by Sea, as by ind, yea, even wthout the Limits of the said Province, & (by God's assistance) to vanquish & take them, & being taken, to putt them to death by the Law of War, or to save them at their Pleasure, & to doe all & every61 other thing wch unto the charge & office of a Captain (ienerall of an army belongeth, or hath accustomed to belong, as fully & freely as any Captain General of an Army hath ever had the same.}62 But that it shall and may be lawfull to and for the sayd William Penn & his heircs by themselves or their officers to make Warr and pursue the Indians and other Enemies in or ncare the sayd Province aswell by Land as by Sea And to doe every other thing which belongeth to the office of a Captain Generall of an Army—x x x—And because it may happen that some of the People and Inhabitants of the said Province may not in their private opinions be able to conforme to the publick exercize of Religion according to the Liturgy Form'd & Cer­emonies of the Church of England or take or subscribe the Oaths fe Articles made and Established in this Nation in that bchalfe; And for that the same by reason of the remote distances of those places will (as Wee hope) be noe breach of the Unity and Uniformity Estab­lished in [missing folio] Licentiousness nor to the civill injury Nor outward disturbance of others Any Law, Statute, or Clause contained or to be contained, usage, or Custome of Our Realme of England to the contrary thereof, in anv wise Notwithstanding63 And furthermore of Our speciall grace and of Our ertaine knowledge and meere motion {Wee} have given and granted and by these presents for Us Our heires and Successors doe give and grant unto the sayd William Penn his heires and assignes full and absolute power, license and authority that hee the sayd William Penn his heires and assignes from time to time hereafter for ever at his or their Will or pleasure may assigne alien grant, devise or En-feoffe of the premisses soe many and such parts and parcells to him or them that shall be willing to purchase the same as they shall think fin To have and to hold to them the sayd person or persons willing to like or purchase their heires and assignes in Fee-Simple or Fee-Tayle or lor terme of life64 or lives or yeares To be held of the said William Penn his heires and assignes as of the sayd Seigniory of Windsor65 by such services Customes and rents as shall seeme fitt to the sayd William Penn his heires and assignes And not immediately of Us Our heires and Successors And to the same person or persons and to all and every of them Wee do give and grant by these presents for Us Our heires and Successors lycense authority and power that such person or persons may take the premisses or any parcell thereof of the afore­said William Penn his heires or assignes and the same hold to them­selves their heires and assignes in what estate of Inheritance soever in Fee Simple or in Fee-Tayle or otherwise as to them the sayd William Penn his heires and assignes shall seeme expedient The Statute made in the Parliament of Edward sonn of King Henry late King of Eng­land Our Predecessor commonly called the Statute Quia Emptores Terrarum lately published in Our Kingdome of England in any Wise Notwithstanding66 And by these presents Wee give and grant License unto the sayd William Penn and his heires likewise to all and every such person and persons to whom the said William Penn or his heires shall at any time hereafter grant any estate of Inheritance as aforesaid to Erect any parcells of land within the Province aforesayd into Man­nors by and with the License to67 be first had and obteyned for that purpose under the hand and Seale of the sayd William Penn or his heires and in every of the sayd Mannors to have and to hold a Court-Baron with all things whatsoever which to a Court Baron do belong and to have and to hold view of franckpledge (for the conservation of the peace and the better government of those parts) by themselves or their Stewards or by the Lords for the time being of other Mannors to be deputed when they shall be Erected and in the same to use all things belonging to view of Franck-pledge68 And Wee doe further grant license and authority that every such person and persons who shall Erect any such Mannor or Mannors as aforesayd shall or may grant all or any part of the {his} said lands to any person or persons in Fee-Simple or any other estate of Inheritance to be held of the sayd Mannors respectively soe as noe further tenures shall be created but that upon all further and other Alienations thereafter to m bee made the said Lands so aliened shall be held of the same Lord and his heires of whom the Alienor did then before hold and by the like Rents and services which were before due and Accustomed69 And further Our pleasure is and by these presents for Us Our heires and Successors Wee do Covenant and grant to and with the sayd William Penn and his heires and assignes That Wee Our heires and Successors shall at no time hereafter set or make or cause to be sett any Imposition, Custome, or other Taxation. Rate or Contribution whatsoever in and upon the Dwellers and Inhabitants of the aforesaid Province for their Lands, tenements, goods or Chattells within the sayd Province or in and upon any goods or Merchandize within the sayd Province or to be laden or unladen within the Ports or harbours of the sayd Province unless the same be with the consent of the Proprietary or chiefe Governor & {&}70 Assembly or by Act of Parliament in England And Our pleasure is and for us Our heires and Successors Wee charge and Command that this Our Declaration shall from hence forward from time to time be received and allowed71 in all our Courts and before ail the judges of Us Our heires and Successors for a sufficient and lawfull discharge payment and Acquittance Commanding all and sin­gular [illegible deletion] {the} Officers and Ministers of Us Our heires and Successors and enjoyning them upon pain of Our high displea­sure that they doe not presume at any time to attempt any thing to the contrary of the premisses or that they doe in any sort withstand the same but that they be at all times aydeing and assisting as is fitting unto the sayd William Penn and his heires and to the Inhabitants and Merchants of the Province aforesayd their Servants, Ministers, Factors and assignes in the full use and fruition of the benefitt of this Our Charter72 And Our further pleasure73 is and Wee doe hereby for Us Our heires & Successors charge and require that if any of the Inhab­itants of the said Province to the number of twenty shall at any time hereafter be desirous and shall by any Writing or by any person Deputed for them signify such their desire to the Bishop of London tor the time being74 that any Preacher {or Preachers to be approved of by the said Bishop}75 may be sent unto them for their Instruction to be approved of by the sayd Bishop That then such Preacher {or Preachers}76 shall and may be and reside within the sayd Province without any denyall or Molestation whatsoever77 And if perchance hereafter it should happen any doubts or questions should arise con­cerning the true sense and meaneing of any Word Clause or Sentence tntained in this Our present Charter Wee will Ordaine and Com­mand that at all times and in all things such interpretation be made thereof and allowed in any of Our Courts whatsoever as shall be adjudged most advantageous and favourable unto the sayd William Penn his heires and assignes Provided alwayes that no interpretation be admitted thereof by which the Allegiance due unto Us Our heires and Successors may suffer any prejudice or diminution78 Although express mention be not made in these presents of the true yearely value or certainty of the premisses or of any part thereof or of other guifts and grants made by Us Our heires and79 Predecessors unto the sayd William Penn or any Statute Act Ordinance Provision Procla­mation or restraint heretofore had made published ordeyned or pro­vided or any other thing cause or matter whatsoever to the contrary thereof in any wise Notwithstanding

In Witnesse whereof We have caused these Our Letters to be made Patents, Witness Ourselfe at Westm1 the 4th day of March, In the three and Thirtieth yeare of Our Reigne, 1680/180 Pigott81

Note: Footnotes, edits and insertions from Richard P. Dunn and Mary Maples Dunn, "The Papers of William Penn", U. of PA Press, 1982

Clarifying punctuation and emphasis by George Ross Fisher

Unalienable Rights Before 1776

Magna Carta

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

William Penn

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

H. Ross Perot

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

Three Revolutions at Once, Maybe Four

The rise of the Tea Party movement in 2010 reopens a lifetime question in my mind. What was the American Revolutionary War all about; surely, a tax on tea isn't outrageous enough to go to war over, is it? It only aggravates curiosity to learn this particular law passed by the British Parliament, actually lowered the price of tea.

A somewhat different importance for the 21st Century is, of all the dozens or even hundreds of little civil wars that have popped up in the past two centuries, this American one seems to have had the biggest impact on the thoughts and behavior of the civilized world. The French Revolution comes close, but we meant to speak of persuasive influence on serious minds, not merely bloodiness and lasting grievance. Here are three suggestions, maybe four.

In retrospect, we can see the outlines of three major revolutions, coming together at the end of the 18th Century. The first is the Industrial Revolution, which had its beginnings in England around the city of Manchester. That was a region of major Quaker concentration, many of whom migrated to William Penn's social experiment in seeing what peace could do. The Industrial Revolution flourished in Great Britain far more readily than in France, and in a sense more than in America. But of the three major countries, America had the largest amount of unsettled land and the greatest natural resources of the three major countries. America was able to think bigger and broader, necessarily requiring broad support from an immigrant population. Diversity was often later to prove a mixed blessing, but in the Industrial Revolution it was vital.

Dissent, French Style

The second major revolution taking place at that time concerned the place of property in the life of every citizen. Up until that time, the King owned all the land and could redistribute it to suit his political needs. What critically mattered was not who formerly owned the land, but rather what was the latest King's latest word on who owned it right now. The American system gravitated to the notion that when the King or any other owner sold the land, it was no longer his; we now think that's quite self-evident. Each successive owner can sell it to his neighbor or bequeath it to his heirs, and at that moment it is no longer his, either. This idea of private property spread throughout the world, but in America, it was a clean sweep. Adopting the rather brutal rough justice of the frontier, the Indian prior ownership just didn't count. They had sided with the British in our revolution and were insistently resistant to assimilation. And anyway, Pope Nicholas in the 13th Century had established the notion of first discovery, which applied to Christians, only, and so Indians didn't count. Fair or unfair, this was going to be the way it was, from that point forward from 1787 when the Constitution was enacted. The longer the situation lasted, the more unlikely it became that it would ever change. America had so much land and so little coinage, that land itself became a sort of monetary standard. The particular American advantage was there was so much land that early settlers and landed gentry could not monopolize it; from meaning land at first, property soon meant any valuable possession. No King, particularly not George III, was going to take this away from the whole population on this side of the Atlantic. England could do as it pleased with its land and its King. If we needed Independence to preserve a general right to hold private property, plenty of men were willing to die to achieve it. And the whole Western world soon followed our example.

The third revolution was the one you read about, Lexington and Concord, Bunker Hill and the Tea Act. That whole chain of events chronicles how America came to be Independent but somehow fails to explain why we wanted Independence. The Industrial and the Property revolutions explain it better, but such theorizing would certainly mystify the Revolutionaries themselves.

And finally, one begins to wonder if we aren't toying with a reversion to the ideas underlying monarchy when we examine some currently widespread views. There's a notion going about that everybody owns everything, which if carried to an extreme means no one owns anything. When you can notice people who live on the 70th floor of a Manhattan apartment building, proclaiming a right to tell Alaskans whether or not they can drill for oil, you behold this monarchy of the many. And when you see prosperous educated adults shouting at rallies, you can see Alaskans, for example, want to tell New Yorkers to mind their own business. This land, they seem to say, isn't everybody's at all, it is mine.

It never really was entirely the King's, either. The King was a single person, sometimes a rather brutal one who wasn't likely to tolerate advice from his subjects. At times of crisis, somebody has to make a decision, any decision, and act on it. But most of the time, kings seemed to be in the position of that Czar. The one who said, "I don't rule Russia. Ten thousand clerks rule Russia."

Original Intent and the Miranda Decision

Ernesto Arturo Miranda

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

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

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

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

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

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

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.

Restoring the Gold Standard by Levering Judges' Salaries

Gold Inflation

Generally speaking, creditors hate inflation and favor a gold standard because they fear debtors -- who outnumber them at the polls -- will dishonor their debts by inflating the currency. And debtors generally are rather serene about the risk of inflation, for the same reason in reverse. Since governments are almost invariably debtors, the combination of government and debtors on the side of promoting inflation represents a dishearteningly strong force for creditors to combat. It is plain for everyone to see that inflation has been steadily moving ahead. But it is something for everyone to ponder that leaving creditors with only one recourse is almost certain to translate that particular recourse into action. Creditors will raise interest rates in anticipation of inflation, and the economy will suffer for debtors as well as everyone else.

So, hard-money advocates like the Paul family of Texas have been rather nonplussed to discover that Federal Judges have handed them in 2010 a very effective weapon they had long overlooked. It should be no surprise that it came from that direction; judges are long accustomed to looking backward to the historical origins of the laws they are charged with interpreting. In this case, the defining statement is found in the Declaration of Independence.

Parenthetically, conservatives are reluctant to include the Declaration in an explanation of the Constitution, since it is plainly true the Constitution was written to correct the weaknesses of the Articles of Confederation, which was much more closely defined by the circumstances of the Declaration. The almost immediate response to any such logical jump over the Constitution, particularly those of Abraham Lincoln, is to thump the maxim that The Declaration of Independence is not Law. And it isn't; it's just in this case it makes a concise statement of a major reason we were offended by the King of England:

"He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries."

Note the operative phrase dependent on his will alone , which takes us back to the Magna Carta, where even the King must obey the Law. If judges are the umpires, it isn't in accord with deeply felt British culture that the King could force the umpires to favor his wishes in their official decisions, by threatening punishment on their persons. No, thousand times no. Anyone can see that.

Furthermore, the determination of underlying intent is so difficult to prove, and so easy to deny, that it is scarcely mentioned in the debate. If two motives seem possible, the other party will assert the high-sounding one and deny the ulterior one. The offended party will instinctively suspect the reverse and will brush aside any protestations to the contrary. Since that is bound to happen, please skip the preliminaries and get on with the evidence. So it is in this case; any reduction in the judge's salary is treated as an attempt to influence official decisions. The Administration maintains a reduction of Federal judge salaries is necessary for budgetary reasons. Please don't insult my intelligence that way. You aren't allowed to reduce the salaries of judges for any reason.

