Philadelphia Reflections

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

7 Volumes

Constitutional Era
American history between the Revolution and the approach of the Civil War, was dominated by the Constitutional Convention in Philadelphia in 1787. Background rumbling was from the French Revolution. The War of 1812 was merely an embarrassment.

Philadephia: America's Capital, 1774-1800
The Continental Congress met in Philadelphia from 1774 to 1788. Next, the new republic had its capital here from 1790 to 1800. Thoroughly Quaker Philadelphia was in the center of the founding twenty-five years when, and where, the enduring political institutions of America emerged.

Four Constitutions
Multi-national unions of republics are uncommon, usually brief and seldom voluntary. America has had three of them, but we only got it right the second time. Uncertain why we succeeded when many others failed, we remain skeptical of changing the rules. The Europeans, on the other hand, are uncertain whether they want to follow the Confederate States of America toward extinction, or the United States of America toward world domination. When deeply considered, it is a hard choice.

Worldwide Common Currency and Corporate Headquarters
The Death of Money

Differences Between Europe and North America
Why Can't the Europeans Be More Like Us?

The American Constitution
Ours is the first written Constitution, and the only one which has lasted two hundred years.

European Common Market and the American Constitution Compared
It is an interesting question how similar the constitutions of the European Union and the United States are, while reaching dissimilar outcomes. A real question arises whether further small modification might trigger major changes, or whether Constitutions are just less important than our Founding Fathers believed. If we expect different outcomes, It can be an important question.

Westphalia: Church Politics Adjusts Boundaries, Then Everything Changes

In 1648, the Treaty of Westphalia created the modern nation-state.

Europe, 1640-1776

After the Holy Roman Empire adopted a system of nation-states at the Peace of Westphalia in 1648, unified religious governance in Germany ended. Much of Europe, whether Catholic or Protestant, slowly followed. European colonists carried this new concept of governance to the corners of the world, throughout the Seventeenth Century. There was a high price in civil wars as things sorted out. Citizen interest became more nationalized, national interests became more parochial, more concentrated by its boundaries -- to the land within those boundaries. Piracy at sea was another unexpected, and undesirable, consequence. Before that, Kings had been mostly just warrior or nomad chieftains, and territorial borders were fluid. Now that they had official boundaries, kings had something new to fight about. There were many subtle features to the treaty which we will only briefly mention. For America, two features stand out: 1) Splitting up the dominance of German Catholicism and 2) New land arrangements between the former nomads and their rulers.

Peace Westphalia

To participate in the Westphalian Treaty negotiation, you had to be a German Catholic. That excluded American Protestants, and explains why "Taxation without Representation" was a popular slogan at Lexington and Concord, greater Boston and New England. They had some local issues, as well, for instance, they did not get along well with Quakers and immigrants. Pennsylvania and New York were suddenly annoyed that England had a succession of three German Georges as Kings, had major immigrations of Germans around 1720 to the point where Pennsylvania came within one vote of making German the official language. And in 1775 Admiral Howe had the misfortune of commanding 300 troop transports of largely Hessian mercenaries to Staten Island, to enforce this anti-aristocratic provision of the North Administration, The Prohibitive Act of 1764 they probably privately held mixed feelings about. Thus enforcing an Act of Parliament, Admiral Howe offered the Westphalian choice of being hanged for armed rebellion, or declaring Independence and fighting for it at a treaty (of Paris) conference. That is, all thirteen English colonists could now simultaneously see little choice at all between being hanged for rebellion and fighting for Independence, enforced by a German king, a German immigration flood, and Hessian mercenary soldiers, all of which was unpleasant news to them, voted by German electors at a diplomatic conference to which they had not been invited. There were no more than a dozen colonial lawyers who grasped what might happen to Treaties with the Indian natives, but they were highly suspicious and in no mood to agree. Dickinson was selected by the colonists to write the Articles of Confederation (ratified in 1781), and Thomas Jefferson was to nail up some sort of public declaration a few days later. We don't subsequently hear much from John Adams and the other New Englanders about "Taxation without Representation", but Independence got them twelve military allies, so they were probably happy to settle for it. The Article of Confederation that Dickinson hastily wrote had plenty of faults, but they served to demonstrate the colonists were fighting for an independent nation, not armed rebels that ought to be hanged for making trouble. Present British opinion is that some high-handed Parliamentarians had unthinkingly thrown away a vast empire. They are probably correct.

Holy Roman Empire
A Pope, an elected king without a wife or legitimate offspring, had seemed about as far as one could go with narrowing succession into an elected monarchy, and even that system didn't work to everyone's approval. The underlying causes of disunity were probably religious, especially a weakening of belief in the divine right of kings. The new concepts were largely those of Cardinal Mazarin, Finance Minister of King Louis XIV of France, the Sun King.
Henceforth, a national plot of land should have fixed boundaries, within which, and exclusively within which, the local King purported to establish the rules. The King's religion usually defined the established religion of the country which could change if the King changed. The King owned all property in the nation and could shift its ownership arbitrarily, particularly when he needed military support. Private land might occasionally be transferred between individuals within kingdoms, but it remained the King's sovereign territory enforced by the courts; therefore a compromise distinction was established between private transfers of ownership and "alienation", which could thenceforward only be negotiated between kings. The definition of land ownership as "the King's final word" within legally established boundaries, may sound bizarre but it was firm.

The subsequent lack of individual religious freedom and the uncertainty of property transfer soon became two chief irritants, prompting revolts, emigration, and atheism. There was turmoil at first, but in time things settled out. The system wasn't perfect, but it was an improvement.

A particular problem for the Cardinal was that Pope Innocent X felt betrayed and disliked these ideas intensely. The Peace of Westphalia did bring an end to the Eighty Year War between Spain and the Dutch, as well as the Thirty Year war involving the ruling houses of Habsburg, France, Sweden, and others. Europe's era of religious warfare was now over, and secular rule was spreading. Few would disagree with ending an eighty-year war, no matter what the issues were. Although occasional wars continued to break out, the Treaty of Westphalia ushered in an era of relative peace. Except for the eight-year Revolutionary war.

The Treaty of Westphalia created the modern nation-state, limiting sovereignty to fixed boundaries. Everyone soon had a sovereign ruler with fixed boundaries. While there had been kings for centuries, what was new was fixed boundaries; the boundaries, not so much the tribe, defined what the king ruled. Monarchy adequately addressed successions and wars, but nations had outgrown the ability of one family to rule. The abandonment of inherited succession was often less gradual than the fact of it. Gradualism suited the European temperament better than revolution.

By 1640, Europe chafed at the corruption and red tape which seemed to appear with too much centralization and sought a way to split it up. By 1950 its wars were worse and its economy trailed America's, so perhaps it might have gone too far with decentralization, provoking wars to attain more appropriate size. There was something to that theory, but apparently not enough to overcome centuries of mutual hatreds, language barriers, and provincialism. Somehow Europe needed something else to restore trust between nations accustomed to distrusting each other. When Europe was coping with reversing the splits of Westphalia without using the military methods of Napoleon, Hitler and Stalin, the thought leader was the President of the Banque de France, Christian Noyer. Reversing the American approach of 1789, Noyer proposed re-unifying one step at a time but buttressing each agreement with benefits of success by actually enlarging the number of participating nations. He knew central financing best, and proposed a unified currency, within a customs union. The proposal met with acclaim, and Noyer crowed at a Philadelphia conference that "Everybody wants to join, nobody wants to leave." He was wrong. The boundaries defined what a king ruled over, but not how to change the boundary. But when it was time to change boundaries, the king usually decided. What was needed was a legislature, not a treaty. And some reason had to exist for trust, so they resorted to regulation by experts rather than compromise. They needed both but in different mixture.

As an old example, the size and location of canals under Louis XIV had four centuries earlier, achieved an immediate stimulation of commerce, while the heavy investment in such infrastructure over three centuries had required additional peace and stability for its own survival. Once the trade patterns adjusted to the new waterways, local interests decided it had become urgent to maintain them where they were, a largely unanticipated situation. The rest of Europe felt that France preferred the advantage of sole ownership of the canal to the advantages of wider use; some of this was undoubtedly true. Once language patterns and religions became established within certain boundaries, it became materially harder to change them, although it was not impossible, as Switzerland demonstrated. The unifying function of language was considered an advantage for four hundred years but was now a major obstacle to achieving continental unity. In the end, both canals and the monetary approach were failures in dissuading political forces from compromise. It is unclear at present if the monetary turmoils of Cyprus and Greece were really causative or not, or whether, like the Canal du Midi, were merely an inflexibility of local competition. America found enough charity to manage; somehow, Europe has not.

After many modifications caused by three centuries of wars, depressions, and politics, this is the basic pattern which the Europeans had now decided to change, following the American example of a continent-wide republic. They had twenty-five (or more) nations to unify instead of the American thirteen, speaking far more than our one language, scarred by many more than just one civil war, many more industrial conflicts, more religious diversity, and at the moment, a financial crisis. The constitutional goals are not radically different from the U. S. Constitution, but since so much of the American approach was based on subtleties it is not possible to be confident whether the Europeans had omitted something vital or not. It was understandable for them to unify institutions in small steps, starting with a unified currency. But they were unlucky in their timing. Unifying a common currency during a world financial panic is proving to be the hardest step, not the easiest. And after centuries of blowing their own horns, they had actually come to believe their own self-praise and expressions of contempt for their neighbors.

Europe, Looking Ahead From 2020

All we can do is relate our own experience, so let's return to it for the bulk of this discussion. It is unclear whether George Washington was looking for a scholar of such things, or James Madison was looking for a figurehead, but somehow these two Virginians formed a two-generation post-revolution team. Washington was a dissatisfied hero with a few simple goals, Madison had studied how to make them happen. He was young enough to be trusted to follow orders. Robert Morris was experienced enough to think for himself. and he added financial sophistication of a needed sort, John Dickinson was a thinking politician and a brilliant lawyer, Ben Franklin had experienced thirty years of politics on both sides of the aisle; he was a rebellious sort, but he knew how to keep his mouth shut and cavort with the ruling class. Most of all he gave credit to others, for what were mostly his own ideas. Gouverneur Morris knew how to choose persuasive words for a client without necessarily agreeing with him, so deception was part of our secret sauce. The others had mostly grown accustomed to their lead during the Revolution, and this handful of comrades decided that splitting had gone too far; some allies were needed but at arm's length.

A certain amount of unification was necessary for survival, and this group of friends decided to make a blueprint for how it might work. And how it might be improved by pleasing the public. They argued at a convention in Philadelphia in 1787, even made some necessary compromises with other comrades, like Patrick Henry and other Virginians, who felt that excessive unification was a particular source of trouble. Often, the chief resisters to unification had either been skipped as delegates or refused to make the trip to Philadelphia. This handful of men picked others who would assist in ratification. And this combination put together a plan which would outlast every other plan, at least for two hundred years. The resistance was mostly outside the convention; ratification was the battlefield, and the Federalist Papers , written by Madison, Hamilton, and John Jay, were the weapons of the unifiers. The unifiers won, but they learned the scattered opposition was stronger than they thought. The resulting Constitution, out of deference to the minority, added a Bill of rights to a finely balanced document. Remember, we feel one of our secrets was to balance power, changing control after one side had worn itself out, letting the others have a chance, peacefully. In fact, if someone wants control badly, maybe he shouldn't get it.

As an interesting sidelight, the much-abused Conrad Black of Canada has a different scenario, worth a moment to consider. According to Black, the Americans got the British to help throw out the French and then turned right around to get the French to help throw out the British. His implication is strong that the Americans had only wanted America for themselves, all along. It's a clever cocktail story, much like the ways Europeans are talking about their neighbors, but it doesn't match the wave-length on which international politics actually operate. European newspaper owners may well talk like that, but American farmers and shipowners operate on a much more emotional level.

Essentially, the Americans had all this thrown at them when Admiral Howe's enormous fleet appeared at Staten Island ninety miles away in 1775. Lawyers at Whitehall had arranged the new laws as a legal trap: do you want to be hanged as an armed rebel, , or do you want to try for Independence and try to fight us? To Howe' s surprise, the colonists saw this as no choice at all. Dr. Warren and Paul Revere's " Taxation without Representation" was out -- Thomas Jefferson's "Declaration of Independence" was in. Or had it always been Franklin's idea, since 1754 at the Albany Conference?

Why Do We Need a Constitution?

There was a long interval between the Battle of Yorktown, and the Treaty of Paris, three thousand stormy miles away. The British were in no hurry, and Washington dared not disband his army until a treaty was complete. So Washington holed up at Newburgh, NY with nothing to do but write letters to his friends, Even here, he acted as a General. Alexander Hamilton organized a group of letter-writers, to copy and improve upon his "Circular Letters" to his influential friends. Originally, the purpose was to hold the Army together while everyone waited, but over time the letters offered ideas for a new nation. Washington had eight years to watch how the Revolution progressed -- plenty of time to see how things might be improved. Somewhere along the way, he collected Hamilton and James Madison as young, ambitious, smart and loyal agents. Their ideas were welcome, but there was no question who was in charge. When the time came, George Washington presided over the meeting but said very little. He didn't need to.

Over two hundred years later, it is clear the American Constitution was so unique it was to be seen as the first written Constitution, and the only one to survive so long. Much imitated, it was singularly terse and to the point. Gouverneur Morris was a well-trained lawyer, and the only titled aristocrat among the founding fathers, so professional that no one has come forward to claim perjury or deviation from the client's intent. And yet this penman of the Constitution was to renounce his own product during the War of 1812. We see in retrospect that in spite of its brevity it has only been amended twenty-odd times, mostly to expand the voting franchise. Just what the real secret of success might have been, remains a mystery. The secret is so obscure most detractors are afraid to touch it. The Supreme Court, for example, is charged with deciding what it means, but with 9 times 80 opportunities a year to suggest improvements in 'the law" they rarely do so, even when it is clearly established the Court has a right to return legislation whenever it is "void for vagueness".


REFERENCES


The Perils of Peace: America's Struggle for Survival After Yorktown Amazon

THE ENGLISH SETTLEMENTS 1619-1776 (Vol 189)

At first, the British Empire wasn't even British, it was English. English history, English religion, English unification, even English court intrigue, and gossip. When Sir Francis Drake brought home the Spanish gold, it was welcome enough, but it was just part of the English Revolution, on its way to becoming the British Empire. English settlers were just a curiosity, like the "Indians" they brought home. England was Ben Franklin's idea of home, left behind by his prosperous family because of largely religious quarrels. The silk-dye Franklins, by the way, had to start over at the bottom in Boston because Cotton Mather's crowd wouldn't accept their money, or see their side of a silly English religious quarrel. England was, in fact, everybody's home, intellectually, although that was fast coming to an end. Because of the plague and the fire, lots of things were coming to an end, and lots of other things were just starting. For now, the important thing was they were people of former substance, wide acquaintance, and thoroughly English. Whiggish and out of favor perhaps, but not seriously in rebellion.

When they got to America, the whole Franklin family was rambunctious and supported itself with sister Jane's invention of bar soap, her father's candle-making shop, and brother James' printer shop. They got in trouble somewhat with a straight-laced community, but most of their troubles would be called "scrapes" and "quarrels" of a family trying to re-establish itself in new circumstances. When he got to Philadelphia, Benjamin repeated the performance. Arriving at a strange town as a penniless teenager, he turned a print-shop into a chain of newspapers and was ready to retire to his hobbies and politics at the age of 42. Along the way, he learned to keep his mouth shut.

Franklin was not an aristocrat, but there were scarcely any aristocrats who did not seek him out. In spite of writing one of the most famous autobiographies in America, few people could be certain of his religion, his marital status, his politics. He was definitely not a Quaker, but for a while, he led the Quaker faction. He never went past the second grade, but would have won a Nobel prize if there had been such a thing, and financed his own research. He spent eighteen years living in London, inventing a musical instrument which pleased Mozart, and regularly visiting Parliament. When the King's Saint Paul Cathedral was struck by lightning, the King sought his advice. When King George III rejected this advice, the personal quarrel turned him into a personal enemy of the King. As a consequence, he finally turned rebel, joined the Continental Congress, and eventually helped write the American Constitution. At the Albany Conference of 1754, he had proposed a Union of the Thirteen Colonies and lived to see it a reality in 1789. But in spite of that, it took a personal confrontation with King George III to convince him Independence was a good idea. In spite of his greatly praised autobiography, no one suspected it of him. No one seems to have known.

William Penn, Excellent Lawyer, Terrible Businessman

Richard Dunn, who with his wife Mary Maples Dunn stand as the two core authorities on the life of William Penn, merely smiles when asked to describe what Penn was really all about. "What we need is to have one good biography emerge," said he, "but it isn't easy to guess what it will say". For the present, let's just sketch a few paradoxes which somehow need threading together.

{Privateers}
Richard Dunn

In the first place, the wealth of William Penn can only be described as prodigious. His father had played a central role in restoring the Stuart monarchs, and in the course of it had conquered for the Crown the enormously valuable property of the Island of Jamaica. For these efforts, the father had been rewarded with extensive properties in Ireland and a highly influential position at Court. To all of this was overgenerously added as debt repayment, the American territories which have now become the states of Delaware, New Jersey, and Pennsylvania. Actual ownership of some of this was shared with others, but all of it was quite effectively controlled by young William. No one else stands even close as the largest private landholder in American history. But to appreciate the immensity of his wealth, it should be understood that he treated this property as a sort of hobby. Over the course of his lifetime, the colonies lost money, and Penn subsidized them rather seriously from his other assets.

At the same time, Penn lived vastly beyond his income in ordinary ways, becoming heavily indebted, eventually going to debtor's prison. It probably was not necessary; his sons renounced Quakerism and made a profit on the colonies after they inherited them. Although he could display remarkable organizational talent, particularly in the organization of New Jersey, his management was mostly slack, his judgment of agents often proved too trusting, and he permitted himself to be exploited by poorly-designed contracts to his eventual financial ruin. Even that might not have been serious; he displayed a towering legal mind in the devising of the doctrine of jury nullification and was the winner in a great many lawsuits. He even demonstrated he was capable of winning dubious lawsuits, soundly defeating Lord Baltimore in a border dispute over Maryland which others have said showed Baltimore had the stronger case. We know he had influence at Court, and such legal victories suggest he might on occasion have taken full advantage of it.

{Gulielma Maria Springett}
Gulielma Maria Springett Penn

From the sound of things, some have concluded Penn was so rich and powerful he grew careless about his own best interests, which essentially needed very little defense. In particular, he gave this impression to his fellow Quakers, who concluded he did not need nor likely would stoop to collecting what he was owed in taxes and property sales. This cavalier attitude encouraged the early Quaker merchants to follow their own advantage without shame, and as it happened with great vigor. The Constitutions he devised for the colonies are frequently cited as the brilliant cornerstones of fairness and stability, ultimately the models for much of our present Constitution. Penn really was sincere in wanting to provide a better life for the working people than they could have at home in England. But in the Seventeenth Century, the modest role he devised for the Proprietor commanded little respect and was not one his aggressive clients would have chosen for themselves in his position. Perhaps the most generous description of their passive aggression would be that he taught power and governance to be the collective possession of the whole Quaker meeting, so the leaders of the meeting simply took him at his word. For their part, there can be little doubt of their commercial talents; trade and industry immediately thrived in the colony. However, sharp, aggressive trade and commerce were not things a gentleman would himself want to associate with.

Unfortunately, the historical records of the early colonies are not good; for the most part, we have to surmise the struggles and frictions between a rich, financially careless, and sincerely earnest theologian in his contention with a group of poorly educated strivers who had been told he regarded each of them to be his equal. As the saying goes, he was rich beyond denying. And therefore, he was probably arrogant beyond his own ability to see it as a flaw.

Equal before the law, perhaps, and equal in the prayers of First-day Meeting. But everything about his upbringing, his social circle in London, and his staggering wealth suggested that even a saint would have trouble believing, deep in his heart, that these were truly his equals. And even if perchance he did believe it, they would not have believed it for a moment, had their positions been reversed. Penn certainly acted as though he believed in religious freedom, serene in the idea that if every person earnestly thought hard about ethical issues, everyone would eventually reach about the same conclusion. The elders of the meeting, however, behaved in ways which suggested they would personally prefer non-Quakers to settle somewhere else, and given half a chance would create Quakerism as an established church. There seemed to be those who felt that Friend William was perhaps a little too trusting. And anyway there were some obvious paradoxes. William Penn kept personal slaves.

{Hannah Callowhill Penn}
Hannah Callowhill Penn

With two wives, William Penn had thirteen children. Among them was considerable diversity of opinion, along with the same tendency to rebellion found in any two generations. Early illnesses and chance led to the emergence of those children who renounced Quakerism and showed no shame at all about wanting to have money in order to spend it recklessly. One would have supposed that a man of Penn's intellectual stature would have been able to control his family better, but his own reckless youth had been so extreme that he had few arguments available when, as seems virtually certain, rebellious children defended themselves by reminding him of his own indiscretions. William Penn displayed absolutely no sense of humor; a touch of it would have been useful in mastering a family and friends who were undoubtedly having a little trouble knowing what to make of this apparition in their midst. Some equally pompous Pennsylvania merchants might have had difficulty denying that in their passive aggression, they occasionally resembled the spoiled brats with whom he found he had ample family association.


REFERENCES


Remember William Penn, 1644-1944: A Tercentenary Memorial : Edward Martin: ISBN-13: 978-1258369934 Amazon

Jury Nullification

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Tom Monteverde

We must be grateful to the late distinguished litigator, Tom Monteverde, for reminding us of the importance of the jury in American history. Juries seldom realize how much power they can have if they unite on a common purpose. In fact, juries have the implicit right to veto almost anything the rest of government does, by rendering it unenforceable. If the jury opinion is a majority view, nothing but a civil war can legally stop them. So it helped Washington to have jury nullification seem an invincible Quaker idea, while the South trusted a rich slave-owner who had renounced power.

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William Penn

The right to a jury trial originated in the Magna Carta in 1215, but a jury's essentially unlimited power was established four centuries later by Quakers. The legal revolution grew out of the 1670 Hay-market case, where the defendant was William Penn, himself. Penn was accused of the awesome crime of preaching Quakerism to an unlawful assembly, and while he freely admitted his guilt he challenged the righteousness of such a law. The jury refused to convict him. The judge thus faced a defendant who said he was guilty and a jury who said he wasn't. So, the exasperated judge responded -- by putting the jury in jail without food.

The juror Edward Bushell appealed to the Court of Common Pleas, where the problem took on a new dimension. The Justices certainly didn't want juries flouting the law, but nevertheless couldn't condone a jury being punished for its verdict. Chief Justice Vaughn decided that intimidating a jury was worse than extending its powers, so the verdict of Not Guilty was upheld, and Penn was set free. Essentially, Vaughn agreed that any jury that wasn't allowed to acquit was not really a jury. In this way, the legal principle of Jury Nullification of a Law was created. A verdict of not guilty couldn't make William Penn innocent, because he pleaded guilty. A verdict of not guilty, under these circumstances, meant the law had been rejected. Jury nullification thus got to be part of English Common Law, hence ultimately part of the American judicial system.

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Andrew Hamilton

This piece of common law was a pointed restatement of just who was entitled to make laws in a nation, whether or not nominally it was ruled by a king or a congress. Repeated British evasion of the principles of jury trial became an important reason the American colonists eventually went to war for independence, and probably a better one than some others. The 1735 trial of Peter Zenger was an instance where Andrew Hamilton, the original "Philadelphia Lawyer", convinced a jury that British law, blocking newspapers from criticizing public officials for improper conduct, was too outrageous to deserve enforcement in their court. In that case, jury defiance became even more likely when the judge instructed the annoyed jury that "the truth is no defense". Benjamin Franklin's Pennsylvania Gazette was here quick to come to the side of jury nullification, saying, "If it is not the law, it ought to be law, and will always be law wherever justice prevails." Franklin quickly became allied with Andrew Hamilton, who became Speaker of the Pennsylvania Assembly.

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John Hancock

The Zenger case was often stated to be the origin of the Freedom of the Press in our Constitution fifty years later, but in fact the First Amendment merely provides that Congress shall pass no laws like that. Hamilton had persuaded the Zenger jury they already had the power to stop enforcement of such tyranny, and the First Amendment could be seen as trying to prevent enactment of laws that will foreseeably incite a jury to revolt.

The Navigation Acts of the British government, for example, were predictably offensive to the American colonists, whose randomly chosen representatives on juries were then rendered useless with their wide-spread refusal to convict. This, in turn, provoked the British ministry. John Adams 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 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 grasped where the French Revolution was heading. 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 was scarcely need for any emphasis.

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Slave

And then, the Fugitive Slave Law of 1850 began to sink in. It became evident that juries in the Northern states would routinely refuse to convict anyone under that law, or under the Dred Scott decision, or any other similar mandate of any branch of government. In effect, Northern juries threw down the gauntlet that if you wanted to preserve the right of trial by jury, you had better stop prosecuting those who flouted the Fugitive Slave law. In even broader terms, if you want to preserve a national government, you had better be cautious about strong-arming any impassioned local consensus. A rough translation of that in detail was that no filibuster, no log-rolling, no compromises, no oratory, no threats or other maneuvers in Congress were going to compel Northern juries to enforce slavery within their boundaries of control. All statutes lose some of their majesties when the congressional voting process is intensely examined, and public scrutiny of this law's passage had been particularly searching. Even if Southern congressmen would be successful in passing such laws, it wasn't going to have any effect around here. The leaders of Southern states quickly got a related message, and their own translation of it was, "We have got to declare our independence from this system of government that won't enforce its own laws". If juries can nullify, then states can nullify, and the national union was coming to an end. Both sides disagreed so strongly on this one issue they were willing, for the second time, to risk war for it.

Ku Klux Klan

The idea should be resisted that Jury Nullification is always a good thing. After the Civil War, many of the activities of the Ku Klux Klan were tolerated by sympathetic juries. Many lynch mobs of the Wild, Wild West were encouraged in the name of law and order. Prohibition of alcohol by the Volstead Act was imposed on one part of society by another, and Jury Nullification effectively endorsed rum-running, racketeering, and organized crime. The use of marijuana and abortion are two further examples where disagreement is so strong that compromise eludes us. What is at stake here is protecting the rights of a minority, within a society run by a majority. If minority belief is strong enough, jury nullification issues an unmistakable proclamation: "To proceed farther, means War."

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Oliver Wendell Holmes

That's a somewhat strange outcome for a process started by pacifist Quakers, so the search goes on for a better idea. Distinguished jurists differ on whether to leave things as they are. In a famous exchange, Oliver Wendell Holmes once had dinner with Judge Learned Hand, who on parting extended a lawyer jocularity, "Do justice, Sir, do justice." To which, Holmes then made the somewhat surly response, "That is not my job. My job is to apply the law."

Thus lacking any better approach, it is hard to blame the US Supreme Court for deciding this was something best left unmentioned any more than absolutely necessary. The signal which Justice Harlan gave in the majority opinion on the 1895 Sparf case was the very narrow ruling that a case may not be appealed, solely on the basis that the trial jury was not informed of its right to nullify the law in question. Encouraged by this vague hint, what has evolved has been a growing requirement that incoming jurors take an oath "to uphold the law", officers of the court (ie lawyers)are discouraged from informing a jury of its true power to nullify laws, and Judges are required to inform the jury in their charge that they are to "take the law as the judge lays it down" (ie leave appeals to higher courts). If a jury feels so strongly that it then persists in spite of those restraints, well, you apparently can't stop them. Nobody thinks this is a perfect solution, and aggrieved defendants like the Vietnam War protesters are quite vocal in their belief that the U.S. Supreme Court finally emerged with a visibly asinine principle: a jury does indeed have the right to nullify, but only as long as that jury is unaware it has that right. That's almost an open invitation to perjury if accurate; but while it's not precisely accurate, it comes close to being substantially true.

That's where matters stand, and apparently will stand, until someone finds better arguments than those of Benjamin Franklin, John Jay, Andrew Hamilton -- and William Penn.

Concessions and Agreements

{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}
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.


REFERENCES


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

East Jersey's Decline and Fall

The colony of New Caesaria (Jersey) had two provinces, East and West Jersey, because the Stuart kings of England had given the colony to two of their friends, Sir George Carteret and John, Lord Berkeley, to split between them. Both provinces soon fell under the control of William Penn but it took a little longer to acquire the Berkeley part, so the Proprietorship of East Jersey was the oldest corporation in America until it dissolved in 1998.

{Apology for the True Christian Divinity}
Apology for the True Christian Divinity

It would appear that Penn intended West Jersey to be a refuge for English Quakers and East Jersey was to be the home of Scots Quakers. Twenty of the original twenty-four proprietors were Quakers, at least half of them Scottish. Early governorship of East Jersey was assumed by Robert Barclay, Laird of Urie, who was certainly Scottish enough for the purpose, and also a famous Quaker theologian. Even today, his Apology for the True Christian Divinity is regarded as the best statement of the original Quaker principles. However, Barclay remained in England, and his deputies proved to be somewhat more Scottish than Quaker. Eighteenth-century Scots were notoriously combative and soon engaged in serious disputes with the local Puritans who had earlier migrated into East Jersey from Connecticut with the encouragement of Carteret. This enclave of aggressive Puritans probably provided the path of migration for the Connecticut settlers who invaded Pennsylvania in the Pennamite Wars, so the hostility between Puritans and Quakers was soon established. The Dutch settlers in the region were also combative, so the eastern province of Penn's peaceful experiment in religious tolerance started off early with considerable unrest. Of these groups, the Scots became dominant, even referring to the region as New Scotland. To look ahead to the time of the Revolution, most of the East Jersey leadership was in the hands of Proprietors of Scottish derivation, with at least the advantage that these were likely to have been very vigilant in seeing Proprietor rights originally conferred by the British King, continue to be honored by the new American republic.

East Jersey was probably already the most diverse place in the colonies when loyalists and revolutionaries took opposite sides in the bitter eight-year war over English rule, with hatred further inflamed when the victors in the Revolution divvied up the properties of loyalists who had fled. The earlier conflict was created by management blunders of the Proprietary leadership itself. Instead of surveying and mapping, before they sold off defined property, like every other real estate development corporation, the East Jersey Proprietors adopted the bizarre practice of selling plots of land first and then telling the purchaser to select its location. In the early years, it is true that good farmland was abundant, but inevitably two or more purchasers would occasionally choose overlapping plots of land. The Proprietors were astonishingly indifferent to the resulting uproar, telling the purchasers that this was their problem. The outcome of all this friction was that settlers petitioned London for relief, and in 1703 Queen Anne took governing powers away from both the East and West proprietorships and unified the two provinces into a single crown colony. The Queen obviously nursed the hope that South Jersey would impose a civilizing influence on the North, but immigration patterns determined a somewhat opposite outcome. Both proprietorships, however, were allowed to continue full ownership rights to any remaining undeeded property.

In later years, the East Jersey Proprietors created more unnecessary problems by attempting to confiscate and re-sell pieces of land whose surveys were faulty, sometimes of a property occupied with houses for as much as fifty years. This East Jersey proprietorship, in short, did not enjoy either a low profile or the same level of benevolent acceptance prevailing in the West Jersey province. A climate of skepticism developed that easily turned any management misjudgment into a confrontation.

{New Jersey Line}
New Jersey Line

The East Jersey proprietorship operated by taking title to unclaimed land, and then reselling it. In what seemed like a minor difference, the West Jersey group never took title itself, but merely charged a fee for surveying and managing the sale of unclaimed land. The upshot of this distinction was that the East Jersey group got into many lawsuits over disputed ownership, which the West Jersey Proprietorship largely escaped. The nature of unclaimed land in New Jersey is for ocean currents to throw up new islands in the bays between the barrier islands and the mainland, or pile up new swampland along the banks of the Hudson and Delaware Rivers. Such marshy and mosquito-infested land may have little value to a farmer but lately has become highly prized by environmentalists, who supply class-action lawyers with that nebulous legal concept of "standing". The posture of the West Jersey Proprietors is to be happy to survey and convey clear title to a particular property for a fee, but a buyer must come to them with that request. The East Jersey method put its proprietors in repeated conflict over possession and title, with idealists enjoying free legal encouragement from contingent-fee lawyers. By 1998, the Proprietors of East Jersey had endured all they could stand. Selling their remaining rights to the State for a nominal sum, they turned over their historic documents to the state archives. The plaintiff lawyers could sue the state for the swamps if they chose to, but the East Jersey Proprietors had just had enough.

The only clear thing about all of this is that the Proprietors of West Jersey now stand unchallenged as the oldest stockholder corporation in America. It's not certain just what this title is worth, but at least it is awfully hard to improve on it.

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}
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.

{ West and East New Jersey}
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.

{Lord Berkeley}
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

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.

Boundary Disputes

{4 Corners of Pennsylvania}
Four Corners of Pennsylvania

When you talk boundaries, a good lawyer is what you need. Pennsylvania had the best in William Penn. Prior to 1776, the boundaries between the American colonies were settled in London, either by the King or the British courts. After 1787, disputes over boundaries were settled in the United States Federal Courts, acting under Section III of the Constitution. Generally speaking, boundaries were first created by treaties, by Kings, and by Congress. Boundary disputes were then settled in the courts, first in England, and later in Federal Courts. Between 1776 and 1787, however, the Articles of Confederation governed. The immediate problem was that the Articles were not finally ratified until 1781. A technical problem was that surveying instruments were improving during this period. The judicial problem was that a body of law was evolving about when to use the deepest channel of a river or when to use the half-way point between the two banks of a river, and when to use just one bank of the river or the other. And the political problem was that major immigration made everyone less care-free about boundaries of the land which were steadily growing more valuable. The American period under the Articles of Confederation was one big argument about state borders.

A century earlier, when British kings were handing out charters to those adventurous enough to accept them, there was plenty of cheap lands if someone could defend it. The common approach to granting charters was to pick two points along the Atlantic, and from there to extend lines westward as far as they could go. When the lines bumped into lines given to other colonies, there were countless lawsuits and occasionally little wars. Only the three Quaker colonies of New Jersey, Pennsylvania and Delaware were formed late enough in the colonial period to enjoy practical ways even to define a western border. Virginia, the largest colony, officially extended itself to include what is now Kentucky and West Virginia, and had reasonably defensible claims to all the land of the Northwest Territory, on the western side of the defined Pennsylvania western border, all the way north to the Great Lakes. When the Indians finally woke up to what was happening, they rebelled under the leadership of Pontiac and Tecumseh and were helped in their massacres of white settlers by the French, later by the British. Peaceful rectangular Pennsylvania experienced armed nibbles at each of its four corners; from Maryland in the southeast, Virginia in the southwest, Connecticut in the northeast. On its northwestern corner, Pennsylvania had the award of the Erie connection to the Great Lakes to settle an overlapping conflict between Connecticut and New York. The Articles of Confederation, composed mostly with common defense against England in mind, were deliberately inadequate to govern disputes between allies within the revolters. Discovering remarkable subsidence of such disputes after the installation of the Constitution, this might well have become a major reason for replacing the Articles of Confederation if it had been foreseen. But that was scarcely the case. The American colonists simply had no idea the Union would make such disputes immediately seem trivial if still remaining fairly numerous. When the advantages of peaceful unification are considered by other nations on other continents, consideration really should highlight the sense of delight America felt at the discovery of this unexpected bounty. At a minimum, it helped us ignore the many fumbles we also experienced.

Bi-state Fishing

{Coryell's  Crossing}
Coryell's Crossing
When George Washington was circling around Trenton to attack it on Christmas, a narrow spot up-river with a dozen houses on either side was called Coryell's Crossing or Ferry. That's now Coryell Street in Lambertville, linked to the other side of the river at New Hope, after first crossing a narrow wooden bridge to Lewis Island, the center of shad fishing, or at least shad fishing culture.

The Lewis family still has a house on Lewes Island, and they know a lot about shad fishing, entertaining hundreds of visitors to the shad festival in the last week of April. The river is cleaning up its pollution, the shad are coming back, but they, unfortunately, took a vacation in 2006. At the promised hour, a boatload of men with large deltoids attached one end of a dragnet to the shore, rowed to the middle of the river, floated downstream and towed the other end of the net back to the shore. The original anchor end of the net was then lifted and carried downstream to make a loop around the tip of Lewis Island, and then both ends were pulled in to capture the fish. There were fifty or so fish in the net, but only two shad of adequate size; since it was Sunday, the fish were all thrown back.

But it was a nice day, and fun, and the nice Lewis lady who explained things knew a lot. Remember, the center of the river is a border separating two states. You would have to have a fishing license in both states to cross the center of the river with your net; game wardens can come upon you quickly with a powerboat. But the nature of fishing with a dragnet from the shore makes it quite practical to stop in the middle, where shotguns from the other side are unlikely to reach you. An even more persuasive force for law and order is provided by the fish. Fish like to feed when the sky is overcast, so there is a tendency on a North-South river for the fish to be on the Pennsylvania (West) side of the river in the morning, and the New Jersey (East) side in the evening. During the 19th Century when shad were abundant, work schedules at the local mills and factories were arranged to give the New Jersey workers time off to fish in the afternoon, while Pennsylvania employers delayed the starting time at their factories until morning fishing was over.

Somehow, underneath this tradition one senses a local Quaker somewhere with a scheme to maintain the peace without using force. Right now, there aren't enough fish to justify either stratagem or force, but one can hope.

State in Schuylkill Fishing Club

{Richard Romm}
Richard Romm

Richard Romm, a rising historical scholar with a special interest in early Philadelphia, recently educated the Right Angle Club in the history of the Schuylkill Fishing Club in the State in Schuylkill, and was immediately accepted into membership. Of the Right Angle, that is, which is an old club by some standards, but scarcely a hundred years old in the eyes of the really old, old clubs.

The State in Schuylkill is an eating club, originally a fishing and eating club, apparently organized around the annual shad run up the river. The clubhouse, or Castle, was moved several times, in response to damming of the river, and is now located on the grounds of, or adjoining the edge of, Nicholas Biddle's estate on the Delaware River called Andalusia. One by one, the Atlantic Ocean rivers of America have been dammed and their annual shad migrations brought to an end, except through the city of Richmond, Va, so there was little point in moving The Castle to follow the fish. It remains, overlooking Delaware in spite of its name.

There seems to have been several name changes, the most important of which was to change the Colony of Schuylkill to the State of Schuylkill for obvious reasons. Originally, the Castle was roughly opposite the falls of Fairmount on the West Bank of the Schuylkill at about Girard Avenue; thus, from 1732 to 1822 located on Baron Warner's property called Eaglesfield. In 1822 it moved to Rambo's Rock (the Rambo family is said to be the oldest European settler family in Pennsylvania) opposite Bartram's Gardens, then finally in 1887 to Andalusia, Nicholas Biddle's country estate. The club was founded in 1732, and dates of movings are possibly hazy, possibly somewhat because of the reluctance of club officers to return the calls of inquiring historians. The State in Schuylkill claims to be the oldest organized men's club in the world, an honor contested by White's in London. The roots of this argument are found tangled in the vital issue of whether their age should be based on the formal organization of the clubs, or on the establishment of the coffee houses which housed the original clubs. Four books are said to have been written about club history, but we depend here on Mr. Romm.

{Chief Tammenend}
Chief Tammenend

There is also an unclear relationship with Chief Tammenend, possibly traceable to the shad run, but in any event to the Indian chief depicted with William Penn in the paintings by Benjamin West and Edward Hicks. May 1 is St. Tammany's day, growing into the fancy that he was the "Patron Saint of America", before a branch of the nation-wide Tammany association opened in New York and sort of tarnished up the name. Other traditions of the Fishing club have to do with wearing Mandarin hats, possibly having to do with the export of ginseng which was once abundant in our colonial suburbs, with a return cargo of Chinese dishware. All of the cooking is done by official citizens of the club. The quantities of food are remarkable; one 19th Century menu listed eleven pounds of meat per member. The club drink is a punch, the famous Fishhouse Punch, widely recognized to be rather strong. Its inventor is reputed to be Edward Shippen Willing, on the occasion of the first visit to the clubhouse by women guests. The quantity of alcoholic beverage at these events is especially remarkable in view of the Quaker origins of many original members of the club, but not necessarily of the guests. Among the various guests were Generals Grant, Meade, and McClellan. Dinner begins with two traditional toasts: to George Washington, and to Captain Sam Morris. Washington was appropriate enough, having a history of drinking a bottle of Madeira every day at lunch. But Sam? Captain Sam the Quaker?

{Free Quaker Meetinghouse}
Free Quaker Meetinghouse, Fifth and Arch Streets

Somewhere in this tradition are allusions to the Free Quakers, Quakers who abandoned the peace testimony to fight the British. There is also the tradition of hostility to British rule which antedates the Revolution and may have some connection to the fanciful contention that their little state was not really part of Penn's colony. Captain (of the City Troop) Sam was a stalwart, possibly the sole founder, of the Gloucester (N.J.) Fox-hunting club. The history is passed down that 22 of the original 26 members of the First City Troop were members of the fox-hunting club, and many if not most were Quakers. The first "Governor" of the State in Schuylkill was Thomas Stretch, but the second Governor, from 1766 until his death, was Captain Sam. He was repeatedly referred to as the life of the club and held in the highest esteem by all. He was "read out" of the main Quaker Meeting, not so much for his drinking as for his flouting of Quaker belief in pacifism. He reputedly led a saber charge at the Battle of Trenton and was a leader of the City Troop in that revolution within a revolution at James Wilson's house, which rescued at least four future signers of the Constitution from a mob of militia which momentarily turned Jacobin.

Naturally, descendants of Quakers on both side of this uproar have been reluctant to say much about it. But somewhere within the history of Samuel Morris must be some important clues about the 18th Century splits within the Quaker Church, to say nothing of the revolt of the three Quaker colonies against British rule.

A Brief WILLIAM PENN CHRONOLOGY, 1644-1718

Born October 14,1644, in Tower Hill, London, England. Father Sir William Penn, Admiral who conquered Jamaica for King Charles II. Mother, Margret Jasper Vanderschuren, daughter of a Dutch merchant.

Education: Protestant Academy, Chigwell School, Oxford, Christ Church

Published a plan for "United States of Europe, EuropeanDyet, Parliment or Estates"

1666Joined Religious Society of Friends (Quakers)c.age 22 Outstanding swordsman. but frequent companion of George Fox.

1680 c. May. Petitions Charles II for a colony in America. June. Crown officials begin their consideration of WP's petition.

1681 January-February. Crown officials revise WP's draft of the charter for Pennsylvania.

4 March. Receives his charter for Pennsylvania.

14 March. Son William Penn, Jr. (1681-1720) is born.

April. Appoints William Markham as deputy-governor of Pennsylvania.

Writes Some Account of Pennsylvania, his first advertising pamphlet.

Spring-summer. Begins work on his constitution for Pennsylvania.

June. Begins lobbying to secure the lower counties (Delaware) from the Duke of York.

July. Announces his plan of land distribution in Pennsylvania.

July-August. Publishes a Map of Pennsylvania.

Takes his first land selling trip to Bristol.

August. His deputy governor arrives in Pennsylvania.

16 September. Writes to planters in Maryland, claiming the northern quarter of that colony.

September-October. Sees his first settlers and land commissioners off to Pennsylvania.

October. Writes a letter of friendship to the chiefs of the Delaware Indians.

1682 January-April. WP and Thomas Rudyard complete the first constitution and laws for Pennsylvania.

February-March. The Free Society of Traders founded.

c. 1 March. His mother, Lady Margaret Penn, dies.

25 April-5 May. Publishes his Frame of Government and Laws Agreed upon in England.

15 July. His agents conclude their first deed with the Delaware Indians.

24 August. Receives the deeds to the lower counties (Delaware) from the Duke of York.

30 August. Sails for America on the Welcome.

28 October. Lands at New Castle, Delaware.

October-November. Visits Chester, Pennsylvania, and the site of Philadelphia.

November. Visits New York and East New Jersey.

December. His first Assembly convenes at Chester.

Meets with Lord Baltimore concerning the Maryland-Pennsylvania boundary dispute.

Twenty-three ships arrive in 1681 -1682; the colony grows rapidly.

1683 January. Quakers begin meeting in Philadelphia; the Philadelphia County Court is established.

March. Visits East New Jersey and sits on its Council. Begins distributing large numbers of Philadelphia lots. His second Assembly approves a revised Frame of Government. 29 May. Meets with Lord Baltimore at New Castle. Spring-summer. Acquires his country manor Pennsbury, in Bucks County.

August. Writes Letter to the Free Society of Traders.

August-September. Tries to buy Susquehanna Valley lands from the Iroquois, but is blocked by New York's Governor Thomas Dongan.

September-November. Many ships arrive; both Philadelphia and Pennsylvania continue to expand.

October. Germantown surveyed.

November. Attempts to collect his quitrents.

1684 March. The Welsh Tract surveyed.

April-May. Decides to return to England to defend his boundary against Lord Baltimore.

May. Lord Baltimore leaves for England.

The Assembly passes an excise tax, which WP suspends.

July. Philadelphia's waterfront residents protest WP's city land distribution policy.

August. Prepares to leave for England; appoints Thomas Lloyd president of the Provincial Council.

18 August. Sails for England from Lewes, Delaware.

5 October. Lands at Worthing, Sussex.

October. Writes to Thomas Lloyd to get copies of documents needed for his defense against Lord Baltimore.

Meets with Charles II and the Duke of York.

December. The Lords of Trade postpone the hearing of the Penn-Baltimore controversy.

Died July 30, 1718, Ruscombe, UK.

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

John Head, His Book of Account, 1718-1753

{American Philosophical Society}
American Philosophical Society

Jay Robert Stiefel of of the Friends Advisory Board to the Library of the American Philosophical Society entertained the Right Angle Club at lunch recently, and among other things managed a brilliant demonstration of what real scholarship can accomplish. It's hard to imagine why the Vaux family, who lived on the grounds of what is now the Chestnut Hill Hospital and occasionally rode in Bentleys to the local train station, would keep a book of receipts of their cabinet maker ancestor for nearly three hundred years. But they did, and it's even harder to see why Jay Stiefel would devote long hours to puzzling over the receipts and payments for cabinets and clock cases of a 1720 joiner. Somehow he recognized that the shop activities of a wilderness village of 5000 residents encoded an important story of the Industrial Revolution, the economic difficulties of colonies, and the foundations of modern commerce. Just as the Rosetta stone told a story for thousands of years that no one troubled to read, John Head's account book told another one that sat unnoticed on that library shelf for six generations.

{Colonial Money}
Colonial Money

The first story is an obvious one. Money in colonial days was mainly an entry in everybody's account book; today it is mainly an entry in computers. In the intervening three centuries, coins and currency made an appearance, flourished for a while as the tangible symbol of money, and then declined. Although Great Britain did not totally prohibit paper money in the colonies until 1775, in John Head's day, from 1718 to 1754, paper money was scarce and coins hard to come by. Because it was so easy to counterfeit paper money on the crude printing presses of the day, paper money was always questionable. Meanwhile, the balance of trade was so heavily in the direction of the colonies that the balance of payments was toward England. What few coins there were, quickly disappeared back to England, while local colonial commerce nearly strangled. The Quakers of Philadelphia all maintained careful books of account, and when it seemed a transaction was completed, the individual account books of buyer and seller were "squared". The credit default swap "crisis" of 2008 could be said to be a sharp reminder that we have returned to bookkeeping entries, but have badly neglected the Quaker process of squaring accounts. As the general public slowly acquires computer power of its own, it is slowly recognizing how far the banks, telephone companies, and department stores have wandered from routine mutual account reconciliation.

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John Head's Account Book

From John Head's careful notations we learn it was routine for payment to be stretched out for months, but no interest was charged for late payment and no discounts were offered for ready money. It would be another century before it became routinely apparent that interest was the rent charged for money and the risk of intervening inflation, before final payment. In this way, artisans learned to be bankers.

And artisans learned to be merchants, too. In the little village of Philadelphia, chairs became part of the monetary system. In bartering cabinets for the money, John Head did not make chairs in his shop at 3rd and Mulberry (Arch Street) but would take them in partial payment for a cabinet, and then sell the chairs for the money. Many artisans made single components but nearly everyone was forced into bartering general furniture. Nobody was paid a salary. Indentured servants, apprenticeships trading labor for training, and even slavery benignly conducted, can be partially seen as efforts to construct an industrial society without payrolls. Everybody was in daily commerce with everybody else. Out of this constant trading came the efficiency step for which Quakers are famous: one price, no haggling.

One other thing jumps out at the modern reader from this book of account. No taxes. When taxes came, we had a revolution.

www.Philadelphia-Reflections.com/blog/1517.htm

Albany Conference 1754

State and Federal Powers: Historical Review

John Dickinson of Delaware

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

So the primary reason for uniting thirteen colonies was for a stronger defense. As even the three Quaker colonies of New Jersey, Pennsylvania and Delaware could see, if you are strong, others will leave you alone. In time, the unification of many inconsequential behaviors created a common culture of important ones; and in time that common culture strengthened defense. At first, it seemingly made little practical difference locally whether construction standards, legal standards, language and education standards and the like were unified or not. Except, that in the aggregate, it forged a common culture.