From this rather easy position to take, it is only a short step to say that refusing to raise judge salaries during inflation is a reduction of salary in real terms, after adjusting for inflation. Your paper money is phony; I want to preserve my purchasing power. Your refusal to adjust for inflation is even more clearly a salary reduction since the link to gold was severed during the Nixon and Johnson administrations. We are not on anything remotely resembling a gold standard; we are on a monetary standard which is by law adjusted to inflation, and just about nothing else. Hubert Humphrey may have thought he was creating a loophole by mandating concern with unemployment, but just try to convince the judges of the Supreme Court of that one.

And so, it seems predictable that Judge Beer of the Eastern District of Louisiana, and his fellow judges, will achieve an effective gold standard for Federal Judges if they have the fortitude to tough it out. After that, it gets harder, Congressman Paul. You have to push the concept that what is fair for Federal Judges is fair for everyone else. You should assume that judges will vote in their own favor, and therefore reasonably assume that the public will vote in its own favor, too. If that be treason, said Patrick Henry, make the most of it.

Addressing the Flaws of Republics

EVERYONE might profit from reading Plato on the subject of republics, not to mention reading James Madison. Both The Republic and The Federalist were conjuring republics they proposed, not ones they had experienced. After Madison did get the hands-on experience he had such radical changes of opinion his friend George Washington essentially never spoke to him again. Not only in republics, of course, does reality prove different from founding theory. It might seem more measured to say of republics that two centuries of their reality proves to be such an extension of theory, it effectively departs from it. In essence, the Republican idea is to limit the voters to one periodic review of their representative's term of office overall, not in ongoing picky detail which would hamper him. This definition contrasts republics with democracies and implies the reason to favor republics. The elected representative is given full power to act during his term in office, but must eventually face the voters for accounting at the fixed time for re-election. Plato and Madison were right about extending latitude to one's chosen representative, but they failed to predict how effectively that latitude might be stolen by the legislative body itself and controlled by rules and leadership which skirt ratification by the general public outside their chamber, in any district. The Romans, of course, did know what they were talking about, but history has tended to ascribe Roman difficulties -- assassinations, for example -- to flaws in Roman character rather than in the construction of the Roman Republic. After describing some problems history has revealed about our own system, this essay is written to propose a solution. A second essay follows, to defend that solution.

Joseph L Bristow

The differences between House and Senate in the original U.S. Constitution were three, but since the Seventeenth Amendment in 1913, there are now only two. Originally, Senators were selected by the states they came from, mostly by the legislatures. A century of experience demonstrated the result was cronyism, members of the legislature using senatorial appointments as bargaining chips and for the most part limiting the choice to one of their own members. The provision probably did attract a higher grade of legislator overall, encouraging those primarily ambitious to be U.S. senators to have a try-out in the minor leagues first. It did give the State government serious power to punish a U.S. senator who failed to please the home state. And this selection process made it simpler and cheaper to run for the job as U.S. senator. This feature encouraged candidates with competing for career choices, otherwise discouraged by the expense and unpleasantness of candidacy, to step forward. But by 1913 all this was seen as a way for cronyism to dominate the process, swapping appointments for favors, or even more tangible bribes. From the distance of another century, it can be seen that the steadily declining power of state legislatures was matched by a declining quality of their elected membership, leading to a rising level of sordidness in their foibles. Hapless amateurs were largely supplanted by career politicians. After the Civil War "states rights" stirred up memories of secession and led to a deliberate weakening of the states' role. Whatever the reasoning, the mentality of Progressivism was sweeping the country in 1913, and popular election of senators was deemed a Good Thing, swept into general satisfaction. Doubt about whether it all made as much difference as claimed lies in the reality that from 1913 to 2010, one quarter (182) of all Senators have first arrived in the Senate through appointment by a Governor to fill an unexpired vacancy. Many of these vacancies have of course been contrived for the purpose.

The relative power of a senator and a representative lies in the size of the population who vote for them, and the frequency with which they must endure that unpleasantness. Members of the House are elected for two years and members of the Senate are elected for six; the voting constituency of 100 Senators is generally much larger than that of 532 Representatives, so because the population grows faster than the number of states, the representation discrepancy also grows. The frequency of running for reelection seems to be so irksome that whenever a Senate seat falls vacant, some sitting Congressman from that state is almost certain to try to switch. Of course, it is true that with only a quarter as many senators as congressmen, the power of each vote is weightier. To the extent that committee memberships represent special insider power, a senator does belong to more committees but is more severely stretched to attend them all. Each senator's vote does have a greater scarcity value, but a Representative who tends to business is more likely to know what he is talking about, hence better able to be influential in the committees where most matters are really decided. The limits of merit promotion in both houses of Congress lie in the differing power of various committees, while the favor of appointment remains within the iron control of caucus leadership. In public, senators seem generally more polished and experienced in public persuasion. The persuasion that counts, however, is of gaining the respect of colleagues in your own legislative body, always restrained by the power of leadership to coerce conformity. Public persuasiveness, by contrast, is often little more than glibness, reflecting greater experience with dodging an issue to conceal a lack of depth in it. Almost all senators aspire to the presidency, although few achieve it. No Congressman has been elected President since Warren Harding; indeed, few Congressmen even dare to seek the nomination. The appointment of Gerald Ford was a special situation. However, it is worth pondering that during the early days of the republic, the House of Representatives was considered much more prestigious than the Senate, and that curiosity continues to raise an important question just why it is now reversed.

George Washington

The differences in prestige between the House and the Senate cannot be ascribed to the comparatively minor differences in their Constitutional definition, the size of their district and the frequency of election. Otherwise, we could immediately improve the quality of congressmen by reducing the limit of their number and frequency of re-election, which scarcely anyone has proposed. The more likely source of the problem can be found in the differing rules of procedure which each body has adopted; and reaffirms at the opening of each term. Various strategies of committee assignment and seniority have adapted to the reality that newly elected politicians rarely have any skills other than the ability to get elected. But almost everyone can learn, given enough time being exposed to a topic. A seniority system can occasionally lead to someone who is hopeless, gradually floating into a position where he can do great harm. Provision must be made for graceful exceptions to the seniority rule, usually by excluding a member from important committees until he has demonstrated some competence, less often by later dropping someone who has age- or alcohol-diminished faculties. Underlying this approach is a contempt bred of experience for the wisdom of the voters, back there in the district, whereas the leaders of the fraternity can protect the nation by judiciously devised rules. Sometimes it is, unfortunately, necessary to be a little hard boiled.

So far so good. When Jefferson and Martin Van Buren invented political parties, the bodies of Congress responded by inventing caucuses. George Washington was not a learned man, but he knew he hated this system. James Madison probably feared political parties more than he hated them, so he incurred Washington's permanent displeasure by getting good at manipulating what he saw as the winning strategy. Van Buren's fate was more ironic; after inventing many of the unpleasant little strategies of modern politics, he was defeated by William Henry Harrison in the "log cabin" election of 1840. Harrison hadn't been born in a log cabin at all, he was born in a Virginia mansion, hee, hee, hee. George Washington wouldn't have chuckled at that one, he would have been livid.

Henry Clay

Party caucuses have only one central feature, which is vote-swapping. Many of the strategies of this unattractive behavior were outlined in elegant detail by Pliny the Younger, in the Roman Senate, and James Madison the student of government had sought to avoid them. When he decided it was hopeless, he joined them and got good at it. In retrospect, the premier example of vote-swapping was the trade which Madison and Hamilton made, placing the nation's capital in Virginia/Maryland instead of Philadelphia, in return for federally redeeming the Revolutionary debts for all 13 states, when Virginians had already paid theirs off. Philadelphia had essentially nothing to say about it. Pliny had cautioned and subsequent practitioners have followed the advice to cover your tracks by swapping votes for an issue seemingly unrelated to the one in dispute. That's about all there is to vote-swapping, find out what the guy wants badly enough, and trade him something for it. It follows that it's wise to give off the appearance that you don't want much of anything. A corollary is that political caucuses try to conduct even innocent or public-spirited discussions in secret, making public only what is expedient to be made public. And a further corollary: some members of a caucus are from totally "safe" districts. Occasionally their votes can safely be traded for something the opposing party wants but the caucus feels necessary to claim to oppose. When a caucus wants something badly enough to trade it for something else but is three or four votes short, the opposing caucus may trade the four votes from safe districts while violently denouncing the dirty turncoats. All this is known as party loyalty. When things are particularly tough, party loyalty can be enforced by finding out what you want badly and taking it away from you. When these whips are applied to you, a grievance develops. Fine, what do you want to trade in return for vengeance? Many of these refinements seem to come, not from Rome, but from Sicily.

As was stated at the beginning, the purpose of this essay is not to rail at Congressional corruption, but to counteract it to some degree. Since the worst features of this system require secrecy and public duplicity to be effective, the best remedy is sunshine. Not about what Roosevelt did in his third term, but about what your local congressman might do next week, and his fear you will find out. His fear that a blogger will tip off the local newspaper or radio station, encouraging someone else with the ambition to file for election against you. And his fear that when he asks someone for a campaign contribution, that person will bring up the topic in question. His fear that the local political boss will decide he can't win.

Boxing Politicians

This was more or less the system which the founding fathers, James Madison chief among them, envisioned for this shining city on a hill. And which two centuries of rather clever schemers have gradually eroded. The highly desirable feature of a republic is that the elected person is free to represent his own interpretation of what is best for his district or, failing that, what is best for the nation. The elected representative is encouraged to risk defeat in the next election, if in his judgment what is good for the district is bad for the nation. But he is not a suicide bomber if his vote will make little difference in the outcome he can be forgiven for taking cover. One would wish that fewer of them would speak one way and vote in the opposite direction, but that can be forgiven if someone back home in the district is keeping score and letting others know of it. The fundamental principle of a republic as distinguished from a pure democracy is that a representative, while free to act during his term in office, remains obliged to face the voters at the appointed time. Our system has come to exaggerate the actual extent of freedom to use judgment because the freedom has been stolen by party leaders through the application of schemes too devious to detail. But freedom is fundamentally a good thing. What has come to be so lacking is the idea of facing an informed electorate in making a choice between you and an informed opponent. The public, it must be feared, doesn't know beans.

And so the proposal for fixing this mess is difficult, but it can be stated simply. The recent economic boom created nearly a thousand billionaires; maybe four hundred would be a number that would escape challenge. If only fifty of them would endow think tanks in all fifty state capitals, and the fifty-first would endow an organization dedicated to making their research available to the public, then perhaps another fifty would be prompted to create a second think tank in each state capital on the opposite political side. Two polarized think tanks in each state capital, just imagine it. As things now stand, it would be a sufficient first step if that happened in only one state, and the rest of the country could watch what happens.

Wyoming, Fair Wilkes Barre

Wyoming Valley

There are a dozen or so places on the planet where a natural bowl formation famously moderates the climate. Cuernavaca in Mexico, the Canary Islands, and Chungking in Western China all claim to have temperatures which range from 70 to 75 degrees Fahrenheit, year-round. In Cuernavaca at least, they claim it only rains at night. These three places have a high plateau in the center of a mountain bowl, like an angel food cake pan, which may (or may not) contribute to the unusually mild climate effect. Several other places within inner China compete for the title of Shangri La, famous in song and story, never precisely located by tourists. The Wyoming Valley of the Susquehanna River once enjoyed a similar luster during the Romantic Period at the very beginning of the Nineteenth century, although unfortunately, its temperature is plainly not so balmy. Wyoming of song and poem was imagined to be the home of the Noble Savage, unstained by the wayward influences of civilization, and thus a model for the democratic ideal expected to emerge in Old Europe once the aristocrats were exterminated by nature's noblemen, European version. That seems to have been Robespierre in France, as disappointing to idealists as the Iroquois along the Susquehanna.

Massacre Monument

But one must not scoff. The Wyoming Valley was created long ago by a lake between two mountain ridges, which gradually dried up leaving flat topsoil deep at the bottom of the valley when the river finally broke through at Nanticoke and drained it. Its appearance is enhanced by surroundings in all directions of at least fifty miles of bleakness. Nowadays, the best way to appreciate the natural beauty of the place is to arrive from the south, gaining the summit of the ridge by one of the secondary roads. Housing development down below stops at the edge of the level plain, so as one ascends to the southern rim it is possible to see the inside of the bowl without seeing much of the town, and thus appreciate how it must have looked to frontiersmen searching for likely places to settle. It's quite beautiful. Descending into the bowl, the potholes in the road and roadhouses along the way to begin to make an impression. In full sight, it looks as though a city suburb has filled the place to its edge, with a rather decaying Nineteenth-century town center, but towering wooded mountainsides. There's a quiet park in the very center, through which the quiet river runs. In a little subdivision named Wyoming, there is a monument to The Massacre, now described as a hopeless defense by untrained Revolutionaries against the fearsome Indians and British Loyalists. The names of the fallen and the names of those who escaped are carved on this monument near Forty Fort. One presumes the wounded and some bystanders were massacred, the officers and trained infantry were more likely to escape the hopeless odds by fleeing into the woods. It is claimed that common soldiers were finished off by Indian Queen Esther smashing their heads between two flat rocks. Wounded officers were tortured to death.

Delaware Water Gap at Stroudsburg

Just where the Connecticut immigrants, or invaders, first arrived in the Wyoming Valley is not known. Their most likely entrance was at the top of the northern end of the valley, where ski lodges now cluster, after coming up the mountains from the east. The hills rising from the Delaware watershed are wooded but too rocky for farming. It's therefore inexpensive to set aside parks named "Promised Land" and "The Lord's Valley" and such, with some Milford, scattered here and there in the woods. A section of the upper Delaware River fifty miles long, from Port Jervis down to the Delaware Water Gap at Stroudsburg is enclosed in a National Wildlife and Recreation Area of about a mile's width on either side of the river. It's surprising how little is said of this rather large national park close to two large metropolitan areas. No doubt the visitors are torn between wishing it was more appreciated, and hoping to keep it secret and unspoiled.