The practice of Medicine was certainly one of those occupations where it mattered very little whether we were a unified nation. Unification of medical care offered a few benefits, but mostly it didn't matter much, right up to 1920 or so. Even then I would offer the opinion, that unification of the several states (with consequent Free Trade) only made a big difference to health insurance, and still made little difference to the rest of medical care. In fact, there are still about fifteen states with too little population density to provide comfortable actuarial soundness for health insurance, as can readily be observed in the political behavior of their U.S. Senators. Although the number of low-population states gets smaller as the population grows, there are even so perhaps only ten big states where multiple health insurance companies can effectively compete within a single state border. Quite naturally the big-state insurers expect one day to eat up the small ones. By contrast, the nation as a whole, the gigantic population entity which Obamacare seeks to address, has far too many people spread out over far too large an area, to be confident we could unify them into one single program. Dividing the country into six or seven regions would be a much safer bet. That's the real message of the failure of the Computerized Insurance Exchanges -- far too much volume. And the coming failure of the Computerized Medical Record -- with too much complexity. With unlimited money, it can be done, because diseases are disappearing and computers are improving. But why struggle so hard?

It is at least fifteen years too early, and mostly serves the interest of insurance companies, if they can survive the experience. At the same time, we are at least fifteen years away from growing the smallest states to the point where we could decentralize. It's really a situation very similar to the one John Dickinson identified, James Madison briefly acknowledged, and where Benjamin Franklin improvised a solution. In their case, it was a bicameral legislature. In the case of medical care, it could be an administrative division of revenue from the expenditure. It could be the cure of a half-dozen chronic diseases. It could be six regional Obamacare. But creating one big national insurance company during a severe financial recession is something we will be lucky to survive.

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

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

{William Bingham class=}
Delegates

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

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

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

Insurance Monopoly

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

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

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

C2.............The Era of French and Indian War 1754-1763

The French and Indian war was only a small part of the long English-French quarrel, but it was a time when the colonies were still definitely colonies. The British won, but a large French contingent remained behind in Canada. In a sense, the line of demarcation along the Appalachians, while well-intended to keep the colonies from settling Indian land, defined the self-interest of the Colonies as conflicting with British self-interest. This was an unstable four-way arrangement destined to fail in some way, as the Indian interest was to keep the white colonization from spreading, but acknowledged the continued settlements of the European colonists within two East-coast clusters, mostly English but with a stable French cluster around Quebec. Trying to pacify all groups, they antagonized all four. England won the right to decide things, but their attention was really still focused elsewhere. You might say the Revolution of 1776 was to some degree an effort to make a readjustment. Unfortunately, mercantilism was the wrong choice for them in this muddle.

The First and Oldest Hospital in America

{Privateers}
South East Prospect of Pennsylvania Hospital

There is a painting of the region around 8th and Spruce Streets in the 1750s, depicting a pasture, with cows, and three or four buildings between 8th and 13th Streets. When the Pennsylvania Hospital moved there in 1755 from its temporary location in a house located a block from Independence Hall, there were complaints that it was now located so far out in the woods that it was difficult and dangerous to go there. Still another description of the area is evoked by the provision which the Penn family placed in the deed of gift of the land, strictly forbidding the use of the land as a tannery. Tanneries have always been notorious for giving off noxious odors, so most people wanted them to be somewhere else, anywhere else. In any event, the main activity of Penn's "green country town" at that time was concentrated closer to the Delaware River, and the nation's first hospital was definitely placed in the outskirts. Two blocks further West the almshouse was already in place, but not much else. We are told that Benjamin Franklin had flown his Famous Kite at 9th and Chestnut, using a barn there to store his materials. It might be recalled that the population of Philadelphia, although the second largest English-speaking city in the world, was only about twenty-five thousand inhabitants at the time of the Revolution, and in 1751 was even smaller.

In any event, the first and oldest hospital in America was built on 8th Street between Spruce and Pine, and the Eighteenth Century buildings on Pine Street still present a breathtaking view at any season, but particularly in May when the azaleas are in bloom, and fragrance from the flowering magnolias fills the evening atmosphere for blocks around. Although some people today mistake the Pennsylvania Hospital for a state hospital, it was founded in the reign of George II, decades before there was such a thing as the State of Pennsylvania. The Cornerstone was laid by Benjamin Franklin, with full Masonic rites. Most doctors regard a hospital as a mere workshop, but the affection with which many Pennsylvania physicians regarded their special hospital is indicated by the number who have requested that their ashes be buried in the garden.

For two hundred years, beginning with the first American resident physician Jacob Ehrenzeller, the interns and residents were paid no salary, so they had to live on the grounds. An Internet was just that, interned within the four walls for at least two years. Because the resident physicians had no money, they stayed in the hospital at night and on weekends, playing cards and swapping stories. The hospital was home for them, as it was for the student nurses, likewise unpaid but more strictly confined and supervised. This penury seemed acceptable because the patients were mostly charity ward patients, otherwise unable to pay for their own care. Ehrenzeller finished his medical apprenticeship and went to practice for many decades in the farm country of Chester County, but gradually upper-class Philadelphia moved from 4th Street westward to and beyond the hospital, and two of the richest men in American history, Morris and Biddle, had houses within a block of the hospital, although Morris never lived in his house, having more pressing matters in debtor's prison. Therefore, later resident physicians at the hospital had the potential of setting up a private practice in the area and becoming society doctors as well as academically prominent ones. Being a charity hospital in a rich neighborhood created the potential for volunteer work by the town aristocrats and large bequests for charity. The British housed their wounded in the hospital during the Revolutionary War and shot deserters against the red brick wall of the small cemetery to the north. A century later, there were a couple of dozen rooms for private patients in the hospital for the convenience of the doctors and the neighbors, but everyone else was a charity patient. And a century after that, the hospital still did not have an accounting department to collect bills and tended to regard people who asked for a bill as a nuisance. Benjamin Franklin is regarded as the Founder of the hospital, and his autobiography famously describes how he fast-talked the legislature into matching the donations of the public, not mentioning to them that he had already collected enough promises to see the project through. This seems in character; Franklin's biographer Edmond Morgan summed up that, "Franklin doesn't tell us everything, but what he does tell us, is straight." The idea for the hospital was that of Dr. Thomas Bond, whose house is now a bed and breakfast on Second Street, but it was characteristic of Franklin to be the secretary of the first board of managers of the hospital. In Quaker tradition, the clerk of a meeting is the person who really runs the show. It thus comes about that the minutes of the founding board were recorded in Franklin's own handwriting, among them the purpose of the institution, which is to care for the Sick Poor, and if there is room, for Those Who can pay. This tradition and this method of operation continued until the advent in 1965 of Medicare when charity care was displaced by concepts which the nation had decided were better. The Pennsylvania Hospital was not only the first hospital but for many decades it was the only hospital in America. Its traditions, sometimes quaint and sometimes glorious, cast a long shadow on American medicine.


REFERENCES


America's First Hospital: The Pennsylvania Hospital 1751-1841 William Henry Williams Ph.D. ISBN-10: 0910702020 Amazon

Andrew Hamilton (1676-1741)

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Philadelphia City Hall

An admirer of Philadelphia Reflections recently asked who is the most under-appreciated Philadelphian, and the quick answer would be William Penn. He's inadequately praised right at the present time, perhaps, but after all the whole State of Pennsylvania is named after him, along with countless universities and institutions, and his thirty-seven foot statue is on top of City Hall. The Pennsylvanian who seems most under-appreciated on a more or less permanent basis is Andrew Hamilton.

{Andrew Hamilton}
Andrew Hamilton

That is definitely not Alexander Hamilton, nearly a century younger and no relation. Andrew was born in Virginia but moved to Philadelphia in 1716, aged 30. He is frequently referred to as the finest lawyer of his era in America, holding numerous public offices. He was Speaker of the Pennsylvania House of Representatives in 1735, and 59 years old, when he took on the task of defending John Peter Zenger the New York publisher. For this successful case, he is mainly known today, but it is not true at all that he was then a young unknown lawyer trying to establish a reputation as, the lawyers say, a rainmaker. Rather, he took up the task of defending Zenger in another colony, without fee, because he felt there existed a threat to the entire judicial system and someone had to assert leadership about it. Zenger was in conflict with the Governor of New York, evidently a ruthless sort of person, and the Governor had disbarred Zenger's two defense lawyers for opposing him. Hamilton felt it was the duty of an eminent lawyer from another colony to come forward and see that justice was defended. It was surely not immodest of him to feel that even a wild and wooly governor would not dare disbar the famous chief legislative officer of Pennsylvania. There was probably still some personal risk, and even some risk to professional reputation, because Zenger seemed clearly guilty of breaking the libel laws as they were then understood.

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Trial

Zenger had published articles describing the outrageous conduct of the Governor, and could not deny he had published them. In the common view, he had labeled the Governor. The judge refused to hear evidence that the published stories were true because the law stated that truth was not a defense. The only defense seemingly possible was that the stories somehow did not meet the definition of libel, and the judge suggested to Hamilton that he get on with arguing that particular escape-hatch. Hamilton, however, would have none of it.

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William Penn

His first statement in defense was that he and his client readily admitted the published articles met the definition of libel, so he would save the prosecutor's time presenting witnesses on the point. He turned to the jury and urged them to nullify any law which prevented injured people from making a truthful complaint, as William Penn had established they had a right to do, nearly a century earlier. In a sense, both Penn and Hamilton were going back to the Magna Charta, where a jury was seen able to set a limit on what any king could do to an Englishman. The judge intervened that a jury may do what they were instructed to do. Yes, said Hamilton, and they may do otherwise. Although the jury had surely never heard of such legal fine points, they didn't like the idea of punishing a man for telling the truth, and firmly declared that Peter Zenger was therefore not guilty of anything, including libel, for doing so.

These principles were destined to become embedded in the United States Constitution fifty years later and were greeted with great praise and published applause by Benjamin Franklin, then the young publisher of the largest newspaper in Pennsylvania. Evidently, Franklin and Hamilton sought each other out, and in time Franklin became the protege and main political associate of Hamilton in the Pennsylvania Legislature.

The Zenger case established the fame of Philadelphia lawyers for all time, and Hamilton is honored by the Philadelphia bar association as their patron saint. No doubt he welcomed the praise of his colleagues, but he certainly did not need it. He had already risen to the top before this case, and it was for that reason he took it on, not as a duty to Zenger, but as a duty to the Law. Like so many people who achieve a little eminence, he had everything to lose and nothing to gain by taking risks. But unlike a common lot of prominent people, he felt a duty to do what he had to do.

Details of the rest of Andrew Hamilton's life are surprisingly sketchy, but property records establish that he was remarkable in a lot of other ways, too. He purchased the land on which Independence Hall is situated, and gave it to the public. He purchased five hundred acres in the wilderness and founded the City of Lancaster on it. And he purchased two hundred fifty acres, later expanded to six hundred, on the high bank of the Schuylkill where European settlement had been first begun by the Dutch, at Gray's Ferry. His son built Woodlands as a country estate, established Woodland Cemetery along Woodland Avenue, and built Hamilton Village as the place in West Philadelphia where the Drexels, Weightmans, Pauls and other wealthy families put their mansions. If you like, you can stroll down the center of the University of Pennsylvania campus, on Hamilton Walk.

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Penn Railroad

Someday, the glory of all this will surely return. Meanwhile, the Pennsylvania Railroad and successors have made the Gray's Ferry area nearly uninhabitable. Woodland sits behind a thicket of untended bramble, hidden from the trains except for the briefest glimpse if you know to look. The Veteran's Administration Hospital sits on the edge of Woodland, blocking the view unless you know to use Google Earth to see it sitting there begging to be visited. The University has turned its back on Woodland, using it mostly as a backdoor driveway toward its numerous parking garages, fearful the world might notice how close it is to deplorable slums.

ut some day, we can confidently expect that vision will re-emerge, the Schuylkill waterfront should resemble the Seine through Paris, linking Woodland to Bartram's Gardens, and perhaps on to Fort Mifflin. When that day dawns, maybe more people will also remember who Andrew Hamilton was.

C3..........The Clouds Darken 1763-1776

New England wanted to fight for Independence but they knew they were too small, so they tried to enlist twelve contiguous allies by logic, but the British attacked with almost overwhelming force before that happened. Just who remembered the Treaty of Westphalia is unclear, but it had the effect of unifying the contiguous colonies behind Independence. The most serious obstacles were the Quakers, who withdrew from politics in order to avoid a choice between national and domestic resistance.

America in 1767

{dekalb exhibition}
Johann de Kalb

Baron Johann de Kalb was to die a hero of the American Revolution in 1780, but in 1767 he was a spy for France, scouting out potential French opportunities in America. He made the following report to the French minister of foreign affairs, duc de Choiseul:

"Everywhere there are children swarming like broods of ducks, large fertile farms, flourishing industries, and harborsbarely able to hold the and fishing and Merchant Fleets

"Whatever may be done in London," judged de Kalb, "this country is growing too powerful to be much longer governed at such a distance."

- as cited by Walter A. MacDougall, Freedom Just Around the Corner


REFERENCES


Freedom Just Around the Corner: A New American History: 1585-1828: Walter A. McDougall ISBN-13: 978-0060197896 Amazon

Foreground: Parliament Irks the Colonial Merchants

{Charles Townshend}
Charles Townshend

Charles Townshend, Chancellor of the Exchequer under King George III in 1766-67, had a reputation for abrasively witty behavior, in addition to which he did carry a grudge against American colonial legislatures for circumventing his directives when earlier he had been in charge of Colonial Affairs. His most despised action against the Colonies, the Stamp Act, seems to have been only a small part of a political maneuver to frustrate an opposition vote of no confidence. The vote had taken the form of lowering the homeland land tax from four to three shillings (an action understood to be a vote of no confidence because it unbalanced the budget, which he then re-balanced by raising the money in the colonies.) The novelist Tobias Smollett subsequently produced a scathing depiction of Townshend's heedless arrogance in Humphry Clinker, but at least in the case of the Stamp Act, its sting was more in its heedlessness of the colonies than vengeance against them. One can easily imagine the loathing this rich dandy would inspire in sobersides like George Washington and John Adams. After Townshend was elevated in the British cabinet, almost anything became a possibility, but it was a fair guess he might continue to satisfy old scores with the colonies. When King George's mother began urging the young monarch to act like a real king, Townshend was available to help. On the other hand, the Whig party in Parliament had significant sympathy with the colonial position, as a spill-over from their main uproar about John Wilkes which need not concern us here. Vengefulness against the colonies was not widespread in the British government at the time, but colonists could easily believe any Ministry which appointed the likes of Townshend might well abuse power in other ways before such time as the King or a more civilized Ministry could arrive on the scene to set things right. It was vexing that a man so heedless as Townshend could also carry so many grudges. Things did ease when Townshend suddenly died of an "untended fever", in 1767.

Whatever the intent of those Townshend Acts, one clear message did stand out: paper money was forbidden in the colonies. Virginia Cavaliers might be more upset by the 1763 restraints on moving into the Ohio territories, and New England shippers might be most irritated by limits on manufactures in the colonies. But prohibiting paper money seriously damaged all colonial trade. Some merchants protested vigorously, some resorted to smuggling, and others, chiefly Robert Morris, devised clever workarounds for the problems which had been created. Paper currency might be vexingly easy to counterfeit, but it was safer to ship than gold coins. In dangerous ocean voyages, the underlying gold (which the paper money represents) remains in the vaults of the issuer even if the paper representing it is lost at sea. Theft becomes more complicated when money is transported by remittances or promissory notes, so a merchant like Morris would quickly recognize debt paper (essentially, remittance contracts acknowledging the existence of debt) as a way to circumvent such inconveniences. In a few months, we would be at war with England, where adversaries blocking each other's currency would be routine. By that time, Morris had perfected other systems of coping with the money problem. In simplified form, a shipload of flour would be sent abroad and sold, the proceeds of which were then used to buy gunpowder for a return voyage; as long as the two transactions were combined, actual paper money was not needed. Another feature is more sophisticated; by keeping this trade going, short-term loans for one leg of the trip could be transformed into long-term loans for many voyages. Long-term loans pay higher rates of interest than short-term loans; it would nowadays be referred to as "riding the yield curve." This system is currently in wide use for globalized trade, and Lehman Brothers were the main banker for it in 2008. And as a final strategy, having half the round-trip voyage transport innocent cargoes, the merchant could increase personal profits legitimately, while cloaking the existence of the underlying gun running on the opposite leg of the voyage. If the ship is sunk, it can then be difficult to say whether the loss of such a ship was military or commercial, insurable or uninsurable. In the case of a tobacco cargo, the value at the time of departure might well be different from the value later. Robert Morris became known as a genius in this sort of trade manipulation, and later his enemies were never able to prove it was illegal. Ultimately, a ship captain always has the option of moving his cargo to a different port.

Other colonists surely responded to a shortage of currency in similar resourceful ways, including barter and the Quaker system of maintaining individual account books on both sides of the transaction, and "squaring up" the balances later but eliminating many transaction steps. Wooden chairs were also a common substitute as a medium of exchange. But "Old Square-toes," Thomas Willing, experienced in currency difficulties, and his bold, reckless younger partner Morris displayed the greatest readiness to respond to opportunity. Credit and short-term paper were fundamental promises to repay at a certain time, commonly with a front-end discount taking the place of interest payment. The amount of discount varied with the risk, both of disruption by the authorities, and the risk of default by the debtor. This discount system was rough and approximate, but it served. Quite accustomed to borrowing through an intermediary, who would then be directed to repay some foreign creditor, Morris, and Willing added the innovation of issuing promissory notes and selling the contract itself to the public at a profit. Thus, written contracts would effectively serve as money. A cargo of flour or tobacco represented value, but that value need only be transformed into cash when it was safe and convenient to do so.

The Morris-Willing team had already displayed its inventiveness by starting a maritime insurance company, thereby adding to their reputation for meeting extensive obligations; they established an outstanding credit rating. Although primarily in the shipping trade, the firm was also involved in trade with the Indians. There, they invented the entirely novel idea of selling their notes to the public, essentially becoming underwriters for the risk of the notes, quite like the way insurance underwriters assumed the risk of a ship sinking. Their reputation for ingenuity in working around obstacles was growing, as well as their credibility for prompt and reliable repayment. In modern parlance, they established an enviable "track record." A creditor is only interested in whether he will be repaid; satisfied with that, he doesn't care how rich or how poor you are. The profits from complex trading were regularly plowed back into the business; one observer estimated Robert Morris's cash assets at the start of the Revolution were no greater than those of a prosperous blacksmith. It didn't matter; he had credit.

In the event, this prohibition of colonial paper money did not last very long, so profits from it were not immense. But ideas had been tested which seemed to work. Today, transactions devised at Willing and Morris are variously known as commercial credit, financial underwriting, and casualty insurance. In 1776, Robert Morris would be 42 years old.

Parliament Provokes a Revolution

In some medical circles, it is postulated that George III was psychotic, possibly suffering from an inherited rare condition called porphyria.

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Magna Carta

That's pretty conjectural, but it is certainly true that his mother egged him on to be a real king, a real force reversing that steady decline in the Monarchy's personal power which began with the Magna Carta. By the time in question, however, so much power had already gravitated into the hands of Parliament that the King could not act in any major way without their consent. Even today, Cabinet Ministers are spoken of as King's ministers but are in fact appointed by leaders of the majority party in Parliament. Some in Parliament, like Edmund Burke, were almost persuasive in resisting the Ministry, urging colleagues to seek reconciliation with the colonies. George III did still retain the power to appoint his favorites to important positions and used this patronage extensively to control the country. Political party chieftains, on the other hand, retained and retain today the power to nominate the party candidate for Parliament in any particular district. The leadership thus selects the members of Parliament, who can, in turn, overturn the leadership only if they dare. Real decisions were largely in the hands of party chieftains, but perhaps to some extent, the Crown, depending on the Monarch's shrewdness in distributing patronage among the party chieftains.

Across thousands of miles of dangerous ocean, the English colonies had changed from the weedy wilderness in the Sixteenth century, into thriving and prosperous small civilizations in the early Eighteenth. Transatlantic communication did not substantially improve in that interval, but colonial population grew to over a million, many of them native-born in the colonies, with increasingly large numbers of immigrants from other nations. Loyalty to the Monarch inevitably declined. True, they spoke English, revered England, but many urgent local issues were difficult to administer at such a distance, encouraging a mentality of self-governance. France, by now at war with England on the Continent, operated on a grand plan of interior encirclement, from Quebec and and Great Lakes, down the Mississippi to New Orleans. The English coastal settlers needed peace with the Indians of the interior;

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Benjamin Franklin

the French did not scruple to stir up massacres and Indian warfare. All wars are expensive, the French and Indian war particularly so. After defeating the French, the British were put to the protracted expense of building frontier defenses. Although the British were anxious to attract English-speaking colonists who would defend America for England, it was obvious some of the settlers were becoming very rich. Surely these people could not object to paying taxes for their own defense. In retrospect, it seems remarkably naive of the British to think it was that easy. Americans did not want to pay taxes because they did not want to pay taxes. They settled on the stance of "No taxation without representation" and like Franklin and the Penn family, many really believed in it. That slogan was particularly effective after it became apparent that Parliament wasn't about to give remote colonists reciprocal power in Parliament to interfere with affairs in the British Isles. With Parliament adamantly refusing to dilute its own power, "No taxation without representation" was a neat rhetorical box which meant, "No taxation." Contemporary English historians now throw up their hands in despair that so few members of George III's government had Burke's vision or even the normal wiles of diplomacy. But that understates the hidden political agenda. Parliament just pushed ahead with fairly nominal taxes, but they did so to curtail the independence of colonial legislatures.

The Stamp Act of 1764. It could be argued that Navigation Acts nothing new; earlier versions were first passed in 1651, intended to thwart Dutch trading. They prohibited foreign trade with the British home islands. After fifty years in 1703 similar restraints were extended to trade with the colonies, particularly molasses in the Caribbean area. No outcry was made as these restraints, aimed at retaining the Britishness of British colonies, were occasionally modified and extended over the next sixty years.

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Thomas Penn

After a century in 1764, however, the Stamp Act was passed, producing modest revenue but imposing a crippling set of headaches by requiring special papers to transact private business. The uproar was enormous and legitimate, focused mostly on the tangle of red tape needlessly imposed. By shifting taxation from trade to paperwork transactions, suspicions were plausible that the Ministry was scheming something obscure. The Stamp Act was hastily repealed, even before Benjamin Franklin and Thomas Penn recognized its unpopularity and were still to some extent defending it in 1766. Franklin apparently saw the Stamp Act as an opportunity to appoint his friends as stamp agents. Local uproar in Pennsylvania was apparently orchestrated by William Bradford, who in addition to having been Franklin's former competitor in the printing business, was the owner of the London Coffee House at Front and Market. No other prominent colonial leader seems to have been involved in the agitation, and it is remotely conceivable that uproar originated with Bradford alone. More likely, Bradford was merely an opportunist in a genuinely popular uprising. With the familiar maneuvering characteristic of politicians, Franklin took popular credit for defeating the Stamp Act with some skillful criticism of it, while John Penn gained credit with the King for representing Pennsylvania's relative calm about it, compared with other colonies. In Pennsylvania at least, the uproar quickly subsided after the repeal of the Act.

The Townshend Navigation Acts of 1768.In 1766 the Grenville Ministry was replaced by that of Rockingham, then soon by Pitt, who were anxious to disavow the unpopular Stamp Act, but nevertheless needed colonial revenue, and needed a few unpleasant laws to prove that Parliament could not be intimidated by colonial squawking.

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Charles Townshend

Charles Townshend, the brilliant, vindictive, Chancellor of the Exchequer then proposed taxes on glass, painter's lead, paper, painter's colors, and tea. The underlying political purpose of these taxes was to provide revenue for paying British colonial administrators directly, rather than depend on the Colonial legislatures to pay them. The Legislatures had long played a game of withholding payments, sometimes even the salaries of Judges and Royal Governors, when they disapproved of projects devised in London. The very predictable uproar provoked by the Townshend Acts propelled John Dickinson into prominence with a pamphlet called Letters From a Pennsylvania Farmer, which popularized the idea of "nonimportation", essentially a boycott of British products. Unintentional nonimportation was in fact the effect of the laws, clogging the ports with paralyzed trade goods. Rather than Dickinson's lofty principles, a little-noticed act of 1764, prohibiting the printing of paper money, paralyzed trade. There simply was not enough available coinage to pay these taxes, which finally pushed the primitive transaction system beyond its capabilities. From the viewpoint of modern economics, a heavy unbalance between imports and exports could not be rebalanced by flows of capital. The disastrous Townshend Acts were mostly repealed in 1770, but the British government was getting in deeper and deeper, discrediting itself at every turn. To retreat but still save face, they repealed all the taxes except the one on tea.

The Tea Act of 1772. To a certain degree, the uproar over the face-saving tax modifications on tea was a pretext for confused but radical colonists who were spoiling for a fight about difficulties they tended to personalize. The act actually lowered the effective taxes on tea, and at first Whig radicals were hard put to find a reason for outrage about lowering the price of tea. However, Bradford and his London Coffee House cronies (Mifflin, Thomson) were imaginative, and soon stampeded a mob scene in Philadelphia, where for a time the populace had seen nothing to get worked up over. Rush and Dickinson joined the chorus; the public feeling was stirred to a frenzy not easily reversed.

The really substantive issues involved were created by several years of Townshend Duties and other forms of import restriction. Laws to ensure the Britishness of British colonies created pleasant opportunities for colonial artisans and craftsmen, difficult hardships for importers. But these dislocations, whether welcome or unwelcome, firmly exposed the underlying truth that they caused all colonists to pay higher prices for goods. Adam Smith was not to publish his Wealth of Nations until 1776, so in this case the proof preceded the theory. The colonists were effectively asked to pay higher prices for everything, in order to increase Britishness and to billet soldiers they could not command. Once that cat was out of the bag, attitudes could never be the same. On the English side of the ocean, the question was framed as colonist unwillingness to contribute to the cost of their own defenses. The two slanted perceptions hardened to the point where arrogance confronted defiance, suggesting combat to both of them.

In the case of tea, taxes and import restrictions were intended to promote English tea over Dutch tea; in fact, they stimulated smuggling. Smuggling grew to a point that vast quantities of tea were stranded in the warehouses of the British East India Company, and trade balances of the British Empire were undermined. By reducing taxes, Parliament made East India tea cheaper than smuggled tea. Going perhaps one step too far, middle-men in the tea import business were cut out of the loop by appointing favored direct agents. In Philadelphia, those were Henry Drinker and Thomas Wharton. Bradford and his group immediately set about intimidating these merchants with threats to burn them out, and the sea captains who worked for them, with threats of tar and feathers. The age of Reason was leaving Reason behind.

A Pennsylvania Farmer in Delaware

{over Air Force Base}
John Dickinson

It is difficult to have a coherent view of the mind of John Dickinson. Seriously offended by the Townshend Acts, he rightly perceived them to be the work of a few malignant personalities in British high places who would mostly soon be replaced. Later on, he refused to be troubled by the inconsequential Tea Act, which he appraised as a face-saving gesture of reconciliation, but more recent historical information demonstrates was more likely aimed at avoiding an unrelated vote of no-confidence in Parliament. Unfortunately, Dickinson was too remote from these events and additionally could not comprehend reckless hotheads among his own neighbors. Reckless hotheads in turn seldom comprehend the measured meekness of Quakers. In any event, although Dickinson played a major role in the Declaration of Independence, he refused to sign it when the time came, evidently sensing an opportunity to separate the three lower counties from Pennsylvania and its Proprietors. A few months later when the British actually invaded the new State of Delaware on the way to capturing Philadelphia by way of Chesapeake Bay, Dickinson enlisted as a common soldier and fought at the Battle of Brandywine. Obviously, he was seriously conflicted.

{John Dickinson's Farmhouse}
John Dickinson's Farmhouse

Dickinson had become internationally famous for twelve letters he had meant to publish anonymously. The Letters From a Pennsylvania Farmer were written about 1768 out of resistance to the Townshend Acts. Because the three counties which were to become the State of Delaware were then still part of Pennsylvania, many school children have become understandably confused about the actual location of the man who became governor of both states, simultaneously.

The causes of the separation of the two colonies are still a little vague. Delaware schoolchildren are taught the two states separated, but often report they didn't retain much information about why it happened. The Dutch and Swedes who originally settled southern Delaware were not sympathetic with Quaker rule, which could be seen as a reaction to their living here for generations as Dutchmen before William Penn arrived, but then saw the colony sold out from under them. As a further conjecture, there might have been friction with the Quakers over slavery, similar to the hostility of other Dutch settlers in northern New Jersey when William Penn purchased that area. This pro-slavery attitude resurfaced in both areas during the Civil War. One alternative theory which has considerable currency in Delaware is local dissension about Quaker pacifism during the Revolutionary War. On a recent visit to Dickinson's home outside Dover, a school teacher was overheard to instruct his flock that the Dutch Delawarians wanted to fight the British King, but the Quakers wouldn't give them guns. "We value peace above our own safety," was the unsatisfying response they received from the Pennsylvania Assembly. But that line of reasoning bumps up against Dickinson's role in local affairs, his ambiguity over the Declaration, and his vacillation in warfare. One would suppose the simultaneous Governor of both states would play a major role in the separation of the two.

{over Air Force Base}
over Air Force Base

Dickinson's plantation, quite elaborately restored and displayed, is tucked behind the Dover Air Force Base. Perhaps all that aircraft noise will discourage sub-development in the area of Dickinson's plantation and the rural atmosphere may persist for years. At the time of the Cuban missile crisis, your correspondent happened to be driving past, observing the sky filled with bombers, just circling and circling until the diplomats settled matters. Since eight-engine bombers are seldom seen around Dover, it has always been my presumption that they came from elsewhere to be refueled at Dover; but that's just a presumption. One of the pilots later told me he was carrying nuclear "eggs" and was completely prepared to take a long trip to deliver them.

To get back to Dickinson's wavering about the Declaration, maybe there was a good reason to waver. Joseph J. Ellis (in His Excellency, George Washington) relates that after the devastating British defeat at the Battle of Saratoga, Lord North made an offer to settle the war on American terms. In a proposal patterned after the concepts of the separatists in Ireland, America could have its own parliament as long as it maintained trade relationships with England. As an opening offer, that comes pretty close to what the colonists had been demanding. Governor Morris was active in disdaining this offer, although it is unclear whether he was acting alone or as the agent of others. The offer came too late to be accepted, but it might have shortened the war by six years, and we might now have a picture of the Queen on our postage stamps.


REFERENCES


His Excellency: George Washington: Joseph J. Ellis: ISBN-13: 978-1400032532 Amazon
Letters From A Farmer In Pennsylvania To The Inhabitants Of The British Colonies (1903): John Dickinson: ISBN-13: 978-1163969533 Amazon

Mercantilism Dies Hard

{Mercantilism to  Americans}
Mercantilism to Americans

Whatever mercantilism was supposed to mean can be debated by captive college students; mercantilism to Americans is and was just a bad thing having to do with economics, mentioned only when the speaker is searching for an epithet. Our present understanding of the mercantilist term is that brutal government action, even war, was employed to benefit favored citizen merchants, while the economics of a whole nation of consumers was subverted toward enhancing state power. All of this rapacity was for the betterment of one nation at the expense of its neighbors, and at the expense of its colonies. The surprisingly vague but more modern term of fascism is often substituted, to denote evil uses of government to promote the interest of combined military and industrial elite, to the general disadvantage of everyone else. Because so many opponents of mercantilism were upset about specific forms of mercantilist activity, Adam Smith is associated with the idea that mercantilism was the opposite of international free trade, and the American founding father are associated with the idea that mercantilism embodied everything we disliked about colonialism. Some prominent 18th Century leaders constructed a body of theory to defend mercantilism and firmly established the idea that the whole approach was founded on long-discredited sophistry. In recent times, the only reputable economist to defend parts of mercantilism was John Maynard Keynes, who approved of the idea of emphasizing third-world exports in order to assist developing countries into a modern economy. Whatever is the underlying idea behind this mercantilist idea that has caused so much trouble, and includes so many disconnected features?

Allow an amateur theory. In my view the fundamental misconception underlying mercantilism was the idea that economic relations between individuals and nations are a zero-sum game; what I gain must be at the expense of someone else's loss. Almost every child believes that many or even most everyday transactions seem to confirm it, and vast multitudes of mankind believe it to the end of their days. But as part of the Industrial Revolution, the counter-intuitive realization began to spread that cooperative behavior, within limits, could sometimes result in all participants becoming better off, harming no one. Perhaps it was even a universal idea. Adam Smith popularized the idea that when two parties freely participate in the free trade of a marketplace, each one can come away from the trade feeling better off; one party would rather have the goods, the other party would rather have the money, and they trade. Multiplied millions of times, the expansion of free trade would enrich whole nations, even the whole world. George Washington may not have understood all that, but he did know that England was injuring him with rules about insisting British subjects must conduct all foreign trade in British sailing vessels, must not manufacture locally, must do this, must not do that.

Exporting was good, importing was bad, manufacturing was to be concentrated in the mother country, consuming was to be discouraged -- what was the unifying theory behind all this? It would seem to have been the gold standard. Gold was durable, and its supply was limited. It had certain undeniable advantages, but its overall effect was to restrain industrial progress. If the economy is constantly expanding, but the supply of gold is relatively limited, the price or value of everything will go steadily down over time. In George Washington's time that was particularly irksome with regard to the value of his plantation, and his vast land holdings of Ohio land. It was also true of everything else that was reasonably durable. If everything is measured in gold, and gold is limited, then the accumulation of gold is ultimately the only way to accumulate wealth. The English nobility who were profiting from the system might not perceive it, but the colonists could perceive it in their bones. Small wonder that modern banking, economics and innovative finance took root in the American colonies. If not first, at least most vigorously. Small wonder we had a revolution men would die for, while the British were merely annoyed and mystified.

Vast areas of Asia, Africa and the Middle East are still committed to the idea that the only way to get rich is to steal from others; since everyone wants to get rich, everyone steals. Someone has reduced this idea to a simple game theory called the Prisoner's Choice. If two prisoners tattle on each other, both will be severely punished. If both prisoners refuse to testify, both will go free. If one tattles and the other remains mum, the tattler will go free and the loyal comrade will get hanged. Reduced to its simplest level in a series of repeated games, the theory states that it's better for everybody to cooperate most of the time, but you must be willing to play tit for tat if the other party cheats. Be cooperative as much as you can, but never forget to wallop a cheater, and then forgive him later so he can have a chance to play nice. Lots of people will think you are a sucker if you play nice, so, unfortunately, it is necessary to retaliate -- swiftly and painfully -- when someone cheats. Centuries of American history are explainable with this simple game theory.

And not just with tribesmen and Nazis. When Winston Churchill finally realized that the Bretton Woods Conference was going to mean the end of the British Empire, he was almost tearfully plaintive with his friend Frank Roosevelt, but he said he understood.

And six years later, when Churchill's protege Anthony Eden invaded Egypt over the Suez Canal, Dwight Eisenhower the hero of the Normandy Invasion that saved England, suddenly turned nasty. England would immediately abandon that invasion, or Eisenhower would foreclose on British debts and ruin them.

That was the end of British colonialism, and in a sense, it was the final end of the Revolutionary War.

The Stamp Tax: Highly Innovative, Much Underestimated

One of the great books about Benjamin Franklin has just emerged, and it has an interesting current Philadelphia connection. Benjamin Franklin in London fills in the eighteen years Franklin spent in Europe, with many details and insights not possible to have with three thousand miles of ocean separating his activities from his home base. In fact, it raises the question of what was really his home in his own mind. Boston claims him because he was born there, but it takes a London writer to tell us he moved to Philadelphia because of disputes over vaccination for the smallpox epidemic, between his publisher brother and Cotton Mather. XX Goodwin, writer in residence at the Craven Street Ben Franklin Museum, will forever change our views about his subject. We hope he produces much more.

A word about the museum. The Craven Street house is the only Franklin residence still standing, restored with funds from Countess XX, Anthony Biddle's XXX, who unfortunately died this year. Her daughter, Charlotte Petropolis has an apartment in Philadelphia and regularly attends meetings of the Shakspere Society at the Philadelphia Club, which is itself the oldest club in America, and second oldest in the world, according to Matt Dupee, one of the local authorities on such matters, himself a member of a great many clubs around the world. To return to the original point, Goodwin is the beneficiary of this important interest by prominent Philadelphia families in our Founding Father.

{Privateers}
Revolutionary Boston Reconsidered

One gathers from the book that Franklin had considered himself a lifelong British subject, and from the Albany Conference of 17XX to his abject public humiliation in the "Cockpit" of Whitehall in 1775, nursed the hope that Great Britain and America would join in an empire as equals. He foresaw the growth of America, and expected the capital of the joint empire to move to America. After he returned to America, of course, the gauntlet had been thrown down, and he made it his task to enlist France on our side, bankrupting France and thus eventually provoking not one, but two national Revolutions. The French still think of him as their darling, but the lessons of the French Revolution taught Franklin some things he needed to know at the American Constitutional Convention of 1789. Letting others like Hamilton and Gouverneur Morris do the talking, his influence at dinners and private meetings put a stop to egalitarian babble and established a firmly Federalist nation. His activity in London would have won him a Nobel prize instead of fairy tales about kites and keys, he was friends with Mozart and Beethoven, plus about five kings. You don't humiliate a man like that without living to regret it, and King George III certainly regretted it in his saner moments.

Which, after three paragraphs, brings us back to the Stamp Tax of 17XX. To begin with, it isn't enough to want to do something, you must figure out a way to get it done. The early 18th Century colonists had learned that smuggling and counterfeiting would frustrate any tax plan for colonies so far away with diversified economies. The oceans were filled with pirates, sometimes described as privateers, and the American coastline was thousands of miles long. Furthermore, maintaining a large British navy from the Spanish Armada to the War of the Austrian Succession required thousands of British sailors, and the Navy had been stripped down to spare expense. So naturally the idea came up to have the colonies pay for their own defense at least, but how were you going to do it, in a way you could afford to continue?

A little digging in history would probably reveal the main author of the Stamp Tax Act, but such things are often the product of staff rather than the parliamentary member who introduced them. But it ingeniously solved the empire taxation problem. You just printed up the stamps and sold them, then required the objects of taxation to have a stamp pasted somewhere on them. You still would have to worry about smuggling and counterfeiting, but the whole thing was an inexpensive way of collecting the money and enforcing the tax. It even provided some nice patronage jobs for loyal stamp sellers.

Apparently, it was much too clever by half, since the colonists could immediately see what might be ahead of them. An uproar ensued, leading ultimately to repeal of the tax, except for a token tax on tea in order to preserve the principle. But the principle was exactly what bothered the colonists, and a tea tax wouldn't do, either. The rest is history, except I don't happen to know whose idea it really was. But I do know that Franklin was in London at the time, and Franklin's inclinations were strongly in favor of a combined British Empire. Franklin almost lost his job in this uproar, and some of his fellow colonists may have suspected his personal position on it.

Monetary Causes of the American Revolutionary War

{Privateers}
Milton Friedman
The Father of Monetarism

Milton Friedman won the 1976 Nobel Prize in Economics (more accurately, the Bank of Sweden Prize in Memory of Alfred Nobel), for generating controversial ideas made even more annoying to his professional adversaries by his matchless knack for attaching memorable slogans to them. A phrase in question is that "Inflation, always and everywhere, is a monetary phenomenon." Turned around, the converse emerges that the great deflation and depression of the 1930s was caused by a global monetary shortage. Then, to extend the same idea to the American Revolution, it could fairly be argued that inept British contraction of colonial coinage had a lot to do with provoking us to seek independence.

{French & Indian War}
French & Indian War

Following the French and Indian War, the colonies experienced a major commodity depression which seems to have been caused by wartime shortages followed by post-war surpluses (associated with failure to adjust to the resulting financial confusion). In Milton Friedman's theory, it is the task of any government to maintain stable prices by balancing the amount of currency in circulation with the size of the gross national product. In 1770, the British Exchequer would thus have had to expand and contract the amount of currency in circulation pretty rapidly to maintain economic stability in the bumpy Colonial economy. Essentially, they had to ride a bucking broncho three thousand miles away. In the Eighteenth Century, there was no trace of understanding of the issues involved. Adam Smith's Wealth of Nations was only published in the fateful year of 1776, for example. Even if the techniques for maintaining stable prices had been crystal clear, there was a thirty-day lag in communication across the Ocean, and comparable lags between the colonies, where different imports and exports were affected at varying times. So it is a little harsh to blame the British for the chaotic result, except to notice that strongly centralized, the trans-Atlantic government was by nature unsuitable for managing rapidly-changing problems, currency and otherwise. The British government had more than a century of experience that should have made that clear. That's what the colonists said, in effect, and their solution for it was Independence.

{George III}
George III

If you believe Friedman, a shortage of coinage causes a fall in prices or deflation. To correct that, you need a central banker constantly fine-tuning the currency. But banking in the colonies was too rudimentary to consider such a thing. If you needed a mortgage, you went to a prosperous neighbor and borrowed directly from him. That was fine because prosperous colonists had limited opportunities to invest their money conveniently, except by loaning money to their neighbors. Indeed, local communities were knit together socially by the mutual assistance of successful farmers directly assisting their less fortunate neighbors. However, pioneer farming

{Depression-era Farm Family}
Depression-era Farm Family

communities are far too unsophisticated to remain tranquil when problems arise out of abstractions. Suddenly and without apparent explanation, in 1770 there was no money for anybody to use, and the fellow with a mortgage on his farm couldn't make his payments even though he was otherwise entirely successful. His creditor himself than couldn't pay his own bills, and eventually, even the kindliest ones were driven to foreclose the mortgage. It was said to be common for a farm worth $5000 to be sold to satisfy a mortgage of $100. And in this way, many honest and once-prospering farmers were forced to walk past their old home, now owned and occupied by a formerly friendly neighbor. It all seemed bitterly unfair, no one understood what was happening, evil motives were readily suspected, and old religious and personal grievances were heightened. When the British finally imposed a total ban on paper money as well as a prohibition of the export of British coinage outside the United Kingdom, things became almost impossible to manage. Almost no one knew exactly what was going on, but everyone could see it was bad. The colonies rapidly deteriorated toward class warfare, which is what the division between Tories and Rebels was soon to become, with both sides quite rightly asserting they were not responsible, and quite wrongly asserting the other must be.

From a far distance, it can be readily perceived the primitive banking and transportation systems of that time were inadequate to respond to the rapidly changing financial problems of a global empire; and it can be readily surmised that many other non-financial issues of governance were similarly hampered by attempting to centralize control over vast distances. In that sense, the colonists were approximately correct in directing their indignation to the person of King George III, whose mother was constantly nagging him to "be a real King". He had the particular misfortune to be dealing with Englishmen, deeply aware of the hidden political agenda made possible in the 13th Century by the Magna Charta and made explicit in 1307, when Edward I agreed not to collect certain taxes without the consent of the realm. Essentially, Parliament placed taxation in the hands of the people, who consistently withheld consent until the king gave them just a little more liberty. This was the reason irksome micromanagement of the distant colonies was immediately countered with the cry of "No taxation without Representation" since membership in the House of Commons was a traditional and historically effective means to the end. But it was getting late for this solution. Maritime New England now wanted to go further than that in order to dominate Western Atlantic trade. Virginia and the rest of the South wanted to go all the way to Independence in order to exploit the vast empty interior wilderness of Ohio and beyond. But the Quaker colonies in the middle felt quite sympathetic with John Dickinson's advice to remain part of the Empire and make a stand for representation in Parliament. When the Lord Howe's British fleet appeared in lower New York harbor an immediate choice had to be made, and ultimately the Quaker colonies were swayed by Benjamin Franklin's embittered report of his mistreatment in Parliament, and his assessment that he could persuade the French to help us. However reluctant they were to resort to force, the Quaker colonies had to choose, and choose immediately: either flee as Tories to Canada, or stand and fight.

Greenwich, Where?

{Greenwich NJ}
Greenwich NJ

If you sail north up the Delaware Bay, you would go past Rehoboth, Lewes, Dover, New Castle, Wilmington -- on the left, or Delaware side. On the right, or New Jersey side, it's a long way from Cape May to Salem, the first town of any consequence. That is, the Jersey side of the riverbank is still comparatively uninhabited. When the first settlers came along, with vast areas to choose among, it might have seemed attractive to settle on the Delaware side, because the peninsular nature of what is now called Delmarva (Del-Mar-Va) would provide land access to two large navigable bays, the Delaware, and the Chesapeake. To go all the way up the Delaware to what is now Pennsylvania would give trading access to a whole continent, so that eventually proved to be where immigration was headed. But as a matter of fact, the marshy Jersey shore seemed more attractive for settlement by the earlier settlers.

A settler has to think about starving the first year or two, because trees have to be cut down, and stumps pulled up before the land can even be plowed. After that, comes planting and growing, then finally harvesting. Trees, behind which Indians can hide, are a bad thing all around in the eyes of a settler. The flat swampy meadows of the Jersey bank were just exactly what the Dutch knew how to manage. Dam up the creeks and drain the ground, and you will soon have lots of lands ready for the plow, without any confounded trees. By the end of the seventeenth century, the English who had made the mistake of settling in rocky Connecticut finally saw what the Dutch were able to do, and came down to take it away from them.

{Greenwich scenery}
Greenwich scenery

That's why there is a Salem, New Jersey, and also a Greenwich, New Jersey. Greenwich ( around here they pronounce it green-witch) had 870 residents at the last census. It is one of the cutest little colonial villages you are likely to encounter. The local historians refer to it as an unreconstructed Williamsburg, drawing prideful attention to the fact that these houses were really built in the colonial period, and are in no way imitation reconstructions. The isolated charm of this place is in large part due to being surrounded by a maze of wandering creeks, so visitors by land travel don't get there in time for lunch unless they take great care to follow a local road map. If you arrive by water, it's no problem; just navigate up the crooked and twisting Cohansey River.

Although pioneer settlement was much earlier, the oldest house still standing in that rather damp area was built in 1730. Things are pretty much the way they were before the American Revolution because the Calvinists who settled here were not prepared for the Jersey mosquito, which obviously is abundant in such a marshy area. With the mosquito comes relapsing (Vivax, malaria, black water (Falciparum) malaria, and Dengue Fever (graphically known locally as break-bone fever). As a matter of fact, encephalitis is also mosquito-borne. When you don't understand the insect carrier situation, survival in such an environment depends on local fables and lore, like going to the mountains for the summer after the planting season, and only returning at harvest time. That sounds to a New Englander newcomer like a superstitious cloak for lazy living, especially since masses of fish come up the river in teeming waves, looking for mosquitoes to eat. So, Greenwich is charming, but it never was thriving.

Working hard to find something to say about the town, it would appear that Paul Revere himself came riding into Greenwich in December 1774, urging the town to join their Boston relatives in the destruction of tea belonging to the British East India Company. Greenwich accordingly had a public tea burning on December 22. Since the more notorious Boston tea party took place on December 16, 1773, and the British Tea Act was passed in May, 1773, it is not exactly accurate to say the rebellion spread like wildfire. One has to suppose that the inflammatory tale told to the local farmers by Paul Revere was likely a little enhanced, since a careful recounting of the events in Boston suggests a number of ways the uproar might have been avoided if Samuel Adams and his friends had been less provocative. Or if Massachusetts Royal Governor Thomas Hutchinson had been less flighty. Or for that matter, if Benjamin Franklin had restrained himself when he got hold of Hutchinson's letters at a critical moment when he was in London. In retrospect, the best model for behavior was provided by the Royal Navy; the whole Boston Tea Party was surrounded by armed British naval vessels, who did not lift a finger throughout the demonstration.

Anyway, little Greenwich had its minute of fame with a tea burning. Otherwise, it has had a very quiet existence for three centuries.


REFERENCES


Paul Revere & The World He Lived In Amazon

Pennsylvania: Browbeaten Into Joining a War

{Battle of Lexington}
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}
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.

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

{top quote}
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. {bottom quote}
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.

Poor Richard Plays Hardball

Several distinguished biographies of Benjamin Franklin have recently skirted his January 1774 confrontation with the British government in the "Cockpit" of Whitehall. Presumably, the exquisite details are too fancy and complicated for easy description, or possibly the cardinal significance of this intellectual duel is underestimated. It seems possible the American Revolution was declared by one man's making up his mind. A mind made up in one particular hour in one particular room, irrevocably, in front of the whole British Establishment.

The Archbishop of Canterbury was there, and so were Edmund Burke and Joseph Priestley. So were all the Privy Council, and most of British high society, giggling and hissing at his discomfort. Poor Richard stood there silent and impassive. The Enlightenment thought they were deciding his fate, but he was deciding theirs.

{Privateers}
Lord Alexander Wedderburn

Franklin had published some letters he had promised not to publish, but they showed the British government in a very bad light. Alexander Wedderburn the Solicitor-General had deliberately orchestrated the meeting to shift the emphasis to Franklin's broken promise and away from British provocation of it. The room had been packed with highbrows promised a delicious treat, and Wedderburn's speech was meticulously planned as an entertainment for the intelligentsia. The man who discovered electricity was mocked as "conducting" the letters. And a famous man of letters was reminded that the ancient Athenians would brand three letters on the back of the hand of a thief: FUR, the name for a thief, an elaborate 18th Century pun making reference to fur hats and collars, which were the traditional symbol of printers. Wedderburn roused himself to the climactic announcement that the famous Roman, Plautus, had invented the famous derivative epithet, "Homo, triumph literarum," portentously meaning a three-letter man. The galleries of Whitehall tittered and applauded this thrilling attack. Franklin continued to stand, his face perfectly inscrutable to the end.