Wyoming Massacre

The Decision of Trenton(1782) simply gave the disputed land back to Pennsylvania. There is a strong presumption the Connecticut migrants were privately promised land in the Western Reserve, in Ohio, whenever Ohio became a state. In spite of the implicit guarantees, the Pennsylvanians nevertheless treated the usurpers pretty roughly, and traces of Connecticut trail westward toward the Ohio line. There's a Westmoreland County near Pittsburgh, where many stranded families in the bituminous coal regions can thus trace their ancestry back to the Mayflower. It is truly extraordinary that such bitterness could leave so little trace of itself later. History may not be bunk, but persistent grievances are surely a menace to a peaceful existence. The events of the Pennamite Wars are widely believed to have led to the slanting of the 1787 Constitution toward the protection of individual property rights, but the wording to that effect within the Constitution is hard to locate. Somehow, like the implicit promises of the Western Reserve, ways were found to provide credible promises that it soon wouldn't matter which state you lived in. Somehow the word got to John Marshall that in actual practice, what would matter was whether an identified person could demonstrate clear title to specific land back to, or a little beyond, 1787, no matter what state the land was in. And the obscurity of the complex connection between this revolution in the law of property, and the very sad events in the Wyoming Valley suited everybody concerned. Stare decisis.

Regulation Precision: Not Entirely a Good Idea

Powel House, Huzzah!

Elizabeth Powel

If George Washington were still alive he would no doubt be a Republican, but the term Republican Court actually has nothing to do with R's and D's. It was a scheme deliberately cooked up by Washington and Madison to enlist support by the new government's important ladies for a modified version of a European royal court, to make thirteen colonies into a cohesive nation. A most remarkable thing about it was its frank imitation of the royal courts, something only the Father of His Country could pull off in former colonies which had just fought an eight-year war to be rid of the monarchy. It is one more great testimony to the faith of Americans in George Washington; but it also testifies to the power of enthusiastic women, once they agree on a project. Chief among the leaders in this court was Elizabeth Powel, along with her niece living around the corner on Spruce Street, Anne Willing Bingham. Recently, the Peale Society of the Academy of Fine Arts held a candlelight dinner in Mrs. Powel's magnificent second-floor dining room, while scholars of the history of the Republican Court told assembled notables of Philadelphia what had once been what, during the first ten years of the Republic.

Dining Room

Members of the early Congress were largely the same men as the founding fathers of the Constitutional Convention, hand-picked by Washington and Madison to persuade the legislatures of their colonial states to give up state sovereignty, for a unified nation. There was the difference that now they brought their wives to live in Philadelphia during sessions of Congress. Those women wanted to know each other and wanted to have something exciting to do together in the largest city in the nation. Their husbands knew well how politically useful it was to be socially acquainted in this way, so everybody liked the idea of suddenly becoming nationally connected. The initial idea proved unworkable. Martha Washington was supposed to become Lady Washington, reigning over weekly receptions.

In Our Cups

But Martha, unfortunately, wasn't up to the task, and Anne Bingham whose rich husband had taken her on lengthy tours of European royal courts, moved right in and took charge of this project. Besides her cousin Elizabeth Powel, notable members of this social whirl were the two daughters of Chief Justice Benjamin Chew, Alexander Hamilton's wife, and various members of the Shippen and Willing families. Members of the family of Lord Sterling of New Jersey, Charles Carroll of Carrolton, Maryland, Cadwaladers of various sorts, and a number of other names famous from then until even today joined their affiliations with ladies from other states through parties and even some weddings. John Adams was particularly awestruck by the poise and beauty of Anne Bingham, although Abigail Adams may not have been quite so infatuated. It was a dizzy whirl, with dinner parties the central activity just as they are in Philadelphia even today. Country bumpkins had to learn how to dress, to talk and to eat with the right spoon and keep their elbows off the table; those who could tactfully show them what was what were friends for life. Centuries later, Emily Post made a fortune writing books about these rules.

Republican Court

In those days, they even had their war cry, which was to raise a glass and shout back "Huzzah" in response to the proposer of a toast, who had raised his glass starting the warcry. It wasn't "Skol" or "Cheers" or "Here, here" if you knew what was what; it was "Huzzah". Most fashionable dinners had at least twenty courses, but the ladies didn't eat them. It was a whispered instruction among the ladies that they should eat before the dinner, so they could gracefully decline to gobble up goodies, and spend their time in gay conversation or waiting to be asked to dance. Drinking and eating, especially drinking, was for the men at the party, although naturally the many courses of the banquet were put in front of the ladies to be airily ignored. When George Washington was present as he often was, or even La Rochfoucault himself, it was important to remember every spoken word.

And, you know, it worked. When these important people went back home, they took the customs of the Republican Court with them. The American diplomatic corps found the equivalent of minor-league training for their efforts on behalf of the country abroad. Politics was easier if you personally knew your adversaries as well as your allies. The persistence of the same family names in the Social Register, the lists of The Four Hundred and other compilations of high society show that Anne Bingham and Elizabeth Powel did indeed know what they were doing, and for that matter, so did George Washington. If anyone else had been at the top of this heap, Thomas Jefferson stood ready to attack with all his might.

Amity Button

But he and even Patrick Henry didn't dare attack Washington. The aristocrats of Old Europe probably did sneer at this amateur effort, and in some circles still, do. But the inability of absolutely any other group of nations, whether European, Asian or South American, to unite peacefully is a thumb in the eye of anyone who mocks George Washington's little Philadelphia creation. And to think it all began right here, right here in the Powel House, right here in the dining room on the second floor. For that, folks, one thunderous "Huzzah!"

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REFERENCES

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A Portrait of Elizabeth Willing Powell: 1743-1830 David W. Maxey ISBN-13: 978-0871699640

Amazon

Adrift With The Living Constitution

Senator Joe Sestak

Former Congressman Joe Sestak visited the Franklin Inn Club recently, describing his experiences with the Tea Party movement. Since Senator Patrick Toomey, the man who defeated him in the 2010 election, is mostly a Libertarian, and Senator Arlen Specter who also lost has switched parties twice, all three candidates in the Pennsylvania senatorial election displayed major independence from party dominance, although in different ways. Ordinarily, gerrymandering and political machine politics result in a great many "safe" seats, where a representative or a Senator has more to fear from rivals in his own party than from his opposition in the other party; this year, things seem to be changing in our area. Pennsylvania is somehow in the vanguard of a major national shift in party politics, although it is unclear whether a third party is about to emerge, or whether the nature of the two party system is about to change in some other way.

For his part, Joe Sestak (formerly D. Representative from Delaware County) had won the Democratic senatorial nomination against the wishes of the party leaders, who had previously promised the nomination to incumbent Senator Specter in reward for Specter's switching from the Republican to Democratic party. For Vice-Admiral Sestak, USN (Ret.) it naturally stings a little that he won the nomination without leadership support, but still came reasonably close to winning the general election without much enthusiasm within his party. He clearly believes he would have beaten Toomey if the party leaders had supported him. It rather looks as though the Democratic party leadership would rather lose the election to the Republicans than lose control of nominations, which are their real source of power. Controlling nominations is largely a process of persuading unwelcome contenders to drop out of the contest. Sestak is, therefore, making a large number of thank-you visits after the election, and clearly has his ears open for signs of what the wandering electorate might think of his future candidacy.

America clearly prefers a two-party system to both the dictatorial tendencies of a one-party system, as well as to European multi-party arrangements, such as run-offs or coalitions. A two-party system blunts the edges of extreme partisanship, eventually moving toward moderate candidates in the middle, in order to win a winner-take-all election. Therefore, our winner-take-all rules are the enforcement mechanism for a two-party system. Our deals and bargains are made in advance of the election, where the public can express an opinion. In multi-party systems, the deals are made after the election where the public can't see what's going on, and such arrangements are historically unstable, sometimes resulting in a victory by a minority fringe with violently unpopular policies. In our system, a new third-party mainly serves as a mechanism for breaking up one of the major parties, to reformulate it as a two-party system with different composition. Proportional representation is defended by European politicians as something which promotes "fairness". Unfortunately, it's pretty hard to find anything in politics anywhere which is sincerely devoted to fairness.

Going far back in history one of the great theorists of legislative politics was the Roman Senator Pliny the Younger, who wrote books in Latin about how to manipulate a voting system. For him, parties were only temporary working arrangements about individual issues, a situation where he recommended: "insincere voting" as a method for winning a vote even if you lacked a majority in favor of it. Over the centuries, other forms of party coalitions have emerged in nations attempting to make democracy workable. Indeed, a "republic" itself can be seen as a mechanism devised for retaining popular control in an electorate grown too large for the chaos and unworkability of pure town hall democracy. A republic is a democracy which has been somewhat modified to make it workable. Our founding fathers knew this from personal experience, and never really considered pure democracy even in the Eighteenth century.

Senator Specter

The two main actors in shaping the American Republic were George Washington and James Madison. Madison was young, scholarly and largely unknown; Washington was old, famous, and insecure about his lack of academic political education. Both of them knew very well that if Washington really wanted something he was going to have it; what mainly restrained him was fear of looking foolish. But he hated partisanship and conniving, partly as a result of having been the victim of General Mifflin and the Conway Cabal. Washington hated political parties and anything resembling them; Madison was young and uncertain, and briefly surrendered the point. It took about two years of real-life governing for Madison to conclude that political parties were absolutely essential to getting something accomplished. In this, he experienced for the first time those unwelcome "pressures from the home state", with Thomas Jefferson determined to thwart Alexander Hamilton, and Patrick Henry thundering and denouncing any hesitation in going for the jugular vein of opponents. Madison was deeply concerned with making his new nation success and eventually joined Jefferson in the Virginia policy of opposing banks, cities and manufacturing. When Washington saw that Madison was committed to this course, he never spoke to him again. For Washington, honesty was always the best policy, and personal honor is never regained once it is lost. The compromise of 1790 was particularly vexing to their relationship, when Washington's honor and personal finances were used as bargaining chips for moving the nation's capital opposite Mount Vernon on the Potomac River, in return for placating Hamilton and Robert Morris with the assumption of state revolutionary war debts.

Henry Clay 1811

Legislative partisan politics took a violent turn in 1811 when 34-year old Henry Clay was elected to his first term as a member of the House of Representatives. The Senate was less prestigious than the House in those days, and Clay had spent his time as a senator studying the landscape of the House before he made his big move upward. Up until that moment, the role of Speaker was that of mediator and administrator of the rules, partisanship was considered a shameful thing in a Speaker. Young Clay was elected Speaker on the first day of the first session after he moved to the House as a member. Seniority was brushed aside, and this newcomer took over. It takes only a moment's reflection to surmise that a lot of politics had taken place before the House convened. Not only that, but Clay immediately added the power of the Speaker to appoint committee chairmen, to the invisible powers of majority leader. The office of majority leader had not yet been created, but it was not long in emerging that anyone who could assemble enough votes for Speaker was also able to make highly partisan choices for Committee Chairs. Eventually, the seniority system was imposed in part as a reaction to perceived abuses of Speaker power. It is worth a digression to reflect on the role of any seniority system, which as it is clearly seen in labor-management industrial relations, serves to deprive management of promotion power, usually substituting seniority for selection by merit. In the case of the Speaker, the seniority system catapults the power of the Speaker over that of every member of his caucus. To rise in a seniority system for committee chairmen, a member must first be appointed to a desirable committee -- by the Speaker, or by his instructed favorites on the appointment committee. It puts in the hands of the Speaker or his agents the power to humiliate a member by ignoring his seniority; the other members know immediately what that means. To understand the power of this threat, reflect on Woodrow Wilson's famous observation that "Congress in committee, is Congress at work."

Soon after Henry Clay made his dramatic moves, Martin van Buren extended the idea of partisan party politics to the actual election of Congressmen. Much of the hoopla and deceptiveness of subsequent campaigns was invented by Andrew Jackson's vice president. And that included their own deal, in which van Buren worked for Jackson's election in return for a promise that he would be the successor, President. After that came the election of 1848, in which William Henry Harrison was elected as a man born in a log cabin. When, in fact, he had been born in one of the largest mansions in Virginia. That had been approximately George Washington's residence description, too, but it is hard to see Old Stone Face lowering himself to accept any office unless it was offered unanimously.

Compare that with the campaign financing episode which created the urban political machine. The Philadelphia traction king Wm. L. Elkins was narrowly concerned with building streetcar lines along with his business associate P.A.B. Widener; Widener had been a city politician before he got into street cars. One or the other of these two approached the Mayor of Philadelphia with the complaint that it interfered with building streetcar lines to have to bribe every bartender on every street corner. So he made a proposal. It wasn't the money that bothered him, because he could just raise trolley fares to cover it, it was the protracted delays. So, how would it be if the trolley company just delivered a big lump-sum bribe to the mayor? That would give enormous political power to the party boss through the power to distribute or withhold the boodle to party workers. And it would save the trolley company lots of time, while not costing any more than the "retail graft" system. Since then, just about every urban political machine in the country has been largely financed through the macing of utilities.

The downward trend of serial modifications to the Philadelphia Constitution of 1787, should be clear enough without further illustration. If the Tea Parties aren't mad about it, they should be. More likely, however, they are mainly mad about the modern pinnacle of sly tinkerings, plainly displayed on TV during the enactment of the Obama Health Bill. The point was repeated for emphasis in the Dodd-Frank financial bill, in case it is ever claimed to have been accidental. In both cases, 2000 page bills were prepared out of sight and thrust before the Congress with orders to enact them in four hours. If that's a representative government, perhaps we ought to go back to having a King.

Pennsylvania: Browbeaten Into Joining a War

Battle of Lexington

In April 1775, the colonial militia were shooting it out with British soldiers at Bunker Hill and Lexington/Concord. If you include December 16, 1773, Boston Tea Party, Massachusetts had been fighting the British for almost three years before July 4, 1776. It had never been absolutely clear to Pennsylvanians just what they were fighting about in New England, beyond the fact that a considerable store of gunpowder was hidden in Lexington and Concord and British soldiers had been sent to confiscate it, along with those two trouble-makers, Samuel Adams and John Hancock. The militiamen behind the trees were just as British as the soldiers were, and their short slogan of fair treatment was to elect representatives to any Parliament which claimed a right to tax them. Snubbed by a high-handed King, they got his attention by shooting back when the King tried to enforce laws they had not had a chance to vote on. Seeing your neighbors shot soon clarifies your options. Other colonies, especially Pennsylvania, Delaware and South Carolina, were slower to anger about either taxation or representation, worrying more about the motives of unstable leaders in Massachusetts like Samuel Adams, and content to stall while British Whigs led by Edmund Burke and the Marquess of Rockingham tried to civilize the king's ministry. Besides, the British were not attacking Pennsylvania.

To be fair to the hot-headed New Englanders who were apparently stirring up so much unprovoked trouble, a better case could have been made against the heedless British ministry, and New England lawyers should have made it. Following the Boston Massacre, there was genuine alarm among lawyers like John Adams that King George was eroding historic legal rights achieved over several centuries, indeed, preferentially undermining them more for mere colonists than for U.K. citizens with a vote. The Navigation Acts of the British government, in particular, were offensive to American colonists; randomly chosen representatives on juries proceded to render them unenforceable with a wide-spread refusal to convict. They were employing William Penn's strategy of "Jury Nullification", and better acknowledgment of its legal history was sure to make a favorable impact on Philadelphia minds. Somehow, the Boston legal community felt this line of argument was too specialized to be effective, or else shared the alarm of their enemy the British Ministry that Jury Nullification in the hands of the public could be too hard to control. John Adams had made a particularly famous defense of John Hancock who was being punished with confiscation of his ship and a fine of triple the cargo's value. Adams was later singled out as the only named American rebel the British refused to exempt from hanging if they caught him. As everyone knows, Hancock was the first to step up and sign the Declaration of Independence, because by 1776 there was also widespread colonial outrage over the British strategy of transferring cases to the (non-jury) Admiralty Court. Many colonists who privately regarded Hancock as a smuggler were roused to rebellion by the British government thus denying a defendant his right to a jury trial, especially by a jury almost certain not to convict him. To taxation without representation was added the obscenity of enforcement without due process. John Jay, the first Chief Justice of the Supreme Court of the newly created United States, ruled in 1794 that "The Jury has the right to determine the law as well as the facts." And Thomas Jefferson built a whole political party on the right of common people to overturn their government, somewhat softening it is true when he saw where the French Revolution was going. Jury Nullification then lay fairly dormant for fifty years. But since the founding of the Republic and the reputation of many of the most prominent founders was based on it, there may have seemed little need for emphasis of an argument any modern politician would seize with glee.

Bunker Hill

At that time, only a third of colonists were in favor of fighting about it, and a third was entirely opposed. Samuel Adams himself had written his supporters that it would be best to hold back until greater revolutionary support could be gathered. Unfortunately, in the minds of the British ministry, hostility had already escalated irrevocably when the Continental Congress in June 1775 created the Continental Army and dispatched George Washington to Boston to join the fight. This was probably the moment when war became inevitable in the collective mind of the British Parliament; a full year had passed since then. Regardless of Bunker Hill, the British were incensed by the creation of the Continental Army, and passed the Prohibitory Act, which declared that all thirteen colonies (belonging to the Congress) were renegades, their decision to raise armies placing them "outside the protection of the king". All American shipping was now subject to seizure, not just that of Massachusetts, as were foreign vessels engaged in American trade. News of this Parliamentary thunderbolt first came to Robert Morris through one of his ships, accompanied by news that 26,000 troops had been raised for an invasion of American ports. The British position was that all thirteen colonies had gratuitously formed a government and an army, and needed to be punished for such treason. Pennsylvania was no exception; the offending Continental Congress had met there, and Benjamin Franklin had represented both Massachusetts and Pennsylvania before Parliament. Confirmation of that particular British attitude toward them greeted Pennsylvanians when British warships promptly appeared in May 1776, to patrol the mouth of Delaware. Three cruisers exploring up the river were attacked by American galleys. In response, the cruisers sailed directly at Philadelphia until they were finally beaten back by citizen flotillas, supervised by Robert Morris and the Committee on Safety. Morris wrote to Silas Deane in Paris that war was probably inevitable. Far less tentatively, the British felt it had already been in progress for a year.

The British Ministry had probably been unreasonably hostile, but they were not unanimous and they were not fools. In response to colonial unrest up until these almost irretrievable events, the British were concentrating on depriving the colonists of arms and gunpowder, mostly avoiding direct violence; it seemed an effective strategy. During the Boston Tea Party, for example, British warships in Boston harbor merely stood by and watched the fun. Although gunpowder was a simple chemical, comparatively easy to make, it was less likely to blow up in your face if finely ground and milled in a major factory; for a real Colonial war it had to be imported. The British strategy had been: Take away their weapons, and they will capitulate. Unfortunately, that was not the response at all, since even loyal colonists felt they needed good gunpowder for hunting and self-protection. Gunpowder blockades and confiscations were going to be bitterly resented. Nevertheless, British patience with the colonists was probably only irretrievably exhausted in June 1775, when the Continental Congress formed its own army and Washington marched them to Boston. If Pennsylvania became convinced of that inevitability, the war was certainly on. After the naval battles right here on Delaware, what really became hard to believe was that -- only a week earlier -- Pennsylvania's moderate voters had soundly defeated the revolutionary radicals in an Assembly election.

Pennsylvania had indeed been far less eager to fight than Massachusetts and Virginia, but the more belligerent colonies felt they needed allies in order to prevail. In the Continental Congress Pennsylvania and South Carolina voted against rebellion in the Spring of 1776; and in the May 1776 election where independence was the main issue, the Pennsylvania voters elected an Assembly 70% opposed to rebellion, including that eminent merchant Robert Morris. Some of the determined Massachusetts efforts to persuade the Mid-Atlantic colonies bordered on subversion, but Pennsylvania remained unmoved. Nevertheless, they could see a real danger of war and had approved Secret Committees to be prepared if it came. Robert Morris was ideal for covert activity and could be expected to keep the activity under control, along with Benjamin Franklin and several prominent merchants. Morris made no secret of his affection for England the country of his birth, or of his membership in the John Dickinson group which hoped economic pressures would suffice. When the Secret Committee chairman suddenly died of smallpox, Morris was then appointed a chairman. His personal integrity was widely respected; in several hotly contested elections, he was nominated by both the radicals and the conservatives.

It seems absolutely necessary to prepare a vigorous defense since every account we receive from England threatens nothing but destruction.

Robert Morris: December 1775.

The Secret Committee was charged with smuggling in some gunpowder, just in case. Several of the members agreed to ship arms and gunpowder in their own ships; there was no one else to do it. The decision to engage in treasonous gunrunning was greatly assisted by the unexpected appearance of two Frenchmen with aristocratic accents in a boat loaded with gunpowder, who proposed themselves as French counterparties in a major gunpowder and weapons smuggling network which did actually materialize. Just who sent them has never been made entirely clear, but later events make the playwright Beaumarchais a reasonable guess, acting as a secret agent of the French King. Beaumarchais the famous playwright had been caught in a police trap, and forced to act as a government spy; just whose agent he was is a little murky. The American merchants on the Secret Committee knew gun running was expensive for them; they all expected to be paid for dangerous work, so it was also profitable. And treasonous. If caught, there was every possibility of being hanged. Initially, the Americans all imagined the Frenchmen were simply in it for the money, and that is possible. Surprisingly, no one seems even to have speculated they were agents of the French government on a mission to stir up trouble against the English. Spies had surely informed the French King of approaching war, at least six months before the Americans knew of it. Since these two foreign shippers (giving their names as Pierre Penet and Emmanuel de Pliarne, and surely sent to spy) demanded to be paid in hard currency, Morris did send one ship with hard money to pay for munitions to be carried in its hold on the return voyage. But he soon devised safer payment approaches.

For my part I abhor the name & the idea of a rebel, I neither want or wish a change of King or Constitution & do not conceive myself to act against either when I join America in defense of Constitutional Liberty.

Robert Morris: December 1775

Since he had agents and offices in most major foreign ports, Morris could arrange for the money to arrive independently of the cargo ships. Or better yet, send ordinary commodities on the outward journey and make a private profit on that, returning with munitions paid for by the "remittances" -- revenue from the other cargo. Money was also sent on other circuitous journeys and through other channels, particularly the discounted debt system he had earlier perfected when the paper currency had been prohibited. There was thus less incriminating evidence on the ship, and even if the ship burned or everyone got hanged, the money was at least out of the hands of the enemy. Secrecy was, of course, essential, this activity could be called treasonous, and it was most assuredly smuggling. When neutral countries were found supporting gunrunning, that assistance might well be called an act of war, so all nations prohibited it. In spite of his earlier reluctance about independence, Morris could easily see that gunrunning by the privateers of a recognized nation might be better protected by the conventions of war than exactly the same activity conducted by, say, brigands, profiteers or pirates.

Gunrunning was always seriously dangerous; Morris soon lost four ships, one by a mutiny of secretly loyalist sailors, and two were captured by unscrupulous American privateers. There would be some protection from hanging for gun runners as authorized combatants of a recognized nation. In retrospect, we can now surmise that Franklin was committed to independence, and was probably nudging his friend on the Secret Committee. John Adams could barely contain himself, openly and repeatedly. Washington was already outside Boston leading an army. The commitment had many levels.

In July 1776 Morris was called on to vote in Congress for the independence he always said he opposed. Caesar Rodney rode in from Delaware to deliver his state for Independence; now, Pennsylvania alone stood in the way. When the moment came, on the advice of Franklin, Robert Morris, and John Dickinson left the room to allow other Pennsylvania delegates to constitute a Pennsylvania majority, casting the state's vote for the war. Commitment to the war had many variants, even after the war began.

Anatomy of an Urban Political Machine

One Big Family

The Franklin Inn Club meets every Monday morning to discuss the news, and recently it discussed the upcoming local political campaign. The discussion went on for fifteen minutes before a newcomer asked if we were talking about the primary or the general election. The question was met with broad smiles all around because of course, we were talking about the primary. Voter registration is 6:1 in favor of the Democrats in Philadelphia, so the general election is just a required formality. The election, that is, consists only of the Democrat primary; election of the Democrat nominee in the general election is a foregone conclusion. Someone idly remarked on the number of politicians who are blood relatives of other politicians, someone else said that was true of union officers, too. So, skipping from the inside baseball of the election, we took a little time to discuss the anatomy of an urban political machine.

The first step in consolidating control of a city by a political machine is to eliminate the issue of the general election by making the other party's chances seem hopeless. That converts an election which typically turns out 40% of the voters into an exclusively primary election, turning out 20% of the voters, or even less in an off-year. In some "safe" districts a winner needs far less than 10% of the eligible voters to win.

The second step is to run as a prominent member of a local ethnic or religious group, preferably the largest of such groups within the district. If possible, an election is almost assured by being the sole candidate associated with the largest ethnic group. Here's where family connections work for you. If your father held the same seat, or some other family member had been prominent in the district, it helps assure everybody that you are really an ethnic member and not just someone whose name sounds as though it would be. Your relative will know who is important in locally local politics, the members of large families or people are known to be the "go-to guy".

Assembling all that, the final step is to get everyone else who is a member of the ethnic group to drop out of the primary, and to encourage other ethnic groups to field as many candidates as possible, splitting up their vote. Getting other members of your religious group to drop out, consists of having your relative approach them and tell them to wait their turn. The implicit promise underneath that advice is probably next to worthless, unless it is specific and witnessed, and the other fellow's ability to deliver it is credible. If all else fails, the resistant opponent is muscled in some way, verbally at first, and then increasingly threatening. The consequence of this ethnic/religious influence is more involvement in government by clergy than is healthy for either one of them. Now, that's about all there is to achieving permanent incumbency, but the minority party should be mentioned, as well as the flow of money.

It quite often happens that the minority party in the big city, hopeless in its own election chances, finds itself with a Governor and/or Legislature of their party. The patronage of state jobs becomes available to the foot soldiers who have no chance of local election. Much of the wrangling within state legislatures revolves around whether appointive patronage jobs should be lodged in state agencies, or local ones; at the moment, the Parking Authority and the Port Authorities figure prominently as jobs for which a local Republican could aspire. The coin of this trade is maintaining influence in the state nominating process and paying off with increased voter turn-out in elections which have no local effect but may be important at the state or national level. Since party dominance at state and national levels changes frequently, the local machine finds it useful to continue this system. Where they have nothing to lose in local elections, they may even encourage it.

Money is the mother's milk of politics. Except for safe districts no one can get elected without it. And various degrees of corruption provide money to be "spread around" the clubhouse, sometimes to induce people to drop out of primary races, sometimes to console "sacrifice" candidates who run hopeless campaigns just to make the party look good, and sometimes just to enrich the undeserving. The politically connected parts of the legal profession participate a good deal in the flow of funds, sometimes in order to get government legal work, sometimes to obtain judgeships, sometimes to launder the money for clients. One particularly lurid story circulates that professional sports teams are expected to make seven-figure contributions in return for lavish new stadium construction, from which they, in turn, are able to generate various sorts of compensating revenue.