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Deplessis Portrait of Benjamin Franklin

In his report back to the Massachusetts Legislature, Franklin used dismissive understatement to show he had not been asleep while he was impassive. He had been, he said, "the butt of his invective ribaldry for nearly an hour." After that, Poor Richard seemed to disappear from British society for nine months, seeing only close friends in his house, and then he sailed home to America, becoming a member of the Continental Congress the day he stepped off the boat. Meanwhile, he had arranged to have his portrait painted by Duplessis, the most distinguished painter in France, eventually to have it hang next to a painting by the same artist, of the King of France. To the original sketch for the portrait had been added a fur collar, the traditional emblem of the painter's guild. At the bottom, where a motto ordinarily would be found, was the single, three-letter Latin word, "VIR," or man, which would today be equivalent to he-man. And just so everyone would get the point, Franklin sent an otherwise anonymous letter to the newspapers, signed "Homo Triumph Literarum" in which he taunted that the friends of Mr. Franklin would have to agree he was a thief, as in the famous line of poetry that "He stole the lightning from the skies." But old Ben wasn't just bragging. Anticipating the baseball player Dizzy Dean by two hundred years, he was in effect saying "It ain't braggin' if you really have done it."

On Feb. 6, 1778 he and Silas Deane went over to the French palace to sign the Treaty of Alliance with the King of France. Instead of his usual brown suit, Franklin was wearing a faded blue one, and Deane questioned why he wore old clothes to such an important ceremony. "To give it a little revenge," was the answer. "I wore this suit on the day Wedderburn abused me at Whitehall." The true depth of Franklin's feelings would never have been known if Deane had not asked.

As a reminder, the Treaty they were signing said, "The essential and direct end of the present defensive alliance is to maintain effectually the liberty, sovereignty, and independence of the said United States. . . ." All in all, not a bad academic performance for a man who never went past the second grade in school.


REFERENCES


The Invention of Air: A Story of Science, Faith, Revolution,and The Birth of America, Steven Johnson ISBN: 978-1-59448-852-8 Amazon

Franklin Declares Independence a Year Early

Joseph Priestly became a close friend of Benjamin Franklin almost as soon as they met. Priestly was an Anglican clergyman who broke loose and formed the Unitarian Church, and meanwhile, his scientific discoveries also entitle him to be called the Father of Chemistry. Franklin, of course, was the discoverer of electricity; it would be hard to be sure which of the two was more brilliant. In July, 1775, Franklin wrote the following letter to Priestly, which makes a trenchant case that the American colonies should, and would, break away from England. Since some legal authorities, following Lincoln's lead, maintain that Jefferson's manifesto "informs" the United States Constitution, it might be well to begin referring to this letter as an even clearer statement of the mindset of America's founding leaders.

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General Thomas Gage

" Dear Friend (wrote Franklin),

"The Congress met at a time when all minds were so exasperated by the perfidy of General Gage, and his attack on the country people (i.e. Of Lexington and Concord), that propositions of attempting an accommodation were not much relished; and it has been with difficulty that we have carried another humble petition to the crown, to give Britain one more chance, one opportunity more of recovering the friendship of the colonies; which however I think she has not sense enough to embrace, and so I conclude she has lost them forever.

"She has begun to burn our seaport towns; secure, I suppose, that we shall never be able to return the outrage in kind. She may doubtless destroy them all; but if she wishes to recover our commerce, are these the probable means? She must certainly be distracted; for no tradesman out of Bedlam ever thought of increasing the number of his customers by knocking them on the head; or of enabling them to pay their debts by burning their houses.

"If she wishes to have us subjects and that we should submit to her as our compound sovereign, she is now giving us such miserable specimens of her government, that we shall ever detest and avoid it, as a complication of robbery, murder, famine, fire, and pestilence.

"You will have heard before this reaches you, of the treacherous conduct to the remaining people in Boston, in detaining their goods, after stipulating to let them go out with their effects; on pretence that merchants goods were not effects; -- the defeat of a great body of his troops by the country people at Lexington; some other small advantages gained in skirmishes with their troops; and the action at Bunker's-hill, in which they were twice repulsed, and the third time gained a dear victory. Enough has happened, one would think, to convince your ministers that the Americans will fight and that this is a harder nut to crack than they imagined.

"We have not yet applied to any foreign power for assistance; nor offered our commerce for their friendship. Perhaps we never may: Yet it is natural to think of it if we are pressed.

"We have now an army on our establishment which still holds yours besieged.

"My time was never more fully employed. In the morning at 6, I am at the committee of safety, appointed by the assembly to put the province in a state of defense; which committee holds till near 9, when I am at the Congress, and that sits till after 4 in the afternoon. Both these bodies proceed with the greatest unanimity, and their meetings are well attended. It will scarce be credited in Britain that men can be as diligent with us from zeal for the public good, as with you for thousands per annum. -- Such is the difference between uncorrupted new states and corrupted old ones.

"Great frugality and great industry now become fashionable here: Gentlemen who used to entertain with two or three courses, pride themselves now in treating with simple beef and pudding. By these means, and the stoppage of our consumptive trade with Britain, we shall be better able to pay our voluntary taxes for the support of our troops. Our savings in the article of trade amount to near five million sterling per annum.

"I shall communicate your letter to Mr. Winthrop, but the camp is at Cambridge, and he has as little leisure for philosophy as myself. * * * Believe me ever, with sincere esteem, my dear friend, Yours most affectionately."

[Philadelphia, 7th July, 1775.]


REFERENCES


The Invention of Air: A Story of Science, Faith, Revolution,and The Birth of America, Steven Johnson ISBN: 978-1-59448-852-8 Amazon

Ben Franklin and Brexit

{Privateers}
Minister David Cameron

In June 2016, Great Britain voted by a million plurality, to withdraw from the European Union. The plebiscite was not binding on Parliament, but Prime Minister David Cameron promptly resigned, and there remains little discussion of anything but going ahead with "Brexit". It will take at least two years to accomplish the matter, and there remains great uncertainty about the terms of separation. The British stock market took a sharp dip. Stock markets always hate uncertainty, and from the start, there was little doubt Britain would experience some economic hardship, but still they went ahead with it.

{Privateers}
Archbishop of Canterbury

By the greatest stroke of good luck, I happened to be in London for this event. It had been barely noted in the Americana press before I left, and indeed a discussion group hadn't even put it on the agenda after my return. But let me tell you, the British public was talking about nothing else. From the lowest barmaid in a pub to the Archbishop of Canterbury, there was only one topic of conversation and a very real understanding that Britain might well vote to leave the EU. Once the vote had been taken, of course, even the American public appreciated its significance and its resemblance to the headlong tumult in our own political parties. Donald Trump might well win the election, and logic or rhetoric had little to do with it. Other countries, Scotland in particular, were teetering in the same direction of demonstrating how far a democracy was from a republic when each "leader" had a million constituents. And how well the public appreciated the tendency of elected representatives to forget who elected them. Or else, in more rational moments, to appreciate how difficult it is for elected representatives to communicate with constituents.

{Privateers}
Ben Franklin London Townhome

To go on with this insight for a moment, my Washington daughter tells me Democrat congressmen are required to spend thirty-six hours every week in a call center, soliciting campaign funds; where do they find time to legislate? But the central background reflection I happened to have about Brexit was how enduring the political split apparently was between the Whigs and the Tories. This thought came to me from one of the real reasons I was in London, to visit Ben Franklin's imposing rowhouse on Craven Street, fifty feet from the National Museum on Piccadilly. Franklin lived there for most of eighteen years, in a style quite different from the two-penny loaf of bread in Philadelphia. He was personal friends with five kings, Voltaire, Mozart, and Beethoven, as well as Priestly, Lavoisier, and Hume. Townsend may indeed have passed the Stamp Act, but he invited Franklin to spend the weekend at his hundred-room castle. The neighbors on Craven Street easily recognized the carriage of the Prime Minister when he came to call on Franklin on Craven Street. From the point of view of this social set, the uproar over the colonies was whether England should conquer them and send their raw materials to British factories (the Tory view), or should instead colonize them with Brits, give them the vote, and rule the world as a commonwealth (the Whig view). Naturally, Franklin supported the Whigs, but his loyalty to his good friend George III never wavered until 1775. And then, lightning struck St. Paul's Cathedral.

{Privateers}
King George III

Quite logically, the King asked Franklin's advice. The King, however, insisted on a brass ball on the top of the church. Franklin resisted, saying a spire was much more effective. We don't have the exact words exchanged, but essentially the King said he was going to have his way, while Franklin in effect asked him who he thought he was talking to. In those days, far less direct wording was needed to give offense on such a central issue of the king having the last word whenever he wanted. It is intimated the King suggested to Wedderburn he should take care of the issue for him, and within a few weeks, Franklin was subjected to public humiliation in the cockpit at Whitehall, threatened with arrest, and fled to America to start the war. I had never heard this story, before.

The point leaves me with is not that Franklin lost his cool and should have known better than to express his opinion. Rather, it is the reflection that never before had a king been challenged on his divine opinion on any subject. Just think of the shock this must have caused him, to have to realize this was the first snowflake in a blizzard. With the Enlightenment and the Industrial Revolution, the world was going to be full of experts, who could make a fool of any king by disagreeing with him in public. This particular king was able to have his way, no matter what, but the day was soon approaching when any science editor, any university professor, and ultimately every barmaid in a pub, could pontificate to the Pontiff.

Tom Paine: Rabble-Rousing Quaker?

{Privateers}
Thomas Paine

Thomas Paine (1737-1809) was born of Quaker parents, which makes him a "birthright" Quaker. Children born into Quaker families are accustomed to the subtleties of speech and behavior of that religious sect, ultimately growing up to be the main nucleus of tradition. Knowing what they are getting into, however, they are more likely to rebel against it than others who, coming to the religion by choice rather than by birthright, are commonly described as "Convinced Friends."

These stereotypes may or may not explain some of Tom Paine's paradoxes. He certainly was not a pacifist, a quietest, or a plain person. He was an important historical figure; Walter A. McDougall, the famous University of Pennsylvania historian, feels the American colonists might have sputtered and complained about Royal rule for decades, except for Paine. The American Revolution happened when it happened because Tom Paine stirred up a storm.

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Common Sense

According to the traditional way of telling his story, Tom Paine was a ne'er do well failure in London. He ran into Benjamin Franklin, who advised him to emigrate to America in 1775, and within a year his pamphlet called ""Common Sense"" had sold 150,000 copies (some even claim 500,000), galvanizing the public and the Continental Congress into action on July 4, 1776. George Washington read Paine's writings to his troops on the eve of the Battle of Trenton. After that, Paine got mixed up with the French Revolution, and apparently became a severe alcoholic, proclaiming atheism all the way. Although Thomas Jefferson remained friendly to the end, Benjamin Franklin essentially told him to go leave him alone, and Washington would cross the street to avoid him. According to the usual line, Tom Paine was a big-mouthed rabble-rouser and a drunk, who traveled the world looking to stir up revolutions.

However, that cannot possibly be a fair recounting of the whole story. Thomas Alva Edison, whose opinion certainly counts for something, regarded Tom Paine as one of the greatest American inventors, creating the first steel bridge, the first hollow candle, and the principle of central drought in heating. Paine early became a close friend of the Hicks family, the central figures in modern Quakerism; it seems a little unclear how much Tom Paine was reflecting the views of Elias Hicks, and how much Hick site Quakerism can be said to have originated in the thinking of Thomas Paine. Paine was very far from being an atheist. In fact, both he and Hicks believed so fervently in the universality of God that both of them scorned the rituals, paraphernalia, and transparent superstitions of -- religion.

Furthermore, Paine was able to reach the rationalists of The Enlightenment with arguments which cut to the heart of Royalist loyalties. America was too big and too remote to be ruled by a king, particularly one who abused his privileges behind a claim of divine right. William the Conqueror, for example, never denied he was a usurper. One way or another, every king must earn his throne. So, as for feudalism and hereditary aristocracy, what was King George doing with all those German mercenaries? After two centuries of democracy, most Americans are too far from feudalism to appreciate the legitimacy of military meritocracy. Whatever King George was up to, he didn't stand for empowerment of the best and the brightest Englishmen, who in fact might well be opposed to him. If you wanted to get to Virginia aristocrats, Boston sea captains, and Kentucky backwoodsmen, that was exactly the line to take in Common Sense.

Unfortunately, Citizen Tom Paine was a freethinker and couldn't be quiet about it in his later books. He didn't like the way the Old Testament Hebrews hungered for a king. He didn't like the way the New Testament sprinkled miracles on top of unassailable moral principles, and he particularly didn't like the claim that God got an unmarried girl pregnant. He antagonized almost every established religion by proclaiming that no one should make a living from religion. He wrote a book called Age of Reason proclaiming all these freethinking ideas, which struck Ben Franklin as such a stupid thing to do that he would not discuss it, beyond saying that even if he should succeed in convincing people to abandon religion, just imagine how much worse they would probably behave without it. George Washington, who hadn't a trace of intellectualism about him, more accurately portrayed the typical American revulsion at anyone who was so unprincipled as to say such unorthodox things in public. Jefferson distanced himself for political reasons rather than intellectual ones. Franklin thought Paine was a fool. Washington and the rest of the country thought he was a viper.

It would have to be conceded -- by anyone -- that Tom Paine was self-destructive, even sassing Robespierre while in a French prison. How is it such a loose cannon could get the American public off dead center and make the Continental Congress grasp the nettle of revolution, in less than a year? Let's go back to how he came to America in the first place. Franklin sent him.

Then he promptly got a job as editor of the Pennsylvania Gazette, which Franklin had owned for thirty years. And then, in an era when the largest city in America had a population of twenty-five thousand, and the printing presses of the day were able to turn out three or four pages a minute, he sold 150,000 copies of the fifty-page "Common Sense." Who but Franklin, in private partnerships with sixty printers, could have possibly authorized, financed, and printed 150,000 copies of a colonial pamphlet? In order to find that much printing capacity in colonial America, a great deal of other printing had to lose its place in the queue.

Even today, a best-seller is defined as a book that sells 50,000 copies, and it generally takes three years to get it done. In the Eighteenth Century, for an unknown alcoholic to get off the boat and find a publisher for a best seller in a few weeks is hard even to imagine. Unless he had important help.

Quakers and Idolatry

{Privateers}
Philadelphia's Quaker Meetinghouse

There are about forty thousand bodies buried in Philadelphia's Quaker Meetinghouse grounds at Fourth and Arch Streets, which contain only two tombstones. The yellow fever epidemics of the era account for much of that, but it's nevertheless a striking portrayal of early Quaker aversion to anything resembling idolatry. It underlines this attitude by sharp contrast with more recent uproars about desecrating statues of Confederate generals in public spaces of the Old South, which even Robert E. Lee objected to constructing. They led plausibly to erecting and then defacing Union generals in Northern states as well; since it seemed natural for statue-desecration to evolve into an equal-opportunity demonstrations. A little primitive perhaps, but even-handed.

{Privateers}
The Fourth Crusade

Worshiping graven images has a long history. You needn't be a public-statue expert to remember the terracotta Chinese soldiers are two thousand years old, and the Egyptian pyramids are even older. The chariot horses over the Brandenburg Gate make a stronger illustration of the idea, intertwined over the shorter length of Western civilization. Although carvings might be older, we also have a reasonably accurate history of the bronze statues of these horses. The technique evolved with different proportions of copper and tin, with other metals sometimes added, but the underlying idea is to make a hollow bronze statue, giving the appearance of a much heavier solid bronze one, apparently originating in the Greek islands off the coast of Turkey in the second Century. There were in fact two such statues, with different subsequent histories. The Fourth Crusade was the one where Western European Christian Crusaders invaded Constantinople the main eastern Christian capital, never getting to the Holy Land. Even if they started with good intentions, Christians were content to carry off Christian booty, including the bronze horses. One set was sent to Venice and the other set got to the Christians in Southern France.

{Privateers}
Frederick the Great

Frederick the Great put one set in the center of Berlin. In time, Napoleon took both statues to Paris, but later returned them. The one in Berlin, or perhaps copies of it eventually came to symbolize Nazi Germany, but later Checkpoint Charlie. The details of these conquests and adventures are not not of much consequence today, leaving only the central point that someone conquered someone else, and God must love the victor. The main point became victory, dogmas have been forgotten. Only the Quakers seem to be willing to mention another main point: Thousands of people died for these statues, but very few tourists could now tell you why. The Quakers reached a conclusion we might reconsider. Pulverize all statues and churches, thus saving the world from future grief. Since the Quakers also were first to free the slaves but later mostly disapproved of the Civil War, the irony was not lost on them. But most of their grandchildren reversed the assessment. It's too early to say how another generation will be persuaded to feel.

{Privateers}
General Lucius Clay

During the War against Nazi Germany, my uncle was General Lucius Clay's room-mate, and the two of them were appointed to oversee de-Nazification of the defeated Germans by a third Pennsylvania Dutchman, Dwight Eisenhower. The concept was devised by Henry Morgenthau, then Secretary of the Treasury, in a famous letter urging a program to make Germany into an agricultural nation "for a thousand years". Accordingly, my father's brother oversaw the public burning of tons of postage stamps containing swastikas, plus every photograph of Adolph Hitler the Army could locate, along with similar symbols of the Third Reich. Nearly eighty years have passed since then -- essentially two generations, but it still remains illegal to possess such documents. Evidently, a sense of vengefulness so regularly outlasts its provocation, that passing the grievance on to children is usually hard to justify.

Two Hotheads May Have Destroyed an Empire

{King George III}
King George III

Combatants in a war often personalize the enemy in a single person. In 1776 the American colonists blamed it all on King George III. The British might have picked Sam Adams or Thomas Paine. Things are of course always vastly complicated in the affairs of great nations. Economics and national power are strong forces, like our culture, religion, and the accidents of geography and history. But when matters teeter on the edge of a cliff, insignificant pests can occasionally start an avalanche.

Charles Townshend

Consider first Charles Townshend, the Chancellor of England's exchequer in 1768. Townshend didn't particularly want the job, hoping instead for the Admiralty. None of the political power brokers particularly wanted to give him the job, but ultimately regarded it as the place he could do the least harm. He might have had no less an advisor than Adam Smith, who was the tutor of his son, but Smith's letters to him are so servile that it seems unlikely he would urge free trade to such a headstrong merchantilist employer. It is intriguing to speculate this strange association might have sharpened Smith's opinions in the Wealth of Nations which first appeared in 1776./p>

{William Bradford}
William Bradford

Townshend had been a problem all his life. His mother was brilliant, and notoriously promiscuous. He and his father exchanged 2000-word letters explaining to each other how the other was completely wrong. Charles was witty, eloquent and charming when he wanted to be, and he married an enormously wealthy woman. After that, his family had no hold on him, and they rarely spoke to each other. The same charm and arrogance can be perversely effective in politics, so other politicians often just had to put up with him. But as politicians do, they roasted him in their letters and private conversations. His political opponent, Edmund Burke, was perhaps a most gentle critic when he observed, "His actions... seem never to have been influenced by his most wonderful abilities." Opponents, of course, welcome deficiencies in their enemies, while exasperated political allies can be the most scathing about team members who injure the party with misbehavior. Adam Smith referred to his employer as someone "who passes for the cleverest fellow in England." Chase Price described him as "utterly unhinged". Horace Walpole: "nothing is luminous compared with Charles Townshend: he drops down dead in a fit, has a resurrection, thunders in the Capitol, confounds the Treasury bench, laughs at his own party, is laid up the next day, and overwhelms the Duchess [of Argyll, his mother-in-law] and the good women that go to nurse him!" The final assessment of his biographer Sir Lewis Namier was "...illustrations of Charles Townshend's character can be picked out anywhere during his adult life. He did not change or mellow; nor did he learn by experience; there was something ageless about him; never young, he remained immature to the end."

What matters for contemporary American readers is Townshend's 14-year grievance against American legislatures which seem to have originated when he discovered the New York Legislature in 1754 up to its old tricks of refusing to provide funds for Royal initiatives it did not like. At the time, he was in his first public office, the Board of Trade and Plantations, and had written some highly arrogant orders to New York, making many high-handed and disdainful public asides to his friends, including his wish to have the Assembly cut out of appropriations except for token approval of them. He was young, so his wiser party colleagues simply deflected him. But by 1767 he was Chancellor of the Exchequer, a brilliant speaker, and no doubt had collected many political chits to be cashed in. The Townshend Taxes were enacted, his underlying personal grievances were well known, the colonial assemblies could see it meant big trouble.

Although almost no one could match Townshend for bizarre behavior, in Philadelphia at Front and Market Streets, there was another difficult personality, named William Bradford. As a printer and newspaper publisher, Bradford must have been a person of some note in a town of thirty thousand, but it is difficult to find a portrayal of him, and notes about his personal life are comparatively skimpy. We do know that he was a member of a family of newspaper printers, including grandfather, uncle, and son, all of whom had experienced official prosecution for defiance of government. His grandfather, also named William Bradford, is said to have had Quaker affiliation, but it is not particularly prominent in accounts of him, while almost no mention of Quaker affiliation is made of the rest of the family. Grandfather William had a notable apprentice named John Peter Zenger, who was prosecuted for libel against the Royal Governor of New York, defended in a famous trial by the Philadelphia Lawyer Andrew Hamilton, who established the principle that the truth is not a libel. We can rather safely presume that the younger William Bradford had grown up in an environment of hostility to authority, aggravated but not necessarily caused by some rather plain persecutions by authority. It may even have been specific hostility to British authority, since in 1754 young Bradford began publication of a specifically anti-British paper, The Weekly Advertiser. It is interesting to note that its principle competitor was a pro-British paper printed by Ben Franklin. Somewhere along the line, Bradford became head of the Sons of Liberty, clearly marking him as strongly anti-British, probably well before the Townshend Acts.

Bradford established the London Coffee House at Front and Market Streets in Philadelphia. That might seem a strange sideline for a printer, until you reflect that the location was right beside the waterfront, especially the Arch Street warf. Newspapers in those days almost never had professional reporters, depending for their content on gossip from visiting ships. A coffee shop near the waterfront would be an excellent place to hear the maritime news of the world, and possibly hear it sooner than competitors. The London Coffee House provided a place for bargaining and trade; the Maritime Exchange got its start there. It may or may not be significant that a main activity of the Exchange was to buy and sell slaves. It is sure that the Navigation Acts and the Townshend taxes on various imports were a central topic of angry discussion in a waterfront Coffee House from 1768 to 1776. Thus it is possible that Bradford was caught up in the excited opinions of his customers, but plenty of evidence of anti-British sentiment exists in his background to suppose he nursed a long-standing prejudice against the British government. Our most authoritative account of the events appeared in the Pennsylvania Packet of January 3, 1774, but the beginnings of the story were better related in the Pennsylvania Mercury of October 1, 1791, shortly after Bradford's death.

"After the Tax on Tea imported into America was reduced to 3d. per pound by the British Parliament, there appeared to be a general disposition in the colonies to pay it. In this critical situation of the Liberties of America, Mr. Bradford stopped two or three citizens of Philadelphia, who happened to be walking by the door of his house on Front-street, and stated to them the danger to which our country was exposed, by receiving, and paying the tax on, the tea. Many difficulties stared the gentlemen, to whom he spoke, in the face...; and it was particularly mentioned that the citizens of Philadelphia were tired out with town and committee meetings, and that it would be impossible to collect a sufficient number of them together, to make an opposition to the tea respectable and formidable. 'Leave that business to me(said Mr. Bradford),--I'll collect a town meeting for you--Prepare some resolves;--and,--they shall be executed.' The next evening he collected a few of such citizens who were heartily opposed to the usurpations of the British Parliament, who drew up some spirited resolutions to reject the dutied tea, and to send back the tea ship. These resolutions were adopted the Saturday following (October 16, 1773), by a large and respectable town meeting at which the late Dr. Thomas Cadwalader (a decided Whig) presided. The same resolutions were immediately afterwards (November 5, 1773) adopted, nearly word for word, by a town meeting in Boston, where a disposition to receive the tea had become general, from an idea that opposition to it would not be seconded or supported by any of the other colonies. The events (December 16, 1773) which followed the adoption of these resolutions in the town of Boston are well known. However great the merit and sufferings of that town were in the beginning of the war, it is a singular fact, and well worthy of record in the history of the events which produced the American Revolution, the First act in that great business originated in Philadelphia, and that the First scene in it originated with Mr. William Bradford."

Written within a few days of the events, the January 3, 1774 Pennsylvania Packet is more detailed. In particular, the grievance is stated to be "...the pernicious project of the East India Company, in sending Tea to America, while it remains subject to a duty, and the Americans at the same time confined by the strongest prohibitory laws to import it only from Great Britain." While it is not easy to find a quotation capsulizing the British response, it would be something to the effect that the Tea Act was in fact a face-saving gesture which reduced the price of tea for the colonists, and was received as such by most of them, until smugglers of Dutch tea now faced the same surplus of unsold tea which had nearly bankrupted the East India Company after the colonies resorted to non-importation. Both arguments contain a certain amount of spin, but side-by-side, they contained sufficient reasonableness to permit peaceful resolution. To go on with the details:

"Upon the first advice of this measure, a general dissatisfaction was expressed, that, at a time when we were struggling with this oppressive act, and an agreement subsisting not to import Tea while subject to the duty, our subjects in England should form a measure so directly tending to enforce the act and again embroil us with our parent state. When it was also considered that the proposed mode of disposing of the Tea tended to a monopoly, ever odious in a free country, a universal disapprobation showed itself throughout the city. A public meeting of the inhabitants was held at the State-House on the [16]th October, at which great numbers attended, and the sense of the city was expressed in [the following] eight resolves:"

which we will divide into three sections for commentary. Resolves 1,2, and 5 can be said to be a protest against the Tea Act. While the language is a little high-flown, such a protest would be considered a normal exercise of free speech:

"1. That the disposal of their own property is the inherent right of freemen;that there can be no property in that which another man can, of right, take from us without our consent: that the claim of Parliament to tax America is, in other words, a claim of right to levy contributions on us at pleasure. "2. That the duty imposed by Parliament upon Tea landed in America is a tax on the Americans, or levying contributions upon them without their consent. "5. That the resolution lately enered into by the East India Company to send out their Tea to America , subject the payment of duties on its being landed here, is an open attempt to inforce this ministerial plan, and a violent attack upon the liberties of America. "

Resolutions 3. and 4. are accusations of a deeper plot. The colonists do not want to be taxed by the British Government directly, but prefer to tax themselves so that final payment to colonial officials must pass through colonial control. Unspoken, of course, is the creation of an ability to thwart implementation of unwelcome directives from London:

"3. That the express purpose for which the tax is levyed on the Americans, namely for the support of government, administration of justice, and defence of his Majesty's dominions in America, has a direct tendency to render Assemblies useless, and to introduce arbitrary government and slavery. "4. That a virtuous and steady opposition to this ministerial plan of governing America is absolutely necessary to preserve even the shadow of liberty, and is a duty which every freeman in America owes to his country, to himself, and to his posterity".

Finally, in the tradition of the writing of resolutions, come the so-called Resolves, the solution to the problem which you wish your audience to agree to. These concrete actions are found in resolutions 6, 7, and 8. The British could be expected to be offended, since the Resolves do not acknowledge the right of Parliament to impose the tax, or humbly petition that they reconsider. Rather, they assume the role of sovereign government themselves, effectively declaring the colonies would punish anyone who obeyed the Law, would coerce those who are charged by Parliament to implement the Law, and would cause those appointed by Parliament to do this work, to resign or else the peace would be disturbed by colonial enforcement of these 'suggestions':

"6. That it is the duty of every American to oppose this attempt. "7. That whoever shall, directly or indirectly, countenance this attempt, or in any wise aid or abet in the unloading,receiving and vending the Tea sent, or to be sent out by the East India Company, while it remains subject to the payment of the duty here, is an enemy to his country. "8. That a Committee be immediately chosen to wait on these gentlemen, who, it is reported , are appointed by the East India Company to receive and sell said Tea, and request them, from a regard to their own character, and the peace and good order of the city and province, immediately to resign their appointment."

The thinly-veiled threats contained in these resolutions against anyone who disagreed were soon made more explicit when the tea ship actually arrived at the mouth of the Delaware around December 23, 1773, by public posters to the Delaware River pilots and Captain Ayers of the incoming Tea ship, signed by THE COMMITTEE FOR TARRING AND FEATHERING. Cards were printed up for the public to distribute around the premises of James and Drinker, telling them to resign as sales agents for the Tea by writing a note, to be delivered to the London Coffee House -- William Bradford's place of business. A few shouts and the waving of a few torches would have been sufficient to indicate that the alternative was arson.

A month elapsed between the proclamation of the Philadelphia resolutions and the actual arrival of Captain Ayers in our harbor. Another tea ship had arrived at Boston in the meantime on December 16,1773. The Boston citizens had dressed themselves as Indians, and dumped the Boston Tea consignment into the harbor, proclaiming the same eight Philadelphia-written resolutions. But in Philadelphia, violence proved unnecessary. James and Drinker resigned their appointments as sales agents, the pilots were ready enough to impede passage, and Captain Ayers on December 27, 1773 meekly sailed his cargo of Tea back where it came from.

Lexington, Concord, and All That

Captain Parker, Minuteman

American schoolchildren today, and maybe a majority of Americans even at that time, have found it bewildering that we declared independence fifteen months after the battles at Lexington, Concord, and Bunker Hill, well after George Washington besieged the British in Boston, or Benedict Arnold dragged the captured cannons of Ticonderoga over the mountains to save the day. Just who started our Revolution, and why; and for that matter, when, have been at issue for a long time.

John Adams and Thomas Jefferson exchanged hot correspondence for fifty years along these lines. Adams was miffed that Jefferson claimed all the credit for a defiant public resolution they both had a hand in writing, when real men in Boston had been getting shot and killed for Liberty years earlier, and Admiral Howe's fleet had even set sail for Staten Island long before that Declaration was printed. To which scolding, might well be added that Abraham Lincoln reached back to "all men are created equal" when he wanted to find Constitutional justification for what was only 3/5 true in 1787, and not true at all on Virginia plantations in 1776. And, of course, was a phrase not echoed in the Constitution. Yes, John Adams had a point, and Thomas Jefferson had other points. But weren't they both in Philadelphia at the same time, working on the same document? Jefferson and Adams were rather probably raking over the coals of the bitter 1800 election, where Jefferson turned Adams out of the White House, and Adams wouldn't even stay around for appearance sake to attend the inauguration of his successor. On another level, they were both likely thinking about the Constitution more than the Declaration of Independence, anyway. Jefferson never liked the Constitution, had been in France when it was written and preferred to submerge its precedence to a level of temporary revisions to the Declaration of Independence, which stressed unalienable human rights rather than a strengthened central government. It seems unfortunately true that politicians were introducing what is now called "spin". To the extent debate was heated rather than analytical, it could easily become immaterial whether 1774 was before or after 1776.

New England eased into rebellion with the Crown without a great deal of documentation of serious grievances; they must mostly be supposed. The fact that resentments were wide-spread lends substance to the idea that subjects of a remote monarchy had grown a little presumptuous, just as unsupervised Governors dispatched to rule them may have strutted authority unwisely. Successive generations of native-born colonists can be expected to have decreasing allegiance to the mother country, particularly after the need for protection from the French subsided, but irritation at quartering British troops persisted. Mercantilism is not intended to be fair; when imposed on foreigners there is more danger of provoking war when imposed on colonists, appeals to patriotism are mocked as self-serving. Unfortunately, Samuel Adams and John Hancock, the two main leaders of Massachusetts dissension, were not terribly clear about economics, and Hancock was definitely involved in some smuggling. Doctor Joseph Warren was more precise, but unfortunately died rather early. We assume competition in fishing off Newfoundland, and dominance in West Atlantic maritime trade seemed paramount to a region somewhat unsuited to agriculture. The English civil war left vivid memories of how quarrels could get out of hand. More than anything else, it would seem likely the British ministry decided to become more authoritarian, at a time when the colonists were drifting toward feeling more independent. They tested each other, and matters got out of hand.

The Old Dominion of Virginia had an established landed aristocracy, better able than in Massachusetts to say what the ruling class wanted, and what the state was going to do. Tobacco had started to wear out the Virginia soil, and people like Washington were anxious to acquire land in Ohio. This was blocked by a British prohibition of white men settling to the west of the Proclamation Line of 1763 along the Appalachian watershed, a separation intended to reduce friction with the Indians, concentrate English settlements along the seaboard for mercantile reasons, and direct further English immigration to Florida and Canada to hold back Catholic influences. The effect of the Proclamation on Virginians was varied, amounting at the least to feel they might just as well have lost the French and Indian War. The southern colonies were not in competition with England on manufacturing, but as agricultural exporters, were in frequent conflict with English merchants and bankers. Power and wealth were concentrated in fewer hands in the South, so personalities played a larger role in public policy.

The colonies were all growing rapidly, with a general sense that governance was getting cumbersome across a wide ocean. Benjamin Franklin was particularly ambitious for more level American versions of the United Kingdom, with Englishmen in the colonies of equal stature in Parliament and elsewhere. With skill, this could be the richest and most powerful nation on earth. As early as the Congress of Albany in 1754, Franklin was proposing a union of the colonies as a step toward full partnership with the British Isles in a transatlantic nation. He continued to pursue that sort of goal for twenty years. Variations of this idea were heard in Parliament. As a mechanism for riding the crest of the Industrial Revolution, this would have been a powerful arrangement for world domination, possibly but not necessarily including visions of world peace. In the Quaker colonies before 1774, Independence from England held little attraction, and merger with New England had less. After all, New England squabbles with Old England about Atlantic maritime trade brought attention to what most of it consisted of rum and slaves. Philadelphia Quakers had rallied around John Woolman to see the evil of slavery, and had largely succeeded in abolishing it locally. And Philadelphia Quakers were well aware that Quaker Abraham Redwood of Newport, Rhode Island had devised the famous triangular trade of slaves, molasses and rum. Pressure had built up within Quakerism to expel Redwood when he refused to free his slaves, no matter that he was probably the largest philanthropist of the colonies. Before that, relations between the Puritans and Quakers had often been difficult. Quakers believed in freedom of religion for everybody; the Puritans hanged Quakers. The Congregationalists of Connecticut had actually invaded the Wyoming Valley of Pennsylvania, three different times, the last of which was when Washington's army was wintering in Valley Forge. Furthermore, if we must attribute everything to economics, there was no land hunger in Pennsylvania. The Penn family, almost exclusively devoted to selling land, owned thirty million acres; by the time of the Revolution, they had only sold five million. The Penn family got along just fine with the Monarchy. The grievances up in New England were not entirely clear. Perhaps the Puritans should learn how to settle their differences in a more peaceful, and effective, way.

And then, Admiral Howe with a huge fleet of warships, and his brother General Howe with a huge army appeared at the beaches of New Jersey. They had orders to impose disciplined governance on every one of the colonies, right away.

George Washington's View of the British Army

George Washington

TWO things about George Washington continue to puzzle us. Why would the rich, aristocratic Virginia gentleman become a revolutionary? And, how could he or his backwoodsmen soldiers even imagine they could defeat the British, the greatest military force in the world? The following letter, written to his mother after the defeat of Braddock's army, shows his viewpoint at the age of 23, putting the British regular army in a very bad light, indeed.

"HONORED MADAM: As I doubt not but you have heard of our defeat, and, perhaps, had it represented in a worse light, if possible, than it deserves, I have taken this earliest opportunity to give you some account of the engagement as it happened, within ten miles of the French fort, on Wednesday the 9th instant.

"We marched to that place, without any considerable loss, having only now and then a straggler picked up by the French and scouting Indians. When we came there, we were attacked by a party of French and Indians, whose number, I am persuaded, did not exceed three hundred men; while ours consisted of about one thousand three hundred well-armed troops, chiefly regular soldiers, who were struck with such a panic that they behaved with more cowardice than it is possible to conceive. The officers behaved gallantly, in order to encourage their men, for which they suffered greatly, there being near sixty killed and wounded; a large proportion of the number we had.

"The Virginia troops showed a good deal of bravery and were nearly all killed; for I believe, out of three companies that were there, scarcely thirty men are left alive. Captain Peyrouny and all his officers down to a corporal were killed. Captain Polson had nearly as hard a fate, for only one of his was left. In short, the dastardly behavior of those they call regulars exposed all others, that were inclined to do their duty, to almost certain death; and, at last, in spite of all the efforts of the officers to the contrary, they ran, as sheep pursued by dogs, and it was impossible to rally them.

"The General was wounded, of which he died three days after. Sir Peter Halket was killed in the field, where died many other brave officers. I luckily escaped without a wound, though I had four bullets through my coat, and two horses shot under me. Captains Orme and Morris, two of the aids-de-camp, were wounded early in the engagement, which rendered the duty harder upon me, as I was the only person then left to distribute the General's orders, which I was scarcely able to do, as I was not half recovered from a violent illness, that had confined me to my bed and a wagon for above ten days. I am still in a weak and feeble condition, which induces me to halt here two or three days in the hope of recovering a little strength, to enable me to proceed homewards; from whence, I fear, I shall not be able to stir till toward September; so that I shall not have the pleasure of seeing you till then, unless it be in Fairfax... I am, honored Madam, your most dutiful son."

Philadelphia Vaguely Hears About Bunker Hill

The thirteen English colonies were far apart in the Eighteenth century, communicated very little, regarded their religions as more or less hostile to each other. July 4, 1776, was indeed a major turning point, but Thomas Jefferson's role was mainly to write a defensive tract to convince the colonial population and the rest of the world that the colonies had little choice but to fight. It was mainly Benjamin Franklin who recognized they could not win without foreign support, and could not expect foreign (French) support if they appeared to be willing to rejoin the British Empire. In a single action, more or less on one day, the American Revolution was transformed from New England demanding a separate parliament within a Commonwealth, into thirteen colonies fighting for Independence from Great Britain. Such a war could not be won without Virginia, the largest and richest colony, or without Pennsylvania, physically uniting the other two power centers. Virginia had serious difficulties with the British concerning its tobacco trade and its local land ambitions. Essentially, the main holdout was Pennsylvania, whose main problem now was that it was a contented prosperous state, suddenly forced to make unwelcome choices. Without Franklin's presence, it is hard to guess how things would have turned out.

{Privateers}
Bunker Hill

To this day, Pennsylvania has trouble appreciating that things in Boston had gone too far for New England to turn back. The quarrels about English rule had gone on for decades, and the actual warfare had escalated over three years since the Tea Party, leading to thousands of casualties. Too many people had friends and relatives killed to suppress the urge for vengeance. The British king was now revealed as deeply involved in British politics and was not at all the benign father figure he had been portrayed. The British Army thought of itself as the mightiest war machine in the world and was not going to tolerate or soon forget a bloody defeat at Bunker Hill. The Prohibition Acts had been passed, the fleet had been assembled, the honor was at stake. The Quakers of Pennsylvania may have thought they had a choice, but they had little choice.

Battle of Saratoga

As a matter of fact, the British had little choice left, once the battle of Saratoga was over. With France convinced to join us (mainly by Franklin), the hope of suppressing the revolt by lack of colonist gunpowder and money was lost, and British public opinion grew progressively more opposed to warring against fellow Englishmen. Lord North seems to have realized this when he sent the Earl of Northumberland to Philadelphia to explore reconciliation, but the momentum of war forced him out of office. And the bloody revolution continued for five more years before the defeat at Yorktown forced an end to it.

The Battle of Bunker Hill probably had more effect than the questionable victory it supplied. The Americans had dragged the cannon from Ticonderoga up the mountain and they were placed on Boston's Dorchester Heights. The British saw them and rushed to get their fleet out of Boston, away from those cannon. But the Americans had no gunpowder, and Washington must have noticed you could beat the British by keeping your own nerve, even if they outnumbered you. And it wasn't the first time he saw the Brits run, he saw the same thing when he was with General Braddock.

Differences of Quaker Opinion

A reader of Philadelphia Reflections feels that a balanced appraisal of the slavery issue should include mention of the Quakers who were determined in their opposition to abolition. After all, it took eighty years for the original concern of the Germantown meeting to be fully adopted by the Philadelphia Yearly meeting as a formal minute under the prodding of John Woolman. Since the minute gives permission for particularly concerned Friends to go speak with slave-holding Quakers, it is clear that even some Philadelphia Quakers held slaves and were reluctant to release them.

{Abrahm Redwood}
Abraham Redwood

Abraham Redwood 1709-1788

Newport, Rhode Island, was an even more awkward case. In colonial times, and even today to some degree, individual Yearly meetings were cordial, but under no formal obligation to respond to each other's decisions. The English seaport of Bristol had developed a sugar trade with the West Indies, and a number of Bristol Quakers moved to Newport. Acquiring very large sugar plantations in the Indies, they shipped molasses to rum distilleries in Newport or else directly back to Bristol where a candy industry had been established. The next step was the shipment of rum and/or trading trinkets to Africa, to be exchanged for slaves, who were taken to the Caribbean and exchanged for a cargo of molasses. Molasses then went to Newport, in a triangular trade pattern which admittedly avoided bringing slave cargo to Rhode Island, but whose principal purpose was taking advantage of the prevailing Atlantic trade winds while maintaining a full cargo over the whole distance. The largest partnership in this trade belonged to four Newport Quakers, one of whom was Abraham Redwood.

Redwood owned 230 slaves in Antigua and was among the richest men in America at the time. It is rather troubling to learn that the average "turnover" of slaves on Antigua was seven years, and that slave rebellions were fairly common. Redwood donated five hundred pounds to the Newport Philosophical Society for the purchase of 1300 books, thereby establishing the Redwood Library in 1747, one of the oldest in the country, although the Library Company of Philadelphia was established in 1731. By almost any standard, Redwood was nevertheless a "weighty" Quaker. When he resolutely refused to sell his slaves, he was "read out" of the meeting.

Details of the discussions which were conducted are no longer readily available, but it is obvious that collision of these two equally stubborn viewpoints was particularly awkward when it led to the banishment of the main employer of the town, and its most important local benefactor. Furthermore, those who worked harmlessly in the rum industry in Newport, or the candy industry in England, were called upon to reflect deeply on the unfortunate slave dealings in which they were, perhaps unknowingly, implicated.

Somehow all of this was accomplished without a total rupture, because thirteen years later Abraham Redwood donated another five hundred pounds to the Quaker Meeting, for the establishment of a school.

Addressing The Proprietors' Dilemma

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William Penn

DURING the century which elapsed after Charles II gave away Pennsylvania to William Penn, several hundred thousand people moved in and changed the place. Transformation of the wilderness explains why the terms of the grant seemed logical at one time, but proved almost impossible to manage at the time of the Revolution. The Penns with thirty million acres was the largest landholders in America but, in fact, by 1776 only five million acres had been sold in a century. The land they held was simply too much for one family to handle without an army, and although the original settlers were pacifists, the later ones were combative.

Charles II had written in the Charter that the Penns could have the land if they could maintain order there, retaining the legal right for the King to recover the land if they didn't. This fall-back provision certainly reflects some doubt about the ability of pacifists to shoot the necessary number of Indians, Frenchmen, and Spaniards. On the other hand, the motive for a King delegating away his authority in the first place became clearer when the Penns experienced severe financial strain defending the Northeast corner of the state against the Connecticut invaders. It furthermore helps us understand why Benjamin Franklin received such a cold reception when he was sent to London by the colonists to request the crown to reassert civil authority over the state. That did not necessarily imply stripping the Penns of their land; by this time, it was clear that the Penn Proprietors were mainly interested in selling it to someone. The charter of the King's grant included the offer to make William Penn a King; and although the offer was declined, the Penn Proprietors retained some degree of legal power to govern the territory. Franklin for all his persuasive power was, unfortunately, the one man Thomas Penn didn't want to see, because of the threat he had posed by raising a militia in King George's War, and later his expansiveness at the Albany Conference. And Thomas was a good friend of the King. The King didn't want these problems and particularly didn't want the expense. Ambiguities were, of course, shared all around. William Penn had quite shrewdly seen it was more sensible to treat the Indians decently than to fight with them, and cheaper too; the lesson was not lost on the British crown. But the French Kings posed a much larger world-wide threat to the British colony, finding for their part, it was rather economical to supply munitions to the Indians on the frontier and stir them up emotionally. The French and Indian War was a small component of the Seven Years War, which proved to be a costly adventure for both sides. Its local cost certainly overwhelmed the ability of one family to underwrite local governance in a large wartime colony, and it jeopardized the finances of the British Monarch to carry the rest. The resulting need to tax the colonies for their defense sent things downhill, eventually to the Stamp Act, the Townshend duties, and the Tea Tax. Everyone made lots of mistakes as the whole structure underwent revision, just as pacifists are certain will happen in any war. But when a pacifist utopian colony was prospering while successfully dealing with the Indians, it's all sort of a big pity.

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Thomas Penn

With much to lose, the Penn family did pretty well with the resources at hand. By the time of the Revolution, three generations of Penns had divided up ownership shares of the Proprietorship. When French and Spanish ships were marauding the Delaware River, Benjamin Franklin the local printer took it on himself to organize a militia which persists today as the Pennsylvania National Guard, the Twenty-eighth Division. Franklin was suddenly a local hero to everyone, except to one man, Thomas Penn. Thomas was the dominant figure in the Penn family for many years and worried deeply about Franklin, a man who could stir up ten thousand armed volunteers with a poster proclamation. Such a man could mean trouble, as indeed events later proved to be the case.

John Penn was the Governor of the state, residing in his mansion on the Schuylkill called Lansdowne, doing his best to ingratiate the locals. He struggled to be diplomatic when arguing for the decisions actually made by his Uncle Thomas in London. Thomas Penn, on the other hand, was an important friend of the British Ministry, and a notable person in aristocratic England. As the Revolutionary War approached, the problem transformed into how to hold on to 25 million unsold acres, while remaining unsure who was going to win the impending war.

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John Penn

The strategy the Penns adopted was to get out of the business of running a local government, as Franklin had proposed but in a different way. John Penn the Governor became a private citizen, just a local real estate agent. He took an oath of allegiance to the Revolutionary government, which in the chaos of the time was equivalent to becoming an American citizen. Meanwhile, other members of the family remained in England, ready to revise the arrangement if the British won the war. It was all fairly transparent straddling of the issues, which was only even remotely likely to be effective because of the enormous store of Penn goodwill built up over a century. In 1789 revolutionary France, for example, such sentimentality would not have delayed the tumbrels to the guillotine for five minutes.

Meanwhile, an unexpected difficulty was created. By withdrawing from control of the local government, the Penn family also withdrew from the defense of state borders against neighboring colonies. Under the circumstances, the Penns were afraid to appeal to the King, while the new government of Pennsylvania found the Articles of Confederation were merely a wartime tribal compact. The Articles stabilized boundaries mainly for the purpose of conducting a united war, and did not seriously contemplate a continuing judicial role for disputes between colonies. When the Revolution was finally over, the Penn Proprietors were not left with much of a bargaining position. The new State of Pennsylvania offered, and they accepted, about fifteen cents an acre to surrender their claims. In Delaware, they got essentially nothing for those three counties. Only in New Jersey did the Proprietors' claims remain durable after the new nation was established. The Proprietorship of East Jersey survived into the late 20th century, and the Proprietorship of West Jersey continues to return a small profit even today. The New Jersey curiosity is treated in a separate essay.

Philadelphia in October, 1774

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Vice President John Adams

In his diary, John Adams tells of leaving Philadelphia at the conclusion of the First Continental Congress: "28.Friday. Took our departure, in a very great rain, from the happy, the peaceful, the elegant, the hospitable, and polite city of Philadelphia. It is not very likely that I shall ever see this part of the world again, but I shall ever retain a most grateful, pleasing sense of the many civilities I have received in it and shall think myself happy to have an opportunity of returning them. Dined at Anderson's and reached Priestly's of Bristol, at night, twenty miles from Philadelphia, where we are as happy as we can wish."

Circular Letter: Boston Committee of Correspondance, May 1774

{Privateers}
Paul Revere

"We have just received the copy of an Act of the British Parliament passed in the present session whereby the town of Boston is treated in a manner the most ignominious, cruel, and unjust. The Parliament has taken upon them, from the representations of our governor and other persons inimical to and deeply prejudiced against the inhabitants, to try, condemn, and by an Act to punish them, unheard; which would have been in violation of natural justice even if they had an acknowledged jurisdiction. They have ordered our port to be entirely shut up, leaving us barely so much of the means of subsistence as to keep us from perishing with cold and hunger; and it is said that [a] fleet of British ships of war is to block up our harbor until we shall make restitution to the East India Company for the loss of their tea, which was destroyed therein the winter past, obedience is paid to the laws and authority of Great Britain, and the revenue is duly collected. This Act fills the inhabitants with indignation. The more thinking part of those who have hitherto been in favor of the measures of the British government looks upon it as not to have been expected even from a barbarous state. This attack, though made immediately upon us, is doubtless designed for every other colony who will not surrender their sacred rights and liberties into the hands of an infamous ministry. Now, therefore, is the time when all should be united in opposition to this violation of the liberties of all. Their grand object is to divide the colonies. We are well informed that another bill is to be brought into Parliament to distinguish this from the other colonies by repealing some of the Acts which have been complained of and ease the American trade; but be assured, you will be called upon to surrender your rights if ever they should succeed in their attempts to suppress the spirit of liberty here. The single question then is, whether you consider Boston as now suffering in the common cause, and sensibly feel and resent the injury and affront offered to here. If you do (and we cannot believe otherwise), may we not from your approbation of our former conduct in defense of American liberty, rely on your suspending your trade with Great Britain at least, which it is acknowledged, will be a great but necessary sacrifice to the cause of liberty and will effectually defeat the design of this act of revenge. If this should be done, you will please to consider it will be, though voluntary suffering, greatly short of what we are called to endure under the immediate hand of tyranny.