But, as the old story goes, if you eat lunch with a tiger, the tiger eats last.

Constitutional Liberty

WITH British troops in the process of disembarking at New Brunswick, apparently intent on hanging rebels, Robert Morris and John Dickinson annoyed everybody by refusing to sign the Declaration of Independence. Both were fully engaged in the Revolution after the fighting finally got started, and Morris signed up in August 1776. Dickinson had some further reasons of his own, but Morris explained his position quite succinctly. He didn't mind being a British subject, he didn't want a new King, what he wanted was Constitutional Liberty. There is no record of his being directly confronted about this later, and thus no detailed explanation. But whatever did he mean?

Iliad and the Odyssey

Morris was of course very bright, even brilliant as a businessman. He had an astonishing memory for detail and was capable of holding his own counsel. He was a person of great daring and prodigious amounts of work. But there is very little evidence that he thought it was useful to be mysterious, or deep. So why not take him at his word, which was essentially that what mattered in a government was whether it kept its promises and allowed its citizens all possible Liberty. It did not matter whether the government had a king, or seldom mattered much who that king was. What mattered was whether it kept its promises, and for that a Constitution is useful. There is no great pleasure in being capricious and arbitrary, so a king who leaves the citizens alone is mostly the best you can ask for. It does, however, help considerably if the rules are fair, clear, and binding. Beyond that, it is unwise to go about toppling governments in the vain hope that a new one is somehow better than the old one. This is putting words into his mouth, to be sure. What he did say was he saw no advantage to getting a new government when what we wanted was Constitutional Liberty. Eleven years later, he was a personal friend of just about everyone with the power to design a new government. Washington lived in his house, or in one next door. Ben Franklin was a business partner. Gouverneur Morris was his lawyer and partner. Just about everybody else who mattered was meeting with him in secrecy for months at a time, in the Pennsylvania Statehouse. And so on.

An essential part of this puzzle of Morris' role could be that the American Constitution was very close to unique in being written out as a document, like a commercial contract. The British Constitution was unwritten at the time and continues to be unwritten today. Many other members of the British Commonwealth operate without a written constitution. And in fact, what passed as constitutions for thousands of years have been unwritten; it was the written American one which was the novelty, not the other way around. It may stretch matters a little to describe the Iliad and the Odyssey as constitutions, but they do in fact describe the system of governance of the Ancient Greeks, clarifying many axioms of their culture for which they were willing to fight and die. We are able to understand the rules for Greeks to live by from reading Homer, almost surely better than we understand the rules of American culture by reading The Federalist Papers. Modern students of geometry, for another example, are taught that all the rules of Euclidian geometry are based on a few axioms stated at its beginning. Change one of those axioms, and you make mathematics unrecognizable. Even Newton's Principia are now seen by mathematicians to be rules which apply only to our universe for certain. There may exist many other universes to which they do not apply. Axioms are themselves mostly regarded as unprovable assumptions. A Constitution, therefore, is regarded in modern times to be much the same thing as a set of mathematical axioms. With one new exception: they are written out on a piece of paper for all to see and agree to -- just like a commercial contract. It would not be surprising to discover that America's great merchant trader, Robert Morris, was horrified at the idea of depending on Vestal Virgins or Judges, or Kings, for their recollection of what the contract says. It, therefore, seems quite natural for a maritime merchant to be agitated by having the rules of British society depend on what King George III chose to emphasize or ignore. Write it down, negotiate it, then tell us what you want so we can agree to it; that's a proper way to define Constitutional Liberty and limit disputes. International maritime trade could not be conducted in any other way, because sea captains who feel abused in a foreign port can abruptly up-anchor and sail away, never to return to that port again until or unless local rules are clarified.

Unless someone discovers some relevant documents in a trunk in the attic, that's about the best conjecture to be made about the American novelty of a written constitution, and its transformative effect on the legal system of all other nations which have one. It would still be nice to know, for certain, whose idea it was.

Fort Wilson: Philadelphia 1779

James Wilson

OCTOBER 4, 1779. The British had conquered then abandoned Philadelphia; an order was still only partially restored. Joseph Reed was President of the Continental Congress, inflation ("Not worth a Continental") was rampant, and food shortages were at near-famine levels because of self-defeating price controls. In a world turned upside down, Charles Willson Peale the painter was a leader of a radical group of admirers of Rousseau the French anarchist, called the Constitutionalist Party, leaning in the bloody direction actually followed by the French Revolution in 1789. Peale was quick to admit he had no clue what to do with his leadership position and soon resigned it in favor of painting portraits of the wealthy. Others had deserted the occupied city, and many had not yet returned. The Quakers of the city hunkered down, more or less adhering to earlier instruction from the London Yearly Meeting to stay away from any politics involving war taxes. About two hundred militia roamed the city streets making trouble for anyone they could plausibly blame for the breakdown of civil order. Philadelphia was as close to anarchy as it would ever become; the focus of anger was against the pacifist Quakers, the rich merchants, and James Wilson the lawyer.

Fort Wilson

Wilson had enraged the radicals by defending Tories in court, much as John Adams got in trouble for defending British troops involved in the Boston Massacre; Ben Franklin advised Wilson to leave town. It is still possible to walk the full extent of the battle of Fort Wilson in a few minutes, and the tourist bureau has marked it out. Begin with the Quaker Meeting at Fourth and Arch. A few wandering militiamen caught Jonathan Drinker, Thomas Story, Buckridge Sims, and Matthew Johns emerging from the Quaker church, and rounded them up as prisoners. The Quakers were marched down the street for uncertain purposes when the militia encountered a group of prominent merchants emerging from the City Tavern. Unlike the meek Quakers, Robert Morris and John Cadwalader the leader of the City Troop ordered the militia to release the prisoners, behave themselves, and disperse; Timothy Matlack shouted orders. It was exactly the wrong stance to take, and about thirty prominent citizens were soon driven to retreat to the large brick house of James Wilson, at the corner of Third and Walnut, known forever afterward as Fort Wilson. Doors were barred, windows manned, and Fort Wilson was soon surrounded by an armed, shouting, mob. Lieutenant Robert Campbell leaned out a third story window and was soon dropped dead by a lucky bullet. It remains in dispute whether or not he fired first. Crowbars were sought, the back door forced open, but the angry attackers scattered after fusillades from inside.

Joseph Reed

Down the street came President Reed on horseback, ordering the militia to disperse, with Timothy Matlack at his side; both men were well-known radicals, here switching sides to maintain law and order. The City Troop arrived, an order was given the cavalry to Assault Every Armed Man. The radicals were finally dispersed by this makeshift cavalry charge, cutting and slashing its way through the dazed militia. When it was over, five defenders were dead and about twenty wounded. Among the militia, the casualties were heavier but inaccurately reported. Robert Morris took James Wilson in hand and retreated to his mansion at Lemon Hill; Wilson was the founder of America's first law school. Among other defenders huddled in Fort Wilson were some of the future framers of the Constitution from Pennsylvania: General Thomas Mifflin, Wilson, Morris, George Clymer. Equally important was the deep impression left on radical leaders like Reed and Matlack, and Henry Laurens, who could see how close the whole war effort was to dissolution, for lack of firm control. Inflation continued but the center-productive price control system was abandoned and never revived; the Patriots had a bad scare, and the heedless radicals forced to confront the potentially disastrous consequences of their own amateur performance when entrusted with the power and responsibility they had just been demanding. It was one of those rare moments in a nation's history when the way suddenly opens to previously unthinkable actions.

Timothy Matlack

The Battle of Fort Wilson was the only Revolutionary War battle fought within Philadelphia city limits; a revolution within a revolution, every participant was a Rebel patriot. Reed and Matlack were the two most visibly appalled by the whole uproar, forced by circumstances to attack the forces of their own political persuasion. But it seems very certain that Robert Morris and the other prosperous idealists were also left with an indelible conviction that even a confederation must maintain central command and discipline with an iron will, or all might be lost. A knowledgable French observer estimated that Robert Morris then owned assets worth eight million dollars, an almost unimaginable sum for the time. But he would lose every penny if effective political control could not be restored. A few days later in the October election, he and all the other Republican (conservative) officials lost their seats. It did not matter; Morris then knew what to do, and his opposition didn't.

Robert Morris: Businessman Father of the Bureaucracy

Robert Morris

UNDER the Articles of Confederation, America had a President who presided, but there was no executive branch for him to do anything administrative. The day to day business of the nation was conducted by committees of Congress, who mainly contracted out the actual work. Evidently, Robert Morris, the businessman had observed this system with displeasure, because it only took him a few days to replace it with departmental employees, reporting to him. The affairs of the nation were evidently in such disarray that there is scarcely any recorded resistance to this astonishing re-arrangement, probably viewed as only one of a series of brisk actions by this foremost businessman of the nation, acting in an emergency and to some extent using his own money. Furthermore, the immediate administrative improvement was apparently so obvious to everyone that the system continued after Morris left office, and was absorbed into the 1787 Constitution without much-recorded debate. Without dissent, as we say, the bureaucracy had been created. As the press of business steadily increased the bureaucracy, from a handful of employees to many millions of them, the fourth branch of government was created without any Constitutional mission statement, not one single word. Following directions set by early America's preeminent no-nonsense businessman, control of the bureaucracy was placed within the Executive branch, in time largely located within the District of Columbia, and governed by rules made by the Civil Service Commission. Sometimes this fourth and largest branch of government skirts dangerously close to encouraging insubordination to their politically appointed superiors.

For some reason, the State Department is particularly suspected of such "Yes, Minister" behavior. Increasingly, government subcontractors are relied upon ("privatization"), as the growth of public sector workforces a return to the subcontractor approach of two centuries earlier; such subcontractors increasingly find the bureaucracy assumes the role of the second Board of Directors. And for the same reason as before: the work of the central government keeps increasing. At a state and local level, an uncomfortable amount of political funding can be traced to utilities and other corporations who have been awarded legal monopolies, uncomfortably like the mercantilism which our colonist ancestors had found so repugnant to deal with. In the 21st Century, we are finally approaching the point where we can foresee the number of people working for some level of government becoming greater than the number of voting citizens, and therefore able to control their income and the nature of their work. When the bureaucracy begins to exert political election power over its elected superiors, elected politicians are almost certain to rebel at what they will surely see as going a step too far. However, on the topic of salary and work environment, they are likely to become allies. Public discontent is already echoed in the growing political movement to limit or shrink the size of government; it would be well to examine and pilot test alternative options before this one gets us into trouble.

In retrospect, this was one of many features of creating the three branches of government where broader implications went unnoticed in 1787. The British government had three branches, King, Parliament, and Judiciary. To create a government consisting of a President, a Congress, and a Judiciary did not then seem like much of a departure. However, the Revolution deposed the King and made the people sovereign. When the real implications of that breezy slogan had to be translated into legislative language serious implications emerged, unexpected then, and now hard to change.

Reconsidering All Our Laws

Common Law

A KING who conquers a new country theoretically gains the chance to revise all its laws. However, thousands of years of experience demonstrate that those who are good at wielding the sword seldom have much interest in, or aptitude for, devising a legal code. Napoleon seems to have been an exception, and Alexander the Great was tutored by Aristotle, but most conquerers have been illiterate in the law. Therefore, earlier conquerors merely extended their native laws into additional territory or else left the whole business to a permanent priesthood of judges. In this way, an independent judiciary could survive unless, like Thomas a Becket or Thomas More, it grew stubborn about thwarting the wishes of the King. The concept of citizen rights more or less defined feasible limits to what the King was allowed to do. British law went still further, distinguishing between rights of the people and rights of the sovereign. It identified those few things even a King was not allowed to do, as well as those many things he alone must be able to do in order to govern. The latter were collectively called the King's Prerogative. Today, we would call it a job description.

U.S. Codes

Along those lines, the English Civil War had been fought, briefly transferring the power of Prerogative to Parliament, and incidentally clarifying some disadvantages of doing so. Americans, after fighting an eight-year Revolutionary War to be rid of a particular king, had developed a sentiment for eliminating all kings entirely. However, the memory of the English Civil War and subsequent abuses by the Cromwell Parliament restrained that impulse. The alternative idea grew of transferring sovereignty to the people, to be translated into action by their elected representatives in the Legislative branch. Although such sovereignty would be unlimited, the intermediate steps taken by the Legislature could be deliberately slowed down, and particularly worrisome actions might be tangled up in complicated steps of legal process by a vocal minority. Such a complicated system required an umpire, which Chief Justice John Marshall eventually positioned the Supreme Court to be. Conducting elections every two years was a simple way to allow the people to restrain its agents from the misbehavior of a more general sort. Since George Washington was confidently expected to be the first President, it was left to him to devise protections against presidential abuse, since he had notoriously and repeatedly expressed his intense dislike of kings. In modern times this system of checks and balances has only been severely tested once, in 1937. Immediately after winning a landslide re-election in 1936, Franklin Roosevelt nevertheless was slapped down hard by public outcry forcing Congress to thwart his Supreme Court-packing scheme.