"We desire your answer by the bearer; and after assuring you that, not in the least intimidated by this inhumane treatment, we are still determined to maintain to the utmost of our abilities the rights of America, we are, gentlemen,

"Your friends and fellow countrymen."


REFERENCES


Paul Revere & The World He Lived In Amazon

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

{John Sulllivan, Delegate and later Governor, New Hampshire}
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]


REFERENCES


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 Amazon

Quakers Turn Their Backs on Power

There have been a number of excellent books about Ben Franklin lately, but all take his side in the dispute with Quakers. These authors relate Franklin struggled with the Quakers, fought with that political party, heroically overcame them with wisdom and guile. Good thing, too, or we all might still be subjects of the British crown.

Well, within the Quaker community these events are viewed differently. Around the year 1755, the Quakers who owned and ran Pennsylvania abruptly turned away from politics and left the government to their political enemies, rather than compromise religious principles. It is difficult to think of any other instance in history when a ruling party decided to become humble subjects of the opposing party, simply because they refused to do what obviously had to be done.

The background of this perplexing issue goes back to the founding of the Quaker colonies, which had lived in a real Utopia for seventy-five years. Repeatedly it had been true that if they just followed the highest principle, things worked out well for everybody. For example, they didn't need to buy the land a second time from the Indians, but they did, with the gratifying result of peaceful co-existence while other colonies experienced constant Indian wars. Penn negotiated the borders of his states with the neighbors, and although it took decades, brought peace and prosperous trade in return. Strict honesty in mercantile matters led to a reputation for trustworthiness, and that in turn led to prosperous commerce. Using a fixed price rather than haggling over price speeded up transactions, gained respect for fair dealing, led to more prosperity. Just you do the right thing, and all will be well. That includes extending freedom of religion, welcoming strangers to the colony to worship together in peace.

Toward the end of this Utopian period, some questions began to arise. More and more non-Quakers came to the colony, making the colony progressively less Quaker. That was a silent disappointment to William Penn. The founder had been a charismatic evangelist for his religion as a youth but came to grave disappointment about peaceful persuasion by the end of his life. Convincing the adherents of other religions of reasonable Quaker principles had often proved to be as intractably difficult as arguing religion with Henry VIII. The Quakers, a religion without a clergy, were appalled that so many adherents of other religions did not concern themselves with earnest reasoning, preferring to do strictly what their ministers told them to do.

Another disconcerting thought was growing within the Quaker community that success itself might be corrupting them. Worldliness seemed to grow inevitably out of wealth and prominence; all power does tend to corrupt. If you are rich, people always seem to steal from you, and that leads to violent punishments, something regrettable in itself. These were not new arguments, but by 1750 nearly a century of success in paradise had begun to stir Pennsylvania Quakers to wonder why more of their neighbors did not ask to become Members. These were troubling concerns of the day which would probably have worked themselves out, except that far-away France and England declared war on each other. The French responded by stirring up the Indians along the Western frontier. Pennsylvania settlers were soon scalped, kidnapped and burned at the stake. Something had to be done about it since protection was a duty of government, and effective protection now had to be non-peaceful. The Quakers dithered. More Scotch-Irish settlers around Pittsburgh were slaughtered. The Quaker meetings sent minutes to the Quakers in the legislature that they must not compromise their peaceful principles, and the Scotch-Irish exploded with rage. The Meetings told their representatives to resign from office, their members to retreat from politics altogether.

So Ben Franklin rose to the occasion, and General Forbes led an army to Fort Duquesne at the forks of Ohio, and Colonel George Washington was the hero of that day. The French were driven off the frontier, the English were victorious at Quebec. North America became a British continent.

Meanwhile, the Quakers retreated into tight-lipped solitude. And self-doubt, because the episode seemed to demonstrate that rigidly peaceful principles cannot govern a state or a nation if that nation contains others unwilling to be sacrificed for peaceful principles. An unthinkable logic emerged; freedom of religion led to conflict with the duty of a non-violent government to protect its citizens. It began to be clear it was the duty of government to enforce its laws, by force if necessary. Underneath the pile of documents, was a gun.

So, the Quakers proudly walked away from power and dominance, for all time. Sadly, too, because the significance was clear. Peaceful utopia may be not possible, within a dangerous world.

What Happened in Philadelphia on July 4, 1776?

{Privateers}
Spirit of 76'

The American colonies were growing too big, too fast, and the British Empire had too many international distractions, to have smooth relationships across three thousand miles of ocean, using uncertain communications available in the late Eighteenth century. Friction and misunderstanding were inevitable without far more statesmanship than either side thought was necessary. So, when the Continental Congress dispatched George Washington to Boston with troops to defend rebellious Massachusetts at Lexington, Concord, and Bunker Hill, it was hard for the British to believe the colonists were merely helping out one of their distressed neighbors. It seemed in London that the thirteen colonies had united, formed not only an army but a government, and gone to war. In December 1775 England passed the Prohibitory Act, essentially declaring war, and organized a huge invasion fleet to put down the rebellion. It now seems hard to understand the first notice the Americans had of this huge over-reaction was a private letter to Robert Morris from one of his agents in March 1776; no warnings, no negotiations, no attempt to investigate problems and correct them. The British just sent a fleet to settle this problem, whatever it was. It's all very well to say the Americans should have known they were playing with fire. They didn't see it that way; they were being self-reliant, responding to attack. In June 1776 British patrol frigates were skirmishing in the Delaware River; late in the month, British troops landed on Staten Island. The American reaction to all this was a muddle of confusion. A few were delighted, most of the rest were amazed or appalled.

Although the deeper strategic origins of the American Revolution are subtle, complex, and controversial, there is far less muddle about what happened on July 2, 1776, publicly proclaimed two days later. Adopting a resolution written by Richard Henry Lee of Virginia, the Thirteen Colonies stated they had now clarified their goals in the controversy with the British monarchy. For a year before that, the Continental Congress had been corresponding with each other and meeting in Carpenters Hall with the goal of achieving representation in the British parliament -- "No taxation without representation". The model for most of them was based on the Whig agitation for Ireland -- for a local parliament within a larger commonwealth. But the passing of the British Navy in Halifax, Nova Scotia, and then the actual appearance of seven hundred British warships in American waters showed that not only was Parliamentary representation out of the question, but King George III was going to play rough with upstarts. The new goal was no longer just representation, it was independence. If we were going to resist a military occupation at the risk of being hanged as traitors, we might as well do it for something substantial. The meeting had a number of Scotch-Irish Princeton graduates, whose basic loyalty to England had long been divided. Pacifist Pennsylvania, chief among the wavering hold-outs, was mostly won over by its own Benjamin Franklin, who was optimistic the French would help us. Even so, both Robert Morris and John Dickinson refused to sign the Declaration; Franklin persuaded both to abstain by absence, which created a majority of the Pennsylvania delegation in favor. That's a pretty slim majority for a crucial decision. Franklin was soon dispatched back to Paris to make an alliance; Washington was dispatched to hold off that British army in the meantime. Jefferson was designated to write a proclamation, which even after editing is still pretty unreadable beyond the first couple of sentences. Meeting adjourned. This brief account may not qualify as a serious examination of the causes of the American Revolution, but it comes close to the way it seemed to the colonist in the street.

{Privateers}
Colonist's Complaint

The rebels then spent eight years convincing the British they were serious and have been independent ever since. But, just a minute, here. Reflect on the fact that fighting had been going on for a year in Massachusetts, and that Lord Howe's fleet had set sail a month before the Declaration, actually landing on Staten Island at just about the same time as the Fourth of July. Add the fact that only John Hancock actually signed the document on July 4th, and some of the signers even waited until September. You can sort of see why John Adams never got over the idea that Thomas Jefferson had a big nerve implying the whole Revolution was his idea. What's more, there's a viewpoint that New England subsequently had to endure a President from Virginia for thirty-two of the first thirty-six years of the new nation because loud talk from New England still made the rest of the country nervous. Philadelphia may have been the cradle of Independence, but that was not because it was a colony hot for war, dragging others along with it. Rather, it was the largest city in the colonies, centrally located. It had a strong pacifist tradition, and it had the most to lose from a pillaging enemy war machine. When Independence was finally declared the goal, many of Philadelphia's leading citizens moved to Canada.

New England had started hostilities and was about to be subdued by overwhelming force. The Canadians were not going to come to their aid, because they were French, and Catholic, and enough said. What New England and the Scotch-Irish needed were WASP allies, stretching for two thousand miles to the South. By far the largest colony was Virginia, which included what is now Kentucky and West Virginia; it even had some legal claims for vastly larger territory. Virginia was incensed about its powerlessness against British mercantilism, especially the tobacco trade. The rest of the English colonies had plenty of assorted grievances against George III, and almost all of them could see that America was rapidly outgrowing dependency on the British homeland, without a sign that Parliament was ever going to surrender home rule to them. It was perhaps unfortunate New Englanders were so impulsive, but it looked as though a military confrontation with the Crown was inevitably coming. Without support, New England was likely to be torched, as Rome once subdued Carthage.

And the last hope for an alternative of flattery and diplomacy, for guile and subtlety, had stepped off the boat a year earlier. Benjamin Franklin, our fabulous man in London, arrived with the news he had finally had it "up to here" with the British ministry. He was a man who quietly made things happen, carefully selecting his arguments from amongst many he had in mind. In retrospect, we can see that he held the idea of Anglo-Saxon world domination as far back as the Albany Conference of 1745, and could even look forward to America outgrowing England in the 19th Century. His behavior at the Constitutional Convention of 1787 strongly suggests he never completely gave up that long-term dream. Just as Edmund Burke never gave up the idea of Reconciliation with the Colonies, Benjamin Franklin never quite gave up the idea of Reconciliation with England. While John Dickinson and Robert Morris resisted the idea of Independence down to the last moment, Franklin took a much longer view. For the time being, it was necessary to defeat the British, and for that, we needed the help of the French. In 1750, America joined with the British to toss out the French. And then in 1776, we joined the French to toss out the British. Franklin didn't always get his way. But Franklin was always steering the ship.

Changing Taxing without Representation to Revolution for Independence: The British Prohibitory Act of 1775

In searching for a criminal, policemen have been trained first to search for a motive -- "Cui bono" is the Latin judicial expression. By all reasoning, New England had the most to gain from starting a war against the British military machine, and the British had most to lose. If either one even briefly considered the possibility of losing the war, these two had most to lose. The New Englanders just had more to gain, as well. The New Englanders got twelve contiguous allies they badly needed and wanted, and even so they barely won. William Bradford was doing all he could to stir up a war at Philadelphia's London Coffeehouse, for reasons of his own. Paul Revere had tried on the Delaware River for a tea war at Greenich New Jersey with better reasoning, and John Adams did his best with persuasive arguments at the Continental Congress six or eight blocks away from Carpenters Hall. The big holdouts were the pacifist Quakers, who didn't think anything was worth a war. All three Mid-Atlantic colonies were Quaker-owned and dominated. Nothing would persuade them to go to war, except being attacked.

It is unclear who figured it out, but the British fell for it. They allowed themselves to be persuaded they could win the war quickly, so George Washington drew it out until the French gave the Brits more to contend with. But who was it who perceived there was a legal difference, dating back to the Treaty of Westphalia, between being hanged for armed rebellion and merely negotiating between two sovereign nations? We don't know, but keeping its originator a secret certainly sounds like Benjamin Franklin, who had been an insider on both sides, had prestige and access to the leadership of both hotheaded sides which had betrayed him, and knew how to keep his mouth shut. In fact, he had suggested a common union at the 1745 Albany Conference. He had a score to settle between both the British and the Quakers. Provoking the British to start hostilities first, accomplished the near-destruction of both of the two groups who had offended him, after first promoting him as a distinguished leader. Even centuries later, we continue to learn that Poor Richard had a second side to him. We may never learn the truth of this bold assertion, but no one could challenge its plausibility. Right now, the British need us more than we need them with Brexit, so corroborating evidence may not be soon forthcoming. There are other strong possibilities; John Adams understood the power of privateers better than Lord North of the Admiralty did, and Admiral Howe was in no position to argue but wavered in his loyalty. Somebody engineered this enormous distraction and understood the British weakness for bravado as well as its American cousin, heedlessness. No one admires old Ben more than I do, but I have to admit to myself that Franklin has the best credentials for this job. Unless the real culprit was just that long monthlong communication gap, with its inherent delegation of authority to people who were not in a position to understand the full consequences of their power.

In any event, the pacifist Quakers whose assent was crucial, put up comparatively little opposition to conflict the British had clearly started. Defending yourself was always a weakness of pacifism, especially if you had led the flock to believe God would somehow defend them. And the legal pretext was that armed rebels' only choice was to switch from "Taxation without Representation" which was the slogan for Lexington and Concord, to "Independence" which carried less punishment. This would seem like no choice at all to the Frontiersmen. Opposition to war was anyway undermined when the enemy attacks you. The great miscalculation was to think George Washington didn't have a chance against the greatest war machine in the world. Also, Adams knew 3000 miles of ocean were on his side. And he knew that even the Quakers could agree that hanging for treason was worse than negotiating a treaty between two nations about boundaries. Adams was one of the few lawyers in America, so he would immediately see this distinction and how to exploit it. Besides, he probably was a little bit crazy, himself. North only made one mistake, losing the war, but how could he anticipate that? The more you go down the list, the more disqualified everyone seems. Except Franklin.

Prohibitory Act of the British Parliament

Apparently New England and Parliament had been negotiating over fishing rights, but it is not clear from the available correspondence whether this was a sincere effort to link New England to the former English Civil War or whether John Adams was conducting a pretense. Nor is it clear whether the omission of Parliament was a deliberate snub or merely a casualty of the poor communication. The tone suggests that Adams was openly chafing for war, while Dickinson at least maintained more diplomatic obscurity.

In any event, the huge naval response was certainly more warlike than the correspondence, and Adams was rather pleased to shift responsibility for initiating hostilities to the Mother country. There is no mention of the legalities of Westphalia in an Act which was both brief and heedless.

Declaration of Independence: Jefferson's Response to Prohibitory Act

George III seems to have been told that actions speak louder than words, and the Prohibitory Act was not meant to demonstrate a need to conciliate. Jefferson's position was about the same as a young press agent for Congress. He went on and on about why the Colonists were the offended party and were going to put up a fight. It seems very doubtful the King paid any attention to what Jefferson said at such great length.

C5..................The Revolutionary War in the Mid-Atlantic States 1776-1783

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Whatever Was George III Thinking?

{George III}
George III

Two troubling questions persist long after the American Revolution has mostly faded into the past: Why was New England so much more rebellious than the rest of the colonies? And, whatever was George III thinking when he blundered into losing an empire? No doubt, he would have answered in a different, unreflective tone in 1776, but the following is what he had to say about it after the war was lost. He seems to emerge as a far more literate and reflective person than the colonists believed of him.

"America is lost! Must we fall beneath the blow? Or have we resources that may repair the mischief? What are those resources? Should they be sought in distant Regions held by precarious Tenure, or shall we seek them at home in the exertions of a new policy?

"The situation of the Kingdom is novel, the policy that is to govern it must be novel likewise, or neither adapted to the real evils of the present moment or the dreaded ones of the future.

"For a Century past the Colonial Scheme has been the system that has guided the Administration of the British Government. It was thoroughly known that from every Country there always exists an active emigration of unsettled, discontented, or unfortunate People, who fail in their endeavors to live at home, hope to succeed better where there is more employment suitable to their poverty. The establishment of Colonies in America might probably increase the number of this class, but did not create it; in times anterior to that great speculation, Poland contained near 10,000 Scotch Pedlars; within the last thirty years not above 100, occasioned by America offering a more advantageous asylum for them.

"A people spread over an immense tract of fertile land, industrious because free, and rich because industrious, presently became a market for the Manufactures and Commerce of the Mother Country. Importance was soon generated, which from its origin to the late conflict was mischievous to Britain, because it created an expense of blood and treasure worth more at this instant if it could be at our command, than all we ever received from America. The wars of 1744, of 1756, and 1775, were all entered into from the encouragements given to the speculations of settling the wilds of North America.

"It is to be hoped that by degrees it will be admitted that the Northern Colonies, that is those North of Tobacco, were, in reality, our very successful rivals in two Articles, the carrying freight trade, and the Newfoundland fishery. While the Sugar Colonies added above three million a year to the wealth of Britain, the Rice Colonies near a million, and the Tobacco ones almost as much; those more to the north, so far from adding anything to our wealth as Colonies, were trading, fishing, farming Countries, that rivaled us in many branches of our industry, and had actually deprived us of no inconsiderable share of the wealth we reaped by means of the others. This comparative view of our former territories in America is not stated with any idea of lessening the consequence of a future friendship and connection with them; on the contrary it is to be hoped we shall reap more advantages from their trade as friends than ever we could derive from them as Colonies; for there is reason to suppose we actually gained more by them while in actual rebellion, and the common open connection cut off, then when they were in obedience to the Crown; the Newfoundland fishery took into the Account, there is little doubt of it.

"The East and West Indies are conceived to be the great commercial supports of the Empire; as to the Newfoundland, fishery time must tell us what share we shall reserve of it. But there is one observation which is applicable to all three; they depend on very distant territorial possessions, which we have little or no hopes of retaining from their internal strength, we can keep them only by means of a superior Navy. If our marine force sinks, or if in consequence of wars, debts, and taxes, we should in future find ourselves so debilitated as to be involved in a new War, without the means of carrying it on with vigor, in these cases, all distant possessions must fall, let them be as valuable as their warmest panegyrists contend.

"It evidently appears from this slight review of our most important dependencies, that on them we are not to exert that new policy which alone can be the preservation of the British power and consequence. The more important they are already, the less are they fit instruments in that work. No man can be hardy enough to deny that they are insecure; to add therefore to their value by exertions of policy which shall have the effect of directing any stream of capital, industry, or population into those channels, would be to add to a disproportion already an evil. The more we are convinced of the vast importance of those territories, the more we must feel the insecurity of our power; our view, therefore, ought not to be to increase but preserve them."

In short, King George III of England sounds like a thoughtful, insightful man. Not a heedless, vindictive power freak as portrayed by frenzied revolutionaries, the King expressed a pretty reasonable assessment of his colonies. What he most lacked was a recognition that centralized if not one-man rule blocked growing expectations of greater self-rule; expectations propelled by an even bigger revolution, the Industrial Revolution. A Machiavelli or a Bismarck would have seen that Virginia mostly wanted access to Ohio land, while New England wanted maritime dominance; the Quaker colonies were quite satisfied with what they had. It would have been comparatively simple to play one region against another, giving each a little of what it wanted while encouraging cultural diversities which kept them jealous and separate. But His Majesty, yielding to the financial strains of the Seven Year War, and the urgings of his Teutonic mother, united thirteen of his colonies in common rebellion against taxes, military occupation, and high-handedness. The colonies did not want to unite; George III united them. Without unity, their rebellion had no chance.

Caesar Rodney Rides Through the Rain

{Caesar Rodney}
Caesar Rodney

If you have a quarter minted in 1999, you can see a depiction of Caesar Rodney riding through the rain, mud and heat, all night, to cast his July 2 vote for independence at the 1776 Continental Congress. There are no known painted portraits of Rodney, probably because his face was badly mutilated by cancer which ultimately killed him.

On July 1, Thomas McKean and George Read had split Delaware's votes in a tie, and McKean had urgently sent word to Rodney, the absent third vote, that he must come to Philadelphia quickly. Rodney was suffering from cancer. It may thus have been Thomas McKean's idea to invoke the concepts of the Treaty of Westphalia to escape hanging for armed rebellion, but Ben Franklin seems more likely. Once an idea like that gets started in a gathering, it quickly becomes everyone's idea. But Franklin was the only one to stampede a group and take no credit for doing so.

{statue}
Rodney
Admiral Howe was already starting to land his seven hundred ships at Staten Island and Perth Amboy. It would not be difficult for him to travel a hundred miles across New Jersey to Trenton and down the Delaware River -- to hang them all as rebels. But Franklin had traveled that distance many times and had plenty of time to consider its strategic location. Only if they could establish the notion that they were an independent country could they hope to shelter themselves in the rules of war? (Even so, most of them found it prudent to wait a few weeks before signing Jefferson's somewhat specious arguments.) In the background, of course, Benjamin Franklin had a shrewder assessment or possibly even overt threat: the King of France wasn't going to help them unless they severed their allegiance with England.

Schoolchildren in Delaware can be forgiven for asking why Rodney wasn't in Philadelphia for the vote without being sent for. And we don't really know. Rodney certainly had plenty of other things competing for his attention, like being a Supreme Court Justice, the Speaker of the Delaware Assembly and the de facto Governor of the State, as well as being a Brigadier General in the Militia (he later was made Major General in charge of the garrison at Trenton). One has to suspect, however, that he had not expected George Read to vote against independence. Read, after all, had married the widowed sister of George Ross, who did sign the Declaration.

Asthma, a notoriously intermittent condition, may have been a worse impediment to Caesar Rodney's ride than his cancer. Although he was badly disfigured, cancer did not kill him until 1784. The prospect of riding eighty miles in the rain with asthma may well have been the reason Rodney held off until he was absolutely certain his vote was needed. The esteem and affection that Delaware holds for this farmer from Dover can be gauged by the fact that he remained the elected speaker until the day he died, and during his last three months, the legislature held its meetings in his house so he could be present.

Philadelphia in '76

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Spirit of '76

Although the origins of the American Revolution are subtle and complex, even historically controversial, we have more or less united in the idea that we "declared" our independence from Britain on July 4, 1776. We then spent eight years convincing the British we were serious and have been independent ever since. Reflect, however, on the fact that fighting had been going on for a year in Massachusetts, and that Lord Howe's fleet had set sail a month before the Declaration, actually landing on Staten Island at just about the same time as the Fourth of July. Add to that the fact that only John Hancock actually signed the document on July 4th, and some of the signers waited until September. You can sort of see why John Adams never got over the idea that Thomas Jefferson had quite a nerve implying the whole thing was his idea. What's more, New England subsequently had to live with a President from Virginia for thirty-two of the first thirty-six years of the new nation. Philadelphia may have been the cradle of Independence, but that was not because it was a colony hot for war, dragging the others along with it. It was the largest city in the colonies, centrally located. It had a strong pacifist tradition, and it had the most to lose from a pillaging enemy war machine.

New England was in the position of having started hostilities, and about to be subdued by overwhelming force. The Canadians were not going to come to their aid, because they were French, and Catholic, and enough said. What the New Englanders wanted was WASP allies, stretching for two thousand miles to the South. By far the largest colony was Virginia, which included what is now Kentucky and West Virginia; it even had some legal claims for vastly larger territory. The rest of the English colonies had plenty of assorted grievances against George III, and almost all of them could see that America was rapidly outgrowing the dependency on the British homeland, without any sign that Parliament was ever going to surrender home rule to them. Perhaps it was unfortunate that New Englanders were so impulsive, but it looked as though a confrontation with the Crown was inevitably coming, and without support, New England was likely to be subdued like Carthage.

And then, the last hope for flattery and diplomacy, for guile and subtlety, stepped off the boat. Benjamin Franklin, our fabulous man in London, had it "up to here" with the British ministry. He finally was saying what others had been thinking. It was now, or never.

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The Personalities

George Washington Defends Philadelphia in New Jersey

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Perth Amboy Map

Not everyone would think of the New Jersey town of Perth Amboy as part of Philadelphia history or culture, but it certainly was so in colonial times. Sadly, the town is now somewhat run-down.

To understand the strategic importance of Perth Amboy to Colonial America, remember that King James thought of New Jersey as the land between the North (Hudson) River and the South (Delaware) River. This land has a narrow pinched waist in the middle. New York Bay pinches on one side, Perth Amboy marking the deepest penetration of that pinch on the East. The Western pinch is from Delaware Bay, which has a sharp angle at Trenton marked by waterfall rapids in Colonial times, where the Delaware River makes an abrupt turn from Easterly to Northwesterly. Quite naturally in the Nineteenth Century, a canal was eventually constructed along this narrow waist between two large bays, and it is easy to see why the Seventeenth Century regarded the connecting strip of land as the likely future site of important political and commercial development. The two large and dissimilar land masses adjoining this strip -- sandy South Jersey, and mountainous North Jersey -- were sparsely inhabited and largely ignored in colonial times.

New Brunswick

The name, Perth Amboy, is modified from local Indian word with the Perth part reflecting that East Jersey was primarily settled by Scottish Quakers. Like Pittsburgh at the conjunction of three rivers, Perth Amboy's local importance was that it sits at the mouth of the Raritan Bay extension of the Raritan River as it empties into New York Bay, just inside Sandy Hook. The second "river" of the fork is really just a channel between New Jersey and Staten Island. Viewed from the sea, Perth Amboy sits on a bluff, commanding that junction. (Staten Island, in a sense, here seems more naturally a part of New Jersey than New York). Amboy was the original ocean port in the area, soon overtaken by New Brunswick further upriver, as increasing commerce required safer harbors. It was the capital of East Jersey, and then the first capital of New Jersey after East and West Jersey were joined in 1704. The Royal Governor's mansion still stands there in much reduced circumstance. The grand houses of the Proprietors and Judges overlooked the banks of the bay. The last Royal Governor was William Franklin, an illegitimate son of our Benjamin. When Benjamin was stationed in London as a representative of Pennsylvania and Massachusetts, the appointment of William to a plush job in the colonies was just the normal method of government, made somewhat shabbier by King George III. Urged on to be a really King-like King by his mother, George III had considerably expanded the system of buying the loyalty of important people by giving them jobs and favors. Where people were already rich and powerful, they were offered monopolies and protective tariffs in return for their loyalty, and irritation at such intrusions into the trade was to be a main incitement of the American Revolution. William and Benjamin eventually had a permanent falling-out over political matters, and naturally American historians take the side of the father. However, it would appear that William was in fact a very good governor, a charming and diplomatic person, who used his considerable talents to smooth over the local conflicts between his King and his neighbors. Even after hostilities broke out and the rebels took over the government, William Franklin stayed on trying to calm things down, instead of fleeing behind the British lines as most Loyalists tended to do. His reward was to be packed off to confinement in Connecticut.

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Sir Henry Clinton

Speaking geologically, the Raritan River is a little trickle running along the path of what was once the northern entrance to Delaware Bay. In prehistoric days, southern New Jersey was a sandy barrier island, but the gap gradually filled in along the route from Perth Amboy to Trenton, leaving sheltered harbors at both ends of a strip of unusually fine farmland attractive to early settlers. By the time of the Revolution, the strip was comfortably settled by rich farmers who tended to favor the Loyalist cause, while the pine barrens to the South and the hilly woods to the North were inhabited by newer immigrants who tended to be poor and hence favored the rebel cause. In his autobiography, Benjamin Franklin relates how, a boy, he came from Boston to Philadelphia by coming down from Perth Amboy (the capital of East Jersey) to Trenton and nearby Burlington (the capital of West Jersey), and then down Delaware to Philadelphia. Later on, Washington was to retreat down the same path from his defeats in New York, hotly pursued by the British. After the battle of Trenton, Washington promptly chased the British back up the Raritan to New Brunswick and Perth Amboy and bottled them up there by establishing winter quarters in Morristown. Much later, when the British General Henry Clinton later abandoned Philadelphia, which General Howe had captured by coming in the back door from the Chesapeake, the British marched back up the same Raritan waist of New Jersey by first crossing the Delaware to Haddonfield, up the king's Highway to Trenton/Burlington, and then East to New Brunswick and the British fleet. This was the main highway of the middle colonies, and the persisting term "King's Highway" was once completely appropriate.

When considering the relationships between New Jersey's Raritan Strip and Philadelphia in later decades, the names of Aaron Burr, Thomas Edison, Albert Einstein, Robert Oppenheimer, Doris Duke, and Charles Lindbergh come up, along with a number of others whose tales need retelling. College football was invented in a game between Rutgers and Princeton, eighteen miles apart, and Woodrow Wilson started the movement to put an end to college fraternities, called eating clubs at Princeton. But the strip itself seems to have been glorified only by Thornton Wilder.

A short play called A Happy Journey To Trenton and Camden has been a favorite production by the drama societies of Rutgers, Princeton and Lawrenceville for almost a century. As written by Wilder during the time when he was a school teacher at Lawrenceville, the occupants of a Model T rattle and bump along the strip, commenting on the passing scene. Both the play and the strip deserve more attention than they usually get.

The Failed Mid-Atlantic Subjugation, 1776-78

It will be a disappointment to my Philadelphia friends to find I have been forced by time to omit the details of their favorite dinner table conversation, the British occupation of Philadelphia and all its wonderful details. But a summary is that Washington lost just about every battle, but won the war of attrition. His job was to keep the Continental Army alive at Valley Forge during the Howe brothers assault, until subordinate Generals in other regions had better but similar luck, for eight years. The French assistance grew, and finally, the greatest war machine in the world just gave up and concentrated on the rest of the earth. America may have been an attractive place to conquer, but it was just too expensive.

The story includes Ben Franklin's social conquest of France, to the point of essentially bankrupting his ally. It includes the skillful British attack on Philadelphia's back door through Delaware, the majestic land victory then defeat, then victory and then defeat of Lord Cornwallis across the waist of New Jersey, the battle of Trenton and return to Washington's cold winter retreat in Morristown. It has all of the juicy details of betrayal by Benedict Arnold and Philadelphia's social elite. And it includes the details of Robert Morris, who was essentially acting President while the politicians fled to York and Lancaster, taking the Liberty Bell along with them. It includes Betsy Ross and the other common folk who survived while they subverted their conquerors. It is a grand story, but there just isn't time to tell it. It might even mention gunpowder smuggling to the battle of Trenton by The Barber of Seville, Beaumarchais the French King's watchmaker. Mozart and Beethoven and Poor Richard's French girlfriends also figure, but there just isn't time to invent a pretext for mentioning them, so we return to the Constitution and how it got to be what it is.

The March of Events

Espionage in the Revolution

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John Nagy

Both sides fighting the Revolutionary War predominantly spoke English as a native language, so it seemed deceptively simple to pick up a little cash for a tidbit of information or two. John Nagy, who has written several books on spies in the Revolution, recently addressed the Right Angle Club about this interesting topic. According to him, Quakers were favorites as spies because they were widely split in their sympathies, and as pacifists were abundant in the civilian societies of the time. Others have commented that the main difference between Conservatives and Free Quakers was that the Free Quakers were mostly of the artisan class and sympathetic to the Revolution, while the Conservatives were mainly of the merchant class, and Tories. But there were many exceptions, and the plain dress Quakers were hard to tell apart and passed freely through the military lines. No doubt many readers will be incensed by such comments, for which we take absolutely no responsibility.

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Beaumarchais

The one main exception to the English-language generalization were the French, who were still smarting from their defeat in the Seven-Years (French and Indian) War. The playwright Beaumarchais was quite active in the French movement to make trouble for the hated English and seems to have stirred up King Louis XVI to be interested in financing rebel trouble-makers, if not to become active combatants. In any event, a wary King thought it was best to send a spy to look over the situation. As detailed in a little pamphlet called The Spy in Carpenter's Hall the Americans were tipped off about the plot. Accordingly, the spy named Bonvoloir was hidden up on the second floor of Carpenter's Hall, while the colonists put on a belligerent falsified performance on the first floor. It is claimed their performance was a convincing one, having the desired effect of creating a report to the King that the colonists were belligerent, warlike, numerous and united. After the Battles of Trenton and Saratoga, the timing was good for using this sort of report to provoke the King into doing what he was mostly of a mind to do, anyway.

Johann de Kalb

The French were unusual in favoring aristocrats as spies and Johann de Kalb was anther who snooped around, returning later in the form of General de Kalb of military note. The names of British spies, aside from Major Andre, tended to have a Quaker sound to them, like Dunwoody, Cadwalader Jones and the like. It would take deep research to know whether these were Quaker stalwarts or merely black sheep of some family; there is little doubt that sympathies changed with the changing fortunes of battle. Another feature was the careless lying which took place for propaganda purposes. The famous story of Lydia Darragh, a Quaker who allegedly overheard the British officers plotting the surprise attack on Whitemarsh on December 5, 1777, and walked many miles in the snow to warn Washington -- is apparently a much dressed-up version of what happened. The whole Darragh family was engaged in regular spying, and the evidence is that Lydia's brother William was the one who was the messenger. He apparently carried messages under the cloth covering of the buttons on his coat.

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Joseph Galloway

Two types of spying have a greater ring of authenticity. The British needed pilots to guide their ships up the Delaware past fortifications and obstacles. Maps were nice, but it seemed simpler to enlist the efforts of two ladies of easy virtue, Ms. O'Brien and Ms. McCoy, to hang out in taverns and entice local ship pilots to enlist to guide the British ships into Philadelphia. The British spymasters even had the ingenuity to entice a member of the Continental Congress, Joseph Galloway, to turn over the commentary records from which troop strength could be estimated from the food consumed. It is not recorded whether suitable adjustments were made for starving troops, stolen supplies, or fraudulent charges, however.

Benedict Arnold

Two prominent officials were accused of selling out the side, but an accusation of this sort is easily made, hard to prove. When the examples of Benedict Arnold and Peggy Chew can be verified, however, there is always doubt cast on everyone which some will believe. The system of double signatures was used, so there were two co-treasurers of the United States, Joseph Hellegas and George Clymer. Letters have been produced indicating that one or the other sold the commissary records. Hellegas' home is still today the residence outside Pottstown of a prominent Philadelphia surgeon, and his portrait appears on the ten-dollar bill. In so doing, he started a tradition of Secretaries of the Treasury on the ten-dollar bill, presently occupied by Alexander Hamilton. George Clymer, for his part, was a signer of the Constitution and a favorite of George Washington. Are these stories true? Who knows, but in an eight-year war, John Nagy has accumulated evidence that there were over five hundred documented spies. The essential question remains one of whether to believe the documents.

Rebel Hill

The Schuylkill River, hence Schuylkill Expressway and also Amtrak, all take a big bend westward about ten miles from Philadelphia. They are making a detour around a big hill or minor mountain, tending to position the sun in the eyes of many commuters at certain hours of the day. Real estate developers are apparently responsible for naming the place Rebel Hill, and it's getting pretty crowded with houses. The Rebel they had in mind was George Washington.

Rebel Hill

The father of our country was in retreat from the battle of Germantown, having crossed the river at Matson's Ford, then following Matsonford Road over and beyond the big hill, and pausing for water at the spring in the gulch formed by Gulch Creek, now more decorously called Gulph Creek. The creek tumbles down the side of a long ridge forming the south side of the Great Valley; the gulch or gulf is really a crevasse in that ridge, which in a sense makes Rebel Hill just a split-off extension of that ridge. Consequently, the gulch makes a water-level route from the Schuylkill to Valley Forge, which anyone would take to get there in a hurry. Valley Forge is a misleading term; it's a hill in the middle of the Great Valley, as the center of an angel food cake tin, and was thus defensible in all directions. The cleft in the southern ridge is where you would normally travel to get to the base of the bastion of Valley Forge.

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Old Gulph Road

So, everyone still takes that route, following Montgomery Avenue after it turns into South Gulph Road, but before it turns into North Gulph Road. The road up along the southern ridge is called Old Gulph Road, while the newer extension from the river is called New Gulph Road. All of these winding roads are compressed within the narrow defile beside Gulph Creek, reachable by splashing through the fords in the creek, although that is discouraged after ice forms in the winter. And, yes, a new road has come in at a restored old farmhouse, called New Gulph Road. The restoration has created a fancy restaurant, which somehow forgets that at the time we are talking about, it was the headquarters of (Major) Aaron Burr. The giant highway cloverleaf ahead on South Gulph Road tends to obscure the fact that it was the direct road to Valley Forge, now further obscured by lots of shopping center. If you persist and keep a lookout for the street signs, you will eventually get to the Memorial Arch, log cabins and National Park Service facilities of Valley Forge.

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Valley Forge

Back in the gulch, however, is the spring where Washington's troops refreshed their canteens. Just beyond it is a great big rock, much mentioned in memoirs of the episode. Around 1950, the highway engineers decided to blast this rock out of the way of widening a road that badly needs widening. The Daughters of the American Revolution saved the day. Creating a giant fuss, the DAR succeeded in limiting the engineers to chiseling the bottom of the rock away. A gentleman in his eighties recently remarked he had driven past that rock thousands of times, and always wondered what it was there for. Now he knows.

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.

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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.

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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.

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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.

Perpetual?

George Washington
Was he the 11th President
of the United States?

We must be indebted to Stanley L. Klos for his recent book called President Who? in which he makes a persuasive case that George Washington was actually the eleventh President of the United States, there have been ten previous Presidents under the Articles of Confederation. The awkward fact that the Articles were not ratified until 1781, is a different sort of issue which possibly helps explain some of the confusion.

In general, the attitude had been that the ten previous Presidents had merely been the presiding officers of Congress, holding an office we might now call Speaker. Indeed, the President under the Constitution doesn't "preside" over anything definable, although the Vice-president clearly presides over the Senate, at least on the infrequent occasions when he is in the room. All of this would seem to be nit-picking wordplay by history hobbyists, except for one thing.

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Lincoln raised the issue
whether states who ratified
the Articles of Confederation,
among other documents, were
bound in perpetuity
to be members of
the United States.

Abraham Lincoln was having a hard time finding a reason to challenge South Carolina's right to secede, which was later depicted by the state as simply revoking its previous ratification of the Constitution in 1789. If they could join the Union, they could un-join the Union, so, Goodbye.

Not so, said Lincoln. When South Carolina ratified the Articles of Confederation in 1778, those Articles clearly stated the Union was to be perpetual, or at least the Articles uniting the colonies were to be so. Articles of Confederation: Article XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State. That sounds pretty perpetual to most readers, making the Constitution merely a clarification of details, or at most an amendment to the Articles of Confederation. There is a strong implication that the intent of Article XIII was to prevent individual states from making a separate peace with Great Britain, or Britain from claiming conquered territory was no longer American.There's no doubt the Articles do say perpetual and no doubt South Carolina signed them. However, it is equally certain that Alabama, Arkansas, Louisiana, Mississippi, and Texas did not sign the Articles. Six hundred thousand casualties later, this fine legal dispute was settled in Lincoln's favor, but not before the Gettysburg Address further muddled Constitutional Law by proposing in effect that the Declaration of Independence formed the basis for the Constitution. However, a speech at a ceremony hardly qualifies as a national ratification, and the Gettysburg Address did not achieve much acclaim for several more decades, suggesting later politicians were doing some special pleading, To include either the Declaration or the Gettysburg Address in a discussion of Constitutional intent is to ignore a lot of contemporary history. Many of the clauses and even some of the wording of the Constitution is taken directly from the Articles to the Constitution, whereas the claim tracing origin in the Declaration of Independence is based on the conflict between the two in the "All men are created equal" versus the later assignment in the Constitution of only 3/5 of a vote for slaves. The party of Thomas Jefferson can only make the claim that the Declaration made an assertion which was later overturned by the Constitution, only to be reversed again by the Civil War and the Fourteenth Amendment. Only the Articles and the Constitution itself can claim to have been intended as a system of governance, with at least some attempt made to obtain general ratification, followed by long periods of conforming to them, to display even stronger ratification. It may be humanitarian, but it is not good history to assert that a Declaration is Law.

So now Philadelphia has two large, competing, institutions at either end of a long grassy Mall on Sixth Street, Chestnut to Vine. Each has a paid staff, busily organizing new points of view in competition for legal authority as well as visitors. One really must wish that Lincoln had found some other legal theory to justify military action. The Articles of Confederation, which were anyway not fully ratified until 1781, established a military alliance of thirteen otherwise fairly autonomous states. The Constitution, beginning with the words We, the People, created a nation of citizens, in 1788.

There's quite a difference, and the second was emphatically based on dissatisfaction with the first. It thus is a favorite theme for those who argue for a "living" Constitution, in which any change at all is legitimate if enough people clamor for it. My own view of this, if anyone cares, is that our Union is the only example in history where a number of viable sovereign states voluntarily and permanently surrendered their powers to become a "more perfect union". Many others have tried to do the same, starting with the French Revolution and continuing with the United Nations and the European Union. So far, every other attempt has been a failure. So I am very reluctant to see us tinker with the Constitution because the invisible balances are so subtle and largely unspoken. It may not be perfect, but so far it is unique in being the only one that seems to work. Such pious worship of a mystery seems to offend a lot of people, so let's get a little more pointed.

The greatest enemy of the Constitution at the time it was formed was Thomas Jefferson, the Ambassador to France at the time of the French Revolution, which he much admired. Jefferson was reluctant to confront George Washington, so his resistance to the Constitution was circumspect. However, he formed a political party with the main principle of opposing strong central government. One of the activities of his party was to start to celebrate July 4 as a National holiday and to downgrade the importance of Washington's birthday as one. There can be little doubt that Washington's birthday has been dropped from the national calendar and replaced by President's Day, while the celebration of July 4 continues to be an occasion for speeches and fireworks. John Adams engaged in a long correspondence with Jefferson after both had stepped down from the Presidency. While the two made their peace with each other on many subjects, Adams never forgave this celebration of the Declaration as a sacred text, when in fact he believed it had little to do with history and was outspoken in his scorn for its importance. One can only imagine the apoplectic speech Adams would give today if he could come alive and comment on the dilution of Washington's birthday with Lincoln's, diminishing the memory of both. And as for his scorn for dating the beginning of the Revolution to July 4, 1776, when in fact fighting had been going on at Lexington, Concord, Bunker Hill and other places for years, well. If it comes to a battle of documents, a respectable case can be made that the beginning of the Revolutionary War was in December, 1775 when the British Parliament passed the Prohibitory Act, effectively declaring war on the rebellious colonies, meanwhile dispatching a war fleet of several hundred ships to America to subdue us.

Writing and Ratifying the Articles of Confederation

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French-Indian-War

The Articles of Confederation were written during wartime conditions surrounding the attack on Philadelphia by the British and were initially adopted by the Continental Congress November 15, 1777. The Articles required unanimous ratification by all thirteen states, which was not attained until March 1, 1781, nearly four years later. The last hold-out state was Maryland, still concerned about its western borders. Almost all state borders had been under some degree of challenge during the interval between the French and Indian War and the American Revolution; Maryland still had a grievance. Robert Morris, unofficially running the government of America during the War, used the argument that lack of a stable agreement between the states greatly hampered his efforts to obtain foreign loans, and Maryland finally agreed. The change in status of the states from somebody's private property to common national ownership reduced the importance of defending internal boundaries. Local boundary issues changed from collective state grievances into petty complaints coming from individual landholders, thus exposing that personal quarrels often get dramatized into matters of local patriotism. Provisions of the Articles to permit free movement within the United States, and somewhat freer trade, encouraged more nationalistic viewpoints as the battle of Yorktown showed peace was approaching. The ability of the 1794 Eleventh Amendment to get ratified (prohibiting a citizen from suing another state in Federal Court), uncovers the threat to state power which was hidden in a unification of states and immediately perceived as such by local politicians. It might be noted that New Jersey and Pennsylvania never ratified this amendment, while an overwhelming majority of (Federal) Supreme Court Justices have seemed to favor undermining "state immunity".

The first draft of the Articles was written by the eminent lawyer John Dickinson, who provided for a stronger central government than the states proved ready for. Robert Morris, who finally pushed ratification of the Articles through to completion, had likewise refused to sign the Declaration. In both cases, uneasiness about anarchy and inflation was a major source of hesitation. By observing the positions of these two firm friends, it is possible to guess that the Articles already reflected a conflict between liberty and stability. The forces for prosperous stability temporarily yielded to more Romantic notions of freedom from government restraint, but only during the period of active hostilities with England. The conservatives waited until the evidence in their favor became unanswerable, and pushed the pendulum back toward orderliness, eight years later in 1787. As a timeless example of the two differing approaches, the difference is a stark one between the nation's inability to control Shays Rebellion in 1786 western Massachusetts, and President Washington's fierce restraint of western Pennsylvania's Whiskey Rebellion in 1791. To some extent, Washington's reaction was showmanship, but it was surely true that the United States was beginning to acquire a little taste for George III's viewpoint. Thomas Jefferson also noticed, rejected the concept utterly, and began to prepare his counter-attack.

{Shays Rebellion}
Shays Rebellion

Much more than the Articles of Confederation did, for all its proclamation of "perpetuity", The Constitution reflects a firm decision to establish a permanent national government. The Articles required unanimous consent of the states for most actions of Congress, and often resorted to supermajorities of two thirds in other situations. It conducted its affairs through committees of Congress, lacking any national executive or judicial branches. It thus invisibly gave the states which had such agencies a working veto power. Even appointed congressional committees were held on a tight leash. They were reappointed annually and term-limited to three years in any term of six. They voted by states, one vote per state. Although it was not explicitly stated that way, a consequence was the wartime national government had no real power to tax or to enforce its will against an unwilling state. It was a miracle we won that war, but the later obstacles to peaceful prosperity were even more difficult since without an external enemy the consequences were less certain. In case there was any final lingering doubt, any power not expressly stated was to remain with the states. For emphasis, that statement was the second sentence in the document.

On the other hand, the Articles did insist that states should acknowledge the laws of other states, at least in the freedom to travel, to recognize marriages, and to agree to extradition. The Northwest Ordinance enacted under the Articles of Confederation encouraged free public education, trial by jury, and due process. Progress in these areas laid the foundation for further progress under the Constitution and carried with it the implication that the romanticists for liberty did not consider national government power to be a threat in such areas. The view seems to have been that many government powers were harmless, but military power was so particularly dangerous to freedom that it was worth risking some freedom to constrain it. As we will see later, the Constitution was much more precise about what powers an effective government absolutely must have, if it is to defend the nation. And its eyes were more open to the benevolent peacetime potential of a central government. The Constitutional Convention might have achieved such goals by amending the Articles, except for the power which the Articles gave the states to resist the changes. That power must first be crippled by other amendments with a menacing tone. A two-step process of curtailing overall state power, followed by curtailing specified state powers, was a daunting one. Reducing state power would always be resisted more vigorously than pursuing public benefits of some sort. Someone among the Federalists decided that a complicated amendment process would be chancier than just tossing the Articles out in one tumultuous action. Whoever proposed that tactic, eventually succeeded in winning his bet.

Articles of Confederation (Complete Text)

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts Bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

I. The Stile of this Confederacy shall be "The United States of America".

II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

{top quote}
The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. {bottom quote}
Purpose

IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanors in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

V. For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

In determining questions in the United States in Congress assembled, each State shall have one vote.

{top quote}
...delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress ... in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. {bottom quote}
Representation
Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

VI. No State, without the consent of the United States in Congress, assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

{top quote}
...all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment {bottom quote}
Control of the Military
VII. When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article -- of sending and receiving ambassadors -- entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever -- of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated -- of granting letters of marque and reprisal in times of peace -- appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgement and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgement, which shall in like manner be final and decisive, the judgement or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgement, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, 'well and truly to hear and determine the matter in question, according to the best of his judgement, without favor, affection or hope of reward': provided also, that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated -- establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office -- appointing all officers of the land forces, in the service of the United States, excepting regimental officers -- appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States -- making rules for the government and regulation of the said land and naval forces, and directing their operations.

The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated 'A Committee of the States', and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction

to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses -- to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted to build and equip a navy -- to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed and equipped in the same manner as the quota of each State, unless the legislature of such State shall judge that such extra number cannot be safely spread out in the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

{top quote}
nor appoint a commander in chief of the army or navy, unless nine States assent to the same {bottom quote}
The United States in Congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the United States in Congress assembled.

The Congress of the United States shall have the power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States.

X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite.

XI. Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same unless such admission be agreed to by nine States.

XII. All bills of credit emitted, monies borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledge.

XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State.

{top quote}
Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration is agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State. {bottom quote}
And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In Witness whereof, we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.

Attendees of the Confederation Congress (1781 - 1789)

<
{Samuel Adams}
Samuel Adams
{Thomas Adams}
Thomas Adams
{John Banister}
John Banister
{Josiah Bartlett}
Josiah Bartlett
{Daniel Carroll}
Daniel Carroll
{William Clingan}
William Clingan
{Francis Danna}
Francis Danna
{John Dickinson}
John Dickinson
{Elbridge Gerry}
Elbridge Gerry
{John Hancock}
John Hancock
{John Hanson}
John Hanson
{John Harviec}
John Harviec
{Edward Langworthy}
Edward Langworthy
{Henry Laurens}
Henry Laurens
{Francis Lightfoot Lee}
Francis Lightfoot Lee
{Francis Lewis}
Francis Lewis
{Henry Marchant}
Henry Marchant
{Gouverneur Morris}
Gouverneur Morris
{John Penn}
John Penn
{Daniel Roberdeau}
Daniel Roberdeau
{Nicholas Van Dyke}
Nicholas Van Dyke
{George Walton}
George Walton

Signers of the Articles of Confederation

{Samuel Huntinton}
Samuel Huntington
{John Hanson}
John Hanson
{Daniel Carroll}
Daniel Carroll
{John Witherspoon}
John Witherspoon
{Jonathan Bayard} Jonathan Bayard
{William Clingan}
William Clingan
{Joseph Reed}
Joseph Reed
{Henry Laurens}
Henry Laurens
{William Henry}
William Henry
{Thomas Heyward}
Thomas Heyward
{Thomas McKean}
Thomas McKean
{John Dickinson}
John Dickinson
{Nicholas Van Dyke}
Nicholas Van Dyke
{John Hancock}
John Hancock
{Samuel Adams}
Samuel Adams
{Elbridge Gerry}
Elbridge Gerry
{Francis Dana}
Francis Dana
{James Duane}
James Duane
{Francis Lewis}
Francis Lewis
{William Duer}
William Duer
{Gouverneur Morris}
Gouverneur Morris
{William Ellery}
William Ellery
{Henry Merchant}
Henry Marchant
{Richard Henry Lee}
Richard Henry Lee
{John Banister}
John Banister
{John Harvie}
John Harvie
{Francis Lightfoot Lee}
Francis Lightfoot Lee
{Josiah Bartlett}
Josiah Bartlett
{John Penn}
John Penn

The Wyoming Massacre of July 3, 1778

{Privateers}
The Wyoming Massacre

The six nations of Iroquois dominated Northeastern America by the same means the Incas dominated Peru -- commanding the headwaters of several rivers, the Hudson, the Delaware, and the Susquehanna, as well as the long finger lakes of New York, leading like rivers toward Lakes Ontario and Erie. They were thus able to strike quickly by canoe over a large territory. Iroquois were quite loyal to the British because of the efforts of Sir William Johnson, who settled among them and helped them advance to quite a sophisticated civilization. It even seems likely that another fifty years of peace would have brought them to an approximately western level of culture. Aside from Johnson, who was treated as almost a God, their leader was a Dartmouth graduate named Brant.

Brant, The Noble Savage

The mixed nature of the Iroquois is illustrated by the fact, on the one hand, that Sachem Brant translated the Bible into Mohawk and traveled in England raising money for his church. On the other hand, his biographers trouble to praise him for never killing women and children with his own hands. British loyalty to these fierce but promising pupils was one of the main reasons for the 1768 proclamation forbidding colonist settlement to the West of what we now call the Appalachian Trail, which on the other hand was itself one of the main grievances of the rebellious land-speculating colonists. The Indians, for their part, saw the proclamation line as their last hope for survival. After Burgoyne's defeat at Saratoga, the Indian allies were free to, and probably urged to, attack Wyoming Valley.

It is now politically incorrect to dwell on Indian massacres, but this one was both exceptionally savage, and very close to home. The Iroquois set about systematically exterminating the rather large Connecticut sub-colony and came pretty close to doing so. Children were thrown into bonfires, women were systematically scalped and butchered. The common soldiers who survived were forced to lie on a flat rock while Queen Esther, "a squaw of political prominence, passed around the circle singing a war-song and dashing out their brains." That was for common soldiers. The officers were singled out and shot in the thigh bone so they would be available to be tortured to death after the battle. The Wyoming Massacre was a hideous event, by any standard, and it went on for days afterward, as fugitives were hunted down and outlying settlements burned to the ground.

It's pretty hard to defend a massacre of this degree of savagery, but the Indians did have a point. They quite rightly saw that white settler penetration of the Proclamation Line would inevitably lead to more penetration, and eventually to the total loss of their homeland. The defeat of a whole British Army under Burgoyne showed them that they were all alone. It was do or die, now or never. Countless other civilizations have been extinguished by provoking a remorseless revenge in preference to a meek surrender.

Wyoming, Fair Wilkes Barre

{Privateers}
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.

{Privateers}
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.

{Privateers}
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}
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.

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.

{French Style}
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."

Sullivan's March

{Sullivan}
Sullivan

George Washington had plenty of other problems to contend with in 1778, but an Indian uprising led by Loyalists was too much. He singled out General John Sullivan, a celebrated Indian fighter from New Hampshire, gave him four thousand troops, and told him to eliminate this Indian threat to the Continental Army's rear, remove the safe haven for Loyalists, and assist the new Indian allies which LaFayette had befriended in the Albany area before the battle of Saratoga.

From long experience, Sullivan knew what to do, and did it without remorse. Ignoring skirmishes and ambushed sentries, he marched his troops from the scene of the massacre straight into the heart of Iroquois homeland, destroying every source of food or Indian settlement he could find. He was not interested in winning battles, he was determined to starve the Indians into extinction, once and for all. After these two slaughters, a white one in the Wyoming Valley (the Connecticut squatters in Wilkes-Barre), and now a red one in upstate New York, the entire frontier north of Pennsylvania has left a scene of devastation. Not much was heard of Indian fighting on this frontier for the rest of the Revolutionary War. Indeed, only the novels of James Fennimore Cooper make much subsequent mention of the Iroquois in American history.

The Third Pennamite War (1778-1784)

{Wyoming massacre}
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.

Constitutions: So What's So Good About Ours; Why Do Europe's Fail?

First of all, let's compare Philadelphia's Constitutional beginnings with Boston's. Philadelphia had a Constitution which grew out of the Revolution, which was forced upon us by Admiral Howe's punishing attack by a huge British fleet. Philadelphia was dominantly a Quaker pacifist city. Annoyed by British mercantilism it may have been, but it was far from completely hostile to the mother country. Boston, by contrast, could have been described as starting the war. It had the Boston tea party, the Boston massacre, and the hidden gunpowder before the British tried to restore order. Boston and Philadelphia both had grievances, but nobody challenges the statement that the colonists (and the smugglers) started the war which led to the Constitution, just as French revolutionaries attacked the French aristocracy, first. Boston and Paris started their wars, Philadelphia was attacked. Furthermore, Philadelphia was pacifist Quaker, and gave up political power rather than resist. Boston quickly gave up "Taxation without representation" in order to fight for Independence with allies; Philadelphia was still filled with Tory sympathizers after the war was over.

But although Philadelphia agonized about Independence, they took it seriously once they adopted the goal. Even decades later, they endured a Civil war for the Union, while Boston sent us Abolitionists to stir up trouble for the South. On a smaller scale, during the War of 1812 it was New England that hoped to invade Canada, while Philadelphia was harboring the French and building French buildings. Our Constitution has endured for over two centuries with only minor amendments. By contrast, the European Republics seems about to fail after uniting many small states into one big one. We have much the same heredity. Whatever needs to be changed, by Europeans, before someone gets blown up?

The first thing to acknowledge is that America's Constitution may be the unusual one, having survived longest. Other Constitutions backslid after a few years. No doubt we wanted success more; we worked harder at it. At first, we were very suspicious of any unification of nations at all, as eloquently proclaimed by Patrick Henry, the Lees and Mason. But John Dickinson also wasn't sure it was a good idea at first either, Ben Franklin was a dedicated Englishman right up to the edge of the Revolution, and the Penman of the Constitution, Gouverneur Morris, disavowed his own product during the War of 1812. James Madison the Virginia scholar of constitutions based his premise on the intrinsic evil of everyone, in the phrase. "If all men were angels, there would be no need of Constitutions." The idea behind having a Revolution was Patrick Henry's declaration, "Give me Liberty or give me death." He distrusted all centralized rule and rulers. Not only was George III corrupt, but most men in power soon became that way. All governments were evil, and the evidence seemed abundant. George Washington devised the best reply he could find. Over and over, he repeated his sorrowful experience, "If you are strong, people leave you alone." Unify, or die. Since Washington had led a revolution against Kings overcoming almost hopeless odds, he was offered anything he wanted and refused to take it. It was hard to believe he wasn't sincere. Furthermore, he was a rich slave-holder. He knew he must lead because no one else had the credentials to be trusted by both North and South. The largest colony was Virginia, which gallantly fought the war but almost drew back from the Constitution. Perhaps all this hesitancy and reluctance was the secret of our success. Perhaps we expected little to come of it unless we were vigilant. So we were vigilant. Our Constitution holds together because it is a permanent balance between those who want to go ahead and those who like what they have, and we can always change either one before they do much damage, but we can keep them long enough to gain a little.

Robert Morris was as rich as they come, too, so he could be trusted by movers and shakers. He knew his countrymen, back from the days when they almost killed him in the Battle of Wilson's House on Third Street, near the Quaker Meeting at Fourth and Arch, no less. He knew you didn't win wars without gunpowder, so the way to remain strong was to find a way to force, trick or bribe the component states to pay their taxes. At the Constitutional Convention, he talked more than anyone, said hardly anything once he got a workable system, and then almost didn't sign it until he was convinced it would work. Even after the document was ratified, Ben Franklin who had risen from poverty three separate times to be one of the richest men in town, who had been both the author of the most significant features of the Constitutional product and the author of its most significant compromises, has been revealed as a doubter even after giving it his best, commenting to Mrs Powell that it was, "A republic, if you can keep it." He had proposed a Union at the Albany Conference in 1745, but after forty-four years he still wasn't sure it would work. Without these four men and their friends, it probably wouldn't have. And then there was John Dickinson, Governor of Pennsylvania and Delaware simultaneously, who pulled James Madison aside in Independence Hall, and said, "Do you want a nation, or don't you?" when it came time to compromise on giving two senators apiece to both the small and large states. And don't forget Patrick Henry, whose role in the Bill of Rights was vital. This was a compromise; you need cooperation on both sides to achieve an enduring compromise. Neither side must be allowed to achieve a total victory, lest your Constitution be short-lived like the others. From the beginning, our Constitution was as weak as anyone could make it -- and still survive. The Founding Fathers were idealists who had almost lost a war. There was only one thing worse than winning a war, and that was to lose one.

Unalienable Rights Before 1776

{Privateers}
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.

{Privateers}
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.

{Privateers}
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.

Why Do Nation States Repeatedly Unite and Dis-Unite?

Big nations easily gobble up small ones, so small ones band together. As George Washington famously observed, when you are strong the others will leave you alone. Other circumstances sometimes make smallness seem attractive, especially if the nation is already uniform in religion, language, and culture -- until a bigger aggressor begins to growl. Most nations then discover that survival comes first. Both the American Revolution of 1776 and present struggles of the European Union fit a common formula: banding together for military security, then later pulling back for greater independence. The American experience of a Civil War eighty years later suggests the margin for error is narrow.

{Europe Colonies}
Europe

Geography doubtless imposes limits for both peace and prosperity. Some nations have therefore banded together for military reasons then split apart in local quarrels, more or less regularly. The thirteen American colonies had been afraid to confront Britannia alone, but somewhat overconfidently took on that challenge as a confederation of thirteen. We began by talking about Taxation Without Representation. but ended eight years of warfare united for Independence. This conversion was hastened after lawyers explained it meant the difference between negotiating a treaty for Peace and being hanged for a rebellion. At the other extreme, little Rhode Island even refused to send delegates to the Constitutional Convention, for fear the other twelve would want to share its toll revenues from the coastal road. Similar possessiveness has not yet been reported about the narrow defile through the northern end of the even smaller State of Delaware. At least they are not morally superior in Delaware, which for decades protected its secrets of mushroom cultivation. Everyone wants Peace and Prosperity: getting bigger discourages predators, but getting smaller offers sole possession of whatever you happen to have. Since the United States grew in jumps through most of its history, it probably learned intangible things from alternating episodes of suddenly too big and then gradually too small. Frederick Jackson Turner's thesis of the frontier as the shaper of culture gropes for a fairly similar model. Our treatment of minorities is not ideal, but better than most; we can be moderately proud of our business ethic. These are flawed arguments. We did our best, and it somehow worked out. And while we suffered, we escaped hanging.

When ideas of Union first gained traction in two distant continents, both the thirteen American colonies and the twenty-five nations of the Eurozone were afraid of another war. The simple American objective was rough parity with a common enemy. Centuries later, the nations of the European Union had an even longer view; a seemingly endless history of bloody wars sustained their conviction that other wars would inevitably follow unless they did something new. National unification on the American model would be ideal, and perhaps the habits of cooperation and trade would lead to it. The unexpected decline of the Soviet empire reduced the immediate threat to peace. Pride may also have led to over-reaching; twenty-five is comfortably larger than thirteen, which up to that time was the largest nation merger to survive. But twenty-five is smaller and thus more manageable than the present American fifty. To begin the difficult process with only monetary union as a start, should produce quick benefits from a source too mysterious to produce much public resistance. Nobody could think offhand of a war started by a monetary dispute. No doubt the postwar weakening of local governments made this a good time for experimentation.

{Justice Blackmun}
Justice Blackmun

In addition, the Europeans would expect to cope with the difficulties of speaking many languages. That weakened unified resistance. The American colonies mostly shared a single language. Even their enemy spoke English. In this particular, the Europeans seem to have underestimated the language-induced difficulties of maintaining a common understanding of what their Constitution meant to people. Indeed in American Judicial disputes about Original Intent, we repeatedly encounter the tenacity of people to believe a document says what they want it to say. Staying within a single English language, the inflammatory evolution of U.S. Supreme Court interpretations often turns on subtle differences in the meaning of simple words, since vigorous legal advocates think they are paid to marshall every argument weak or strong. For example, penumbras and emanations from the word "Privacy" in Roe v. Wade force our judges to decide whether the inclusion of a right to abortion within a right of privacy is simply too far from a common understanding of English. Both in the discovery of a right to privacy within a Constitution document which does not use the word and in the inclusion of abortion within that, Justice Blackmun overestimated the capacity of citizens to understand what they did not want to understand. How much more surely, then, would he have overestimated public willingness to grasp his meaning in two-step translations from a foreign language. Since this famous decision is destined to stand or fall, depending on public tolerance for such wordplay, having almost every citizen confidently understanding English has at least some advantage in persuasion about its wisdom.

{Burned at the stake}
Auto-de-fe

By contrast with important language confusions, the "hatreds between nations" so often mentioned as obstacles to unification, seem largely bogus. Argot and slang are commonly invented to conceal the opinions of minority groups. Over thousands of years, this purpose of "jiving" a secret code among conspirators has been perfected exquisitely. It's difficult to overcome, easy to teach children. But the memory of actual wars really dies out rather quickly, not least because atrocities are so hideous, mankind wants to forget them. I was seventy years old before someone told me I had ancestors burned at the stake. By whom, I'm not certain? By someone who has also been dead for four hundred years, not likely to seem threatening to me. Over the fifty years since the Second World War, I have run into former German and Japanese soldiers; they now seem pretty benign. One American former prisoner of war was forced to stand at attention while his Japanese captor pulled out his gold teeth with pliers; he told this story with a faint smile. It is one of the benevolences of biology that we are born without pain memories, and a second is the impossibility of remembering the feeling of pain without first dramatizing the experience for future reference. Once actual onlookers stop grinding the grievance ax, it should be possible to get on with devising a European constitution, provided it contains the equivalent of our First Amendment.

{Helen of Troy}
Helen of Troy

It's an important point for an E.U. proposal unifying two dozen different priesthoods and a number of nations wholly defined by the remit of a single religion. A workable constitution for them must contain a strict separation of church and state, because myths, epic poems, and traditions are synthetic, quite different from actual experiences. Helen of Troy may or may not have had a face that launched a thousand ships, but Homer's Iliad certainly glorified more hatred than she did; who can say whether the poem portrays the truth? That's the war side of things; the Odyssey is powerful in evoking the special virtues leading to prosperous nationhood. Because you can't argue or reason with epic myth, it is the many glorifications and condemnations which supply endurance to patriotic myths, easily reducing macroeconomists of the European Central Bank to tears of frustration. Because the best of these epics stand alone as powerful literature, their propaganda strength is difficult to deconstruct with mere logic. Quoting Arnold Toynbee, it is not weaknesses, but overextension of their finest qualities, which usually brings them down.

{Euro zone symbolic}
Euro Zone

While true grievances seldom pose true obstacles on their own, they do often misdirect political leadership from what is best for their countries. European Unification had a primary goal of eliminating future wars but decided the peace goal was achievable only by indirection and began first with monetary tools for prosperity. That takes a long time; America was still fumbling monetarily until the Civil War. So while starting with small victories seems a plausible route to big victories, in fact, it drains much of the idealism out of revolutions. Even worse, it here made the 2010 financial disaster of the Euro symbolic of hazards on the road to Prosperity, which itself merely seems preliminary to a moderate Peace. At least in a struggle for national security, every day survived is another victory. There is no room in past struggles for Americans to gloat over their superior approach to permanent Union. But a defeat is a defeat, and the Euro mess is a big defeat.

{Ron Paul}
Congressman Ron Paul

From a commentator's perspective, currency matters are difficult to understand and explain. For contrast, the Battle of Normandy is thrilling; every death is the death of a hero. But rises in productivity, the risks of volatility, even the way the value of bonds goes down when their interest rate rises seem hopelessly confusing to a beginner. Worse still, there exists real uncertainty. We now have a currency which has no backing in precious metals and is really just a book entry. That's useful for transactions, less certainly useful for a storehouse of value. Mr. Ron Paul is running for President of the United States challenging the whole Federal Reserve concept, and a possibility must be admitted that he has a grain of truth in his speeches. We trust our bankers to devise a workable system of exchange without gold and silver, and readily admit that Mr. Bernanke knows more than we do. But. The world economy nearly collapsed utterly a few years ago, and you know, Mr. Ron Paul might just have a valid point or two. There has not yet emerged any fit environment for enjoying a monetary Crusade to a World Without War. For a striking contrast, go to any Civil War movie and watch those teenaged soldier boys charge up the hill, ready to die for the Union.

Inalienable Rights Before the Magna Carta

{Hammurabi}
Hammurabi

Although we have had Judges for thousands of years, it's only one of the three branches of American government, and the last to be adopted, even in rudimentary form. Perhaps the framers felt the legal profession could handle the matter without much specification, just as at least so far, we have no cabinet minister or separate department for Medicine, in spite of its coming close to twenty percent of the national budget. At least it is certain that the award of a cabinet seat does not relate to the size of its national cost. The main function of the Supreme Court seems to be to enforce the Constitution on the elected branches, and the main rule is to limit the federal branches to making war and levying taxes. That's under constant attack, but at least it's the theory. An invisible rule is to avoid non-federal rules; we rejected the League of Nations, and essentially ignore the United Nations. The surest way to defeat a law is to say the Europeans have one like it.

This seems to be partly a human jealousy, quite similar to the way the federal government constantly seeks to invade the territory the Constitution gives to state legislatures. One of the central attractions of Roman citizenship was the set of rights afforded the citizens, and definitely not afforded to other people. St. Paul made good use of the rights of a Roman citizen, available to those who could announce civis Romani sum . These were, however, the exclusive gift of the Roman Senate, which for a long time Emperors feared to tamper with.

Chip Kelly of the Right Angle Club points out that Hammurabi intended the right of a tooth for a tooth and an eye for an eye as a limitation of rights. If someone offended you or your family, you were definitely not entitled to overreact by massacring his whole tribe but limited to exact equality of the punishment to fit the crime. An eye for an eye, tooth for a tooth -- and no more.

Somewhere, there may be a reasoned argument for natural rights or divine rights, but outside the French Revolution, it is a little hard to find anything but legal rights, as consistent rights which society, in general, has decided to give you. That's somehow related to the concept of extending those rights to everyone, which everyone would want to have for himself. Anything more restricted than that is not a human right, it is political favoritism. It may even be much of the reason the French and English rejected the European Union.

A cynic might say that an inalienable right is one which is impossible to bargain for. It will only be conferred if you are willing to die for it in a war which you win. When it comes down to it, that is the reason professional soldiers regard religious wars as the very worst kind and may just be a driving force behind the First Amendment.


REFERENCES


Magna Charta: PartI Romance Part II Pedigrees Amazon
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Perils of Sovereignty

New blog 2012-07-13 19:51:46 contents

Quakerism and the Industrial Revolution

{https://www.philadelphia-reflections.com/images/Arkwright.jpg}
Richard Arkwright

The Industrial Revolution had a lot to do with manufacturing cotton cloth by religious dissenters in the neighborhood of Manchester, England in the Eighteenth Century. What needs more emphasis is the remarkable fact that Quakerism and the Industrial Revolution both originated about the same time, in about the same place. True, the industrializing transformation can be seen in England as early as 1650 and as late as 1880. The Industrial Revolution thus extended before Quakerism was even founded, as well as long after most Quakers had migrated to America. No Quaker names are much mentioned except perhaps for Barclay and Lloyd in banking and insurance, and Cadbury in candy. As far as local history in England's industrial midlands is concerned, the name mentioned most is Richard Arkwright, whose behavior, demeanor and beliefs were anything but Quaker.

He seems to have invented nothing, stealing the patents and ideas of others freely, while disgustingly boasting about his rise from rags to riches. Some would say his skill was in the organization, others would say he imposed an industrial dictatorship on a reluctant agricultural community. He grew rich by coercing orphans, convicts and others he obviously disdained into long, unpleasant, boring and unwelcome labor that largely benefited him, not them. In the course of his strivings, he probably forced Communism to be invented. It is no accident that Karl Marx wrote the Communist Manifesto while in Manchester visiting his friend Friedrich Engels, representing reasonably well the probable attitudes of Arkwright's employees. What Arkwright recognized and focused on was that enormous profits could flow from bringing piecework weaving into factories where machines could do most of the work. Until his time, clothing was mostly made by piecework at home, with middlemen bringing it all together. The trick was to make clothing cheaper by making a lot of it, and making a bigger profit from a lot of small profits. Since the main problem was that peasants intensely disliked indoor confinement around dangerous machines, the industrial revolution in the eyes of Arkwright and his ilk translated into devising ways to tame such semi-wild animals into submission. For their own good.

{https://www.philadelphia-reflections.com/images/cbportrait.jpg}
Charles Babbage

Distinctive among the numerous religious dissenters in the region, the Quakers taught that it was an enjoyable experience to sit indoors in quiet contemplation. Their children were taught to submit to it at an early age, and their elders frequently exclaimed that it was a blessing when everyone remained quiet, enjoying the silence. Out of the multitude of religious dissenters in the first half of the Seventeenth century, three main groups eventually emerged, the Quakers, the Presbyterians, and the Baptists. Only the Quakers taught that silence was productive and enjoyable; the Calvinist sects leaned toward the idea that sitting on hard English oak was good for the soul, training, and discipline was what kept 'em in line.

{https://www.philadelphia-reflections.com/images/babbagemaq.jpg}
babbagemaq.jpg

The Quaker idea of fun through daydreaming was peculiarly suitable for the other important feature of the Industrial Revolution that Arkwright and his type were too money-centered to perceive. If workers in a factory were accustomed to sit for hours, thinking about their situation, someone among them was bound to imagine some small improvement to make life more bearable. If such a person was encouraged by example to stand up and announce his insight, eventually the better insights would be adopted for the benefit of all. Two centuries later, the Japanese would call this process one of continuous quality improvement from within the Virtuous Circle. In other cultures, academics now win professional esteem by discovering "win-win behavior", which displaces the zero-sum or win/lose route to success. The novel insight here was that it has become demonstrably possible to prosper without diminishing the prosperity of others. In addition, it was particularly fortunate that many Quaker inhabitants of the Manchester region happened to be watchmakers, or artisans of similar trades that easily evolved into the central facilitators of the new revolution -- becoming inventors, machine makers and engineers.

The power of this whole process was relentless, far from limited to cotton weaving. When Charles Babbage sufficiently contemplated the punched-cards carrying the simple instructions of the knitting machines, he made an intellectual leap to the underlying concept of the tabulating machine. Using what was later called IBM cards, he had the forerunner of the stored-program computer. There were plenty of Arkwrights getting rich in the meantime, and plenty of Marxists stirring up rebellion with the slogan that behind every great fortune is a great crime. But the quiet folk were steadily pushing ahead, relentlessly refining the industrial process through a belief in welcoming the suggestions of everyone.

Tactical, Strategic and Existential Thinking

My thinking has been influenced by a small book called "Kissinger on Kissinger", in which Winston Lord asks him some basic questions, and Henry Kissinger purports to answer them. As a result of going to Yale, I don't care for the Harvard stance of pretending to invent everything first, and I suspect Henry himself doesn't actually believe much of what he says. I suspect, he dislikes Richard Nixon and merely has a habit of adopting other ideas for his own. He uniformly refers to his President as "Nixon", as in contempt, but gives the President credit for just about every worthwhile action of the Presidency, while being careful to note that "Nixon" never once countermanded Kissinger's initiatives. I never met either man, but I suspect we wouldn't have got along.

Nevertheless, the two of them have all my admiration for following paths I admire but might never have followed, except for a postgraduate course at Yale on Grand Strategy. It makes me a little sick to my stomach to hear talk of strategic and existential for intellectuals, while tactical talk is relegated to lesser folk, like cabinet officers. It echoes Emerson and Thoreau, those New Englanders who think of themselves as leaders of lesser folk. Having thus vented my spleen on two men I grudgingly admire, let me define these three terms in my own way, while openly stating the underlying thought process was most consequential for our tortured age. They probably would not completely agree with my analysis, but I must concede their arrogant one is terribly powerful.

Tactical plans are usually followed by young men doing what they have been told to do. Important ideas-- strategic ones-- are proposed by older leaders, so in fact the choice is usually made, between ideas by seniors. Curiously, "existential" is a term implying strategy where the continued existence of the state is at risk. Quite often it means war, chosen because available tactical choices (trade, tariffs, rearmament, etc.) risk loss of survival. Therefore, the side most likely to lose a war must be persuaded not to start one, often using the rhetoric that both sides will be losers. Confusion is created by the plain fact that every member of every state eventually does die, so death in war is existential, while death from stomach cancer is not. War is an existential threat to the state, while only occasionally feared by citizens. But little wars (Like Granada) are sometimes not necessarily existential. The modern state is said to have been created at the Peace of Westphalia in 1648, essentially attaching the religion of the state to the religion of its sovereign, and thereby establishing permanent fixed boundaries for the states. Although it took years to negotiate, it essentially replaced strong religious control with strong secular rule without saying so, and established local rulership. The Industrial Revolution was made possible, and gradually arrived over the following century. Fixed agricultural boundaries gradually replaced tribal rule.

As nations came to be defined by their boundaries, everything else adjusted to them, as well, and dissolution of the boundary essentially signalled the death of the state in its former configuration, its economy, its religion, its language, and its entity in many other forms. In short, it became the most threatening of consequences. It was potentially the most devastating of existential threats, although it was sometimes unclear how tactical or strategic problems might lead to it. Tamper with Constitutions and cultures at your peril, since they may lead to existential disruptions.

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}
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}
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 Politcians}
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.

C6................Reconsidering the Whole Nation 1783-1789

CONTENTS: this is the main body of text

Axioms for Nations

Although the nations of the world are still a long way from agreement on a United Nations or any other set of supranational rules, a surprising amount of consensus has evolved over the centuries. Using the example of the axioms underlying Euclid's geometry, a few basic assumptions have to be made, which cannot be proven; but change just one of those axioms, and the whole structure of governance changes. First, the easy part: the structure of the nation:

Boundaries of the state. A group of some sort may form a close association, but unless it stays within stated boundaries, it is a Tribe. At the Treaty of Westphalia in 1648, most of the European tribes agreed to stated boundaries, and those boundaries define nations. Unfortunately, former residents of the bounded area may dispute the ownership. Even when there are no known descendants of former residents, the title of current residents ultimately rests on tradition and the threat of force.

Citizenship. Somewhat greater variation is seen in the definition of a citizen, but most nations confer citizenship to children of citizens, to those who were born within the nation's boundaries, and to still others as defined by the rulers of the nation.

Ownership of real estate.

How is the ruler chosen>

Who makes the day to day rules, who enforces them?

And then, it's so hard it may be neglected, and therefore likely to fail:

How do you distribute political power, when component states are of widely different size, wealth, and military strength? The Westphalian states were all too small to matter, but John Dickenson of little Delaware saw that it was a vital point.

Almost the same thing, states may differ in oil deposits, gold, silver and other natural resources for the future.Maldistribution of oil deposits has historically been the most disruptive force in world affairs, for example. Powerful countries simply laugh at "one man, one vote" protests. Its uselessness has doomed the powerlessness of both the United Nations and the League of Nations.

Systems of Governance

This is really a two-volume series, masquerading as four. It was a convenience to put commentary before and after the central two subjects: The Rise of America and the threatening Rise of China. Between them is found the attempt of Europe to choose, haunted by its past while confused about what might follow it. All of this was written after the author reached the age of ninety; hoping to live long enough to complete the thought.

One central character is George Washington, a figure in all four systems of governance, seldom recognizing a preference beyond the system in vogue to the one it was replacing.

FORCES AT WORK

Three Different Ways of Looking at the American Revolution.

If you are a resident of nearby Boston, the American Revolution began on April 19, 1775, at Lexington and Concord for reasons having to do with smuggling and tea. If you live near Philadelphia, the chances are fairly good you believe the Revolution began on July 4, 1776, because Admiral Howe attacked us. What's this all about? The colonies had fought the French and Indian War loyally together, with George Washington at Fort Necessity and Ben Franklin supplying wagons to General Braddock with his own money, against the hated French and their Indian allies, English colonists fighting off the enemy, side by side from 1754 to 1763, even back as far as traveling together to the Albany Conference in 1745. Ben Franklin drew the first newspaper cartoon, Join or Die, at that time, and first proposed an alliance of the thirteen English colonies with the homeland. The Quakers would probably still dominate Philadelphia, if they hadn't chosen religious consistency over the dictates of power. And yet a few years later the British were chasing gunpowder stores around the countryside. The British wanted the Americans to help pay the cost of their own defense, but we were all Englishmen, together, and everybody wants something for nothing. New Englanders wanted a negotiated arrangement like Ireland or union like the Scots; these were only technical details.The slogan aimed at representation, not independence. "No taxation without representation" for English-speaking colonists. Eventually, they hoped for parliamentary membership. They were mainly fighting against mercantilism using taxation as a weapon to fend off taxes while they remained English settlers. Franklin wanted a little more, moving the capitol to America because it was biggest, and he nursed this view until King insulted him in person,a few weeks or months before he grudgingly returned to America to help lead the Independence movement.

But this is the story of the forming of the Constitution, and in the fight to remain untaxed, English settlers got left behind and will be left to drift along. Got left behind by the Treaty of Westphalia. Everyone hates to be persuaded of something which hurts his self-interest, and Westphalia said the land became private property if the King had the exclusive right to adjust the borders, and by implication the local religion. That may have been useful in dealing with Indian lands, but in the sixteenth century, people took their religion pretty seriously. That was a serious matter, and it was made worse for Protestants as a consequence of Catholic activity in which Protestants played no role. Even worse, it was accepted by an English King who was German about whom Episcopal Englishmen had some reservations. And still worse was to see German Hessian soldiers about to do most of the fighting arriving in the troop transports, paid for by a German King, enforcing a law most of them didn't understand which had unexpected twists to it which sounded like the fight they ware already fighting about taxation without representation. Remember, Ben Franklin only had a second-grade education, and most of the colonists couldn't read and write. There were only a handful of lawyers in America, and most of them had a conflict of interest about this subject, which was cataclysmic in its sweeping implications. The logic of the new German law which only a few lawyers could follow sounded like a trap. The lawyers back in England at the Inns of Court might explain it, but the essence was that rebellion was punishable by hanging, while Independence was settled by treaty. The colonists might not understand how they got into this fix, but the new legal situation created a much worse punishment for rebellion than for Independence, and hence a strong incentive to prefer Independence. Admiral Howe was only 90 miles away with dozens of warships and hundreds of troop transports, and the Continental Congress was in Philadelphia with the power to make a choice. The Germans had just experienced a large wave of immigration, more German soldiers were sitting in the transports, anxious to obey the orders of a German King, which started as a law passed by other Germans without a vote by any of the colonists affected, starting fight a war about taxation without representation, which hardly anyone had the education to understand. It was, so to speak, a perfect storm. We came very close to losing that war, so after three centuries it is still true: Whether it was the League of Nations or the United Nations, or changing the Health System -- you have a hard time convincing the American public that it's a good idea to follow he decisions of non-American leaders. If the idea was foreign, and particularly if control is left in non-American hands it's going to be a hard job persuading Americans to vote for it. england

Rise of the Formidable State

Reconsidering All Our Laws

{Common Law}
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}
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}
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}
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?

John Dickinson, Quaker Hamlet

{Privateers}
John Dickinson

John Dickinson (1732-1808) would probably be better known if his abilities were less complex and numerous. It would have been particularly helpful if he had consistently remained on only one side of the important issues of his day. Born in a Quaker family and buried in a Quaker graveyard, he was for years a notable Episcopalian and soldier. He outwitted John Penn, the Pennsylvania Proprietor who was trying to keep Pennsylvania from sending representatives to the Continental Congress, by having the Pennsylvania representatives hold a meeting in the same small room of Carpenters Hall at the same time as the Congress. But he ultimately refused to sign the Declaration of Independence. Although he was the main author of the Articles of Confederation, the Constitution which replaced it would not have been ratified without his idea of a bicameral Congress. Although he was Governor of Pennsylvania, he was also Governor of Delaware, has been the central figure in the separation of the two states. In fact, for fifteen years he was a member of the Legislature of both states. Dickinson seems in retrospect to have been on every side of every argument, but he was immensely respected in his time.

Two events seem to have been central in the organization of his life. The first was his education as a lawyer. At that time and for a century afterward, lawyers were trained by apprenticeship. Dickinson, however, studied in London at the Inns of Court for four years and was by far the most distinguished lawyer in North America for the rest of his life. Furthermore, he absorbed the principles of the Magna Carta and the approaches of Francis Bacon so thoroughly that he never quite got over his pride in his English heritage. Throughout his leadership of the colonial rebellion, he acted as a better Englishman than the English themselves. His demand was for American representation in the British Parliament, not independence from England. It would not be hard to imagine Dickinson standing before a firing squad, gritting the words of St. Paul, Civis Romani Sum.

His other pivotal experience was the Battle of Brandywine. Dickinson had been the organizer or chairman of the two main Pennsylvania military organizations, the Pennsylvania Committee of Safety and Defense, and the so-called Associators (today's 111th Infantry, the first battalion of troops in Philadelphia). Both of these particular names were a characteristic gesture to conciliating pacifist Quaker feelings. Nevertheless, when Dickinson refused to sign the Declaration, he did temporarily become so unpopular he resigned his military commands. A few months later, when General Howe landed at Elkton at the narrow neck of the Delmarva peninsula, Dickinson enlisted as a common soldier to defend the southern perimeter of the defense line Washington had hastily thrown up to defend Philadelphia. Shortly afterward, Dickinson's friend and neighbor Caesar Rodney made him a Brigadier General in charge of the garrison around Elizabeth New Jersey, but the Battle of Brandywine taught an important lesson. Little states like Delaware and Maryland could not possibly defend themselves witho

Pennsylvania Likes Private Property Private

{Privateers}
William Penn Holding his Charter

William Penn was the largest private landowner in America, maybe the whole world. He owned all of Pennsylvania, with the states of Delaware and New Jersey sort of thrown in. Although he and his descendants tried actively to sell off his real estate from 1684 to 1783, they still held an unsold three-fifths of it at the conclusion of the Revolutionary War, which they were forced to sell to the state for about fifteen cents per acre. This bit of history partly explains both the strong feeling this is private, not communal, land despite the existence of 2.3 million acres of the state forest system, which is affirmed right alongside the rather inconsistent feeling that raw land is somehow inexhaustible. Early settlers regarded the center of the state as poor farmland, particularly when compared with soil found in Lancaster and Dauphin Counties, or anticipated by settlers going to Ohio and Southern Illinois. A complimentary description is that glaciers descended to about the middle of Pennsylvania, denuding the northern half of topsoil which was then dumped on the southern part as the glaciers receded. Even today, farmers tend to avoid the northern region if they can, reciting the ancient advice from their fathers that "Only a Mennonite can make a go of it, around there."

So, lumbering had a century-long flurry in Central Pennsylvania, exhausting the trees and moving on. But that only related to the top layer of soil; beneath it lay anthracite in the East, and bituminous coal in Western Pennsylvania, supporting the steel industries of the two ends of the state with exuberant railroad development. Even today worldwide, hauling coal is the chief money-maker for railroads. The resulting availability of rail transport promotes the location of heavy industry near coal regions; the 20th Century decline of coal demand ultimately hurried the decline of heavy industry in the state by impairing the railroads.

Beneath all this lie the aquifers, porous caverns of fresh water. And beneath that, largely unsuspected for two centuries, lie the sedimentary deposits of a huge inland sea, compressed into petroleum which evaporates into natural gas. All of this is held by huge deposits of semi-porous shale rock, now mostly 8000 feet deep, stretching from Canada to Texas and called the Marcellus shale formation. If it can be economically recovered, there is more natural gas than in Arabia, and there is a similar formation along the near side of the Rocky Mountains in Colorado, stretching up to the Athabasca tar sands in Canada. There is another similar formation in France underneath Paris. No doubt, we will find the whole world has similar huge deposits for which the main problem has always been: how do you get it out?

There's another question, of course, of who owns it. Those who clearly do not own it maintain that everyone owns it. In the western world, most particularly in America, it is our firm belief that if you live on top of it, you own it. Since it is expensive to extract, quarrels like this are usually settled by purchasing mineral rights from the surface owner, who generally could not possibly extract it by himself. Those who assert they have a conflicting right to it because it belongs to everyone can expect belligerent resistance. At the present time when America faces a critical fifteen year period of dwindling oil supply, ultimately relieved by perfecting alternative energy sources, there is too little time to achieve consensus for any other governance theory. The problem which could possibly gain enough traction to interfere is the issue of potential damage to others which might result from the extraction of this subsurface treasure. Because of the apparent urgency of a decision to extract or go elsewhere to extract, the best we can hope for is some fairly rough justice.

THE FEDERALIST FOUNDERS

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Joseph Priestley, Shaker and Mover

{Privateers}
Priestley

Joseph Priestley, sometimes also spelled Priestly, is surely one of the more undeservedly neglected men of history. He has been called, with justice, the Father of the Science of Chemistry. He might also be called with equal justice, the father of the First Unitarian Church . The First Unitarian Church of Philadelphia, at 21st and Walnut, is the first and oldest Unitarian church and was indeed started at the urging of Priestley, whose principal residence was in Northumberland PA, at the confluence of the West and North Branches of the Susquehanna. Priestly wrote a scholarly work on the teachings of Jesus, which so captivated Thomas Jefferson that Jefferson wrote him the outline of another book that needed writing. Apparently, Priestley didn't have time, so in 1803 Jefferson wrote it himself, in the four languages he was fluent in, English, French, Latin, and Greek. Although those were simpler times, there have been few if any others who have told a President of the United States that he was just too busy to respond to a presidential request, particularly when the President could then find he had time to do it himself.

Priestley's theological teachings were based on scientific reasoning. They were highly controversial views, to say the least. He rejected the concept of a Trinity (he was a Calvinist minister, mind you), the divinity of Christ, and the immortality of the soul. Essentially, he rejected the concept of an immortal soul on the reasoning that perceptions and thought were functions of material structures in the human brain (Edmund O. Wilson's idea of Consilience is largely similar), and therefore will not outlive the cerebral tissue which produced them. In 1791, mobs burned his house in Birmingham, England, his patronage was revoked, and he hastily emigrated to Philadelphia. It isn't hard to see why these ideas were particularly unpopular with the Anglican church, which is probably the main reason England made him into a non-person, and his scientific ideas were denigrated as the product of other people.

That's too bad because he really was a scientist of immense importance. As a young man, he encountered Benjamin Franklin in England and was certainly a man after Franklin's heart. He noticed funny things about gases that rose from swamps and over mercury salts, and Franklin encouraged him to systematize and analyze his observations into theory. Although he called it anti-phlogiston, he had discovered oxygen. And then hydrogen, and nitrous oxide, and sulfur dioxide, and hydrochloric acid. Priestley really was the first organized and coherent scientific chemist, the Father of Chemistry. Franklin, Lavoisier, and Priestley became scientific friends, and enthusiastically exchanged ideas and observations, eventually leading to Lavoisier's fundamental principle: Matter is neither created nor destroyed, it only changes its form. In the end, it made no difference; Priestly had offended some pretty large religions, and nothing he did in chemistry was going to get much attention. Perceiving the value of the land at the confluence of rivers, he made his home for the last ten years of his life in Northumberland, Pennsylvania, now three hours drive Northwest, somehow managing to maintain an active scientific, political and theological influence worldwide. Visiting this rather sumptuous estate in a little river town is well worth a tourist visit. He died in 1804, just after his friend and kindred-religionist Thomas Jefferson became President of the United States.

Priestley's life can be summarized in one of his own most quoted remarks. "In completing one discovery we never fail to get an imperfect knowledge of others of which we could have no idea before so that we cannot solve one doubt without creating several new ones."


REFERENCES


The Invention of Air: A Story of Science, Faith, Revolution,and The Birth of America, Steven Johnson ISBN: 978-1-59448-852-8 Amazon

The Richest Men in America

{Privateers}
Robert Morris

Charles Peterson developed the idea but was unsuccessful in popularizing it, that Spruce Street in central Philadelphia could be regarded as an architectural museum. It stretches from river to river but has no bridge or ferry landing at either end, so traffic is less. The earliest house still standing near the Delaware River was built in 1702, with successive houses just a little younger, or at least less old, as you progress toward Broad (14th) Street whose houses were built around 1880. And then onward into the early Twentieth Century, crossing Broad Street and going westward toward the Schuylkill. For a century or more West Spruce Street was where eminent specialists had offices, much like Harley Street in London, which it somewhat resembles. The medical flowering of this area was promoted by the surgical advancements of the nearby Civil War, as well as the contributions of Andrew Carnegie to moving the College of Physicians from 13th street to 21st Street, attracted toward the 7000-bed Civil War hospital which turned into Philadelphia General Hospital in West Philadelphia. A number of these houses are just plain too big to be manageable as single family houses today, and Spruce Street West has lagged Society Hill and other Easterly sections in restoring its buildings. Perhaps in a few decades, that will happen, and perhaps in the meantime, the present relics will be preserved enough to revive someday the idea of a house design museum. Meanwhile, West Philadelphia around Spruce Street has obstructed progression by plonking the University of Pennsylvania, Drexel University and the Science Center as obstacles to residential housing development.

So let's take a simpler idea. For roughly a century, the then-richest men in America lived in one of several houses located within seven blocks of each other, easy walking distance for a tour. The first to attract notice as a self-made rich man was Robert Morris. Morris made his money in shipping, maybe even a little privateering, and then went into banking to keep his money at work. It is said that his personal fortune, adjusted for changes in the currency and economy, was once considerably larger than Bill Gates' would be today, adjusted for inflation. As most people know, Morris financed the American Revolution personally, went broke, ending up in debtor's prison. The first real mansion he lived in was opposite Independence Hall on Market Street, now celebrated as George Washington's while he was the first president. It was earlier the place where British Admiral Gates lived while he was in charge of the 1788 British occupation, and although it was also where Washington lived during most of his presidency, the house burned down in 1832. This house is not to be confused with either the house built for Washington at 9th and Market but never occupied by him or Morris's later mansions which he also never occupied because of financial difficulties. One house in the midst of Jeweler's Row was so ornate some think it contributed heavily to his later bankruptcy. A second Morris house still stands on Eighth Street at St. James Street, but it belonged to the Quaker Morris family, no relation. Other owners named Morris bought and occupied this place for a number of years, so its history is a little mixed up, presently as a fancy restaurant. A DuPont heiress once bought and fixed it up, but her husband commented no one could sleep in that house because a subway built underneath it badly rattled its timbers. Next door to the Quaker Morris house rises a fifty story apartment house, whereas a precaution against rattles, the first nine stories contain nothing but parking spaces. Since the apartment building is owned by Arabs, it is likely they are pretty rich but not necessarily richer than Bill Gates. Aside from the Market Street partial restoration, the main Robert Morris remnant is on Lemon Hill, northwardly opposite the Art Museum, whereas the main Quaker Morris house is in the Morris Arboretum in Chestnut Hill. There are sixty or so Morris's listed in the Social Directory, so keeping the two families distinct remains a difficulty in some circles.

{William Bingham}
William Bingham

On the Northeast corner of Third and Spruce Street, once lived William Bingham, a former partner of Morris and later himself the richest man in America. Although sadly the house burned down, it is displayed in one of the famous prints by William Birch in his notable Eighteenth Century collection , widely available in bookstores. The striking thing about Bingham was that he was only twenty-eight years old when he achieved richest-man status and built the house, patterned after one owned by a British Duke. He made his pile three times over. First, running a privateer operation in the Caribbean for his partner Robert Morris. On returning home, he bought up any worthless Continental currency he could stuff into barrels, and then either persuaded his friend Alexander Hamilton to redeem the currency at par or heard his plan to do so. And then, as if he didn't have enough money already, he invested enough gold bars to finance the Louisiana Purchase for Jefferson, since Napoleon wanted gold, please, no paper money. Among the various things he bought as an investment was the area in upstate New York, now called Binghamton. He lost a pile of money buying the land we now call the State of Maine since post-revolutionary Westward migration turned toward Ohio rather than into his Maine holdings once the British prohibition on colonizing past the Allegheny mountains was lifted. Bingham's sister-in-law wanted to become engaged to the heir of the Crown of France, who was living in temporary exile around the corner on Walnut Street. In a famous, possibly fictional, response, the Dauphin was told, No. If you do not become the King of France, you will be no match for her "The Golden Voyage". Quite a good read, and of particular interest to Philadelphia lawyers who learn Bingham died in 1804, but his estate was not settled until 1960. The lawyer who closed the case reported his partners were less than pleased to see it go.

{Stephen Girard}
Stephen Girard

Stephen Girard built several houses a few steps west of Bingham on Spruce Street, identifiable by having marble facing on their lower few feet; Charles Peterson lived in one of them as the first pioneer resident of the Society Hill revival. Girard made his money in the China trade, as a ship's factor. Like Morris, he recognized America's crying need for banking in a story too complicated to repeat here and moved the Girard Bank into the First Bank of America, now a museum (Peale portraits, architectural fragments) of the Park Service on Third Street. His wife was insane, and spent most of her life at the Pennsylvania Hospital at Eight and Spruce, and was eventually buried there. Girard left thirty million dollars to found the Girard College for "poor, white, orphan boys". His 1830 will withstood all legal attacks until the mid-Twentieth Century but was eventually broken. The school now has many black girls, is bankrupt, and the definition of orphan has expanded to include any child whose parents are separated. The definition of "poor" is several times greater than the national definition of the poverty level. In his will, Girard specified that the estate should purchase what is now Schuylkill County and hold it for a century. Shortly thereafter (or just possibly very shortly before that), coal was discovered in the region and Girard College became far richer. His correspondence includes many letters to Lafitte the Pirate, so more may be heard of them.

{Nichlos Biddle}
Nichlos Biddle

Nicholas Biddle had "old money", which he made in the traditional way of buying real estate, particularly in Ohio. He thus made a better guess than Bingham about the likely path of westward migration. But like Morris and Girard, he needed a bank to finance the real estate. Biddle also acted as the reserve bank for the myriads of currencies then issued by individual rural banks and charged a transaction fee to translate Kentucky money into something useful in Philadelphia or abroad. Martin Van Buren, who was the political manipulator behind Andrew Jackson and who became Andrew Jackson's eventual successor, stirred up trouble about this reserve role, and Jackson "broke" Biddle's bank by withdrawing federal deposits. Jackson's complaint was that holding federal "paper" eventually resulted in a government guarantee the bank could never fail, in an echo of the present accusation of some banks being "too big to fail". Ultimately, investment banking began to take its modern formwhen in 1838, the richest man, Anthony J. Drexel, moved over the Schuylkill River on Walnut Street, amidst what is now the University of Pennsylvania, but not far from Drexel University. He walked to work each day, however, at 4th and Chestnut Streets. Drexel was the first big banker to make his fortune in banking, and when he died it was said Philadelphia banking died with him. The earlier big bankers started out with money they had made in shipping or land speculation, but Drexel somehow saw that banking was a different way to get rich, deftly filling in the gap created by Andrew Jackson shuttering Nicholas Biddle's Second Bank. Part of the idea in Van Buren's mind was to shift the focus of American banking from Philadelphia's Chestnut Street to New York's Wall Street, and he was quickly quite successful. J.P. Morgan was invited by Drexel to start a Wall Street partnership with him in correspondence with his father, Junius Morgan, who ran an international bank in London. In the era just after the Civil War, there was a great deal of money in Europe anxious to be invested in the railroads and other booming American industries. The Morgans provided a vehicle for transferring such investment capital between continents, but the Morgans were viewed as having excessively sharp practices. As it happened, Junius Morgan had been trained in this transoceanic concept by George Peabody, a former Baltimore resident who had moved to London, then, the banking capital of the world.