Sir Francis Bacon

Such subtle, complicated ideas cannot be implemented by writing 6000 words on a piece of paper, and they certainly cannot withstand two hundred fifty years of subsequent nit-picking by dissenters, no matter how carefully crafted the 6000 words may have been. The complexity of the political system it describes would long ago have fallen apart without a million little accommodations and revisions, just as every other nation's constitution has done during that same period of time. And that fine-tuning process was made possible by starting with a more or less blank slate, with thousands of lawyers and legislators debating every particle of common law for more than a century. In 1787 it was decided to adopt English common law as a default position, and to invite a host of legislative bodies to debate and replace any part of it with a "statute". It was a laborious process. Measured by pages of law books, the volume of statutes only grew to equal the volume of common law by the time of the Civil War. The English common law was certainly a good place to start, having been created by Sir Francis Bacon two hundred years earlier as the legal equivalent of the Scientific Method; based on real, adversarial contested case decisions, a hypothesis was created, then tested, revised, and tested again. By actual count, one state legislature only enacted three statutes in the year before the Constitution was ratified; all its other activity was concerned with adjudicating disputes within the boundaries of the existing common law. But when the Constitution suddenly rearranged the balances of power in 1787, almost every sentence of common law had to be regarded as potentially requiring modification to reflect the new Constitutional rearrangements. During the first half century there existed great enthusiasm for almost all of the new Constitution except those parts which affected slavery, the fine-tuning was almost universally intended to strengthen it or repair some oversight. If it failed in some way, adversaries were quick to point out the flaws. In short, every lawyer in the nation was involved to some degree for a century in the process of re-writing the English common law for American purposes, in American circumstances, for the grander purpose of strengthening the American commonwealth.

Federal Registry

And everyone knows what happened next. The state legislatures who considered it normal to pass fewer than a dozen laws in a year started passing fifteen hundred in a year and kept it up for many years. Today, almost every state legislature considers more than a thousand bills and passes two or three hundred. Since the colonial legislatures passed few laws and spent most of its time adjudicating disputes about existing law, the character of the law changed as it gradually gave up adjudicating, stopped being like a court. The tendency of early law was to state principles to guide the judges. In recent times, our over-lawyered system specifies all imaginable conditions and exceptions in excruciating detail, so that our laws tend less and less to speak of "reasonable amounts" and more and more to define drunken driving, for example, in milligrams per deciliter of the defendant's blood. We have better measuring devices, so we measure. But who can deny that a legislature accustomed to making judgments itself, will more confidently rely upon the good judgment of courts, than a legislature which spends its time going to committee meetings to consider the testimony of experts, often never visiting a courtroom?

Our lawyers, who once enlisted the efforts of the entire profession for a century into refining the English common law into the American statutory law, are to be encouraged to extend equal effort into the process of turning off the faucet. Or possibly, having done such a good job at this assignment, seek another line of work?

Corporations: Property, but also Immortal Persons

Proprietor House

The Proprietorship of West Jersey is the oldest stockholder corporation in America. Devised by William Penn it has been doing business in Burlington, New Jersey since 1676. The Proprietorship of East Jersey may possibly have been created slightly earlier by William Penn, but recently dissolved itself, thus leaving a clear path for West Jersey to claim to be the oldest. For a hundred years before 1776, corporations were devised by the King through royal charters, and for a century after 1776, most state legislatures passed individual laws to create each corporation, one by one. Consequently, there were a great many variations in the powers and scope of older corporations, with a heavy emphasis on the purpose to which the business was limited. Eventually, so many corporations were created that a body of law called the Uniform Law of Corporations simplified the task of incorporation for the legislatures. The Proprietorships of East and West Jersey would now probably be described as real estate investment trusts (REIT), but the Uniform laws now tend to diminish the emphasis on corporate purpose. It is now common to have a corporation proclaim the ability "to do whatever it is legal to do."

Many voices have been raised in opposition to corporations, largely claiming unfairness for a large and established corporation to compete with newcomers, especially small newcomers striving for the same line of business. Because of its immortality, a stockholder corporation can achieve dominance no individual could hope for, while because of its multi-stockholder ownership, it can generally raise larger amounts of capital. Moreover, because of its size and durability, a corporation can become more efficient and offer the public lower prices and higher quality. As much as anything else, a corporation can generally hire more employees and pay them higher wages; as even the unions admit, corporations create jobs, jobs, jobs. No doubt, state legislatures are attracted by the tax revenue derived from major corporations, but the quickest way to stimulate the economy has repeatedly been found to grow out of lowering corporate taxes. Since there is scarcely any purpose of creating a for-profit corporation unless it eventually pays its stockholders some kind of dividend, all corporation taxes have the handicap of double-taxation for a fixed amount of business. The Republic of Ireland recently lowered its corporate tax rate severely and triggered so much new corporate activity that it inflated and destabilized its whole economy. The result was a dangerous economic crisis, but politicians privately and world-wide silently derived only one real conclusion: lower your corporate taxes if you are looking to stimulate jobs, jobs, jobs.

The corporate model of business thus looks pretty safe, in spite of envious criticism, and is what most people mean when they speak of capitalism. The Constitution had the intention of extracting Interstate Commerce for the Federal Government and leaving the regulation of every other business to state legislatures. The Roosevelt Supreme Court-Packing dispute of 1936 twisted the meaning of Interstate Commerce to mean almost all commerce, but Congress wasted no time specifically exempting the "Business of Insurance" from federal regulation and returning it to the state legislatures in the 1945 McCarran-Fergusson Act. Although the matter remains one of some dispute, it is roughly correct to say that all commerce is federally regulated, except insurance. The corporation is nevertheless usually a creation of some legislature, and legislators have wide latitude in regulating them. To illustrate, in the early days of a banking corporation, the Bank of Hartford was delayed in receiving incorporation by the strong legislative suggestion that a closed stockholder list would result in refusal to incorporate them, whereas opening up the list to new stockholders might result in rapid approval. The implication was strong: the legislators wanted some cheap or free stock as a condition of incorporation. The following year, 250 banks were incorporated, and the year after that, over 400 more. Making of incorporation applicants by politicians was sharpened to a fine point in Pennsylvania in the late 19th Century, when legislatures accorded monopoly status to public utility corporations, withholding it from competitors. It is now a textbook statement that the funding of substantially all municipal political machines is derived from voluntary contributions by utilities with politically granted monopolies, who are consequently indifferent to the retail prices of their products.

So there is still room for public concern and vigilance, and both the courts and the Constitution protect but restrain corporations. In the early 19th Century when public opinion was becoming firmer about incorporation, it was contended they should be treated as persons, possibly resembling real persons more closely by imposing a finite life span on their charters. Although corporation entities are still to some degree treated like individuals, the legal doctrine prevailed that they are in fact contracts between the state and the stockholders. The paradox is thus defended that although legislatures can create corporations, they cannot dissolve them! After all, a contract is an agreement between two parties, and it requires both parties to agree to dissolve the agreement. And then, the final uncertainty was removed by John Marshall. The U.S. Supreme Court in the Dartmouth College case applied Article I, section 10 of the Constitution. That section provides that state governments may not pass any law impairing the obligation of contracts. The Supreme Court decision written by Marshall made it clear that this provision of Constitution eliminated any distinctiveness between a contract involving a state and a contract involving two citizens. There had been a growing feeling that private property was not to be disturbed by state power, and this linkage to Article 1 affirmed that point and finally settled matters. Shares of company stock were property, protected from state legislatures as belonging to the owner and not to the state in any sense. All the while that this quality of the property was established, certain features of the corporation as a person endured. Most of the attention to this point arose after the Civil War when the mixture of concepts ( a slave was a person who was also private property) more or less applied to the institution of slavery as well. More recently, potential muddles have been created by limiting campaign contributions of corporations, thus impairing their right to free speech in the role of a person. It even appears to be true that some of the 1886 precedents were created by an error of a court reporter. The dominant precedent in operation here would appear to a layman as, "If it ain't broke, don't fix it." Additional centuries including a Civil War thus encrusted conditions and traditions onto the hybrid idea of a corporation which now allows it to stand on its own feet, more or less free at last.

The legal profession can certainly be congratulated for constructing two institutions which include the majority of working Americans -- the corporation and the civil service -- without the slightest mention of either one in the Constitution. Although everything seems to be reasonably comfortable, and no one is actively proposing substitutes, it is uncomfortable to hear so much dissension about the original intent of the Framers, when so much of American Law traces its history to events and institutions which the Framers never imagined. Constitutional Law, both within and without original intent, will soon be dwarfed in effect by non-constitutional accretions to it. Sooner or later, the advocates of some undefined cause could find it in their interest to challenge the Judicial system for what has been allowed to happen. Expediency has triumphed. We started with nothing but the common law (defined as law created by judicial decision), and we are slowly returning to that condition under a different name, misleadingly called statutes.

The Third Pennamite War (1778-1784)

Wyoming massacre

And so, after the Revolution was finally over, there was a third war between Pennsylvanians and the Connecticut born settlers of the Wyoming Valley. This time, the disputes were focused on, not the land grants of King Charles but the 1771 land sales by Penn family, most of which conflicted with land sales to the Connecticut settlers by the Susquehanna Company. The Connecticut settlers felt they had paid for the land in good faith and had certainly suffered to defend it against the common enemy. The Pennsylvanians were composed of speculators (mostly in Philadelphia) and settlers (mostly Scotch-Irish from Lancaster County). Between them, these two groups easily controlled the votes in the Pennsylvania Assembly, leading to some outrageous political behavior which conferred legal justification on disgraceful vigilante behavior. For example, once the American Revolution was finally over (1783) the Decision of Trenton had given clear control to Pennsylvania, so its Assembly appointed two ruffians named Patterson and Armstrong to be commissioners in the Wyoming Valley. These two promptly gave the settlers six months to leave the land, and using a slight show of resistance as sufficient pretext, burned the buildings and scattered the inhabitants, killing a number of them. One of the weaknesses of the Articles of Confederation was thus promptly demonstrated, as well as the ensuing importance of a little-understood provision of the new (1787) Constitution . No state may now interfere in the provisions of private contracts. Those with nostalgia for states rights must overcome a heavy burden of history about what state legislatures were capable of doing in this and similar matters, in the days before the federal government was empowered to stop it.

A flood soon wiped out most of the landmarks in the Wyoming Valley, and it had to be resurveyed. Patterson, whose official letters to the Assembly denounced the Connecticut settlers as bandits, perjurers, ruffians, and a despicable herd, boasted that he had restored, to what he called his constituents, "the chief part of all the lands". The scattered settlers nevertheless began to trickle back to the Valley, and Patterson had several of them whipped with ramrods. As the settlers became more numerous, Armstrong marched a small army up from Lancaster. He pledged to the settlers on his honor as a gentleman that if both sides disarmed, he would restore order. As soon as the Connecticut group had surrendered their weapons, they were imprisoned; Patterson's soldiers were not disarmed at all and assisted the process of marching the Connecticut settlers, chained together, to prison in Easton and Sunbury. To its everlasting credit, the decent element of Pennsylvania was incensed by this disgraceful behavior; the prisoners somehow mysteriously were allowed to escape, and the Assembly was cowed by the general outrage into recalling Patterson and Armstrong. Finally, the indignation spread to New York and Massachusetts, where a strong movement developed to carve out a new state in Pennsylvania's Northeast, to put a stop to dissension which threatened the unity of the whole nation. That was a credible threat, and the Pennsylvania Assembly appeared to back down, giving titles to the settlers in what was called the "Confirming Act of 1787". Unfortunately, in what has since become almost a tradition in the Pennsylvania legislature, the law was intentionally unconstitutional. Among other things, it gave some settlers land in compensation that belonged to other settlers, violating the provision in the new Constitution against "private takings", once again displaying the superiority of the Constitution over the Articles of Confederation. It is quite clear that the legislators knew very well that after a protracted period of litigation, the courts would eventually strike this provision down, so it was safe to offer it as a compromise and take credit for being reasonable.

It is useful to remember that the Pennsylvania legislature and the Founding Fathers were meeting in the same building at 6th and Chestnut Streets, sometimes at the same moment. Books really need to be written to dramatize the contrast between the motivations and behavior of the sly, duplicitous Assembly, and the other group of men living in nearby rooming houses who had pledged their lives and sacred honor to establish and preserve democracy. To remember this curious contrast is to help understand Benjamin Franklin's disdainful remarks about parliaments and legislatures in general, not merely this one of which he had once been Majority Leader. The deliberations of the Constitutional Convention were kept a secret, allowing Franklin the latitude to point out the serious weaknesses of real-life parliamentary process, and supplying hideous examples, just next door, of what he was talking about.

The Revolution is Over, Every Man for Himself

Charles Dickens

A DOZEN episodes from American revolutionary times might be called pivotal, but a single debate in the Pennsylvania Legislature seems to have begun our political parties in their present form. Two debaters, their topic, and its consequences all rise to dramatic, even operatic, heights. In another place, we intend to explore the clashing philosophies of the Eighteenth century, with Hegel and Hume at the apex, but two quotations from Adam Smith are more intelligible. Charles Dickens nearly ran away with the topic in his novel A Tale of Two Cities, but Charles Brockton Brown and Hugh Henry Brackenridge were local authors, Pennsylvanians present at the scene. John Adams and Thomas Jefferson debated for decades about which of them was the main protagonist. But all of that is the background for one operatic scene at Independence Hall, where the real David and Goliath were William Findlay and Robert Morris.

Robert Morris

Robert Morris, it must be remembered, was probably the richest man in America, a signer of the Articles of Confederation, the Declaration of Independence, and the Constitution. He was one of three men, including Ben Franklin and George Washington, about whom it could be said: the Revolution could not have been won without them. Morris essentially invented American banking, founded the first bank, the Pennsylvania Bank, invented investment banking, corporate conglomerates, American maritime insurance, and dozens of financial innovations. His merchant house probably had 150 ships sunk by the enemy. George Washington lived in his house for years. Today, he is mostly remembered for going bankrupt at the end of a busy life.

William Findlay

William Findlay, on the other hand, was a Scotch-Irish frontiersman with a flamboyant white hat, elected by others like him from the Pittsburgh area to promote inflation through state-issued debt paper, so as to finance land speculation in the West. He had no education to speak of, no accomplishments to mention. He made no secret of his self-interest in land speculation, and therefore no secret of his opposition to rechartering the Bank of North America, which Morris had founded for the purpose of restraining inflation and speculation. Findlay wanted the bank to disappear, get out of his way, and he boldly denounced Morris for his self-interest in promoting a bank where he owned stock. He utterly denied that Morris had any motive other than the profit he would make for the bank, so in his opinion, they were equal in self-interest. Let's vote.

Prior to that time, Findlay had politically defeated Hugh Brackenridge, using the two strong arguments that Brackenridge had gone to Princeton, and written poetry; how could such a person possibly represent the hard-boiled self-interest of frontier constituents?

Hugh Brackenridge

Morris was positively apoplectic at this sneering at everything he stood for. As for the country's lack of trust in a man who had risked everything to save it, well, what has he done for us, lately? America had lately thrown off the King, but what it had really discarded was aristocracy. Every man was as good as every other man, and each had one vote. Under aristocratic ideals, a man was born, married and educated in a leadership class, expected to be utterly disinterested in his votes and actions, scrupulous to avoid any involvement in trade and commerce, where temptations of self-interest were abundant. Washington never accepted any salary for his years of service and even agonized for months when he was awarded stock in a canal company, wanting neither to seem ungrateful nor to make private profit. John Hancock, who came pretty close to having as much wealth as Morris, gave up his business when he was made Governor of Massachusetts. Benjamin Franklin was only accepted into public life when he retired from the printing business, to live the life of a gentleman. That's how it was, everywhere; every nation had a king and depended on rich aristocrats to supply the leadership for war and public life. But, now, America had become a republic where every man was equal. Morris and the Federalists he represented wanted to turn the clock back to an era that would never return.

Goaded too far, Morris impulsively resigned his business interests, to prove he had the nation's interest at heart in opposing inflation. It didn't help. Findlay won the vote, and the Bank of North America was closed. America was ashamed of how it behaved after the Revolution, but not ashamed enough to change.

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REFERENCES

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Robert Morris: Financier of the American Revolution: Robert Morris: Charles Rappleye: ISBN-10: 1416570926

Amazon

Tammany: Philadelphia's Gift to New York

Tammany Hall

EDWARD Hicks painted a scene over and over, depicting William Penn signing a treaty of peace with the Lenape Indians at Shackamaxon ( a little Delaware waterfront park at Beach Street and E. Columbia Ave.). This scene was apparently a reference to a larger and more finished depiction by Benjamin West. The Indian chief in the painting is Tamarind, chief of the Delaware tribe. Long before Hicks got the idea for the picture from Benjamin West, Tamarind was locally famous for having the annual celebrations of the Sons of St. Tammany named after him. These outings centered on the joys of local firewater and thus may have had something to do with the evolutions of the Mummers Parade. George Washington presided over a lively Tammany party at Valley Forge, and local Tammany Hall clubs sprang up all over the country. The most famous offshoot had its headquarters on 14th Street in New York, as a club within the local Democrat party asserting Irish dominance over New York politics, allegedly using Catholic Church connections to control other immigrant groups. The identity of Tammerend seems to have got thoroughly mixed up along the way; the famous statue of "Tecumseh" at the Naval Academy in Annapolis, much revered by the cadets, is actually a depiction of Tammany.

Penn's Treaty With the Indians By Benjamin West

At earlier times, Tammany was the vehicle Aaron Burr used to assert control of the now-Democrat Party, particularly in the contested Presidential election of 1804. Shooting Alexander Hamilton in a duel, along with disgrace and impeachment as Vice President necessitated Burr's rapid conversion into a non-person, both in New York and in Philadelphia. In Philadelphia, the uproar led to the dispersion of Tammany influence, while in New York other bosses, particularly Boss Tweed, took over the organization and consolidated its role as a small club which dominated a larger political party, which in turn pretty well took over the government of New York City, which in turn dominated the governance of New York State, and even occasionally leveraged itself into national politics. Eventually, Tammany fragmented sufficiently that Mayor Fiorello La Guardia was able to dislodge it from control, which in time led to its dissolution. In a larger sense, however, the decline of New York's Tammany Hall began when in the late 19th Century it adopted the Philadelphia system of consolidating graft from local leaders into unified "donations" from local utilities. That greatly improved the efficiency of collections and disbursements but undermined the need for an effective local organization of ward leaders.

Aaron Burr

So, although Tammany was originally a Philadelphia creation perfected by New York, it continued to have connections to Aaron Burr in early days, and Philadelphia machine politics later on. But of course for seventy-five years, around here it seemed Republican.

Morris Defends Banks From the Bank-Haters

Robert Morris

IN 1783 the Revolution was over, in 1787 the Constitution was written, but the new nation would not launch its new system of government until 1790. It was a fragile time and a chaotic one. Earlier, just after the British abandoned their wartime occupation of Philadelphia in 1778, Robert Morris had been given emergency economic powers in the national government, whereas the state legislatures were struggling to create their own models of governance, often in overlapping areas. While the Pennsylvania Legislature was still occupying the Pennsylvania State House (now called Independence Hall) in 1778, it -- the state legislature -- issued the charter for America's first true bank the Bank of North America, and in 1784 the charter came up for its first post-war renewal. Morris was a member of the Pennsylvania Assembly both times. Although he was not a notable orator, it was said of him that he seldom lost an argument he seriously wanted to win. Keeping that up for several years in a small closed room will, unfortunately, make you many enemies.

Tavern and Bank

Morris was deeply invested in the bank, in many senses. He had watched with dismay as the Legislature squandered and mismanaged the meager funds of the rebellion, issuing promissory notes with abandon and no clear sense of how to repay them, or how to match revenues with expenditures. There was rioting in the streets of Philadelphia, very nearly extinguishing the lives of Morris and other leaders, just a block from City Tavern. Inflation immediately followed, resulting in high prices and shortages as the farmers refused to accept the flimsy currency under terms of price controls. Every possible rule of careful management was ignored and promptly matched with a vivid example of what results to expect next. Acting only on his gut instincts, Robert Morris stepped forward and offered to create a private currency, backed by his personal guarantee that the Morris notes would be paid. The crisis abated somewhat, giving Morris time to devise The Pennsylvania Bank, and then after some revision the first modern bank, the Bank of North America. The BNA sold stock to some wealthy backers of which Marris himself was the largest investor, to act as last-resort capital. It then started taking deposits, making loans, and acting as a modern bank. Without making much of a point of it at the time, the Bank interjected a vital change in the rules. Instead of Congress issuing the loans and setting the interest rates as it pleased, a commercial bank of this sort confines its loans to a fraction or multiple of its deposits, and its interest rates are then set by the public through the operation of supply and demand. The difference between what the Legislatures had been doing and what a commercial bank does, lies in who sets the interest rates and who limits the loans. The Legislature had been acting as if it had the divine right of Kings; the new system treated the government like any other borrower. As it turned out, the government didn't like the new system and has never liked it since then. Today, the present system has evolved a complicated apparatus at its top called the Open Market Committee of the Federal Reserve, most of whose members are politically appointed. Several members of the House Banking Committee are even now quite vocal in their C-span denunciations of the seven members of the Open Market Committee who in rotation are elected by the commercial banks of their regions. Close your eyes and the scene becomes the same; agents of the government feel they have a right to control the rules for government borrowing, while agents of the marketplace remain certain governments will always cheat if you don't stop them. This situation has not changed in two hundred years and essentially explains why some people hate banks.

Seigniorage

That's the real essence of Morris's new idea of a bank; other advantages appeared as it operated. The law of large numbers smooths out the volatility of deposits and permits long-term loans based on short term deposits. Long-term deposits command higher loan prices than short-term ones can; higher profits result for the bank. And a highly counter-intuitive fact emerges, that making a loan effectively creates money; both the depositor and the borrower consider they own it at the same time. And finally, there is what is called seigniorage. Paper money (gold and silver "certificates") deteriorates and gets lost; the gold or silver backing it remains safe in the bank's vault, where it can be used a second time, or even many times.

For four days, Morris stood as a witness, hammering these truisms on the witless Western Pennsylvania legislators. At the end of it, scarcely one of them changed his vote, and the bank's charter was lost. But at the next election, the Federalists were swept back into the majority, defeating the opponents of the bank. Although, as we learn the way democracy works, still leaving them unconvinced of what they do not want to believe.

Two Friends Create the Articles of Confederation

JOHN Dickinson had been highly critical of England's treatment of its colonies. As early as 1768 he had written a book called Letters of a Pennsylvania Farmer which is credited with strongly influencing the colonies in the direction of resistance to the British Ministry. When it came time to write the Articles of Confederation, Dickinson was the lawyer selected for the task. His good friend Robert Morris had been less outspoken in opposition to the Ministry's behavior, quite possibly because he was adept at finding workarounds for his own personal business problems. But possibly he was merely maintaining an ambiguous negotiating posture, since in a hotly contested election with this as the main issue, Morris was elected by both sides in the argument. When July 4, 1776, forced the issue both Dickinson and Morris had refused to sign the Declaration, but within a few months both of them were actively fighting for the Rebellion. The truest test of their evolving attitudes might have emerged when Lord North sent the Earl of Carlisle as an emissary after Burgoyne's defeat at Saratoga, offering peace with a sort of commonwealth status for the colonies. Not much is written about this curious episode, leaving it unclear whether the British were serious, and even if they were, whether the Americans understood the offer as serious. On the surface, the British offer conceded taxation with representation as the rebellion had been demanding. But it was rejected by Gouverneur Morris acting for -- who remains unclear. It seems possible the British were exploring the true feelings of people like Dickinson and Robert Morris but were disappointed. The earlier treatment of Ireland after it had agreed to a similar half-hearted autonomy did leave British sincerity in legitimate doubt.

Thirteen

The thirteen colonies had united to fight the British King, but many of them were reluctant to unite for any other time or purpose. Rhode Island was perhaps the extreme example of this view of what Independence was supposed to mean, but the feeling existed to some degree in many colonies. Concern for the power of this feeling of tentativeness may have contributed an important reason the Articles placed heavy emphasis on declaring the document to represent a perpetual arrangement. Recognition of the weakness of this intent may have been an important reason why George Washington was later willing to sweep the issue aside, even though he of all people was most concerned to avoid the appearance of acting as an arbitrary king. For these and other reasons mainly revolving around state boundary disputes, the Articles remained unratified for years. Finally, in 1781 Robert Morris became convinced that failure to ratify was encouraging the states not to cooperate, and successfully pushed ratification through its steps. At that time, Morris was effectively running the country, even providing his own credit and funds to do it. People were reluctant to oppose his wishes, but they were also unwilling to provide the taxes, supplies, and troops that Morris imagined were being blocked by failure to ratify. Ratification of the Articles accomplished very little except to convince Morris: the Articles were flawed and must be replaced with something conferring more central power.

The Goal: 1787

Little is known about the evolution of Constitutional thought in Morris' mind between 1781 and the Constitutional Convention in 1787, although a great deal is known about his other numerous activities. It is clear, however, that his experience with the recalcitrant Pennsylvania Legislature had been dismal, while he came to see the one insurmountable flaw in the current Federal government was its inability to levy taxes and consequently, to service national debt. The states were able to levy taxes under the Articles but erratic in doing so, resorting to paper money inflation at the first sign of tax resistance. In Morris' view, the key to the effective government was to reverse the situation; let the national government tax, let the states spend. The key to such rearrangement would be to permit the national government to spend on a very limited list of vital purposes, but bedazzle the states with a substantially unlimited shopping list if they thought they could afford it. As the accounts to pay for the Revolutionary War totaled up, it was apparent that the National Government had twice as much debt as the states. Therefore it would at most, need twice the state taxing power to service such a debt; presumably, wars would be infrequent and it would be less than that. Pay this one off, and potentially the need for future federal spending would be small. Indeed, under the presidency of James Monroe, the national debt was completely paid off, although briefly. It was almost as if Robert Morris and his pupil Alexander Hamilton had a crystal ball.

Decline and Fall, Anyone?

Robert Morris was brilliant and had six years to fashion his strategy, but he also had some help. For one thing, George Washington lived next door much of that time. By then, almost no one dared confront Washington. Adam Smith had written his book The Wealth of Nations in 1776, and Morris gave this extraordinary work as presents to his friends. Morris had corresponded with Necker, the genius financier of France, and through his good friend Benjamin Franklin, gathered insights from the rather advanced British national finance. And James Madison brought in scholarship about politics and statecraft accumulated by Witherspoon, Hume and the Scottish enlightenment. The year 1776 was a remarkable moment for new ideas. In that year, Edward Gibbon also published the first volume of The History of the Decline and Fall of the Roman Empire. The warning behind that important book had an important impact on the minds of important thinkers of the era, too.

Once you grasped all the central ideas, in this environment the resulting strategy almost worked itself out.

What Is the Purpose of a National Constitution?

13th Century Magna Carta

NATIONAL constitutions are mainly an outgrowth of the 18th Century Enlightenment, even though similar features are to be found among ancient legal codes. Those who trace the origins of the American constitution to the 13th Century Magna Carta will usually point to a central sentence of clause 39:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.