George Peabody earlier had also been involved with Anthony J. Drexel, and Drexel was the more successful of the two international bankers. The whole issue with European investors was whether you could trust those wild and wooly Americans, and Drexel consistently demonstrated he was entitled to be called a straight arrow. As related by a good book by Dan Rottenberg Drexel decided he needed the vigor of the Morgans and invited them to join him in a New York-Philadelphia partnership. From that point forward, JP Morgan was the shining star of honesty and straight dealing, a lesson he evidently learned from Drexel. Indeed, he and his biographers repeatedly stress this feature of him -- "I will never do business with a man I don't trust". He didn't mention women, but his behavior seems to show he probably didn't include them in the concept. Drexel, on the other hand, led a quiet sober life in West Philadelphia, reading books, starting his university, and helping his niece, who was later made a Saint in the Catholic Church, start numerous charities. Although the Drexel children more or less drifted out of sight, Drexel's business successor Stotesbury led a wild and extravagant lifestyle that is the subject of many songs and stories. His wife, for example, never washed the sheets; she always had brand new ones put on the bed. Morgan, of course, spent lots of money in a conspicuous way. The term Metropolitan identifies most of his projects, The Metropolitan Art Museum, The Metropolitan Opera, The Metropolitan Club on Fifth Avenue, with membership originally limited to his partners. The name Corsair also was a trademark, the name of his yachts, and a firm statement about his approach to things. Another difference between the Morgans and the Drexels was similarly in the New York-Philadelphia character. When Jack Morgan, the son of JP, died in the 1930's he left an estate of "only" three million dollars. It would be hard to say what the Drexel fortune was worth at that time, but it is safe to say it would dwarf that, considerably. Most of the Drexel family moved to London, but among other things, financed the restoration of the Benjamin Franklin House on Craven Street, a hundred feet from Trafalgar Square. When the House of Drexel was much blamed for the 1987 stock market crash, legions of Drexel defenders rose to protect the family name. Cabrini College, Eastern University, Valley Forge Military College, St. David's golf course and much of Radnor are only pieces of the Drexel holdings, today.

Personalities Who Wrote the Constitution

The windows of Independence Hall were nailed shut and the delegates to the Convention sworn to secrecy. James Madison kept the official minutes and only released them years later. We may never be certain who was responsible for every feature, particularly the parts devised at home or in neighboring taprooms. That's the way they wanted it to be, however.

We easily notice the most influential men in each state were selectively chosen to attend, but it is hard to say whether that was done to increase the chances of state ratification, or whether it was intended to "stack" the votes in favor of rich and powerful. Perhaps some of both motives played a part, but primarily George Washington had state ratification in mind. As matters turned out, class frictions were more pronounced during and after the ratification than they were when the delegates were chosen. The Constitution encouraged the rise of the common man far more quickly than was anticipated. Almost every feature of the Constitution was considered for its effect on state ratification, whereas redistributionist ideas were largely unmentioned in the surviving records.

{George Washington}
George Washington

Although many patriots had similar feelings, George Washington stands above all others as the driving force behind calling the Convention. The experiences of seeing Congress reluctant to pay starving troops who had saved the nation, and the resulting mutinies, were almost too much for him to bear, and would have driven many other commanders to far more extreme actions in his place. James Madison, a generation younger than Washington, felt almost as strongly but could never have brought the Convention around to proposing a whole new structure of government. Washington needed a younger man to be his agent and picked this one out as the jockey for his racehorse. Washington wanted to preside and to glower at anyone who seemed to be saying the wrong things. Perhaps at some critical moment, his active intervention might save the day; he wanted to preserve that opportunity. Furthermore, Washington had not gone to college and felt he needed a scholar to suggest what the Greeks and Romans had done in similar circumstances. Particularly the Romans, whom Washington greatly admired.

Madison was short and socially awkward, still unmarried at age 36, much in awe of the towering General with his commanding demeanor. In spite of their obvious differences, they were both rich Virginia slave-holding planters; each regarded the other as the right sort. Madison was a Princeton graduate, in the days when that exposed him to Quaker beliefs and to teachers who had been prominent in the Scottish enlightenment. At that time, Virginia was by far the largest state, West Virginia and Kentucky had not yet been split off, and Virginia still held viable claims to the five states which were to become the Northwest Territory. Virginia firmly believed it had a right to run things in America.

{Alexander Hamilton}
Alexander Hamilton

Alexander Hamilton had been Washington's chief aide during the Revolution; their only conflict had been his demand to be released from headquarters duty to expose himself to the enemy in a flamboyant manner on the parapets of Yorktown. Hamilton the sharp-nosed little elf was a ladies man, to put it mildly. Even Martha Washington giggled about his behavior at parties. The New York delegation was split with divisions, and often Hamilton was the only New York delegate present at the Convention. It was usually quite enough. He organized the New York Federalist party and the Bank of New York seems to run around and be everywhere at once. In some ways, he was to Robert Morris what Madison was to Washington. That's where he got his financial ideas, but without need for encouragement, he ran around and got a million things done. There are portraits of him, but his real likeness is best captured in action by the elfin statue of him in Philadelphia's Constitution Center.

{Robert Morris Jr.}
Robert Morris Jr.

Robert Morris Jr. was one of the richest men in America. Living near the waterfront of Philadelphia in a mansion, one of several he owned, Morris had arrived as a ten-year-old orphan and soon became a partner of the richest Quaker merchant by his astonishing energy and brilliance. When revolution had been proposed, Morris declared he was entirely satisfied with a king, but soon signed Thomas Jefferson's Declaration of Independence, and devastated the British merchant marine with his privateers and gunpowder smuggling in conjunction with the French playwright Beaumarchais, an equally remarkable man on the other side of the Atlantic. By the time of the battle of Trenton, Morris was essentially running the entire American government. He threw out the committee system and instituted the departmental bureaucratic system now still in use, all within a week of taking office. When the amateur Pennsylvania legislature created devastating inflation of paper money, leading to riots in the streets of Philadelphia, Morris brought the inflation to a halt by offering to finance the Revolution out of his own pocket. Living next door to George Washington, they became fast friends. Morris founded the first bank, selling bonds instead of using deposits, and then the second bank, using deposits in a modern way. He was much taken by Adam Smith and gave copies of The Wealth of Nations to influential friends. He engaged in a lively correspondence with Necker the French financier, which was cut off by Necker's death but probably formed the basis for what is now known as Hamilton's financial plan for the nation. Morris, accused only of recklessness rather than dishonesty later went to debtor's prison, tainted with the really dishonest finances of his partners, Governor Mifflin and comptroller John Nicholson. Morris repaid nine of the twelve million dollars he owed before being released by changes in the Bankruptcy Law which he suggested while in jail. During the Constitutional Convention, he seldom made a speech but was continually seen ducking in and out of conferences which very likely improved the future of the nation. With Washington running the Army and Franklin running the diplomatic mission in Paris, Morris is one of the three men about whom it can be said the Revolution could not have been won without him.

{Gouverneur John Morris}
Gouverneur Morris

And finally, Gouverneur Morris, as "Lord of the Manor" the only titled aristocrat at the Convention, going back several generations before the English settlement of America. Morris was displaced by the British occupation of New York and became Robert Morris' lawyer. He was as tall as George Washington, but had both an arm and a leg badly injured in accidents; somehow, his many lady friends found it enhanced his attractiveness. Gouverneur is referred to as the "Penman of the Constitution", actually the editor.

{Rodger Sherman}
Roger Sherman
Issues were brought up, debated and voted on as single items, and it was Morris' job to weave the numerous points into the coherent document we now recognize as the Constitution. He was unusually succinct, unfailingly able to find the single verb that defined a sentence, and his felicity with language accounts for much of the affection we hold for the Constitution. Roger Sherman of Connecticut violently opposed the interdiction of amendments when they came, demanding the Amendments be placed in a separate section. He thus preserved the original language, a very happy circumstance for later readers.

{Benjamin Franklin}
Benjamin Franklin

So there you have the authors we can identify. It would be astonishing if Benjamin Franklin could sit there for months without saying a word, and he probably didn't. That old fox was in the habit of placing his words in the mouth of someone else so he could maneuver around any opposition. And he certainly waited until the last moment of hesitation, urging his colleagues to doubt their infallibility a little, and vote for the best they could probably produce.

{John Marshall}
John Marshall
Before closing the book, however, we must remember John Marshall, not even a delegate in Philadelphia. Marshall became Chief Justice twelve years later and set about building the American judicial system on a few sparse words. That he had been thinking about it a long time, is reflected in the discovery that he had advocated the right of the Supreme Court to declare acts of Congress unconstitutional -- in 1788, fourteen years before Marbury v. Madison was decided.

Restoring the Gold Standard by Levering Judges' Salaries

{Gold Inflation}
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.

Grand Union

{Grand Union Flag}
Grand Union Flag

THERE are a number of supermarkets in Philadelphia called Grand Union Stores, but the grocery conglomerate was founded in 1872. That Union was the Northern side in The American Civil War, and it is reported that life-sized replicas of Abraham Lincoln were once a common feature in the stores. Much earlier than that, the Grand Union was a term that meant the first American national flag, adopted in 1775, and created by a Philadelphia milliner, Margaret Manny. It was, however, quite similar to the flag of the British East India Company, and the Grand Union they were both talking about was the Union of England and Scotland of 1707. The jack of the Grand Union flag, soon to be replaced with a ring of thirteen stars, represented the crosses of England and Scotland, superimposed. When Northern Ireland joined the United Kingdom, the cross of Ireland was superimposed, to give the present form of the Union Jack. In 1775, the considerable colonial sentiment still hoped that hostilities would achieve a status for America along the lines of the other members of the United Kingdom.

{Betsey Ross Flag}
"Betsy Ross" Flag

Although the number of stripes in the national flag briefly increased to fifteen at the time of admission of Kentucky and Vermont, stripes soon reverted to thirteen to symbolize the original thirteen states. After that single exception, only the stars in the jack increased to match the number of current states.

The early use of the Grand Union Flag is in some dispute, but it may possibly have been used by George Washington in the various battles around Boston and Charlestown. It was most certainly flown by John Paul Jones on his ship the Alfred . Because of its resemblance to the flag of the nation we were fighting to overthrow, it is understandable that there would soon be a desire to change it. That is what happened in 1777, although just who first had the idea is still open to dispute and myth-making.

America has had three flag acts:

The Flag Act of June 14, 1777 was passed by the Second Continental Congress (under the Articles of Confederation, of course. June 14 is now called Flag Day.) "Resolved, That the flag of the United States be made of thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new Constellation."

The Flag Act of January 13, 1794 (1 Stat. 341) An Act making an alteration in the Flag of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That from and after the first day of May, Anno Domini, one thousand seven hundred and ninety-five, the flag of the United States, be fifteen stripes alternate red and white. That the Union be fifteen stars, white in a blue field.

The Flag Act of April 4, 1818 (3 Stat. 415) An Act to establish the flag of the United States. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress Assembled, That from and after the fourth day of July next, the flag of the United States be thirteen horizontal stripes, alternate red and white: that the union be twenty stars, white in a blue field. And be it further enacted, That on the admission of every new state into the Union, one star be added to the union of the flag; and that such addition shall take effect of the fourth day of July then next succeeding such admission.

The Origin of States Rights, a Rumination

ALMOST alone among the British colonies in America, Pennsylvania's western border was specified in the King's charter of the colony. It was "five degrees longitude west of the point where the eastern boundary crosses the Delaware" [River]; however, its actual location on the ground was not actually marked until 1784. It's a few miles west of the present city of Pittsburgh, located at the forks of the Ohio River, where the Allegheny and Monongahela Rivers join. However, until 1784 it was not a certainty that this complex was within Pennsylvania instead of Virginia. The origin of Ohio is at the only major water gap in the North-South mountains, and the tributary rivers are fairly large. The three merging rivers thus form a nearly continuous water route along the base of the mountain range, from the Great Lakes south to Pittsburgh, or from the Chesapeake Bay north to Pittsburgh, and then to the Mississippi, going past the best topsoil farming land in the world. The forks of Ohio were the great prize of the Seventeenth and Eighteenth centuries, the place where young George Washington himself started the French and Indian War. To include these treasures, it seems vaguely possible that William Penn insisted on having the border of his state safely include the water gap at the beginning of Ohio. Perhaps not, of course, perhaps it was just a sense of tidiness on the part of the ministers of Charles II. The original document stated that the border was a hundred miles east of there, to match where Maryland ended. When the document was returned to Penn by the King's ministers, however, it had the new language.

The existence of this north-south termination of Pennsylvania began to take on a new significance when other states made claims for their land grant to extend to the Pacific Ocean, and the extensions collided with each other. Virginia then developed its territory to include modern Kentucky and West Virginia. That resulted in Virginia's land aspirations veering northward, to include the Ohio Territory west of Pennsylvania's fixed boundary. By the legal standards of the day, Virginia had a fairly good claim to all of the Indian territories, not merely to the west of Pennsylvania, but extending at least to the Great Lakes, perhaps farther. Maryland, Connecticut, New York, and Massachusetts had conflicting claims from an infinite extension of their western boundaries. As a consequence, it was impossible to achieve ratification of the Articles of Confederation for five years. The various states involved were fearful of the creation of a combined political entity might result in a court which would be enabled to rule against their individual aspirations. The stakes were high; the land mass involved would be several times as large as England.

The person who finally broke this deadlock might well have been Robert Morris, who was disturbed that this inter-state dissension was injuring his ability to borrow foreign funds for the Revolutionary War. The internal negotiations took place under wartime conditions, and are poorly researched. No doubt some person deserves credit for bringing this wrangle to a close. Virginia had the strongest claim, New York the weakest. New York gave up its claim first, Maryland was the last, and Virginia the most disappointed. Pennsylvania, unable to make a claim, took the position that the land belonged to everyone, and eventually was mollified by getting a small notch of land extending to the Great Lakes at Erie. It must be noticed in passing that final resolution of the land claims came at the Treaty of Paris ending the Revolution. Benjamin Franklin, soon to become President of Pennsylvania, was the negotiator of the treaty which reflected Pennsylvania's position that the land belonged to all of us, right?

Even without these western land claims, Virginia was the largest and richest of the colonies, and rather easily adopted the attitude that Virginia would be the leader of the new United States. From their viewpoint, the preservation of states rights would enhance Virginia's leading the country. More or less immediately, the attitude of small states like Delaware hardened into resistance that this must not happen. Much otherwise inexplicable behavior also begins to make a sort of sense: the perverse behavior of the Lee family in the Continental Congress, the quarrels within George Washington's cabinet, the relocation of the capital and the dreams of the Potomac as the nation's main portal of transportation, the rise of Jefferson's political party, the obstructionist behavior of Patrick Henry, the Virginia domination of the Presidency for decades, and countless less famous episodes of history -- make more sense as residuals of Virginia's early land aspirations, than as defenses of slavery or philosophical convictions that states were somehow superior to nations. These suspicions are difficult to clarify and impossible to prove. The best way to see some substance to them is to imagine yourself in the Virginia House of Burgesses, politically connected and vigorous, able to imagine your descendants all inheriting a county or two of rich land as a remote consequence of a few glamorous deeds by their Cavalier ancestor.

On the Subject of Rights

{Scotch-Irish Presbyterians of Appalachia}
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.

{top quote}
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. {bottom quote}
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}
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}
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}
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

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.

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}
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."

{Signing of the Constitution}
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.

Ben's Little Legacy

{Benjamin Franklin and George Washington}
Benjamin Franklin and George Washington

ONE of the many compromises of the Constitutional Convention was to allow equal-sized blocs of people to choose their Representatives, but the State Legislatures of any size to appoint two Senators, in a bicameral Congress requiring affirmative votes from both bodies, for action. This was the first step in a separation of powers. After separation came apportionment: every state still got two Senators, but varying numbers of Representative districts would reflect population changes. The effect of this second step was to confer greater Senate power to small states because otherwise, a few states with large populations would probably always dominate the voting. (Shorthand for Constitutional scholars: favoring the House of Representatives means favoring big states.) When Franklin proposed a bargain to give the South time to solve its slavery problem, he needed to maintain balance. The small states were truculent about losing Senate power, so he had to give something else to the big states. The three big states of Massachusetts, Pennsylvania, and Virginia were very mindful that England had primarily targeted Boston, Philadelphia, and Yorktown for attack during the Revolution. Big states are paradoxically more anxious to unify with allies, to gain military strength, because enemy commanders seem to favor them as military objectives. Franklin's proposal was to allow the big states to control tax legislation, through the device of mandating that tax laws must originate in the House of Representatives. He may have known that eight states already had similar laws, but may not have realized such laws were regularly flouted. It's hard to be sure what Franklin knew because although he had once been Speaker of the Pennsylvania House, it was during a time it was a unicameral Legislature.

{top quote}
ARTICLE 1, Section 7. All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other Bills. {bottom quote}
Washington's Gift to Franklin

Experienced politicians in the Convention snorted with disgust. There were a dozen ways to get around such a provision, and nowadays the traditional one is for the Senate to attach a tax amendment to some bill which had originated in the House. Any House bill will suffice, and thus we have Senate-originated Medicare Amendments attached to House-originated bills whose first page purports to be legislation about highway construction. Medicare, don't you see, is an amendment to Social Security, which itself began as tax legislation. Any politician of standing could see his way through that. And even in 1787, the delegates could immediately think of ways to circumvent this little trick. When Chairman Rutledge of South Carolina returned his report from the Committee on Detail, it included Franklin's gift to the big states. His fellow delegate from South Carolina Charles Pinckney immediately proposed a friendly motion to delete the rule. Edmund Randolph of Virginia however, felt the big states "should at least get what they had been promised", thereby upsetting others who felt Randolph was being indelicate. So George Washington stepped out of the shadows and supported Randolph, his long-term neighbor, and friend in the Virginia caucus. The matter was then referred to the Committee on Postponed Parts. After a decent interval, it was reported out of the second committee and adopted. After all, with Washington and Franklin as supporters, it would be embarrassing not to pass an inconsequential motion.

IF ALL MEN WERE ANGELS, NO CONSTITUTION WOULD BE NECESSARY

{Privateers}
James Madison

JAMES Madison, Washington's floor manager at the Constitutional Convention of 1787 in Philadelphia, stated the main necessity for holding the Convention at all arose from selfish and untrustworthy human nature. The assembly probably understood exactly who he had in mind, although that is a little unfair to residents of Virginia. He really meant everybody. In the theology of the time, mankind was stained with original sin. Particularly in France, many 18th century romanticists responded to the Enlightenment by defiantly declaring human nature is born pure in heart. In their view, current evils grow from the pollution of civilization, without which it might be possible to have no government at all. At its root, such romanticism was an outcry against progress and civilization, blaming the world's troubles on the Industrial Revolution, so to speak. From Madison's skeptical viewpoint, the most awkward feature of the Romantic Period was its adoption by his Francophile friend and neighbor, Thomas Jefferson, the current American ambassador to France. Madison recognized that Jefferson and Patrick Henry were prepared to assail any attempt to add the slightest power to a central government, particularly if it weakened the power of Virginia. As indeed they promptly came forward to do and nearly succeeded.

{Privateers}
Treaty of Paris

After fighting an eight-year war for freedom, American belief was wide-spread that it was time to draw back from such anarchy. But there was widespread suspicion in every other direction, too. England seemed to concede, not defeat but only current military overstretch, possibly displaying reluctance to see its former colonies with full sovereignty. George III might wait for America to weaken itself and then try to take them back. Britain almost couldn't do anything right; it was also possibly up to no good when the Treaty of Paris astonishingly conceded land to the Mississippi instead of stopping at the Appalachians. Even our ally France nursed regrets for its somewhat older concessions after the French and Indian War. If even the two mightiest nations of Europe could not maintain order in the vast North American wilderness, perhaps they felt the inexperienced colonies would soon collapse from the effort. Further intra-European wars seemed likely, and could soon spread from Europe to the Western hemisphere. The guillotine was bad enough, Bonaparte would be worse. Our governance as a league of states was in fact, only a league of armies. The Articles of Confederation would not quell inter-state rivalries in peacetime, as only four years (1783-87) experience after the Treaty of Paris were clearly foreshadowing. It was time we listened to Benjamin Franklin, who had been arguing since the Albany Conference of 1745 for unification of the colonies, and to Robert Morris who had been arguing for a written constitution since 1776, a bicameral legislature since 1781, government by professional departments instead of congressional committees, and the ability to levy national taxes -- since at least 1778. Professor Witherspoon of Princeton had provided some ideas about how to make these proposals self-enforcing, Washington was firmly behind a Republican system and opposed to a monarchy. On the other hand, everyone knew that under the Articles of Confederation the thirteen States had often refused to pay their share, abused their ability to deal independently with foreigners, dealt unfairly with their neighbors, and capriciously mistreated their own citizens. It was time to act boldly. With a blue-ribbon convention of national heroes behind these simple ideas, surely it would be possible to convince the sovereign state legislatures to dethrone themselves.

{John Marshall}
John Marshall

Two men quietly applied even deeper thinking than that; Benjamin Franklin of Pennsylvania, and John Marshall of Virginia. Both of them had served in state legislatures, both were dismayed by the experience. Franklin also had a long period of close-up observation of the British Parliament, suffering personal abuse there, and had reason to reflect on the earlier abuses by that Parliament under Cromwell during the English Civil War. Certain bad tendencies seemed universal in legislative bodies. Although John Marshall was not a member of the Virginia Constitutional delegation in 1787, he was active in the politics of the group it represented back home. Both Marshall and Franklin had reason to be uneasy about misbehavior in representative bodies, whether called legislatures, congresses, or parliaments. When people said states misbehaved under the Confederation arrangement, they really meant legislatures misbehaved. Franklin did what he could within the Convention to curb this observed behavior by enumerating limited powers and endorsing power balanced against power. When he had nudged it as far as he could, he wearily agreed to give the product a try. Franklin did not trust Utopias, but he had lived among Quakers for years, observing one Utopian society which seemed to endure without resorting to tyranny.

The Constitutional provisions in Article I, Section X became the heart of what the 1787 Convention wanted to change about the relationship of the national and state governments.

States are forbidden to ...

"emit bills of credit, make anything but gold or silver a legal tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

{1787 Convention}
1787 Convention

This brief clause is almost a presentment of what state legislatures were doing, which serious patriots regarded as wholly unacceptable. Failure of states to abide by the terms of international treaties must be included in such a summary, although the new Constitution went beyond the powers of states by locating treaties beyond the power of even Congress to change, once ratified. Some observers in fact feel that within the First Article clause, protecting the sanctity of contracts was really the nut of the matter. In one way or another, most states seemed to resort to paying their debts with inflation, somehow failing to recognize that borrowing never pays debts, it only postpones them. The great bulk of this new nation's business was to be conducted as voluntary agreements between two contracting parties. The State -- and the states -- were to stay out of the private sector, except as referee, to see that both sides kept their agreements. As a footnote, the matter of government intervention in private affairs was to rise again in the behavior of the Executive branch in the 1937 Court Packing uproar, and in the 2009 health insurance legislation. Some critics, therefore, have discomfort that the heaviest Constitutional weight was placed by the Founding Fathers on protecting private property. Are not other issues more important, they ask, like life, liberty and the pursuit of happiness? The Founders, of course, we're here not ranking benevolences by value; they were stating principal urgencies for convening the meeting. In a strange unintended way, they here stumbled on the right to property as the foundation for all other rights. But John Marshall understood it was true and was to spend thirty years hammering it into place. People broke individual promises by defaulting on debts; they simply did the same as governments, using inflation.

James Madison

{Privateers}
James Madison

JAMES Madison was born (1751) a rich Virginia planter, was a major factor in the composition of the U.S. Constitution, became secretary of State and President of the United States for two terms (1812-20), and died (1836) impoverished at the age of 85. Because the Constitutional Convention was conducted in secrecy, we cannot be entirely certain which parts to attribute to him, or even what his personal position had been on many issues. He was Chairman of the Committee of the First Congress and the dominant figure writing the Bill of Rights, which he had declared were unnecessary. These early Amendments to the Constitution were therefore sparsely confined to those rights which met universal approval and excluded the many proposals of rights which were controversial. The surprising outcome is that the Bill of Rights survives as a bedrock summary of the nation's belief system. There is a tendency to review the actions of all Presidents after they leave office, searching for remarks or behavior which clarifies their official actions while President, and in Madison's case his positions on the dominant Constitutional issues of our Republic. However, that later period of his life was marked by many abrupt reversals of inexplicably contradictory positions that often lessen his stature, and embarrass his earlier achievements. Gouverneur Morris, for example, had the lowest possible opinion of Madison, summarizing him as merely a drunkard. Morris was so contemptuous of Madison that during the War of 1812 that aristocratic main editor of the Constitutional document denounced the whole effort in disgust, mainly devoting his own efforts to making money from the Erie Canal, and later going to France in the Bonaparte era. Other close observers refrained from comment about Madison's drinking habits, and we must presently remain uncertain whether the comment explains Madison's erratic behavior, or whether it was merely an emotional exaggeration by Morris who spent most of his own later life, acting entertainingly at social gatherings.

{William Penn}
William Penn

On the one hand, and on the other; there is scarcely an episode in Madison's life which could not begin with the same words. Madison had tuberculosis and was sent North to go to college at Princeton, where he was much taken with Quaker beliefs in a state still controlled by William Penn's proprietors, but in a College whose campus thoughts were dominated by refugees from the Scottish Enlightenment. He was a good student and stayed an extra year to study Greek under the famous John Witherspoon. He was soon involved in politics, catching the eye of General Washington with his active promotion of the cause of the unpaid Revolutionary Army. Washington soon enlisted the efforts of this neighboring Virginia planter in organizing a new Constitutional Convention, primarily intended to strengthen central government against the intransigent state legislatures, with a particular effort to enable the central government to levy taxes to service war debts. Neither Washington nor Madison knew much about finance; the ideas about leveraging sovereign debt through a central bank evidently came from Robert Morris, who was a close friend of Washington's and in many ways the acting President of the United States during the Revolution. The young Alexander Hamilton bore the same sort of relationship to Morris as the young Madison bore to the General who was a generation older; in both cases, they supplied their own ideas, but mainly applied time, youth and energy to the concepts of their seniors. Hamilton and Madison became fast friends in a great cause, notably collaborating in the writing of the Federalist Papers to promote the new Constitution. Madison was the great scholar of the Roman Republic, a Washington favorite, and displayed a remarkable innate talent for politics in the finest sense, explaining complicated logic and persuading the unpersuaded. Washington nursed a passionate hatred for partisan politics and collaborated with the daily assistance of Madison in defining the traditions of the American presidency. Washington wanted to avoid the appearance of being a King, which was another Washington hatred but was badly in need of some models for an entirely new concept, the executive branch of a deliberately divided government. In one famous episode, Madison wrote Washington's speech, then wrote the reply to Washington by Congress, then wrote Washington's thank-you note back to Congress. Madison was devoted to his work; he only married Dolley Madison when he was 37 years old. Madison would seem to qualify for the category now called nerd.

{Privateers}
John Adams

Hamilton, on the other hand, had many children, legitimate and otherwise, many girlfriends, at least two duels, and flamboyant behavior on the parapets of Yorktown during the final battle. Unlike the aristocratic Madison, he was described by John Adams as the "bastard brat of a Scottish peddler". Although both men seemed to be driven by their short stature, Hamilton never let it get the better of him. Even Martha Washington was amused by his rambunctious behavior, naming her tomcat after him. Both men seemed unduly influenced by their new friends, Hamilton by his rich New York wife's rich friends, and Madison by Thomas Jefferson and Patrick Henry, the big men on campus so to speak, of the Virginia scene. When Hamilton began to favor banks, bankers and obscure financial wizardry -- and particularly after Madison's hero George Washington took Hamilton's side in the establishment of a central bank-- Madison was ready to be courted by his childhood heroes in Tidewater Virginia, particularly Thomas Jefferson, who always wrote prose as if writing poetry. That's about all we really know about the episode, and there is probably more we don't know, but Madison in an instant became Hamilton's mortal enemy, Jefferson's fast friend, an enemy of the bank, and -- the founder of America's first political party. George Washington never spoke to him, again. It seems possible to suspect that Jefferson was jealous of Washington, although he always was very careful not to confront him directly. When Hamilton persuaded Congress to enact a whiskey tax, Albert Gallatin and other friends of Jefferson's party stirred up the Whiskey Rebellion in Western Pennsylvania, and Washington personally led fifteen hundred Federal troops across the mountains to put down the rebellion. General Alexander Hamilton was at his side. James Madison was somewhere else, probably reading a book. Madison was the sort of person who always knew when his enemies had the votes. He was often lost without the assistance of Gallatin, who somehow knew when the enemy had the better argument.

{Bladensburg races}
Bladensburg races

Eventually, America split between those who sympathized with the French and their land domination of Europe and those who began to seek a repair of the trade relationship with Brittania which ruled the waves. The Adams presidency was ruined by fallout from this international warfare, an embargo was imposed, and both France and England did their bit to make things worse. At one point, it was uncertain whether America would be going to war with France or with England. Eventually, it was with England in the War of 1812. Jefferson and Madison had become successive presidents dedicated to saving money by disarmament, but in spite of our having no navy and nothing but militia for an army, we blithely set about to conquer Canada, with the plan of trading it for trade concessions from the British Empire. Unfortunately, the War was a several-year series of overwhelming defeats for the Madison administration, culminating in the burning of Washington D.C. and the "Bladensburg races" (for the exits), but celebrated as Dolley Madison rescuing the portrait of George Washington, and Francis Scott Key writing the "Star Spangled Banner" about the bombardment of Baltimore. Indian massacres in Michigan and other western defeats complimented the litany of disaster, which was finally ended when Gallatin negotiated the Treaty of Ghent as status quo pro antebellum with the preoccupied British, and then celebrated Andrew Jackson's defeat of the British army at New Orleans, after the Treaty had been signed but before news of it reached home. As Madison's last acts at the end of his term, he promoted Adam Smith economics, the reconstitution of the Bank, a general rearmament campaign -- and then vetoed the bill when it passed. To say that Henry Clay in Congress was embarrassed is to stretch the limits of language. After he left office, Madison became a senior statesman, making all sorts of pronouncements about current events and the true meaning of some Constitutional point involved, quite regularly reversing his positions and encouraging secession by talking about it so much.

{Marbury v. Madison}
Marbury v. Madison

This sorry tale is too long to present fairly and accurately, while its point can be most simply made by reference to Madison's first involvement as Secretary of State, in the famous Supreme Court case of Marbury v. Madison . When the departing Adams administration made some last-minute inconsequential appointments, one of them was to Marbury. At the beginning of the Jefferson Presidency, John Marshall was the departing Secretary of State, James Madison the incoming one. The appointment to Marbury was duly made and ratified, its certificate lying on the desk of the Secretary of State. Marshall (outgoing) neglected to send the certificate to Marbury, and Madison (incoming) refused to do so, on the advice of Jefferson the President; none of them ends up looking, adult. Instead of recusing himself, Marshall as Chief Justice further entangled himself in a dispute where he was the referee, by devising the concept that the Supreme Court could declare acts of Congress unconstitutional, and trapping Jefferson into a position where he had to agree with it. All in all, it certainly would seem simpler for Madison to have sent over the certificate. The authors of the three most famous documents in the American icon were inaugurating what a recent biographer Kevin R.C. Gutzman, described as the Presidencies of Chicanery.

James Madison deserves the highest praise for his achievements in three documents: the Virginia Plan, which was the forerunner of the Articles portion of the Constitution, that is to say, the basic structural components of our present government. Secondly, the bulk of the Federalist Papers leading to the Ratification of the Constitution. And third, the Bill of Rights, which he saw no need for, and therefore personally rewrote to be miraculously sparing of language, limited to bedrock essentials, and celestial as a statement of American national purpose.

Madison lived a long life, but it is difficult to find anything in the last forty years which justifies his early promise. Or which could be called a disgrace to it, either, if he had only made a more ordinary beginning.


REFERENCES


James Madison and the Making of America: Kevin R. C. Gutzman: ISBN-13: 978-0312625009 Amazon

The Revolution is Over, Every Man for Himself

{Charles Dickensons}
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

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

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}
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.


REFERENCES


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

Annapolis Convention

Potomac River

The Annapolis Convention had the original purpose of negotiating the joint ownership issues of the Potomac River between Virginia and Maryland. It seemed quite a natural thing to extend the discussion to other rivers which needed interstate cooperation, particularly the Susquehanna (Maryland and Pennsylvania) and Delaware (Pennsylvania, New Jersey, Delaware, and New York). That was at least six of the thirteen colonies, where Maryland and Virginia would find uniformity of rules to be advisable. It did not take too much imagination to suppose that the remaining states would wish to be involved, as well. It seems that much of the push for enlarging the local river discussion into a national discussion of broader issues came from Alexander Hamilton.

Reference 8500/14

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}
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."

A Gleam in Washington's Eye

{Privateers}
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.

Washington's Circular Letters

ONCE Cornwallis surrendered to Washington at Yorktown in 1781, there emerged the usual reluctance of troops on both sides to get killed for a dispute that was already settled. The British monarchy had ample experience with wars and fully expected to exploit this trait of exhausted soldiers at the end of one. It was clear to the British the colonies could neither be reconciled nor forcibly subdued. What was not clear was how much national advantage might still be extracted from a peace conference. Bluffs and intransigence might still achieve what bayonets could not. Seasoned diplomats are accustomed to such manipulation, but the new American nation only had Benjamin Franklin grown equal to it, representing Pennsylvania and Massachusetts with the British Ministry for several years. Beyond that, however, a particularly American trait was emerging to quit the game before the last card is played. During the Nineteenth century, anticipating and resisting that irresolute temptation came to be called, Character.

The American Revolutionary Army was seldom well-fed, never well armed. Hardly anyone expected a war lasting eight years, or the British regulars to be so mean and effective. Major General Benedict Arnold had seemed like our perfect soldier but turned traitor while in charge of a major defense position at West Point, New York. Conditions for wives and children at home were bad. And the Congress in Philadelphia was willing to inflate the currency, hold back soldiers' pay, pinch pennies on supplies. Other colonies frequently promised to send more soldiers than they actually supplied. Not that they were proud of themselves; they skulked. Surely, some state legislatures and representatives were better than others, but they are almost impossible to identify, now. They all must have been somewhat complicit, or we would have heard more of them denouncing each other. It must have been supremely painful for Washington to receive promises of troops and supplies that he privately doubted, and then to be obliged to assure his troop's help was forthcoming. Inevitable disillusionment discredited him more than the Governors who put him in that position. The British troops surely shared their enemy's reluctance to get killed for a war that was over. They partied and roistered in New York, but who knows what general in London might suddenly order an attack on Washington at Newburgh, just to make overall British defeat seem less humiliating.

{Head Quarters Newburgh NY}
Headquarters, Newburgh NY

During sixteen months of this agony, Washington wrote many letters to state Governors, keeping them informed while asking for their help. The custodians of the Headquarters museum proudly show the various tables and chairs for his aides to translate French and Spanish, to make thirteen copies of just about everything, and careful files of all correspondence. Washington was an organized person, they say, or else his chief of staff was organized. Someone like Alexander Hamilton, perhaps. Out of all this headquarters communication system gradually emerged the system of Circulars. The General was in a position to see huge deficiencies in the government system for which he dedicated his life, and apparently grew haunted by the idea that all this suffering would be for nothing if the government which emerged was anything like what he was now seeing. His Circulars to the governors began to take on the style of outlining what kind of government the United States ought to have. It must, for example, acquire federal power; the states must turn over more of their own power to the decisions of a single executive. It must pay its debts; a mighty nation does not chisel its creditors. It must suppress the inclination to squabble and think the worst of one another. It must, in his phrase, be virtuous.

Two emphatic views of the new country emerged from Washington's time in Newburgh. The inability of the government to pay its soldiers, suffering or no suffering, was particularly agonizing. And the close call he had with threatened mutiny made it much worse. Robert Morris had run out of tricks and instructed him the central issue was for the Federal government to be able to levy taxes for servicing the debt, which would make it possible to borrow still more through leverage. Washington never forgot this episode, and at several points, during his later presidency, it guided him well. The other episode which made a lasting impression was to some degree his own fault. He was so impassioned in his hatred of monarchy that his closest friends, Hamilton and the two Morrises -- who had never seen much to criticize in a monarchy -- essentially gave up on trying to persuade him, and took the side of General Gates the hero of Saratoga in a planned mutiny. Washington put it down with nothing but the power of his personality and a little play-acting with his bifocals, but he almost lost the confrontation in an instant. Washington had many close calls with death on the battlefield, but these two near-defeats pretty much shaped the rest of his life as our first President. Indeed these two hatreds, of debt and monarchy, continue to characterize many Americans to a degree that others would describe as unreasonable.

And then he made a mistake. As a way of proving his lack of personal motive, he announced in advance he would be leaving public service forever. Today, every lame duck knows that's a bad idea, even when you mean it. And while he may have sincerely thought he meant it at the time, events show he really didn't. Although he probably didn't want to be indispensable, circumstances made him so. He discovered how little he knew of the technical details of government, and thus how much he needed James Madison's help. Washington lacked skill in managing finance; having depended on Robert Morris throughout the war, he needed Alexander Hamilton at least to handle a peaceful economy. But there was no running away from the central issue; he would be forced to recognize how much he overshadowed anyone else in demeanor, and so, how unlikely it was that anyone else could bully others into cooperating. He was a great-souled person, in Aristotle's phrase. Franklin alone perhaps understood and privately doubted that even Washington could pull it off. Washington's Circulars were driving him straight toward seeking the Presidency he widely proclaimed he did not want and would not accept. And thereby he threatened the one thing in life he prized more than any other: his word of honor to keep his promises.

George Washington's Cherry Tree, Revisited

{American Revolutionary}
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}
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.

{top quote}
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. {bottom quote}

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}
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.

George Washington on the Federal Union

{President George Washington}
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."

The Father of His Country

Washington was a tenth-generation Virginian, an athlete and person of considerable presence, a man's man. He was the Father of his Country, he was rich and could have anything he wanted. He more or less started the French and Indian War. He had then defeated the mighty British empire copying the native tribes in guerilla warfare, then renouncing any and all personal reward for it. It must have then been supremely satisfying to have this acknowledged by the King of England, himself. But this is plainly what he wanted and he wanted it badly enough to renounce all praise for it, against the opposition of most of the Virginia grandees. He had suggested and supervised the first and best Constitution in the western world. He had been handed a blank slate for the duties and responsibilities as President, and neither Patrick Henry nor the Lees nor Thomas Jefferson dared deny him his right to it. He was indeed the Father of His Country, and he knew it. Not even the Virginia grandees had the courage to thwart his minimal demands. He was even a slaveholder who freed his own slaves, at least to the extent it was useful to have more credentials.

So to save face, they gave him his very minimal suggestions for a workable Constitution. And don't you know, it proved to be a better plan for being contested. Patrick Henry deserves more credit than he gets. And so does the Civil War. Any plan which can, almost by itself, defeat those silly amendments, and those preposterous theories of some foreign dictators, deserves its full measure of praise.

Poor Richard's Wealth

{Benjamin Franklin}
Benjamin Franklin

I RISE to offer yet another toast to Benjamin Franklin. Like our two leading candidates for the Presidency of the United States, he leaves us uncertain whether he was a rich man pretending to be poor, or a poor man pretending to be rich. To clarify this mystery, I have mainly examined the circumstances of his retirement, and the contents of his last will and testament.

Although he reports that on arrival in Philadelphia at the age of seventeen, he spent his last pennies on a loaf of bread, he was able to retire from the printing business at the age of forty-two, planning to spend the rest of his life as a gentleman at ease. He was able to do so because he had assembled over fifty partners in the printing trade, scattered from Boston to Georgia; today, we would say he had sold franchises to his business. When he came to retire, he arranged to be paid off in eighteen installments, which ought to have lasted him to the age of sixty. That was well past the usual life expectancy at the time, but we can now see it would apparently have run out while he was still in London, acting as our ambassador to Parliament, leaving him without support for the last twenty-four years of his life. Apparently, this was the reason for his seeking postmasterships and acting in some overseas business capacity for Robert Morris, then one of the richest merchants in America.

Assuming he may have run out of money when he was sixty, we look to his final estate to see how he made out in his second career, whatever it was. His assets were in three general categories: land, bonds, and hard money. He bequeathed eleven houses, mostly in Philadelphia, to various relatives. He assigned the ownership in thousands of acres of land in Nova Scotia, Georgia, and Ohio. Just what a bond was in Eighteenth-century America is not exactly clear, but bonds of at least ten thousand pounds sterling were distributed, as well as ten thousand pounds of hard assets. And he forgave a large and undefined number of unpaid debts.

He gave George Washington his gold-handled cane, which had been given to him by Duchess Du Pont, for unknown reasons. His modesty was famous but can be questioned when he gave one of his portraits to be hung in the Council Room of the government of Pennsylvania. He gave his sister a portrait of a French King, with four hundred and eight diamonds set in its frame. He instructed her not to make the diamonds into jewelry because that would be ostentatious. And he instructed that his funeral be plain and simple, although it turned out to be one of the most elaborate parades and ceremonies of the age.

After a few months, Franklin reconsidered his will and wrote a famous codicil. Revoking the gifts to his grandchildren, he ordered that a thousand pounds be set aside for each of the cities of Boston and Philadelphia. His proposal was that this money is loaned to graduating apprentices in order to help them start their businesses, and after a hundred years he envisioned it would amount to hundreds of thousands of pounds; after two hundred years, it would be worth millions and could be used for public improvements. These funds were indeed established and the loaning did begin. Unfortunately after hardly fifty years had elapsed, so many apprentices had failed to repay their loans the experiment was discontinued. What had seemingly been lacking was sufficient will of the trustees to collect the loans with vigor.

Poor Richard may have been born poor at more than one time. But he certainly didn't stay poor, very long. A toast to Ben Franklin, on his birthday, in his club.

Revolt of the Admirals: The Fight for Naval Aviation, 1945-1950

The National Security Act of 1947, intended to unify the separate armed forces services under a single Defense Secretary, failed to settle the deeper issue that divided them: the debate over roles and missions. One symptom of this conflict was a showdown between the Air Force and the Navy over the role of carrier aviation in the national security framework of the United States. From the early days of aviation, Army and Navy aviators had approached their roles very differently. Army air doctrine centered on strategic bombing, while Navy doctrine focused on carrier air power as an increasingly important element of the fleet's offensive striking power. In the postwar era of demobilization, these differences were exacerbated as each service fought for its share of a decreasing defense budget. Louis A. Johnson's appointment as Secretary of Defense in late March 1949 added to the Air Force-Navy friction. While Johnson allowed procurement of B-36s for the Air Force strategic bombing program to be greatly accelerated, he canceled development of the first flush-deck supercarrier, which would have enabled the Navy to operate long-range attack aircraft capable of carrying atomic weapons. This rejection fueled the Navy's fear that naval aviation was to have a diminishing role in the new atomic age and provided the final impetus for a clash between the Air Force and the Navy. The conflict came to a head when an anonymous document was delivered to members of Congress in May 1949, alleging improprieties in the Air Force procurement of the B-36 bomber. Although later found the be baseless, these charges inspired two sets of congressional hearings: the first on the B-36 bomber program itself, and the second on the issue on unification a strategy. During the latter hearings, high-ranking naval officers voiced their opinion that naval aviation was being denigrated by a Defense Secretary enamored with possibilities of strategic bombing and scornful of the Navy's contribution to such a mission. The press soon termed their vehement testimony in support of naval aviation the "revolt of the admirals."

About the Author

Jeffery G. Barlow has worked as a historian with the Contemporary History Branch of the Naval Historical center since 1987. He is writing an official two-volume history on the U.S. Navy and national security affairs. During 1969-1970, while on active duty with the U.S. Army, he served as a staff member of the newly established U.S. Army Military History Research Collection at Carlisle Barracks, Pennsylvania. A Navy junior, Dr, Barlow graduated with a B.A. in history from Westminster College (Pa.) in 1972. At the University of South Carolina, where he was an H.B. Earhart Fellow, he studied under Dr. Richard L. Walker and received a doctorate degree in international studies in 1981. Dr. Barlow's contributions to published works include a biographical chapter on Admiral Richard L. Conolly in Stephen Howarth's Men of War: Great Naval Leaders of World War Two (New York: St. Martin's Press, 1993) and chapters on Allied and Axis naval strategies during the Second World War in Colin S. Gray and Roger W. Barnett's Seapower and Strategy (Annapolis: Naval Institute Press, 1989). His work has also appeared in International Security and Air University Review.

Purchase a copy here

Theater Review: Washington and The Tragedy of Julius Caesar

It was in Eighteenth century style to mix facts with fiction. A classical education was prized among the leadership class, and theater-going was the common style of entertainment; the Founding Fathers often confessed to being influenced by classical examples. In particular, Dr. Samuel Johnson the theater critic in the last half of the Eighteenth century had provoked a major reexamination and revival of popular interest in the Sixteenth-century work of William Shakespeare. Shakespeare was to be revived a second time in America when the English actress Fanny Kemble crossed the ocean and married our richest bachelor, Pierce Butler. We are told that George Washington was an inveterate play-goer who attended many performances of his favorite play, Joseph Addison's Cato, and sometimes carried pages of Shakespeare in his coat. Shakespeare's The Tragedy of Julius Caesar was as widely known at that time as it is today, after countless performances by high school theater groups. Our present affection for the Roman Republic can be traced to its Eighteenth-century revival in several of Shakespeare's plays. Its effect on the minds of the Founding Fathers is as sure as the effect of Sophocles on the mind of Pericles, which no amount of scholarship about his actual attendance at performances of Oedipus Rex can diminish.

The tragedy of Julius Caesar is really the tragedy of Brutus, the nobleman who embodied the true spirit of the Roman Republic. In a larger sense, it can be considered an essay on the relative merits of a republic and a king. Caesar is assassinated early in the play, which depicts very little of the qualities which made him the hero of Rome. He seems to function in this play as a symbol, marching onto the stage in the midst of public adoration, but mainly serving only briefly as a prop about which others whisper their opinions. The public may love him, but many of the Senators are jealous of his eminence and fearful of his ambition. Marullus seems to speak for the disgruntled supporters of Pompey, whom Caesar had defeated when he criticizes the common people for switching loyalties so easily. Cassius speaks for many Senators in saying,

"I was born free as Caesar; so were you: We both have fed as well, and we can both Endure the winter's cold as well as he".

In a few short lines, Shakespeare defines the main weakness of a Republic. It can take Cicero years to convince the common people of the value to them of a republic. But even then, it is all Greek to them, easily brushed aside as boring academic blather. The complicated values of representative government are swept away in a moment by some power-mad soldier who wishes to make himself a tyrant, dazzling common folk with a military victory, or as Marc Antony would soon demonstrate, with a single clever speech. Republics are fragile things, hard to establish, easy to demolish. The man of honor makes his reputation through national service first, and Senatorial position is bestowed on him as a reward. But once an ambitious common man achieves the office by luck or stealth, he soon sees the elevation as itself sufficient reason why he should now be King. Shakespeare is even-handed in this play, which is in many ways an essay on the nature of governance. The recurrent problem of one-man rule is the issue of succession. Written in 1599 with the barren Elizabeth on the throne highlighting the issue of Henry VIII's turmoils with lack of an heir, the first word the title character utters is "Calpurnia", the name of Caesar's barren wife. Now little noticed by contemporary audiences, it must nevertheless have had an important impact on the barren George Washington in his proscenium box, perhaps seated next to Martha and her children by an earlier marriage.

Not long before Washington is known to have taken active steps to encourage a Constitutional Convention, but after he had issued his Circular Letters defining the needs of a new government, a momentous event took place in his life. He went to the Confederation Congress, then meeting in Annapolis, to present his resignation as commander in chief. Not satisfied with triumphant accolades such as Ulysses Grant and Dwight Eisenhower received, he went on to announce his permanent retirement from public life. Probably intending merely to put an end to the offers of Monarchy that his friends had been repeatedly urging, he was very likely startled by the world-wide acclaim his renunciation had provoked. It seems to be true that even George III of England greeted this unexpected resignation as something which made Washington the greatest man in the world. Washington intended to put an end to talk of monarchy, but this action slammed the door loud and irretrievably. No one can prove, but who can possibly disprove, that Julius Caesar was on his mind. Listen to Casca describe the wide-spread suspicion of hypocrisy when Caesar thrice refused the offer from Mark Antony:

CASCA I can as well be hanged as tell the manner of it: it was mere foolery; I did not mark it. I saw Mark Antony offer him a crown;--yet 'twas not a crown neither, 'twas one of these coronets;--and, as I told you, he put it by once: but, for all that, to my thinking, he would fain have had it. Then he offered it to him again; then he put it by again: but, to my thinking, he was very loath to lay his fingers off it. And then he offered it the third time; he put it the third time by: and still as he refused it, the rabblement hooted and clapped their chapped hands and threw up their sweaty night-caps and uttered such a deal of stinking breath because Caesar refused the crown that it had almost choked Caesar; for he swounded and fell down at it: and for mine own part, I durst not laugh, for fear of opening my lips and receiving the bad air.

Washington was now surely boxed in. How in the world could he save his country from anarchy, knowing that almost no one else could do it, and still escape the sneers of Casca and his like? He had told Martha and his closest friends, he had told the whole world, that being First in War was enough. If Julius Caesar couldn't do it, how could Washington expect to go on and be First in Peace, while remaining First in the Hearts of His Countrymen?

Robert Morris: Businessman Father of the Bureaucracy

{Robert Morris}
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.