American Constitution

That's a pretty good beginning, a good example of a needed legal principle, but unrecognizable as what we would today call a Constitution. It states what a government may not do, but does not define the nature of a government which does the job best. Nor do even the many Enlightenment philosophers of government take that final step of outlining where their notions should take us until the American Constitution had been written and defended in the Federalist papers. Nowhere among the writings of Montesquieu (The Spirit of the Laws, 1748), Catherine the Great (Nakaz, Instructions to the All-Russian Legislative Commission, 1767), Diderot (Observations About Nakaz, 1774), James Madison (1787), John Dickinson(1763) or Gouverneur Morris(1787) can there be found much tightly described definition of a constitution. Certainly, there is no definition within the writings of Adam Smith if we look for rule-making among Enlightenment thinkers whose ideas were influential on the 1787 Philadelphia document. The American constitution was the product of many minds, before and after 1787. The outlines of its final form converged, and emerged, from the Constitutional Convention of the summer of 1787, with Gouverneur Morris as the penman of record. To him, we certainly owe its succinctness, which is the main source of affection for the document. That probably understates matters; in his diary of the secret meetings, James Madison records that Gouverneur Morris rose to speak about 170 times, more than any other delegate. Lots of thought and debate; ultimately, few words.

The Elizabethan Sir Francis Bacon has the greatest claim on devising a theory of law and law-making in the Anglosphere tradition. But his elegant modification of Galileo's scientific method, the English Common Law, is more a methodology for creating good laws than an outline of a nation's legal principles. Anyway, tracing the American Constitution back to an underlying British one tends to stumble when the British Constitution fails to meet a definition which would include our own. The British Constitution is said to be "unwritten" to the degree it is a consensus of revered documents. It can be amended by Parliament at will, has a variable history of defining just who is covered by it, and in order to define constitutional principles seems to rely on sentences extracted from difficult context. If the two constitutions had been written and compared at the same time, one would say the British had sacrificed coherence out of respect for tradition. In fairness, some features of the American constitution are also perhaps unnecessary for every constitution, but by surviving as the oldest constitution of the modern form, have become its model. That would be:

A set of principles governing the legitimacy of a nation's laws, and firmly standing above them. It defines its own domain, geographically and by the membership of a defined citizenry. Except as otherwise defined, it supersedes all other governance within its domain. It defines and defends its own origins. It includes a description of how to amend it, which is intentionally infrequent and difficult. It goes on to outline the structure of the laws it regulates, with subtle modifications made to channel the type of power structure which will govern.

In the American case, history and culture generated several other instabilities so central they justified heightening the difficulty to amend them to a Constitutional level, thus conferring undisputed dominance over competing principles of governance. That would be:

A separation of government powers weakened all potentially offending branches of government, and thus enhanced citizen liberty. Separation of church from state, for like purpose. A right of citizens to bear arms, to strengthen citizens' defense against internal or external attack, and perhaps also warning that revolt must be possible, even endorsed, as some final extremity of protection for citizen sovereignty.

Russia's Catherine the Great

It enhances our comprehension to contrast the outcomes of competing 18th Century implementations of the Constitution idea. Russia's Catherine the Great proposed a constitution steeped in the traditions of the Enlightenment but ultimately designed to define and strengthen the role of the monarch. Denis Diderot her French protege recoiled at this viewpoint, substituting other views resembling those of Jean Jacob Rousseau. He opened Observations About Nakaz his commentary to the Queen, with the following declaration:

There is no true sovereign except the nation; there can be no true legislator except the people. Whether looking back to the English Civil War or forward to future disputes between the Executive and Legislative branches, it makes clear the Legislative branch was dominant, with the Executive branch acting as its agent.

Denis Diderot

With this ringing warcry, the French model nevertheless ushered in the extremes of the Terror, the Guillotine, and the Napoleonic conquests. The consequences of the French constitution undermined world confidence in the benevolence of public opinion, at least deeply confounding those for whom the democratic rule was not totally discredited. Once more new life was breathed into allegiance for the monarchy, military rule, and dictatorship. Public opinion, it seemed, was not either invariably benign or comfortably far-seeing. The noble savage, mankind naked of tainted civilization, was not necessarily wise or worthy of trust. Edward Gibbons, the 1776 author of The Decline and Fall of the Roman Empire was pointing out where it all might lead if we completely believed in the collective goodness of the human condition. At the least, the failure of the French Revolution complimented the viewpoint of the Scottish philosopher, Adam Smith, who also in 1776 emphatically urged a switch in that reliance toward a sense of enlightened self-interest, as follows:

It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner but from their regard to their own interest.

Terror, the Guillotine,

It is not surprising that Diderot rejected the Leibniz view of things that "All is for the best, in this best of all possible worlds." And, in view of his dependence on Catherine, not surprising he did not publish his rejection of it until 1823. Thomas Jefferson was in France as ambassador during the time of the American Constitutional Convention, fearing to confront George Washington; and likewise keeping his conflicting views private for several years. Eventually, they surfaced in the creation of an anti-Federalist political party along with the conflicts which kept the new nation in a turmoil for the following forty years. It is surely a testimony to the strength of the Constitution's design that the country was able to shift between such extreme governing philosophies but still hold together without changing the governing statement of purpose. Indeed, it is plausible to contend that our two political parties still continuously debate the useful tension between these two differing opinions.

Penman of the Constitution

Gouverneur Morris

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

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

Preamble to the Constitution

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

John Peter Zenger

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

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

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

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

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REFERENCES

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

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After the Convention:Hamilton and Madison

Signers

The Federalist Papers were written by three founding fathers after the Constitution had been completed and adopted by the Convention. Detecting hesitation in New York, the aim was for publication in New York newspapers to persuade that wavering State to ratify the proposal. It is natural that The Federalist was composed of arguments most persuasive to New York, putting less stress on matters of concern to other national regions. This narrow focus may explain the close cooperation of Hamilton and Madison, who must surely have suppressed some latent concerns in order to present a unified position. In view of how much emphasis the courts have placed on the original intent of almost every word in the Constitution, it seems a pity that no one has attempted to reconcile the words of the principal explanatory documents with the hostile disagreements of their two main authors, almost as soon as the Constitution came into action. Perhaps the psychological hangups would be more convincingly dissected by playwrights and poets, than historians.

John Jay wrote five of the essays, mostly concerned with foreign relations; his presence here highlights the historical likelihood that Jay might have been the one who first voiced the idea of replacing the Articles of Confederation. At least, he seems to have been first to carry the idea of a general convention for that purpose to George Washington (in a March 1786 letter). The remaining essays of The Federalist were written under the pen name of Publius by Alexander Hamilton and James Madison, both of whom had a strong enough hand in crafting the Constitution, but who quickly became absolutely dominant figures in the two central political factions after the Constitution was actually in operation. And their eagerness to be central is itself telling. They were passing from a stage of pleasing George Washington with his favorite project, into furthering a platform for launching their own emerging agendas. It is true that Madison's Federalist essays were mainly concerned with relations between the several states, while Hamilton concentrated on the powers of the various branches of government. As matters evolved, Hamilton soon displayed a sharper focus on building a powerful nation; Madison scarcely looked beyond the strategies of internal political power except to see clearly that Hamilton was going to get in the way. These two areas are not necessarily incompatible. But it is nevertheless striking that two such relentlessly driven men could work together to achieve the same set of rules for the game they were about to play so unflinchingly. Thomas Jefferson had been in France during the Constitutional Convention. It was he who was most dissatisfied with the resulting concentration of power in the Executive Branch, but Madison eagerly became the most active agent for forming the anti-Federalist party, with all its hints that Washington was too senile to know the difference between a President and a King. Washington abruptly cut him off and never spoke to Madison after the drift of his opinions became undeniable. Today, it is common to slur politicians for pandering to lobbyists and special interests, but that presents only weak competition with the personal forces shaping leadership opinion, chief among them being loyalty to, and perceived disloyalty from, close political associates.

As a curious thing, both Hamilton and Madison were short and elfin, and both relied for influence heavily on their ability to influence the mind of

George Washington

George Washington, who projected the power and manner of a large formidable athlete. Washington had no strong inclination to run things and, once elected, no particular agenda except to preside in a way that would meet general approval. He had mainly wanted a new form of government so the country could defend itself, and pay its soldiers. Madison was a scholar of political history and a master manipulator of legislative bodies, while Hamilton's role was to supply practically unlimited administrative energy. Washington was good at positioning himself as the decider of everything important; somehow, everybody needed his approval. On the other hand, both Madison and Hamilton were immensely ambitious and needed Washington's approval. This system of puppy dogs bringing the Master a bone worked for a long while, and then it stopped working. Washington was very displeased.

The difference between these two short men immediately appeared in the way they chose a role to play. Madison the Virginian chose to dominate the legislative process as the leader of the largest state delegation within the

Alexander Hamilton

House of Representatives, in those days the dominant legislative chamber. Hamilton sought to be Secretary of the Treasury, in those days the largest and most powerful department of the executive branch. It's now a familiar pattern: one wanted to form policy through dominating the board of directors, while the manager wanted to run things his way, even if that led in a different direction. Both of them knew they were setting the pattern for the future, and each of them pushed his ideas as far as they would go. Essentially, this could go on until Washington roused himself.

After a short time in office, Hamilton wrote four historic papers about two general goals: a modern financial system, and a modern economy. For the first goal, he wanted a dominant national currency with mint to produce it and a bank to control it. Second, he also wanted the country to switch from an agricultural base to a manufacturing one. You could even say he really wanted only one thing, a national switch to manufacturing, with the necessary financial apparatus to support it. Essentially, Hamilton was the first influential American to recognize the power of the Industrial Revolution which began in England at much the same time as the American Revolution. Hamilton was swept up in dreams of its potential for America, and while puzzled -- as we continue to be today -- about some of its sources, became convinced that the secrets lay in the economic theories of

David Hume

David Hume and Adam Smith in Scotland, and of Necker in France. Impetuous Hamilton saw that Time was the essence of opportunity; we quickly needed to gather the war debts of the various states into the national treasury, we quickly needed a bank to hold them, and a mint to make more money quickly as liquidity was needed. It seemed childishly obvious to an impatient Hamilton that manufacturing had a larger profit margin than agricultural products did; it was obvious, absolutely obvious, that this approach would inspire huge wealth for the new nation.

Industrial Revolution

Well, to someone like Madison who was incredulous that any gentleman would think manufacturing was a respectable way of life, what was truly obvious was that Hamilton must be grabbing control of the nation's money to put it all under his own control. He must want to be king; we had just got rid of kings. Furthermore, Hamilton was all over the place with schemes and deals; you can't trust such a person. In fact, it takes a schemer to know another schemer at sight, even when the nature of the scheme was unclear. Madison and Jefferson couldn't understand how anyone could look at the vast expanses of the open continent stretching to the Pacific without recognizing in this must lie the nation's true destiny. Why would you fiddle with pots and pans when with the same effort and daring you could rule a plantation and watch it bloom? If anyone had used modern business jargon like "Win, win strategy", the Virginian might well have snorted back, "When you say that to me, friend, smile."

Declaration of Rights of the Continental Congress, October 14, 1774

John Sulllivan

Whereas, since the close of the last war, the British Parliament, claiming a power of right to bind the people of America, by statute, all cases whatsoever, hath in some acts expressly imposed taxes on them and in others, under various pretenses, but in fact for the purpose raising a revenue, hath imposed rates and duties payable in these colonies established a board of commissioners, with unconstitutional powers, and extended the jurisdiction of courts of admiralty, not only for collecting the said duties but for the trial of causes merely arising within the body of a county.

And whereas, in consequence of other statutes, judges, who before held only estates at will in their offices, have been made dependent on the Crown alone for their salaries, and standing armies kept in time of peace:

And whereas it has lately been resolved in Parliament, that by force of a statute, made in the thirty-fifth year of the reign of Henry the Eighth, colonists may be transported to England, and tried there upon accusations for treasons, and misprisions, or concealments of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned.

And whereas, in the last session of Parliament, three statutes were made; one, entitled "An act to discontinue, in such manner and for such time as are therein mentioned, the landing and discharging, lading, or shipping of goods, wares, and merchandise, at the town, and within the harbor of Boston, in the province of Massachusetts Bay, in North America"; and another, entitled "An act for the better regulating the government of the province of the Massachusetts Bay in New England"; and another, entitled "An act for the impartial administration of justice, in the cases of persons questioned for any act done by them in the execution of the law, or for the suppression of riots and tumults in the province of the Massachusetts Bay, in New England." And another statute was then made, "for making more effectual provision for the government of the province of Quebec, etc." All which statutes are impolitic, unjust and cruel, as well as unconstitutional, and most dangerous and destructive of American rights.

And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the Crown for redress, have been repeatedly treated with contempt by His Majesty's ministers of state:

The good people of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, New Castle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of Parliament and administration, have severally elected, constituted, and appointed deputies to meet and sit in general congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties may not be subverted.

Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare, That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and the several charters or compacts, have the following rights:

Resolved, N. C. D. [Nemine contradicente, no person disagreeing]1. That they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent

Resolved, N. C. D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.

Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them, to exercise and enjoy.

Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, can not properly be represented in the British Parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British Parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent.

Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

Resolved, N. C. D. 6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

Resolved, N. C. D. 7. That these, His Majesty's colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.

Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitment for the same, are illegal.

Resolved, N. C. D. 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.

Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure by the Crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation.

All and each of which the aforesaid deputies, in behalf of themselves and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures.

[Author: John Sulllivan, Delegate and later Governor, New Hampshire]

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REFERENCES

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A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and ... Designed for the Use of School Libraries and General Readers; Joseph Story: ISBN-13: 978-1886363717

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