Robert Morris Has a Mid-Life Crisis

{Robert Morris}
Robert Morris

The feudal system once consisted of Kings awarding aristocrats a title of nobility attached to a region of inhabited land, usually as a reward for military assistance. Because of this link between their wealth and their land, almost no aristocrats migrated to America, so almost no American can now claim hereditary noble descent. What developed instead was the gentry. Regardless of the often unclear sources of their wealth, it was presumed to have arisen from some ancestor's merit, and could only be inherited if it could be made to renew itself. The vast expanses of America cheapened the value of undeveloped land, so the gentry could seldom support a gentry lifestyle without additional employment of some sort. Their children went to college, an experience originally developed for training ministers, who were expected to be the nation's leaders in balance with the tradesmen, who made no secret of their own self-serving. The expectation of community leadership for the gentry outlasted its original attachment to religion, so the non-religious gentry moved about with an air of superiority which others envied but increasingly resented. The novels of Jane Austen are filled with depictions of this sort of person during a period when they were actually rapidly disappearing. The primitive financial system and the enduring mythology of the aristocracy struggled to guide the income sources of this gentry into tracts of resalable land, where they lived off dividends, profits, and rents. Rentiers. Not quite tradesmen, but not genuine aristocrats, either.

Unfortunately, the huge abundance of land in the New World soon cheapened its value to a point where it could not support a lifestyle of entitlement along with contempt for mere tradesmen. This is the explanation often offered for the virtual disappearance of the lifestyle of the Gentleman by the time of the Civil War. The situation was rescued by the invention of corporations; a single man or family no longer could supply all the capital needed to exploit the available commercial opportunities, so corporate ownership was shared with others. Ownership of shares in corporations provided a new stream of income and a new storehouse of wealth, and it also freed the gentleman from ties to a big estate of land. The Jane Austen variety of gentleman thus virtually disappeared but remained as a mythical model for the highest aspirations in the early 19th Century. Robert Morris, orphaned and illegitimate, wanted very much to be an immensely rich gentleman even though that was becoming a contradiction of terms. And although he had virtually been in charge of the whole nation during the Revolution, he wanted very much to be looked to as a leader, then defined as some variant of a theologian. Much of this ambivalence was due to his never going to college, the same guilt which haunted George Washington. Neither of them had sufficient college-educated relatives to appreciate how little college has to do with it. A great deal probably did have to do with historical animosities between Eastern and Western Pennsylvania, between Quakers and Presbyterians, between memories of lingering hatreds among Irish tribes along Ireland's northern border. And yes, between anthracite and bituminous coal. Mountains seem to foster wild behavior, and there are a lot of mountains in Central Pennsylvania.

{Adam Smith, who published The Wealth of Nations}
Adam Smith: Nature and Causes of The Wealth of Nations

The outcome of these commotions, as well as others unrecognized, was highlighted by the constant difficulties Robert Morris had in the Pennsylvania legislature, contrasted with his comparative ease in both the local Philadelphia political scene and the national one. Only at the state level did it seem that everyone was against him. Particularly so were Findlay and Smilie, western Pennsylvanians who hated him for his self-made wealth but refused to acknowledge the abilities it must surely represent. Like the Lees of Virginia, they asserted the burden of proof was on him, to prove he had not stolen his wealth. After all, all tradesmen were petty cheaters, so a very rich tradesman must be a big cheater. And even setting that aside, he had an odor of sanctity, an air of superiority, which they could not abide. There was even a centrality to this matter resting on Adam Smith, who published The Wealth of Nations in 1776. Smith argued that good things grew out of vigorous competition, and definitely not from altruism. Although Morris was sufficiently taken with Smith's arguments to give copies to his friends, he would not surrender the point that wealth was not necessarily proof of merit, just because merit sometimes led to wealth. Findlay freely admitted he was opposed to the re-charter of the Bank of North America in order to promote the self-interest of western farmers. What flabbergasted Morris was to hear his motives vilified for favoring the re-charter when he owned shares of the bank. Nowadays, everyone would feel astounded if a corporate executive did not vigorously defend his company; but in those days he stood shame-faced to admit he could not possibly be a gentleman and do such a thing. He, therefore, decided to prove his honor by taking an astonishing step. One of the richest men in America sold out his business to prove to these wizened backwoodsmen that he was truly acting like a gentleman. It would be hard today to find anyone who would not describe his action as that of a damned fool.

How Could an Honest Man Go Bankrupt?

{E. James Ferguson}
E. James Ferguson

James Ferguson was a Twentieth-century historian who spent most of his life compiling and editing the papers of Robert Morris covering the four years (1781-1784) he was in charge of American finances. Although Ferguson was strictly impartial or even somewhat censorious, he made the statement that he had never discovered any instance of Robert Morris engaging in self-dealing or dishonesty in handling government affairs. Likewise, Arthur Lee, who certainly qualifies as Morris's worst enemy, was in charge of a Congressional investigation of the accusations of Morris as corrupt which finally led to the conclusion that no dishonesty had been found. If any corruption is found in the future, it must thus be found in some remote corner of a mountain of careful bookkeeping by a man who was mostly too rich to bother with the immense task of covering his tracks with double books. And Morris really was very rich. One contemporary scholar, a historian for the Independence Hall Park Service, estimates that until things began to crumble, Morris was as rich in present value as Bill Gates. A quick check of that assertion would start with his unpaid debts of $12 million at the time he went to debtors prison, and then adjustment for intervening inflation. The snarling assumption that no man could get to be that rich -- honestly -- is the as yet unsupported belief underlying any smug satisfaction, then and now, with his legal downfall.

{British Navy}
British Navy

This amounts to astonishing denial. Although many billions of dollars have been amassed by many contemporary financiers of only single facets of investment banking, persisting suspicion implies it was justified to imprison a man who invented maritime insurance, central banking, commercial credit, the substitution of credit for paper currency, the organization of a privateer navy which fought the British Navy to a standstill, financed the Revolutionary War and the importation of almost all its munitions in spite of the sinking of 150 of his own ships. Morris effectively ran the Revolutionary government while he did these things-- not only an astonishing series of accomplishments in four years but seemingly quite enough achievement to attain wealth. Instead, one hears especially in Virginia, the implacable conviction that no one could possibly do all that, honestly.

Or alternatively, the thesis might be advanced that only passionate idealism would drive a man of such talents to such exertions, gently alluding to his seemingly disgraceful refusal to sign Jefferson's Declaration of Independence at the vital moment, which is accepted as sure proof of duplicity. Somehow this offense cannot be expunged by his rescuing the finances of the War when the whole Continental Congress was lost in the blind alley of inflation and price controls, on the edge of letting Washington lose the battle of Trenton for lack of gunpowder. Or largely by his own efforts getting the Articles of Confederation ratified after five years. Or, discovering their vital weaknesses, setting about to rectify them in a new constitution, and driving it through the ratification by Pennsylvania. The system of checks and balances then mysteriously emerged, without clear identification of whose idea it was. It certainly sounds like Hume and Adam Smith. They weren't present at the Constitutional Convention. But Morris was, with a lifetime of matching willing buyers with willing sellers, in mutually advantageous binding agreements.

Last Will and Testment of Robert Morris, Jr.

Robert Morris

This will of Robert Morris of Philadelphia, dated June 13, 1804, is found in Volume E, p. 170 of the Hardin County, KY will books. It was presented by William Fairleigh to Samuel Haycraft, Clerk of the Hardin County, KY Court, in his office on March 23, 1849.

In the name of God Amen, I Robert Morris of the City of Philadelphia formerly a merchant & c. do now make and declare this present writing to contain and to be my last will and testament hereby revoking all wills by me made and declared of precedent dates.

Imprimis I give my Gold watch by my son Robert, it was my Fathers and left to me at his death and hath been carefully kept and valued by me ever since.

ITEM I give my gold-headed cane to my son Thomas. The head was given to me by the late John Hancock Esq when President of Congress and the cane was the gift of James Wilson Esq whilst a member of Congress.

ITEM I give to my son Henry, my copying press and the paper which was sent to me a present from Sir Robt Herries of London.

ITEM I give my daughter Hetty (now Mrs. Marshall) my silver vase a punch cup which I imported from London many years ago, and have since purchased again.

ITEM I give to my Daughter Maria (now Mrs. Nixon) my silver (?) Boiler which I also imported from London many years ago and which I have lately repurchased.

ITEM I give to be Friend Gouverneur Morris Esq my telescope espying glass being the same that I bought of a French refugee from Cape Francois then at Trenton and which I since purchased of Mr. Hall officer at the Bankrupt Office.

ITEM I give and bequeath all the other property which I now possess and may hereafter be acquired whether real or personal or all that shall or may belong to me at the time of my death to my dearly beloved wife Mary Morris for her use and comfort during her life and to be disposed of as she pleases at or before her deceased when no doubt she will make such distribution of the same amongst our children as she may then think most proper. Here I have to Regret my [? at] having lost a very large fortune acquired by honest industry which I had long hoped and expected to enjoy with my family during my own life and then to distribute it amongst those of theirs that should outlive me. Fate has determined otherwise and we must submit to the decree which I have done with patience and fortitude.

Lastly--I do hereby nominate and appoint my said dearly beloved wife Mary Morris the Sole Executrix of this my last will and testament made and declared as such on this thirteenth day of June 1804.

Robt Morris (Seal)

Declared and acknowledged by Robert Morris as his last will and testament to and in our presence this sixteenth day of June AD 1804 H. Keugan and Gaucet(?) Cottringer

Philadelphia May 21, 1806 There personally appeared Henry Keugan and [?] Cottringer the witnesses of the foregoing will and on oath did depose and say that they saw & heard Robert Morris the testator sign, seal, publish and declare the same as and for his last will and testament and that at the doing thereof he was of sound mind, memory and understanding to the best of their knowledge and belief.

J. Waupole Dep Regr

The [?] sworn May 29, 1806

City and County of Philadelphia I certify the foregoing writing to be a true copy of the last will and testament of Robert Morris decd. as also of the probate thereof as the same remains on file in the Registers Office and recorded in Will Book No. 1, page 4980. (or 4981) Witness my hand and seal of office this seventeenth day of February AD 1849. A. Brown, Register

Pennsylvania Philadelphia County SS

I Edward King Esq President of the First Judicial District of Pennsylvania and Presiding Judge of the Court of Common Pleas Orphans Court, and Court of General Quarter Sessions of the Peace for the County of Philadelphia do certify that A. Brown by whom the annexed Record, Certificate and Attestation were made and given, and who in his own proper handwriting hath hereunto subscribed his name and affixed his official Seal was at the time of so doing and now is, Register for the Probate of Wills, and granting letters of Administration, in and for the City and County of Philadelphia in the Commonwealth of Pennsylvania, duly commissioned and qualified to all whose acts as such, full faith and credit are and ought to be given as well in courts of Judicature as [?] and that the said Record, Certificate and Attestation are in due form and made by the proper officer.

In Testimony whereof I have hereunto set my hand the Twenty-first day of February eighteen hundred and forty-nine. Edward King, Presd. Judge

State of Kentucky Hardin County Sct

I Samuel Haycraft Clerk of the County Court for the county aforesaid, do certify that on this day the Foregoing Copy of the Will of Robert Morris deceased duly authenticated, was produced to me in my office by William Fairleigh Esquire and at his Request I have duly recorded the same in the will book in my office this 23. day of March 1849. Saml Haycraft Clk

R. Morris, Land Speculator

{Privateers}
Robert Morris

In many recent years, someone becomes a millionaire through real estate speculation; it can be done. However, no one supposes it is easy to do, or free of risk. It would be foolhardy for anyone who knew nothing about real estate speculation to step forward, buy huge tracts of land, and expect to multiply his wealth in a year or two. That is, however, essentially what Robert Morris, Jr. did in 1785. Like his friend Benjamin Franklin, Morris was acutely sensitive to the prevailing notion that public leadership was only fitting for gentlemen, and a gentleman did not, could not, must not, engage in trade. The world was then in transition between an era when a gentleman was one of the few educated people around, a man who had attended college as John Adams described it, and who was able to live in upper-class style as a result of inheriting well or marrying well. The time was soon to arrive when public service was equivalent to improving the national economics through invention or organization, but a decade or two earlier, public service was military or diplomatic. Morris got caught in the transition.

Suddenly caught in a society he did not understand, Morris renounced his achievements as a merchant, considerable but tainted with society's disdain for scrambling for personal advantage; and as the expression goes, cashed out. Aristocrats were still understood to own vast tracts of land, however, and somehow an estate was not tarred with a commercial brush. An opportunity opened up quite soon to acquire the land along the Genessee River in upstate New York, with Morris turning it over quickly to new migrant settlers at such a profit that it was rumored he was once again the richest man in America. However, the land was cheaper and more abundant in America than in Europe, subject to violent fluctuations as immigration flourished and declined along with the economics and wars of Europe. The supply of land in the new continent was nearly inexhaustible, while the supply of immigrants was highly variable. Without a safe place to park idle money temporarily, Morris plunged on, buying land with money made on other lands, not yet paid for. Many of his customers were just as innocent as he was, but others were savvier and more ruthless. That was peculiarly true of the Scotch-Irish, who having been evicted first from Scotland and then from Northern Ireland, were among the first American immigrants to recognize real estate as a simple commodity, to be traded unsentimentally.

Robert Morris, Land Speculator

{Alexander Hamilton}
Alexander Hamilton

IN 1782, Robert Morris the Superintendent of Finance of the United States, produced a paper called "On Public Credit", which was the model for Alexander Hamilton's more famous paper with the same name. His interest in the topic almost surely grew out of the idea of selling America's abundant land to finance the Revolutionary War. It was obviously a tempting idea, but a fairly unworkable one under wartime conditions, particularly since the great abundance of American land depressed its price for long-term speculators, compared with European land. A price of fifteen or twenty cents an acre required huge parcels of land to justify the problems associated with deriving a profit from it as an intermediary, and created a myriad of other problems dealing with the end user; in 1782 it just wouldn't work.

{Henry George}
Henry George

By 1792 it was perhaps workable because the boundaries of the nation were more clear, but generated the problems of a rolling frontier, associated with steep and volatile differentials of price and safety. If the end user was an impoverished immigrant, the seller was necessarily tangled in protracted periods of refinancing. The issues of slave territory and free territory close by generated local peculiarities of land use and optimum parcel size. Those who gave close attention to the complexities of the novel situation could see the close relationship between the credit of the nation, and the value of its land mass, the ultimate definition of what the nation really was. Thus in time, the single tax idea of Henry George would be an idea that kept coming up for discussion, long before Henry George popularized the concept of placing all taxes on immobile land. The nation was the land it owned, and the land couldn't move. So Morris and Alexander Hamilton wrestled with devising ways to base the credit of the nation on its land wealth, without the complexities of doing so directly. In 1782 such ideas were only dreams, but by 1792 a clever person might work out ways to manage it.

{Robert Morris}
Robert Morris

As the opportunities of suddenly having undisputed ownership of most of a continent began to clarify, Morris was rearranging his own life. He had accomplished most of his vision of what the nation should be like and had resolved his internal conflicts about the meaning of being a patrician in a democracy, by selling off his business. No matter how strange it may seem to us that being a shipping merchant was disrespectable, while real estate speculation was an acceptable gentleman's occupation, that was apparently how he saw it. His many associations put him in contact with many opportunities, and soon he acquired the parcel of land in upstate New York abandoned by the exterminated Iroquois. Generally called the Genesee territory, the combination of smallpox and General Sullivan's famous march had greatly reduced the tangled arguments about the title to the land, and the sales went very well, netting him roughly $350,000 unadjusted for inflation. If Morris had quit the business right then and there, he had a fair chance of living the rest of his life among the richest men in America.

Lest the impression persist that Morris got into financial difficulty entirely by real estate speculation, a letter he wrote to Gouverneur in 1790 celebrating the Genesee agreement exulted, "This bargain will not only be the means of extricating me from all the embarrassments in which I have become involved, but also the means of making your Fortune and mine."

In 1794 the Asylum Co. was founded by U.S. Senator Robert Morris and John Nicholson, Pennsylvania Comptroller General, to develop and sell lands in northeastern Pennsylvania. Although it was rumored that Marie Antoinette was to be housed in the 1600 acres on the North branch of the Susquehanna River near the present Towanda, she had actually already been executed in late 1793. In 1795 Nicholson succeeded to Morris' interest, and three years later Morris was put in debtor' prison. In 1802, Napoleon invited all French emigrants to come home, and only a few stayed behind in Azilium. The Asylum Co. soon dissolved.


REFERENCES


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

Robert Morris and the Lee Brothers

* * *

Morris was a monarchist, announcing he liked the king and did not want to change him. The Lees, one surmises, though they might make pretty good kings, themselves.

But we get far ahead of the story. The immediate mystery is Morris' behavior in July, 1776.

{Robert Morris}
Robert Morris

The dominant feeling during 1775 had been that Americans needed to prepare for war while doing everything possible to avert it. If England prevented both the manufacture and importation of gunpowder in the colonies, there was no way to be prepared for war except to smuggle gunpowder. Not to smuggle it would leave the colonies weak, almost inviting abuse from London. In several elections, before then Morris had been the nominee of both the radicals and the conservatives. The radicals could see he was an energetic, efficient and close-mouthed international shipowner; when a Secret Committee was proposed, he obviously would be an effective member of it. But he was loudly opposed to war with England and was formidable in a debate. The conservatives might have felt he would keep the hotheads on the committee from wandering from or expanding its narrow charge. He explained his dual position as seeking "Constitutional Liberty" rather than independence, but that was shrugged off as just so much blather. It would be twelve years before people did understand what he wanted, and that he was entirely serious about it. That the Lee brothers didn't ever understand, didn't bother Morris at all. That the Lee brothers couldn't comprehend his unwillingness to charge headlong into battle, unarmed and unprepared, was equally mysterious to Morris. The Lee brothers would well have understood Napoleon's remark that victory was 10% based on surprise. But what Napoleon is thought to have said was that victory was 90% based on supplies.

{Arthur Lee}
Arthur Lee

The later appointment of Arthur Lee to the Secret Committee can be similarly explained as a counterbalance to Morris. There were no Southerners on the initial committee, so a hothead like Arthur Lee could be counted on to resist the influence of conservative merchants and perhaps Arthur, outnumbered, was even urged to overplay his hand. From the moment he was appointed, he was demanding that Benjamin Franklin be removed from the committee. Not only does this help us understand his disruptive behavior when he later joined Franklin at the Paris negotiations, but such misjudgment of Franklin's patriotism illustrates how extreme Lee's suspicions really were. Since the original motion for independence had been introduced in Congress as the Virginia Resolution by his brother Richard Henry Lee, we sense this family was perpetually anxious to slay dragons. And finally, we can sense the likelihood that Robert Morris and Arthur Lee probably provoked each other.

{Richard Henery Lee}
Richard Henery Lee

To tolerate for the moment the rather extreme Lee brothers, it must be said there was every reason to suppose Morris hoped to enrich himself from gun running. But that is an entirely different accusation with a different defense. The ambivalent behavior of Morris and Dickinson at the Congress is admittedly puzzling, but in the end, defensible and honorable. The accusation of graft and self-dealing was plausible for uncomprehending people but seems legitimate today only because American standards of leadership ethics have gravitated toward the Virginia viewpoint. That viewpoint can be summarized by George Washington refusing to accept a cent for his years of public service. Very few politicians will today tell you this is a practical position, but nevertheless, many Americans wish it could be. Lacking any insight into what Morris was talking about with "Constitutional Liberty", the Lees were perhaps understandably driven to invent plausible explanations. These seldom proved to be fair. Morris certainly had the sympathy of the commercial world at the time for what was to them quite normal behavior. However, the rural population, especially Cavalier Tidewater Virginians, will probably never yield the point.

Morris repeatedly advised his partners he was serving his nation, while of course engaging in private profit. Even using present standards about self-dealing, it must be admitted the need for secrecy at the time necessitated hiding the smuggling within legitimate businesses. Nowadays we throw people out of a public office on suspicion of enriching themselves and throw them into jail on clear proof of it. There is also a curious feature of extreme mindsets, which seems to justify making false accusations. The underlying theory is that behind every great fortune is a great crime, so you might as well hang him for it without further proof. Morris would have been astonished at the thought of taking such risks without hope of restitution: "Do you want me to smuggle this stuff or don't you?" might well have been his answer.

And then there were those two aristocratic Frenchmen, Penet and Pliage, appearing in Providence RI in a boat loaded with gunpowder, looking for George Washington to sell it to. Everyone at the time assumed they were just adventurers, out for the money. After the passage of two centuries, it may be within bounds to ask the French to look into their records to see if maybe P&P were sent here to stir up a little trouble? There proves to be quite a literature about them, linked to that glamorous Renaissance Man, Beaumarchais.

Real Estate Bubble Traps Robert Morris

{Treaty of Paris}
Treaty of Paris

When the Treaty of Paris finally ended the eight-year American Revolutionary War, it was approximately true that the ownership of the whole North American continent changed hands. The activities of the war had to be wound down, old debts settled, and the new Industrial Revolution had to be addressed. Deflation was certain as wartime activities were eliminated, but inflation also loomed as a result of new peacetime activities. A whole new government had to be started, a whole new set of rules created. In retrospect, things worked out pretty well, but at the time it seemed like unmanageable catastrophes on all sides. Apparently, Robert Morris decided that the greatest opportunity existed in land speculation, so he concentrated in it as he was winding down many other activities.

His first major land speculation was in a million acres in the Genesee country. He soon tripled the value of this investment; if he had simply retired at that point, he might have retired as one of the richest men in the country. Some personality flaw drove him onward, however, and he soon had acquired four million acres of upstate New York property on which he approximately broke even. He next acquired large tracts of central Pennsylvania along the whole Susquehanna River, offering the Azilium venture to French investors and Northumberland to Joseph Priestley and the Unitarians. Both of these utopian ventures were largely abandoned by the settlers, because of the French reign of terror, and the disaffection of Priestley's English followers. Because he hoped to keep the new National Capital on the Delaware River while struggling with western Pennsylvania interests who wanted to move it to Harrisburg, he invested in thousands of acres of Pennsylvania land around Morrisville, across the river from Trenton. Needless to say, the capital was not moved to Trenton, so after two centuries the land is still sparsely settled.

{Morris Folly}
Morris Folly

Finally, when sales were sluggish, six million acres from Virginia to Georgia were combined into a gigantic real estate trust in order to make the speculation more appealing to smaller investors in large numbers, which accounts for Talleyrand himself buying 100.000 acres, as well as drawing the participation of John Bull, himself. But by 1797 the world began to know that the real estate bubble was in danger, and many related ventures started to fail. In a complicated set of circumstances, it is hard to know which failure was more important than the others, but the general opinion emerges that Morris' main speculative failure was centered on land speculation. It must be mentioned, however, that in 1793 Philadelphia experienced one of several Yellow Fever epidemics, the French, as well as the English, were seizing American vessels and crews, the Whisky Rebellion took place in western Pennsylvania, and that Morris in what must either have been a public relations stunt or else a moment of temporary madness, began construction of a new home for himself in Philadelphia. Located on an entire block between Chestnut and Walnut at 7th Street, it was to be the most ornate private residence in America, with two levels below ground and two above, decorated with imported marble and endless extravagant fixtures. By itself, this house widely known as "Morris' Folly" could not have bankrupted him, but it may well have stripped him of ready cash when short term debts were more pressing than long ones, starting a cascade of forced distress sales at low prices. Furthermore, as though there needed to be a furthermore, tobacco had been the preferred return cargo in the transatlantic munitions trade. Tobacco does not spoil, so when prices were low, Morris often held it off the market to await higher prices. He thus was engaged in wide-spread zero-sum trading, where either you or your counterparty is likely to be cleaned out. That can make for a large accumulation of enemies, quite willing to destroy credit even further with accusations of unfair dealing. The Lee family was certainly in a position to fan the flames of such commercial antagonisms, both among creditors and in Congress. When all is said and done, to ascribe the bankruptcy of Robert Morris to land speculation is not perfectly accurate, but close enough. Particularly if credence is given to his own reflection that, had he quit after the Genesee transaction he could have lived the rest of his life as the richest man in America, land speculation seems a better psychological explanation for his behavior than many other complicated maneuvers, now too obscure to be worth explaining.

David Hartley

Debtors prison now seems like a barbaric and cruel treatment of unpaid debts, but at least in Morris's case, it may not have seemed the worst of it. His entire inventory of personal effects on entering debtors prison on February 16, 1798, included three writing desks, an old Windsor setee, and eight old Windsor chairs, six chests stuffed with papers, a mirror, a trunk of clothes, and a bed. However, he had many visitors, including Gouverneur Morris and George Washington. His debts were twelve million dollars, which he reduced while in prison to three million, so this world-class workaholic was probably relatively happy to concentrate on business affairs. His wife Mary undoubtedly suffered far worse humiliation in her small house on 12th Street while he was confined than he did, busy with his bookkeeping. Although she saw a few friends, she essentially withdrew from society until August 21, 1801, when he was released. Morris himself probably experienced his worst suffering from 1793 to the time he finally surrendered to the sheriff in 1798, a period of five years of uncertainty, gloom, dashed hope and offensive behavior by his 90 creditors. There must have been times when he truly believed he might survive the struggle, and other times when he had to keep up a brave front when he knew in his heart he could never make it. Nevertheless, scraping together nine million dollars while behind bars would be a remarkable achievement today, and certainly an amazing one for 1800. America had no bankruptcy laws at the time, and he managed to persuade Congress to create them for the many victims of the severe financial panic. Even for the vindictive, the provision in the law that release from debtors prison was conditional on a favorable petition from his creditors, made it unlikely that he could persuade 90 creditors to do it. But he did so and walked out a free man. Or rather, he walked out a dejected and humiliated has-been, a zombie creeping the streets. Perhaps that was the worst.

His will.


REFERENCES


The Invention of Air: A Story of Science, Faith, Revolution,and The Birth of America, Steven Johnson ISBN: 978-1-59448-852-8 Amazon

Fort Wilson: Philadelphia 1779

{Privateers}
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.

{Privateers}
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.

{Privateers}
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.

Morris Upended by a Nobody

THE Revolutionary War ended militarily with the Battle of Yorktown in 1781, and diplomatically with the Treaty of Paris in 1783. The careers of Washington and Franklin appeared to be complete, while the economic and financial career of Robert Morris seemed likely to stretch for decades into the future. But as matters actually turned out for these three fast friends, it was Washington who was propelled into a new political career, Franklin soon died, and Morris got himself into a career-ending mess. The financial complexity and economic power of the United States did grow massively in the next several decades, but unfortunately, Robert Morris was soon unable to exert any leadership. At the end of Washington's eight years as President, the power of the Federalists, and particularly the three men most central to it, was coming to a close. John Adams had a tempestuous single term, and then Federalism was all over.

{Robert Morris}
Robert Morris

The end of the Eighteenth century marked the end of The Enlightenment and the beginning of the Industrial Revolution, accompanied by many national revolutions, not just the American one. This was a major turning point for world history. The momentum of these upheavals still continues, but it is clear that the Industrial Revolution of which the Morris banking revolution was an essential part swept the world far faster than the social and political revolution, in which he also played a pivotal role. In the banking and industrial revolution, it is universally agreed that Morris was almost always right. In the social and political world, it is conversely agreed he was quite wrong. Essentially, Morris assumed that a small minority, an aristocracy of some sort, would rule any country. Within weeks of the ratification of the new Constitution, or even somewhat in anticipation of it, America made it clear that replacing an aristocracy of inheritance with an aristocracy of merit would not satisfy the need. Morris, born illegitimate and soon an orphan, was obviously in favor of promotion based on merit. John Adams defined leadership even more narrowly; he said a gentleman was a man who went to college, and he probably meant Harvard. Nobody extended the leadership class to include Indians and slaves, but the backwoodsmen of Appalachia made it clear that power and leadership at least included them. Thomas Jefferson was the visible leader of this expansion of the franchise, but changed his mind several times. James Madison switched sides; Thomas Paine switched in the opposite direction. The leaders of Shay's Rebellion and the Whiskey Rebellion lacked coherence and consistency on this point; instead of agitating for a refined goal, they mostly seemed to be running around looking for a leader. William Findlay, on the other hand, knew what he wanted. The issue might be defined as follows: it was obvious that hereditary aristocracy was too small and too inflexible to suffice, but it was also obvious that every man a king was too inclusive. An expanded leadership class was needed, but its boundaries were indistinct and contentious. But to return to Findlay, who at least had a clear idea of what he wanted.

{William Findlay}
William Findlay

William Findlay was a member representing Western Pennsylvania in the State Legislature, in 1785. It would be difficult to claim any notable accomplishment in his life; he was largely uneducated. The new leadership class must, therefore, include both the uneducated and the mediocre. The Legislature at that time met in the State House, Independence Hall, in Philadelphia, where no doubt the unconventional dress and manners of backwoodsmen did not pass without audible comment. Findlay made his own political goals quite explicit; he was for paper money to facilitate land speculation which could make him rich. Wealth was a goal, but it did not confer distinction. The rights of the Indians, the rights of the descendants of William Penn, the rights of the educated class and the preservation of property were all just obstacles in the way of an ambitious man who had carefully studied the rules. Everybody's vote was as good as everybody else's, and if you shrewdly controlled a majority of them, you could do as you please. If this meat-ax approach had any rational justification, it lay in the essential selfishness of every single member of the Legislature, working as hard as he could to further his own interest. If someone controlled a majority of such votes, then the majority of the public were declaring in favor of the outcome. Those who believed in good government and the public interest were saps; the refinements of education mostly just created hypocritical liars. There was a strain of Calvinism in all this and a very large dose of Adam Smith's hidden hand of the marketplace. If you were rich, it was proof that God loved you, if you were poor, God must not think much of you, or He wouldn't have made you poor. Findlay had the votes and meant to become rich; if his opponents didn't have the votes, they could expect soon to be poor. In this particular case, the vote coming up was a motion to renew the charter of the Bank of North America. Findlay wanted it to die.

{America's first bank, the Bank of Pennsylvania}
America's first bank, the Bank of Pennsylvania

It came down to a personal debate between Findlay, and Robert Morris. Morris had conceived and created America's first bank, the Bank of Pennsylvania. Today it would be called a bond fund, with Morris and a few of his friends put up their own money to act as leverage for loans to run the Revolutionary War. After a short time, it occurred to Morris that the money in a bank could be expanded by accepting interest-bearing public deposits and making small loans at a higher interest rate, which is the way most banks operate today. Accordingly, a new bank called the Bank of North America was chartered to serve this function, which greatly assisted in winning the Revolutionary War. There was no banking act or general law of corporations; each corporation had its individual charter, specifying what it could do and how it would be supervised. When the charter came up for renewal, Findlay saw his chance to kill it. Morris, of course, defended it, pointing out the great value to the nation of promoting commerce and maintaining a stable currency. The reply was immediate. Morris had his own money invested in the bank and only wanted to profit from it at the public expense. His protests about the good of commerce and the public interest in stable money were simply cloaking for this rich man's greed to make more money. Findlay made no secret of his interest in reverting to state-authorized paper money, which could then be used by the well-connected to buy vast lands in Ohio for speculation. There were enough other legislators present who could see welcome advantages, and by a small majority the charter was defeated.

https://www.philadelphia-reflections.com/images/johnhancock.jpg
John Hancock

At this point, Morris made a staggering mistake. After all, he was a simple man of no great background, largely uneducated but fortified by his ascent in society from waterfront apprentice to the highest of social positions, a friend of George Washington and Benjamin Franklin, acclaimed as a financial genius, the man who saved the Revolution, very likely the richest man in America. For many years, he had harbored not the slightest doubt of his personal genius, his absolute honesty, and total dedication to the welfare of his country. To have this reputation and accomplishment sneered at by a worthless backwoodsman, a man who would stoop to using the votes of other backwoodsmen to accomplish self-enrichment, was intolerable. Morris announced and actually did sell out his entire business interest as a merchant, at a moment when he fully understood the new nation was about to enjoy an unprecedented post-war boom. So much for his self-interest. It helps to understand that John Hancock and Henry Laurens had done the same thing in Boston and Charleston, against what we now see as a strange aristocratic tradition of prejudice against bankers and businessmen. In even the few shreds of aristocracy now surviving in Britain and Europe, the tradition persists that a true aristocrat is so independently wealthy that no self-interested temptations can attract him away from purest attention to the public good. The original source of this wealth was the King, who conferred high favor on those who served the nation well. A curious exception was made for wealth in the form of land, the only dependable store of tangible wealth, and transactions in land. Wealth was something which came from God and the King in return for public service. Land ownership was its tangible storage and transfer medium. Otherwise, grubbing around with trade and manufacture was beneath the dignity of a true gentleman.

{Henry Laurens}
Henry Laurens

We now know what was coming. Wealth was soon to be the reward of skill and merit, recognized by fellow citizens in the marketplace, by consensus. Findlay and his friends wholly accepted this conclusion, unfortunately skipping the merit part of it for several decades. In their view, you were entitled to the money if you had the votes. As the nation gradually recognized that rewards must be durable, and once granted were yours to have and to hold, the new nation gradually came to see the need for durable ownership of property. Unless or until the owner places it out at risk in the marketplace, legislative votes may not affect its ownership. Our system ever since has rested on the three pillars of meritorious effort, assessment of value by the free market, and respect for pre-existing property. That's quite a change from the Divine Right of Kings, and therefore quite enough material to keep two political parties agitated for a couple of centuries. And quite enough change to bewilder even so brilliant a victim as Robert Morris.

Capitalism Explained

Capitalism began when the Industrial Revolution began. You have to go back to its beginnings to find a time when pretty much everybody understood the whole process. Capitalism began to get rolling when banks entered the picture, meeting with both creditors and debtors. Robert Morris didn't invent capitalism, he was just the leader in understanding the role of banks.
Like most innovators, Morris took one side of it and got rich. When the predators caught on and sent him to debtor's prison, he realized the bankruptcy laws needed to be changed. When George Wahington visited Morris in the Walnut Street debtors prison, the two of them had the clout to get bankruptcy laws changed. And Morris was released.

Back in those days, banks were rudimentary and Morris was running the country. He realized that banks created money when they made a loan, because two people, the debtor, and the creditor, were able to write checks on the same money. That quirk created an incentive for both sides to make loans and for the banks to make a profit. The banks made the loans, and if the debtor couldn't repay, he went to jail until he did. Shakespere, in the Merchant of Venice, depicted that state of affairs in the Sixteenth Century fairly accurately. By Morris's day, things had progressed from a pound of flesh to debtor's prison, but that didn't help much, because who in the world would borrow money on those terms? So bankruptcy was changed to release the defaulting debtor, upon surrendering all of his personal assets to discharge the debt.

So, now there were two sources of funds for satisfying creditors -- the extra interest debtors paid if their personal assets seemed shaky, and all of their personal assets if that didn't suffice. It was up to the creditor or the bank to investigate how adequately that should suffice, so both sides were taking a risk. My next-door neighbor had the crust at the age of 19 to ask a banker for a loan to start a business, in spite of the fact that he had no personal assets at all. Forty years later, he had a thousand employees and a lot of gratitude to the banker who took a chance on him. So he joined the bank's board of directors at no salary. By contrast, a lot of other debtors were turned down for loans, because the banker wouldn't take a chance on them. They sulked a lot about bankers who wouldn't make a loan unless you didn't need one. Those tears were not always genuine, but sometimes they were, and that's capitalism for you.

Never the less, although the incentives had been improved, they weren't enough to make capitalism boom. People with generous means still wouldn't make loans on the terms of all their personal assets risked, because they had too much to lose. So life insurance flourished, and bonds, where the creditor's loss was limited to the amount of the assets put up as security for the loan. Once again, the creditor was protected against overstatement of the debtor's net worth.

That's about all there is to capitalism, and it seemed to be enough until the government entered the equation with things like student loans and credit default swaps. If we are going to do things like that, we will need an elaborate government credit investigative system, which will raise the resulting interest rate, perhaps to a higher level than the formerly balanced system can sustain.

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}
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.

C7..............Articles of Confederation. Were They Still Adequate?

They got us through the Revolution, but would they get us through the subsequent peace?




Two Friends Create the Articles of Confederation

{Letters of a Pennsylvania Farmer}

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.

{The thirteen colonies}
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.

{Constitutional Convention in 1787}
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.

{The Wealth of Nations in 1776}
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.

We Won, But Now What?

Patrick Henry and many Virginia planters were sure all power corrupts, and indeed there's lots of proof it does. But constant warfare wasn't so good, either; people wanted others to do some governing, but they wanted to know what Federalist had in mind if it wasn't to be a king. Remember, there were no written constitutions, so written description was in order. Patrick Henry wanted you to write, "we will never do very much", but surely that wouldn't satisfy the need. As it turned out, they had from 1783 (Treaty of Paris) until Washington got sick of it in 1787. He wanted to be defended by soldiers who didn't quit, and states that paid their war taxes, because he had seen what happens if you don't have them.

His friend Robert Morris had tried to run a war without the tax part and wanted collectible taxes, too. Patrick Henry and John Dickinson thought that was enough, as long as the states agreed to it. A constitution ought to say so, but what if the states disagreed? Virginia was by far the largest state, and Dickinson wouldn't allow his state to be forever dominated by its larger neighbors. Virginia is no longer so overpowering but California and New York have currently taken its place. And Delaware has (? temporarily ?) become the dominant voice on large corporation disputes. New Jersey once had a plan (written by William Penn) that worked for creditor-debtor relationships but has been superseded, so size is not the dominant reason for leadership, although it has an edge if the smaller states neglect their own ideas. John Dickinson may have had help, but he was a genius in suggesting meritocratic solutions.

Conflict between subordinate jurisdictions was another essential function for the Federal to control. This is perhaps self-evident in the resulting document, but Chief Justices John Marshall and John Roberts were perhaps better placed to specify this part of the unwritten Federal mandate. But aside from national defense, national taxation and conflict between the states, this was about all that survived the ratification process. Patrick Henry got everything else for the states, in a precarious balance which the Federal has gradually eroded in its favor. Whether this is all the Federal government is ever entitled to, or whether it is just a starting lead in an eternal conflict, is a matter of dispute. The balance was once tilted in the Civil War and gradually assumed to be partly true, and can only be finally settled in writing by the Amendment process. That seemed to be the conclusion of the Progressive Party but is otherwise in dispute. Progressively accelerated communication favors unification, but each time it comes up, a fairly simple workaround is found, and state-federal balance is restored. Retaining the overall balance it supplies seems more important to the public than administrative simplicity.

Lawyers seem the best profession to handle such issues, except for their tradition of self-advancement by it. Education may help since at present there are only five national law schools, about half of whose graduates rise above the best interests of their law firms. There are hundreds of state law schools who have many honorable graduates, but too much involvement in the rewards of politics and torts. Under the circumstances, we must rely on adversary process, a thorny path.

Compromise Outside the Borders of a Debate

{Cardinal Mazarin}
Cardinal Mazarin

For example, the north European states, Germans, in particular, must resign themselves to subsidizing the Mediterranean nations for years to come, working a hard work ethic while they watch their wards live an easier one. But it can be accomplished; New England has been subsidizing Mississippi for more than a century, and Appalachia has been fighting the rest of the country's wars for them since 1860. The South was always more feudal, had a more distinct class system, had a culture of upper-class military schools, whereas the North had a background of largely religious reasons for emigrating to the New World. Lincoln, for example, was an ardent Whig, which in those days meant an advocate of helping commerce by the intervention of government. That is essentially a 17th Century French idea, said to originate with Cardinal Mazarin and Jean-Baptiste Colbert. Whether it is useful to continue the same idea for four later centuries is an emotional issue in a class with our own reluctance to change a word of the Constitution. There is even a shadow of present concern that Americans will have so forgotten the lessons of free interstate commerce that they might somehow surrender it for some other blandishment. Certainly, free international trade has its enemies. The abolition of slavery was, of course, an overdue achievement, too, but perhaps our long slog toward equal rights has allowed this second crusade to overshadow the history of what really was the main one. In case anyone feels impelled to start a quarrel about this viewpoint, let me remind him that Quakers started the abolition movement, right here in Philadelphia, and have nothing to apologize about, for maintaining the Union was a more important justification for Civil War that was the abolition of slavery.

{Jean-Baptiste Colbert}
Jean-Baptiste Colbert

With the American Civil War repeatedly reminding us how dangerous it can be for even unified nations to disagree about vital regional issues, it is useful to review such American inter-state friction even closer to the time of unification, namely the repayment of Revolutionary War debts. Here, the American post-unification memories were still about the same as pre-unification. Essentially, only the legal documents had changed very much. Secretary of the Treasury Alexander Hamilton was trying to arrange equitable federal assumption of all thirteen state war debts after Virginia had already paid off its bonds and obviously had thus given up the leverage of refusing to pay them. Virginia at that time was the largest of the component states, and because George Washington was President, Virginia was politically very powerful. But submerged within the now more powerful national government and subject to its rules, Virginians were now in quite a new position. Because Hamilton was trying to establish a good international credit reputation for the new national government, and because he wanted to acquire a creditor's power over all the states, he was anxious for the federal government to assume all state debts. Naturally, Virginians believed they would not have paid off the bonds if they had known this was coming. That's different in this case from knowing the rules before they acted. Imaginative alternatives were limited because the recent war had left no money in any treasury, or even likelihood that foreigners would extend credit. Because the Europeans chose to create monetary union as a step toward political union, the problem confronted European negotiators who were still positioned on behalf of independent sovereign states. The Greek government was skirting close to default on its bonds, whereas in the other case the

The solution reached was to mollify Virginia with a political plum, the location of the Nation's capital named Washington across the Potomac from George Washington's home, potentially directing the flow of Atlantic trade to the Potomac and to Virginia. Philadelphia was intensely displeased, and there are remarkably few statues and mementos to Virginia patriots to be found in that city, even today. However, the political maneuver remains as a classic; when negotiations reach an impasse on some central issue, try to balance the political debt with arrangements which have little to do with the issues at hand. In the case of the European Union, the Greeks have no money and probably can never repay the present bailouts, let alone any extra future indebtedness. Because of the recent international recession, other sources of funds from unrelated nations may well be unavailable. Argentina has recently nationalized a huge Spanish oil developer operating on the Argentine property, so there is a question whether the Spanish banking system is affected in some way that will further strain the Greek default, and thus further drying up sources of European credit. China is beginning to show signs of the Liquidity Trap, where ample funds are available in its banks but no one wishes to borrow money to build facilities, to produce goods, which the Chinese may not be able to sell. So, there are signs available to even the casual observer that it may simply not be possible to find the money to finance another Greek bailout, except to go back to the Germans. Since Adolph Hitler within recent memory had come close to conquering all of Europe militarily, there is understandable reluctance to appeal to Germany to become the rescuer of Europe, financially. The situation thus comes close to crying out for a solution that benefits some rescuer other than Germany, or which benefits Germany in some way that is not monetary. Like it or not, Germany has already rescued East Germany once, Greece at least twice, and can expect several more decades of subsidizing its less provident fellow Europeans. It is getting to be time for the rest of Europe to express its gratitude in some tangible, visible way.

The Articles of Confederation and Perpetual Union (Complete Text)

Between The States of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

ARTICLE I The Stile of this Confederacy shall be "The United States of America".

ARTICLE II Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

ARTICLE III The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

ARTICLE IV The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanors in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

ARTICLE V For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

In determining questions in the United States in Congress assembled, each State shall have one vote.

Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

ARTICLE VI No State, without the consent of the United States in Congress, assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

ARTICLE VII. When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

ARTICLE VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

ARTICLE IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article -- of sending and receiving ambassadors -- entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever -- of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated -- of granting letters of marque and reprisal in times of peace -- appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgement and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgement, which shall in like manner be final and decisive, the judgement or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgement, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, 'well and truly to hear and determine the matter in question, according to the best of his judgement, without favor, affection or hope of reward': provided also, that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated -- establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office -- appointing all officers of the land forces, in the service of the United States, excepting regimental officers -- appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States -- making rules for the government and regulation of the said land and naval forces, and directing their operations.

The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated 'A Committee of the States', and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction -- to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses -- to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted -- to build and equip a navy -- to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed and equipped in the same manner as the quota of each State, unless the legislature of such State shall judge that such extra number cannot be safely spread out in the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

The United States in Congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the United States in Congress assembled.

The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States.

{Articles of Confederation}
Articles of Confederation

ARTICLE X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite.

ARTICLE XI. Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same unless such admission be agreed to by nine States.

ARTICLE XII. All bills of credit emitted, monies borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledge.

ARTICLE XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the legislatures of every State.

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual. In Witness whereof, we have hereunto set our hands in Congress.

DONE at Philadelphia, in the State of Pennsylvania, the 9th day of July, in the Year of our Lord 1778, and in the third year of the independence of America.

The aforesaid articles of Confederation were finally ratified on the first day of March 1781; the state of Maryland having, by their Members in Congress, on that day acceded thereto and completed the fame.

The Decision of Trenton (1782) Under the Articles of Confederation

{Trenton Makes the World Takes}
Trenton Makes the World Takes

AS the American Revolution drew to an end, the time arrived to settle the inter-state grievance of Pennsylvania and Connecticut over King Charles II's ambiguity about who owned Pennsylvania's Wyoming Valley, including the city of Wilkes-Barre. However, if they were all going to be United States citizens, it didn't matter much whether the residents of Wilkes-Barre (as it was now known) were governed by the laws of Connecticut or Pennsylvania. But bloody grievances die hard, and slowly. The genteel debates envisioned by the Articles of Confederation were not equal to settling blood feuds, but they tried. The two states selected judges to represent them, in a negotiated settlement which took place on neutral ground, Trenton, New Jersey. After protracted testimony and prolonged secret deliberation, the judges emerged with a very brief and unexplained decision: The Wyoming Valley belongs to Pennsylvania. Period.

Almost every scholar of this subject is convinced that the unwritten decision contained two other provisions. Connecticut was given a piece of Ohio, Western Reserve. And the Pennsylvania representatives privately assured the group that the Pennsylvania Legislature would in time recognize the land titles of the Connecticut settlers who were actually resident on Pennsylvania land. Unfortunately, it is hard if not impossible to enforce an agreement that is secret, and the Connecticut claim to Ohio was eventually eliminated, while the Pennsylvania promise to recognize the land titles of people whose ancestors killed our ancestors, was much delayed, watered down, and resented.

Northwest Ordinance of July 13, 1787: Articles of Confederation at their Best

COMING across the term "Northwest Territory" for the first time, modern students can easily confuse it with the states of Washington and Oregon, more precisely called the Pacific Northwest, thousands of miles to the west. The United States acquired this more eastern Territory from the British -- bounded on the south by the Ohio and Mississippi Rivers below Canada, and West of the Appalachian Mountains -- at the second Treaty of Paris which ended the Revolutionary War in 1783. Before that, the British had acquired it from the French at the first Treaty of Paris, ending the French and Indian War in 1763. Until the Louisiana Purchase in 1803, this land really was the Northwestern tip of American possession, even though it is less than half-way between the Atlantic and Pacific Oceans. It was occupied by Indian tribes who much preferred dealing with wandering British fur traders, to the new threat of permanent occupation by American settler families. In part, bloody warfare with the Shawnee Indians under Tecumseh did somewhat justify the reluctance of the British to give up their chain of forts in Indian Territory friendly to them, but rapid immigration to America from Europe after the end of the war soon generated great westward pressure for settlers to move there. In general, these new immigrants were neither military veterans nor experienced woodsmen and suffered several large massacres from Indians whose homelands were threatened. The Northwest Territory was a dangerous place for unseasoned settlers at the end of the Eighteenth century.

After the French and Indian War.

Consequently, it required four years for the new Republic to decide how to handle this sudden expansion of territory it must govern. The question of excluding slavery had already come up, along with the puzzle of managing the masses of raw European immigrants as they encountered and outraged the native Indians. Furthermore, a military alliance, which is what the Articles of Confederation amounted to, is an awkward vehicle for governing an expanding frontier wilderness, especially while it was experimenting with new forms of governance. For one thing, joint ownership by thirteen sovereignties seemed almost certain to tempt one or two of them to take it all over, provoking interstate war and possibly endless disputes between former friends. Most observers in retrospect regard the Northwest Ordinance of the Confederation Congress to be a sensible and workable product, which happened to be just about the last major act of that political body. The Constitutional Convention overlapped it.

Before the French and Indian War.

The Ordinance under the Articles of Confederation was ratified on July 13, 1787, whereas the Constitutional Convention was in session from May 14 to September 17, 1787. No doubt a smooth transition between the two was under discussion, although the Confederation Congress was an itinerant body, always struggling to produce a quorum and a place to meet. Judging from their behavior after the Constitution was ratified, some undefined proportion of the Confederation Congress may have continued to harbor States Rights resentments at being displaced by a new nationalist government. At the very least, it would only be natural for some of the Congress to be offended that Washington failed to endorse them for the Constitutional Convention. Following that, the advocates of Constitutional ratification were then fairly careless in denouncing the inadequacy of the Articles by citing the failures of the Confederation Congress as examples of it.

The Northwest Ordinance provided for a military government until a civilian one could establish itself. Conquering armies are quite accustomed to the rough uncertainties of keeping a hostile territory subdued while a declared enemy is relentlessly dealt with under a different set of rules. The Congress (soon amended to substitute the President) was to appoint temporary governors and panels of judges. A provisional civilian government was added as soon as five thousand male settlers (each owning fifty acres of land) were resident, and that provisional government was to help devise a state constitution and set of laws as soon as sixty thousand such settlers were resident. The Ordinance allowed the territory to be divided between three to five states, but the borders of five states were laid out from the start. At first, this discordance between laying out the inflexible boundaries for five states, and at the same time allowing for a variable number of states, seems careless to later generations. But the Congress had no idea how fast different states would fill with settlers but assumed it was likely it would fill from East to West. They thus laid out the ghost outlines of five states within the territory, detaching statehoods as the minimum population filled them up.

A carefully planned, three-step progression (from the military, to provisional, to statehood) turned out to be an excellent expedient for managing other new states created by an expanding frontier throughout the Nineteenth century. Those who today complain that the bicameral Legislative branch is implausible, are not merely disregarding the vital need at the Constitutional Convention for a compromise between the large and small states in a Union of three big with ten small. They must also recognize that the frontier would probably expand by acquiring lightly inhabited land and breaking it up into states, followed by immigration from the edges. Many states were destined to begin with small populations, and grow to have big ones. To maintain strict adherence to population limits for new states would probably result in peculiarly-shaped, but densely populated, states on the edges, possibly in large numbers, along with endless quarrels about suspected gerrymandering of the Senate. It may not be an accident that Elbridge Gerry, the namesake of Gerrymandering, was on the committee devising this Ordnance. The U.S. Senate has long been proud of its immunity to gerrymandering, contrasted with the evils the process regularly imposes on the House of Representatives. The Great Compromise of a bicameral legislature, giving equal Senate power to many small states, but House of Representative power to a few big ones, was only weeks from being struck; there may be some connection, here. Although the balance continually shifts, the generalization is still true that America is a Union of a few big states and many small ones. Seemingly, the election rules are not likely to change substantially. Eliminating the Electoral College, much grumbled by the big states is thus also, forever unlikely.

{Constitutional Convention}
The Varsity Comes Onto the Field

It seems useful to point out the practical utility of defining citizens who "live" in a district, as being those who probably own land there. The Northwest Territory was a vast expanse of wilderness, much of which soon become the most valuable farmland in the world, with topsoil two feet thick. The rules of this land rush were that it was to be governed by Federal troops until there were five thousand male settlers, presumably the minimum sufficient to defend against hostile Indians. However, the assumption of political power, along with its ability to set the rules, offered a temptation to find ways of making the number unreasonably easy to reach or temporarily composed of a particular political group. Demanding that eligible citizens must each own a liveable plot of farmland probably seemed wise precaution against carpet-bag "voters" being temporarily imported for the voting. A similar provision was soon included in the Constitution, although that is often held up by partisan writers as proof of aristocratic leanings among the Constitutional Framers. With land selling for fifteen cents an acre, it seems more likely it was a practical test of genuine residence, the Eighteenth century equivalent of presenting a driver's license as identification at the polling booth. In both instances, those suspected of impersonating local voters pretend to the great offense at the voicing of any suspicion of it.

The Northwest Territory eventually became Ohio, Indiana, Illinois, Michigan, and Wisconsin, plus a part of Minnesota. The dynamics of migration took unexpected turns. Although Ohio was the seventeenth state, admitted in 1803, Wisconsin was the thirtieth, waiting until 1848 for admission to statehood. For a while, a settlement was more rapidly toward the South, and near the region of the Louisiana Purchase. The Northwest Ordinance was in force without major amendment for almost fifty years.

Part of its durability can be traced to the prohibition of slavery in the Northwest Territory. The existing Southern states were remarkably peaceful about agreeing to slavery prohibition, a reaction said to arise from tobacco growing southern states indifferent to competition to their main crop, from areas with presumably higher labor costs. When the main crop soon turned from tobacco to cotton, the anti-competitive argument apparently had less force. One cannot contemplate the horrendous impending casualties of the Civil War without wondering if massaging of the competition argument might have been put to more imaginative use during the forty-year interval of free soil agitations. Unfortunately, since politicians did not appreciate the price they were about to pay for a policy of drift, they obstructed the (probably) much smaller costs of facing the issue sooner.

Articles of Confederation: Flaws

DURING the twenty-five years (1776-1801) government was in Philadelphia, Americans who had rebelled against tight royal rule uncovered many defects in its opposite -- a loose association of states. Loose associations only preserve fairness by operating with unanimous consent, which is, of course, unfair to a thwarted majority, unless a dissenting minority thwarts itself as a gesture of kindness. The Founding Fathers ultimately devised a formula of weakening power by dividing it into layers -- national, state, county, municipal -- and seeking to confine minority dissent to the weakest political unit. Persuasion and peer pressure were given time to work up the ladder of appeal to a wider, more powerful body of citizens. Bottom upward by choice; top-down only in desperation. Furthermore, persuasion first, force as last resort. An implicit third safety valve emerged: if a good idea is smothered by a local concentration of bigotry, appealing to a wider population includes being heard by more viewpoints. No one claims to have authored this whole prescription or foreseen its hidden benefits; it apparently evolved by trial and error. There was another latent discovery for America's sparse population in a hostile wilderness: maintaining harmony was more essential than efficiency. It would be hard to consolidate more Quakerly concepts of governance in one document. Not exactly assembled, it emerged and was admired. The local Quaker merchants were living proof that harmony made riches for anyone, while force only works against weaker people. George Washington the cavalier general came to Philadelphia and gave it a softly Virginian twist, over and over: Honesty is the best policy. It seems to have originated in one of Aesop's Fables.

{top quote}
It is not necessary that the [Constitution] should be perfect; it is sufficient that [the Articles of Confederation are] more imperfect. {bottom quote}
James Madison

Recently examined documentation reveals James Madison, the main theoretician of the closed-door Constitutional Convention, to have been severely contemptuous of state legislatures at this time in his life, and rather severely defeated by John Dickinson in a political quarrel in mid-convention about the powers of small states. From this fragile evidence emerges the idea that in balancing the powers of state and national governments in the "federal" system, it may have been someone else's idea that the greater freedom to move out of an offending state into a more favorable one, would appreciably restrain state legislative abuses. Even with this feature built into the system with the national government to enforce it, Madison is said to have been in a state of depression that the Convention refused to agree to his idea of giving Congress veto power over state laws. It took some time for improved transportation to strengthen this competition between states, but it may not be an accident that Delaware now leads the way in responding to the implicit opportunity.

Philosophy and history are different. The Framers gradually acknowledged a patched charter of tribal allegiance was insufficient and thus adjusted to the idea of a central government. They tweaked a decentralized model of governance to get the states out of the road, without antagonizing them so much they would not ratify it. Although it is commonplace to say the Articles of Confederation were a weak failure, the Articles did reflect American attitudes at the beginning of our formative period. The Constitution would not have been acceptable if the Articles of Confederation had not first been given a trial. By the end of the 1787 Philadelphia negotiation, the nature of the final proposal was to define a few absolutely minimum powers for a national government, identify a few other powers as destructive when in the hands of any other level of government, and leave a vast undefined area: where new and novel problems would be tried out in the states, then passed to a national level if necessary. Anticipating constant mid-course corrections was an important objective for even a minimalist Constitution, not the least of those challenges was to create ways to keep it minimalist. Simplicity itself keeps it hard to change. Starting at the bottom of the layers of government continues to this day to introduce new and unexpected problems to the "laboratory of the states" or even lower, working upward only as proven necessary, or spread nationally only after the solution is highly successful. It is a legacy of slavery, the Civil War, and direct election of Senators (Amendment XVII) that many Americans still fail to welcome the merits of this approach, or lack the patience to try it for their pet ideas. Considering the Articles of Confederation and the Constitution as two documents with continuous goals, we got it right, the second time.

And we got it right in the environment of Eighteenth-century Quaker Philadelphia, where a tolerant examination of new ideas was more venerated than in any other place in the civilized world. With a combination of wisdom and impasse, minor issues were left to the future. It is true this sometimes creates problems of neglect. But it makes it possible to define those few issues which must never change. An unexpected virtue of minimalism surfaced eighty years later: many men understood it well enough to die for it.

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Edwin Corwin's
"John Marshall and the Constitution"

Much has been written about the separation and balance of powers between the three branches of the federal government. However, the real balance of power in the Constitution in 1787 was vertical, between the central government and the constituent states. Balancing power horizontally, within the central government's branches, is a way of preventing one side of this other argument from tilting the state/federal balance in its own favor, or slowing down the effect of any victories by one side. In other words, it preserved citizen liberty to choose. From this continuing two-dimensional struggle emerges the explanation for filibusters, the seniority system, the confirmation process for Supreme Court and Cabinet appointments. It also calls into question the Seventeenth Amendment, where the state legislatures lost the power to appoint U.S. Senators. In 1786 the states had all the power, in 2009 state power is much diminished; but it is not entirely gone by any means. It is true the cry for states rights, essentially an appeal to the Deity for Justice is futile. If states are to wrest power back from the federal government, it will be by the adroit exercise of powers buried within the balanced powers of the federal branches, but it can succeed if the public ever wants it to succeed. The Framers seem to have overlooked the possibility that federal power could someday outgrow its blood supply, simply growing too big to manage. It is also true the Framers neglected the possibility of a protracted period of disagreement between two halves of the electorate. At least in these particulars, there is room for the further evolution of the Constitutional principle.

While features of the present Constitution can sometimes be linked to the correction of flaws in the Articles, one by one amendment never seemed to be quite enough. Subsequent analysis of Original Intent has often had to contend with the unspoken intent of earlier negotiators to strengthen partisan advantage in later struggles. The political battles being fought at the beginning, which except for slavery are substantially the same today, were sometimes being promoted for reasons which now seem merely quaint. Fine, everyone can agree it was complex. Still, there was a recurring uneasiness: what was the underlying flaw in the Articles? What, as they say, is the take-home point?

One widely accepted summary, probably a correct one, of what was centrally wrong with the Articles of Confederation, lies in a concise observation, which follows, from Edward S. Corwin's book John Marshall and the Constitution:

"The vital defect of the system of government provided by the soon obsolete Articles of Confederation lay in the fact that it operated not upon the individual citizens of the United States but upon the States in their corporate capacities. As a consequence, the prescribed duties of any law passed by Congress in pursuance of powers derived from the Articles of Confederation could not be enforced."

And that's how many Revolutionary Americans, possibly most of them, had wanted to have it. They were in revolt against all strong government, not just the King of England. They surely would have applauded Lord Acton's declaration that "All power tends to corrupt, and absolute power corrupts absolutely." Thirteen years of near-anarchy taught them they must at least give some limited powers to a central government, but it was to be no more than absolutely necessary. For some, the Ulster Scots, in particular, even the absolutely minimum amount was still just a bit too much. In effect, these objectors wanted a democracy, not a republic.

To deconstruct Professor Corwin's analysis somewhat, the equality-driven followers of Thomas Jefferson believed the insurmountable obstacle for uniting sovereign states is that they are sovereign, and won't give it up. The merit-driven followers of Alexander Hamilton, Robert Morris, and George Washington bitterly resisted; in business and in war you need the best leaders to rise to power. The function of common men is to select the best among themselves to be leaders. Only James Madison seems to have grasped that ideal government might tend more toward a republic for purposes of the enumerated federal powers plus enumerated powers specifically denied to the states. For lesser issues, perhaps a purer democracy would be just as workable. However, in operation, it took scarcely a year to discover that the common man would not automatically select the best man he knew to be his representative. In fact, there exists a considerable populist sentiment, that wealth and success outside government are actually disqualifications for office. To some extent, this reverse social Darwinism is grounded in an unwillingness of the upper class to serve in government, perhaps because service to the country interferes with the lifestyle of unrestrained power and wealth which other occupations allow, but is forbidden to public servants. In any event, we persist in the fruitless argument whether America is a democracy or a republic; it was designed to be a mixture of both. Within the time of the first presidency, the unattractive realities of mixing human nature with elective politics transformed the meanings of the Constitutional document to something that was never written there, and other nations have largely failed to grasp. It apparently also worked a major transformation in its main author. James Madison first quarreled with his ally, Alexander Hamilton, and joined forces with the Constitution-doubter Thomas Jefferson. His mentor and idol, George Washington, essentially never spoke to him again.

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States rights no longer confronts America directly, because the Founding Fathers managed to get around it until the Civil War, and then the Fourteenth Amendment enabled the federal judiciary to attenuate state sovereignty somewhat further without eliminating the architecture of a federation of states. In other words, in two main steps we deprived the states of some sovereignty, but no more than absolutely necessary, and we took more than a century to do it. The European Union currently faces the same obstacle; this is how we solved it. If they can get the same result in some other peaceful way, good luck to them. Our framers used the language "Congress may...or Congress may not..." They only dared to strip state legislature of a few powers because they needed the legislatures to ratify the Constitution, a gun you can only fire once. Thus, they forbade states the right to issue paper money, the power to interfere in private contracts, and such, as enumerated in Article I, Section X, where the operative phrase is "The states are forbidden to..". The framers were willing to strip the unformed Congress of many more specific powers than the all-too-existing states; the Constitution can be read as a proclamation of the powers which any central government simply must possess. There might be other desirable powers, but here is the minimum. After eighty years, individual Southern states asserted their unlimited powers extended to nullification and secession, and because of a perceived need to preserve slavery would not back down. The Constitutional consequence of this national tragedy was the Due Process section of the Fourteenth Amendment, which has since been purported by the Supreme Court to mean that whatever the federal government may not do, the states may not do, either. However, Due Process traces back to the Magna Carta and has been so tormented by an interpretation that for the purpose stated, it is growing somewhat too elusive to remain useful. For historical reasons, we never gave a fair trial to the original proposal to address the federal/state dilemma. The Constitutional Convention was held in confidence, many delegates changed their minds along the way, and many ideas were more perceived than enunciated. It is plausible that the original strategy originated with Madison's teachers and emerged from many discussions, but there were several delegates in attendance with the sophistication to originate it. In a convention of egotists, there were even a few who would put their ideas in someone else's mouth.

The concept of how to curtail power in a non-violent way, can be called Regulatory Competition. Mitt Romney seemingly plans to promote the idea as a central feature of his political run for President of the United States, using a variant he has developed with Glenn Hubbard, the Dean of the Columbia University School of Business. The idea does still work reasonably well with state taxes and corporate regulation. If a state raises a tax, estate tax for example, in a burdensome way, people will flee to a state with more reasonable taxation. Corporations have learned how to shift legal headquarters to Delaware and other states which court them, and in really desperate cases will move factories or whole businesses. There is little doubt this discipline is effective, and little doubt that some cities and states have been punished severely for encouraging an anti-business environment. Whether the Fourteenth Amendment could be cleverly amended to expand this competitive effect without reintroducing segregation or the like, has not been seriously considered, but perhaps it should be. There are however not too many alternatives to consider.

As far as advising our European friends is concerned, it would be important to point out that the original version of Regulatory Competition completely depends for its effectiveness on the freedom to flee to some other state within the union. A common language is a big help to unity, but the ability to move residence is essential, so for practical purposes, both a common language and freedom of migration are required. Underlying such concessions is a sense of tolerance of cultural differences. That is unfortunately where most such proposed unions have either resorted to violence or failed to unite. And of course, the power which might otherwise be abused must then be shifted from the federal, back to a state level. What surfaces is a sort of one-way street? It remains far easier to devolve into little statelets than to unite for the benefits of scale. A working majority under the likes of Thomas Jefferson might have been assembled in the Nineteenth century but was held back by coping with the expanding frontier. During the Twentieth century, it would have been held back by the need to deal with world power. The Second Tea Party seems to have some inclination along these lines, but it remains to be seen whether some overwhelming need for world power will once more overcome the obvious national ambivalence about it.

The revised proposal for the regulatory competition takes the proposal to a different level, possibly a more workable one. Workers in the United States can freely move from one state to another but are restrained by national laws from equally free movement between nations. Removing that barrier makes the European Union attractive, although it inflames local nationalism. Since it seems more palatable to allow the currency to move, perhaps a little tinkering would be sufficient to permit uniform monetary rules to be the hammer which forces nations into permitting free trade on a global scale. The people themselves can remain at home in their national costumes, perhaps perfecting their religions in more churches and language skills in more schools. Meanwhile, the insight of Adam Smith would prevail for the long-term prosperity of everyone. Each party in a transaction feels enriched by it, the seller preferring to have the money, and the buyer preferring to own the goods. Multiplied a trillion-fold, these improvements in everyone's condition result in the steady enrichment of all.

Confederation Problems: Great, Small, and Unaddressed

The Articles were hastily put together to avoid describing the Continental Army as rebels. They served as a simple loose way to fight a revolution when we weren't unanimous about fighting for permanent Independence. Over time we tended more toward Independence, but it always was far from unanimous. There were those who fled to Canada and the South. How would returning Tories feel about it? For Thomas Jefferson, it was Independence from Great Britain all right, but was it to be like England, or like France?

Old Articles (of Confederation) for Old Europe

SEVERAL years ago, I attended a public meeting at the Federal Reserve, surrounded by well-dressed strangers. At a contentious moment in the discussion, the man next to me rose and announced he was the Finance Minister of a large European nation and had a prediction to make. Within twenty years, he believed, there would only be three economically functioning nations in the world: America, India, and China. Since he was sitting next to me, I asked him the obvious question: what about Europe, what about Japan? He shrugged me off as if the question was too stupid to answer. As things have turned out, maybe it was.

Those Troublesome Lees of Virginia

{Richard Henry Lee}
Richard Henry Lee

SOMETHING useful can, of course, be learned from a man's friends, but descriptions given by his enemies are usually briefer. The Lee family of Westmoreland County Virginia were bitter enemies of Robert Morris the Financier of the Revolution, and they surely said some unfair things about him. Morris paid as little attention to the Lees as possible, but for generations, the Lees had been neighbors of the Washingtons, and so could not be completely brushed aside. Furthermore, they were close to the center of Thomas Jefferson's anti-Federalist party. So insights into the Lee family probably illuminate the main disputes before, during, and after the Revolution. They even illuminate the mixed character of George Washington, who was sometimes unusual by Virginia standards. Nevertheless, the Lees had the same quality of heedless idealism to be found in Samuel Adams of Massachusetts and Patrick Henry of Virginia which goes beyond the ability of two-feet-on-the-ground revolutionaries like Robert Morris and Benjamin Franklin to understand, or even abide; this conflict runs throughout the history of the American founding. It seemed to baffle even those who switched positions, like James Madison going in a leftish direction, and Thomas Paine, going toward the right. So, although reckless idealism cannot be an inborn character, it must quickly acquire very deep roots.

{Arthur Lee}
Arthur Lee

Arthur Lee and his brothers William and Richard Henry Lee of Virginia, were passionate rebels of the Patrick Henry ("Give me liberty or give me death") sort, intermittently reviving lifelong attacks on Robert Morris. Highborn Tidewater aristocrats, they were ancestors of Virginia's revered General Robert E. Lee. Arthur had even attended Eton College and later studied medicine in England. The Lee brothers started attacking Robert Morris well before his famous abstention from the critical 1776 vote on independence. It's much too easy to shrug the Lees off as landed aristocrats who disdained self-made men, or as passionate Jacobins who hated self-made rich people, or maybe just narrow-minded nuts. Out of their often inaccurate attacks emerges an outline of what a lot of other people thought about Robert Morris. Many of these polar mind-sets outline the main divisions of political strife in America right up to the present. For present purposes, let's try to understand why Morris might risk his substantial fortune in underground smuggling before the war, and then dedicate his huge energies to winning the war -- while at the same time, not only refuse to agree to the Declaration of Independence (he did finally sign it in August 1776), but speak out in public opposition to independence. What explains Morris' apparent double-talk?

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The explanation I choose to accept is that Robert Morris' real feelings were too sophisticated for this particular crisis, reaching clearer expression in his later activities promoting the Articles of Confederation and its revision the United States Constitution. A man given to terse one-liners, Morris said in December 1775 that he joined his fellow Americans in striving for "Constitutional Liberty" but could not join them in promoting independence.

Morris was never explicit about what would achieve Liberty without Independence; perhaps something like the independent Irish parliament which English Whigs then supported, or the Scottish local parliament which exists today, was in his mind. Both of them link a single King to a commonwealth. At the time, no one was interested in the political philosophy of a shipping merchant.

But today we are in a position to see no member nation of the British Commonwealth has a written constitution; written constitutions are a comparatively recent innovation and not necessarily an essential one. The American Constitution today continues to argue about original intent and living documents, so it is still possible to prefer the wisdom of a benign King to written constitutions. The British goal seems to be to infuse overarching principles of government so deeply into citizen minds that such principles overwhelm any written commandments, however vague all that may sound to outsiders who prefer to niggle over documents. Not in America, of course, because an immigrant nation like ours cannot grow cultural roots sufficiently deep in a few generations, and must have written rules. Great Britain's recent difficulties with immigrants from the Commonwealth may well reassert the limits of unwritten constitutions; constant questioning of the written American constitution by more recent immigrant groups may become a part of the British life, too.

The Articles of Confederation were written by the eminent lawyer John Dickinson, said to be the man closest to sharing Robert Morris' political philosophy. However, for five years the Articles were unratified, and Morris began to believe this lack of ratification was the reason the states were so resistant to taxation. So Dickinson gets credit for writing the Articles, but Morris must be seen as their father. Believing the lack of federal taxation was the main difficulty, and blaming the unratified Articles as the reason for it, our businessman man-of-action pushed them through. Unfortunately, with the Articles it didn't work because the taxation problem still remained, so Morris turned his immense energies toward replacing the Articles with something which would work. It does not twist American history a great deal to believe that Robert Morris, Jr. was one of the main driving forces behind both the Articles of Confederation and the Constitution of the United States. He was neither a lawyer nor a political scientist and therefore was quite indifferent to who got credit for the documents. As Ronald Reagan was to discover two centuries later, that's one of the best ways to get anything done.

Morris could read; he knew the Articles didn't endorse Federal taxation. But he was apparently convinced an unwritten constitution always contains the latitude to do what simply has to be done; anything else amounts to shooting yourself in the foot. After the Battle of Trenton, when Morris became President of the United States for three months in everything except name, he still blamed his troubles on the inability to levy taxes, which in turn was due to failure of the states to ratify those Articles. So sensible a man as John Dickinson would never assume overly strict interpretation was intended; obviously, a state must confiscate private property when otherwise it cannot survive. After five years of state inaction, Morris abruptly pushed the Articles through to ratification. But he was wrong, it didn't help. When he finally grasped that the explicit limitations on taxation were intentional, intended to override any implicit power in the Articles whatever, he promptly threw his weight behind John Jay, George Washington, and James Madison to support a new Constitutional Convention setting it right, especially the national government's ability to levy taxes. Since Washington had by then become his best friend, who actually lived next door in Morris' Market Street house for years, there is not much paper trail of this interaction between these old friends. Once he got his tax mandate at the Convention, however, Morris had hardly anything further to say. His frenetic later activity immediately after the Constitution was enacted can almost surely be attributed to lifelong habits of a negotiator, avoiding mention of anything which might distract from his main goal, in this case of ratifying the Congressional right to levy federal taxes, but not abandoning subordinate goals for a moment. What the Lees hated about Morris, therefore, cannot be easily explained, but certainly, one feature of it was his ability to hold his cards face-down. The Lees didn't hold their cards, they flourished them. In their eyes, no gentleman would do anything else.

The incidents of June 1776 place the Lees in a more favorable light if they are seen as urging instinctive decisions by popular mandate, essentially favoring an unwritten British Constitutional arrangement. The Lees believed the place of a gentleman was at the head of a troop, daring the rest to follow their lead. The British had blockaded Boston, passed the Prohibitory Acts, fought naval battles in the Delaware River in May of that year. A huge British fleet had landed in New York harbor, and the agitated colonists were about to declare war. At the very moment of crisis, that rich Philadelphia merchant had refused to vote for independence. The Virginia tobacco planters were dancing a war dance in a city known for its pacifist Quakers, while their neighbor George Washington was conducting an actual war with the British. It was then revealed that Robert Morris had been participating in a gunpowder smuggling operation known as the Secret Committee, and Morris had made considerable profits from it. While many of his friends defended Morris, it was pretty easy to go wild with indignation about trusting him to sit on a secret espionage committee, unwatched. The very least that could be done was to appoint Arthur Lee, already a member of the Continental Congress, to that Secret Committee to sound the alarm if anything looked funny. The ironic fact seems to be that Morris and the Lees were passionately committed to the same unwritten approach to government, primarily based on trust in personal character, otherwise defined as fidelity to an unwritten tribal code. If you are the right sort of person, you will be with us; if you are not with us, you must not be the right sort of person. Unfortunately, a nation of immigrants may not survive if it adopts too many such notions.

The Lees had expressed disruptive views of Morris in the past, but they were exactly the sort of clan likely to confront scoundrels whenever facts called for it, and sometimes even when they didn't. The underlying conflicts, fiercely advocating both a strong centralized government and a loose decentralized one but not defining either, continue to run through American politics until the present. Whether Morris ever acknowledged it or not, he ended up on the side of defined contracts, as opposed to a Code of Honor. But he spent his life as a man of his word because in business your word is your bond; if you are any good, you won't need to cheat. If our Tower of Compromises is to endure, its limits of such agreement must be few, but they must somehow be strictly understood.

Advantages and Disadvantages of Being a Small Country

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very pleasant

LIVING in a small country seems to be very pleasant, and many people prefer it to the hustle, bustle and high taxes of living in a large country. Unfortunately, big neighbors are tempted to conquer and enslave you. Aside from this one disadvantage, many people would prefer a simple, quiet life among blood relatives, all tending to think the same way. It's one step above tribalism, and maybe it's a form of peaceful tribalism.

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Measles

But our evolutionary ancestors didn't think they could afford this luxury. They lived in a strange wilderness filled with fierce aborigines who often took a notion to scalp you, even if you were willing to become a hunter-gatherer like them, because they scalped other hunter-gatherers, too. And they were good at making war. Later historians sometimes contend that European settlers only gained a foothold in the New World because the Indians had been weakened by smallpox, measles, and other contagions which advanced ahead of the exploring Europeans. English settlers along the Atlantic coast were able to overcome the Dutch and Swedes who preceded them, but the French in Quebec and the Spanish in Florida were a greater threat. Worst of all enemies were the rulers of England, who seemed to think it was natural to enjoy the benefits of the New World without the nuisance of living there. A century or more of conflict from the enemies who surrounded them had pretty well convinced the English Atlantic settlers that they simply had to get bigger and stronger. Otherwise, one of the many enemies surrounding them would eventually succeed in what seemed to be a universal goal: conquest.

{The summer of 1787}
The summer of 1787

The colonists had learned one other thing. Their own loose federation of small peaceful states was in some ways worse than rule by an outside King. The Confederation had been constantly reluctant to surrender local power to a unified defense; almost by definition, an invader was better disciplined than the defenders of a loose tribal alliance. The defense alliance had few advantages for keeping local bickering under control and was definitely less effective with families and children to protect against a mobile force of adult male warriors. The Confederation barely held together during an eight-year war against a common enemy, and it was rapidly coming apart after peace was declared in 1783. The English and French could see all this, too. Once they settled their own war with each other, each of them planned to envelop the former colonies. So George Washington and James Madison gathered the Best and the Brightest together in Philadelphia in the summer of 1787, intending to construct a practical plan for what almost all the colonists wanted: a Union. A Union strong and big enough so other nations would leave them alone. A Union was benign enough so its citizens would enjoy the same Liberty they had as a loose alliance. Divided informally into four interest groups, each of the four needed concessions to be made. But each also needed to leave the other three feelings they had gained something important as the price of surrendering to what some other group could not do without. Having found the vital concessions, it was then still necessary to tinker and re-balance, so that everyone could still "live with it". In essence: 1) The South had to be given time and forbearance to work out its difficult problem of slavery, moral qualms notwithstanding. 2) The nine small states had to be protected against perpetual domination by the three big ones, of Virginia, Pennsylvania, and Massachusetts. 3) If America was to realize the full advantage of growing from thirteen states to fifty, existing old states must not take advantage of new ones. 4) Political revolution was not the end of it; there was also the Industrial Revolution. Fishing, lumbering, farming, trade, and cotton, would in some way need to accommodate banking and manufacturing, assisting rather than upsetting other compromises. Given these tangled issues, it would be a long, hot summer in Philadelphia.

https://www.philadelphia-reflections.com/images/treaty_of_westphalia.jpg
Treaty of Westphalia in 1648

Three of the four main problems were obvious, demanding to be addressed. Slavery was obvious from the start; you either solved this problem or the South would walk out. The western wilderness was bigger than existing America; it too could not be ignored. And finally, huge variations of climate and resources led to local specialization; a marvelous thing, if you could trust your suppliers and customers to cooperate. But curiously, none of these issues got directly to the political problem the Constitutional Convention was meant to solve, which was unifying thirteen different sovereignties, each of which was prepared to get up and walk out. The modern nation state was created by the Treaty of Westphalia in 1648; its guiding principle was mutual respect for local sovereignty. Having pacified over a hundred contentious central European states, it required a great deal of self-assurance for anyone to flout it. It seemed hard to imagine any way to remain sovereign, without commanding a vote equal to that of other sovereignties. The delegates from the State of Delaware, which had separated from Pennsylvania within the past decade, were "prohibited [by their legislature] from changing the Article in Confederation establishing an equality of votes among the States". Just what agitated the minds of the Legislature of Rhode Island was kept private, but something about a Union bothered them so much they refused to send delegates to Philadelphia even to discuss Union. After they assembled and started having dinner together at taverns, and later as they were beginning to vote in coalitions, one thing began to emerge. The small states banded together, hung out together, talked alike, and began to vote alike. Their emerging leader was John Dickinson of Delaware, the author of the Articles of Confederation, and very likely one of the prime agitators in the lower three counties of Pennsylvania -- breaking off from Pennsylvania and becoming the State of Delaware. Furthermore, Dickinson had been Governor of both Delaware and Pennsylvania, so he was very familiar with the deplorable behavior of the Legislature of Pennsylvania, now and for decades in the past. It took a long time for this sly old political operator to show his cards, but when he did, he gave James Madison the shock of his life. Madison, the near neighbor of George Washington and leader of the Virginia delegation, the author of the Virginia Plan, and the clear authority on the politics of government in America was busily consumed with working out the details of the emerging Constitution. Obviously, it went to his head a little, and so he was dumbfounded when Dickinson drew him aside in the corridor to tell him he wasn't going to have a Constitution at all. Dickinson was walking around with the votes in his pocket of five or six of the nine small states and was telling Madison that the small states were fed up, and not going along. Young Madison was suddenly confronted by the most respected lawyer in America, whose timing was perfect. For what may have been the first time in his life, Dickinson fully revealed the depth of his annoyance, that the big states would always take the little ones for granted. That the little ones were always expected to be deferential to the big fellows in charge of the big states. And then the clincher: "I would rather risk conquest from a foreign state than being forever dominated by my larger neighbors." That put it in a nutshell. If the only reason for joining a Union was to be protected from foreigners, Dickinson wasn't so sure he preferred his coalition partners. Evidently, this was the feeling of most of the other small states at the Convention, and it may well be the feeling of all small states, anywhere and everywhere.

{Promoting the Abolition of Slavery}
Promoting the Abolition of Slavery

Once the Convention got the idea, solving it became comparatively easy, but why waste an opportunity? There is a good reason to suppose it was Ben Franklin, silent as a cat watching a mouse, who matched it up with slavery. His fellow Pennsylvania delegate, James Wilson, had prepared the way by starting the discussion of granting 3/5 representation for slaves, but it had received comparatively little notice in the previous few weeks. Franklin rammed it home, adding a sop to the large states by according to the House of Representative sole power to introduce money legislation. Two of the main issues of the convention were solved with one agreement, small-state representation, and slavery. Who can say how long he had been nursing this idea. He had agreed to be president of the Pennsylvania Society for Promoting the Abolition of Slavery, about a month before the Constitutional Convention began. Prior to that, he and his wife had owned a slave or two, for many years. On June 2, the society adopted a resolution to end the slave trade and presented it to Dr. Franklin, asking him to present it to the Convention. He never did, explaining later it was "advisable" to let the matter lie over. In August, Alexander Hamilton blocked a similar resolution from the New York Manumission Society, even though he had been a fervent lifelong opponent of slavery.

Geographical Troubles Underlying Small Nation Unificatons

One of the basics of nations is, for the most part, their boundaries were geographical in origin. They follow rivers, mountain ranges, deserts, etc., and consequently are dissimilar in size. Just about the closest to boundaries-by-instrument are those of the United States of America, and those were so dissimilar in size they started all this discussion. At America's Constitutional Convention (in Independence Hall of Philadelphia in 1787) John Dickinson pulled James Madison aside and asked him, "Do you want a country or don't you?", and then demonstrated he had the votes from the smaller states in his pocket. It is fairly reliably told that Ben Franklin invited everyone to dinner at the City Tavern, there unveiling his proposal to give all states two senators in the upper house of the Legislative branch. The analogy to the House of Lords was clear enough for ratification of the proposal, even though Franklin himself had reservations. When asked by Mrs. Powell what they had produced, he famously replied, "A Republic, Ma'am. If you can keep it."

The demonstration was clear; nations accustomed to total sovereignty are fiercely reluctant to accept less than equal power when they attempt to join. No matter how persuasive "One man, one vote" may sound, it is fair to observe that adherence to such doctrine caused both the League of Nations and the United Nations to fail. To insist on a similar arrangement in the European Union for a third time, was utter folly. The powerful large states were so certain to reject unification rather than face further wars; they must have had other reasons.

A nation may be as large as Russia or as small as Luxembourg or Singapore; a large country may be as dense as India, a small one may be as sparsely populated as Bhutan. Nations are collections of people, and population density surely makes some difference, whether caused by mountain valleys or famines. It is not clear that similarities of inhabitants are much related to population density, but constitutional conventions are infrequent events whose effect may seem to subside between political events. One is reminded of the several languages of little Switzerland, and its several religions, as well as the uniformity of these features in China or Latin America. Apparently, these human variations require some sort of augmentation, because there are numerous examples of important Civil Wars and resistances to unification traceable to them. It's hard to say why human influences are so variable, but it is possible to imagine the important human issue is satisfaction with the present state of governance, compared with that of neighbors.

There are enough exceptions to any rule to suggest caution in advancing any universal new constitution while suggesting more praise for our own for being alone in surviving two centuries. The longer it lasts, the more we must applaud its survival, and the more we must attend to its flexibility and brevity. And the more we must urge our courts to examine the careful wording of its penman, Gouverneur Morris.

Sorting of blogs can be found in TOPICS. Since blogs are what is sorted, an individual blog does not provide an option to sort.

C10.....Ratification

{William Bingham class=}
Alexander Hamilton

Although the Constitution could officially have been declared ratified when nine states had agreed to it, New York and Virginia were such important hold-outs that the new nation would almost certainly fail without them. Alexander Hamilton and John Jay, both of the authors of the Federalist Papers , threatened to have NewYork City succeed if the whole state would not ratify it. Such was their power and prestige, that New York ratification soon followed.

Reference: 8500/14

Sources of Revolutionary Populism

{Founding Fathers}
Founding Fathers

Those who now look back at the Founding Fathers often fail to account for the aging process during the eleven years between the Declaration of Independence in 1776 to the Constitutional Convention of 1787. The two events took place in the same building, Independence Hall, and many participants of the Convention were fellow Revolutionary War veterans. But there was originally a great social difference between a colonial leader and a teen-aged soldier at the beginning of this period, which tended to seem blurred by the experiences of the war. Someone who fought and was wounded as a common soldier might later grow into the dignity of a former war hero, but underneath this veneer was a very different experience from an early leader of the colonial rebellion, or after the onset of serious hostilities, an older man who seemed eligible to be a Revolutionary officer. The original generation of rebels conspired to restore proper British rights for individual colonies, while the teenager who fought in the Continental Army under his idol George Washington saw himself as fighting for the freedoms of individuals, living in a new nation.

What emerged were two generations of Founding Fathers, one of which was generally an officer fighting for the right of his state to be fairly represented, the other a young common soldier, fighting for the individual right of free speech. One wanted to protect his colonial region's religion, the other wanted the freedom to choose his own religion. Both of them felt entitled to say how things were to be run, but young men eventually become older men. No better example of aging's transformation of attitudes could be found than the life of John Marshall. This teenaged wounded veteran of the Battle of Trenton evolved into Chief Justice of the Supreme Court, the author of a multi-volume biography of George Washington, and almost the last man standing who could be called a Federalist. Other teenaged soldiers took different paths in life.

History belongs to the victor, so it is also important to recollect that almost a third of the colonists had been Tories. In general, the upper crust of society tended to be more loyalist. Thousands of Loyalists fled to Canada, and thousands more fought on the British side. When General Clinton abandoned the occupation of Philadelphia, three thousand Loyalists accompanied him. The loss of these more educated and wealthier citizens and the lowered public profiles of those who remained in America skimmed off a considerable portion of the natural leadership of the colonies. Those young men who were left behind were victors, often exhilarated to discover that if they did not lead, no one would lead.

The embodiment of these population shifts was to be found in state governments with unicameral legislatures, popular election of judges, and weak executives -- all of which have since been repudiated by experience, but all of which reflect a distrust of leaders. Partly this might be attributed to lack of experience, greater reliance on collective government by the herd instinct, the recklessness of youth, and fear that power will eventually return to the hands of those who are educated to handle it. The hostility of the lower classes to those who are better off has many causes, but in this situation, it was promoted by unexpected elevation to leadership, combined with a subsequent determination not to lose power again -- balanced against the rather strong possibility that they would. Add to this the continued influx of immigrants fleeing from foreign oppression, and it is not surprising that the result is an enduring strain of populism stirring up a latent tendency to class warfare. You, too, can be President; but you must fight if you expect to succeed. The former aristocratic attitude was that you are born to rule, as long as you don't do something stupid.


REFERENCES


The Great Courses: History of the United States, 2nd Edition Course #8500: Lecture 14 Creating the Constitution: Aurthor: Allen C. Guelzo: ISBN: 156585763-1 The Great Courses

Appealing the Constitution to a Higher Authority

{Privateers}
Justice Robert H. Jackson

According to Justice Robert H. Jackson, "We" (The Supreme Court) "are not final because we are infallible, we are infallible because we are final." Scoop Jackson was the last Justice who never went to college or graduated from Law School, so his viewpoint concentrated on the practical outcome of a situation. In fact, the father of our constitution, James Madison, was learned in the history of many constitutions, and was well aware of allusions to divinity in the construction of our governing document, particularly when the sources of strong beliefs couldn't be grounded in evidence. However,the Age of Enlightenment was highly religious, so they gave credit to divine guidance when they really were imitating the Legal profession.The lawyer's system of progressive appeal to a hgher court of appeals was a very clever adaptation of recognition that most problems are pretty simple andcan be handled without much training.The Constitution is an attempt to reconcile our culture to the needs of government and the revelations of controversy. Composed by Enlightenment rationalists within a highly religious environment, the Founding Fathers were careful to use the metaphors of Religion, even though many were personally skeptics about the substance. Indeed, the Penman of the Constitution who ultimately wrote most of the words was Gouverneur Morris, a flagrant libertine. It had been the tradition of Constitutions to describe their culture by allusion to epic poems, drawing inferences about Right and Wrong from what had subsequently happened to ancient heroes after similar situations unfolded. Some would put the plays of Shakspere in that role in 1787, but the evidence is stronger for Roman writers, like Cato and Cicero. In my own view, this leap of faith was only divine in the sense it was a one-way street. A citizen might try to emulate the ancients, but appealing back to them was not likely to work.

Although the Constitution can be viewed as bridging a gap between Culture and Common Law, or perhaps as placing a guardhouse between them, this relationship is not spelled out and therefore, in theory, might be changed. Other cultures, perhaps the native Indian, or the Catholic Church of Central Europe, might be substituted, or other legal structures resembling the Napoleonic Code might serve on the opposite side of the bridge. These substitutions were a legal possibility, but there is little doubt the American leadership intended for an Anglo-Saxon culture, linked with Francis Bacon's legal system, to prevail under a distinctively American flag. Because of our debt to France for then-recent assistance, there was once the possibility of French coloration to our culture, but the excesses of the French Revolution soon ruled that out. Some modern observers have capsulized the scene: First, we got the British to help throw out the French in 1754; and then in 1776, we got the French to help us throw the British out. Both our allies thought we played their game, but we were playing our own. The new Constitution specified no laws, but with little doubt the Framers intended the states to adopt British Common Law without the infelicity of saying so.

{Privateers}
Bill of Rights

And then there is the Bill of Rights. Madison had great faith in the ability of structure (separation of powers, term limits, etc.) to command predictable outcomes, and initially resisted any need for a Bill of Rights. But the Ratification Conventions in the states showed him the need to yield. The First Congress soon enough confronted over a hundred proposed rights in petitions from the states, especially the four big ones. If anyone else had been in Madison's position, our Bill of Rights would resemble the European one today, fifty pages long and growing. That outcome would have greatly weakened the Legislative branch since after protests about Mother Nature subside, the legal fact emerges that Rights are merely laws which no majority can overturn. They might even be characterized as a contrivance for transient majorities to promote the permanence of their viewpoint.

{Privateers}
The Founding Fathers

But they are not the only contrivance in politics. Enshrinement of the Founding Fathers elevated their political positions into near divinity, whereas debunking the Founders personally undermines their symbolism as statues and myths. There was too much of this during the romance period of the Nineteenth century, but also in von Ranke's later marginalization of History into mere scholarship and footnotes, which was a reaction to it. The Founding Fathers themselves now supplant Achilles and Cincinnatus in our lexicon, and we have little choice but to accord more weight to their original intent in the Constitution, than to contemporary reasonings. Indeed, we are forced to acknowledge more similarity between George Washington's fictitious cherry tree than to his relations with Peggy Fairfax, when we interpret his thundering "Honesty is the best policy" in the second inaugural address. It is admittedly a difficult choice, but Justices now need to consider what his audience widely believed was his original intent, more than what later archeological discoveries uncover. Justice Scalia is correct in placing more weight on the original intent of the Founding Fathers than contemporary reactions to the same words. But in occasional conflicts between myth and reality, it seems safer to consider what the audience then widely believed, than what modern audiences would guess at.

Republics and Modern America

As Others See Us

Americans are rightly proud of their Constitution, an achievement no one seems able to match. It's rude to point it out, but some Americans are just a little condescending about Europe's protracted examination of a federal union, and the World's plain inability to design a United Nations Charter that everyone can warm to.

{Charles de Gaulle}
Charles de Gaulle

But just a minute, look at the centuries of history we have compiled. After eighty years, the American union broke apart in the bloodiest war in our history, proportional to the population at the time. After another century it was safe to suppose we were past that episode, at least mostly.

And if you were an elected representative of one of the European states, charged with assuring a fair result for your constituents, you would have to warn them of something America seems to demonstrate. The new federal government at first had to be deferential to the various states, in order to persuade them to ratify the document. It wasn't an easy sell, and a promise had to be made and reiterated that every single power being surrendered was absolutely necessary for the common welfare of all. And it was necessary to repeat the promise in the Tenth Amendment, that nothing more was being given, nothing up our sleeve. The Eleventh Amendment which followed soon afterward could even be described as a test of sincerity. The states demanded something they really should have been ashamed to ask for, but it was given to them as a demonstration who was still boss. The Federalist party soon broke apart, and had to become craven, only persisting in the assertion of powers it was absolutely clear states needed to give up.

But soon after that, the federal government has never ceased to nibble away at the cheese. Step by step, gradually but relentlessly, power has shifted from state capitals to the District of Columbia. It is now possible to say without serious contradiction that state legislatures really don't have much to do of any importance. Is that the lesson European officials are learning from our history?

Maybe not, but Charles de Gaulle once made a wisecrack suggesting another answer. He wanted to go to Heaven, he said. He really did. But he was definitely in no hurry to get there.

Adjusting Government Finances with Immigration

Wars, religious conflicts and natural disasters provoke mass emigrations. When emigrants choose a place to go to, they primarily focus on economic betterment. It's true they like to settle among people of the same language and culture, but it must be pointed out that during the first half of the Twentieth century the quotas for Great Britain were frequently unfilled. This sort of observation leads to the conclusion that American immigrants have mostly been poor, and come from poor countries. The first generation clings together in cultural havens, their descendants are motivated to learn to assimilate, to become as rich as the earlier settlers seem to be. The prisons tend to fill with recent immigrants, but the victims of their crimes tend to be other members of their immigrant communities. The pattern has been repeatedly observed in successive waves of different ethnicities. There is always a wave of initial friction; every group seems to get over it, eventually.

In America during the Nineteenth century, there was a frontier to welcome newcomers. Usually, the first immigrants are single males, so the advancing frontier was a scene of disorder and special attitudes; after women came along to the frontier, things got quieter, but the unattached rowdy males moved onward. According to Frederick Jackson Turner who started the idea, the frontier finally closed at the beginning of the Twentieth century, provoking the cultural upheaval we now call the Progressive Era. In modern Europe, the frontier had long been gone before European integration began its present upsurge, except for the extensive devastation areas caused by World War II. To whatever extent the Frontier Concept eased American resettlement, under-inhabitation is not now an important factor in Europe. Nor is agriculture nearly so important as it once was. The family farm was a nice isolated little unit, able to preserve the cherished traditions, but now an immigrant mostly starts out as a busboy waiter, surrounded by the urban bustle. And urban temptations. Assimilation is greatly eased by television; an observant immigrant can learn things we wish he wouldn't, but many immigrants have learned English, bent over an ironing board in the family kitchen. The assimilation of immigrants is certainly quicker than it was, but it is not necessarily much easier.

{Welfare State}
Welfare State

But by far the greatest social difference between 18th Century immigrant America and Twenty-first Century cross-immigrant Europe, is the set of attitudes and expectations variously called Socialism, or the Welfare State. All of the uproars and crossness associated with the Welfare state are threatening to get much worse, on both continents, because the inciting factors are getting worse. They would be: the astonishing improvement in longevity, and the massive avoidance of the topic until it has almost, we hope not definitely, reached a point where it can destroy the economic system. As a reminder, life expectancy at birth in 1900 was age 47 and now is at least thirty years longer. This incredible benefit to mankind crept up on us through two world wars and many smaller ones, plus several sickening genocides on several continents, but every year it kept getting better, or worse depending on how you view it. Newsmagazines are now confidently predicting it will go to age 100 in a few decades. The problem masquerades as a Social Security problem, or a disability problem, or a health cost problem, or a pension fund problem. But it's all the same problem: we got thirty years of extra retirement time, without making adequate provision to pay for it. Some of us provided for it privately, many made no provision at all. Governments generally pretended to make provision for it, but actually made it much worse with short-term fixes. Our elected representatives "kicked the can down the road."

{ERISA}
ERISA

What is true for individuals is also true of nations. The Germans, badly disconcerted by the hyper-inflation of the 1920s, almost developed a national psychosis about frugality, hard work, savings for the future, and the avoidance of inflation. Unfortunately, they had also developed a hatred for war. That's a good thing, but it is not the same as recognizing the need for frugality, when a whole nation convinces itself that avoiding war will provide the funds to pay for a thirty-year vacation, following a few decades of efficient work on a short work week. It will allow the German nation to enjoy a longer retirement period than, say, the Greeks. But it may not stretch to a full thirty years, even for them. Or even for us Americans. We work long hours with less vacation time, but we retire too early, and we are too extravagant with wars, infrastructure, bailouts, improvement of the poor, and unlimited immigration of more poor people. Our pension funds were started on a collision course by the passage of ERISA, the appalling accounting standards of which are only now becoming evident after forty years. The adequacy of the accounting methods was based on the return on assets, with no connection to the pension liabilities, they were supposed to pay for, with no mark-to-market readjustments, no investment benchmarks, inadequate inflation adjustments, and a definition of risk based on volatility of asset prices -- a total irrelevance in this situation. The trustees of these pensions are provided no asset portfolios to examine, no readjustment for changes in the workforce composition, and no running comparison between each year's assets and each year's adjusted liabilities. Even the term "Liability" does not cover what is owed. Only the large corporations which dumped these defined benefit plans can feel comfortable that the company can survive a serious accounting of future pension costs.

Because we are getting well off from our announced topic, this is enough about off-the-books accounting for retirements which have grown much longer than originally contemplated. The point here is that European countries are hoping to merge twenty-seven nations, each of whom has a different version of this symphony. If a nation can afford to give its citizens twenty years of retirement, it is still not willing to sacrifice for another nation which can only give its citizens five years of retirement, because it is own frugal elderly are facing ten years of destitution, nevertheless. Are they expected to increase the ten years they cannot afford--to fifteen years of destitution, in order to help another nation that is even worse off? The common reading of human nature is that they will instead prefer to assess the other nation as shiftless and lazy and shrug their shoulders.

Grandpa Makes a Gift

A point which cannot be emphasized enough is that a Health Savings Account is just about the best way to invest, if you have given little thought to investing. The deposits are tax-deductible, and the withdrawals are tax-free if they are medical in nature. Even if they aren't medical, they can be anything at all after you reach 66. You probably ought to give a lot of thought and investigation to the particular agent you choose, because they aren't necessarily legal fiduciaries, no matter how friendly they may be. They have no obligation like a doctor or lawyer to put the client's interest ahead of their own, and they can later hire partners you don't care for, so make certain you can terminate the arrangement and switch to someone else without penalty.

Be careful to choose a representative carefully. But whether to choose an HSA, at any age and stage of advancement, always leads to the same answer: Yes, do it. That being the case, a certain number of HSA owners will find themselves with an account they don't know what to do with. There's almost always an exit strategy, although you may need professional advice to judge which one is best for you.

If you started your account near or after retirement, you may have the idea you will never have surplus funds. But if Congress can be persuaded to make it legal, one of your options might be to roll the surplus over to a grandchild or grandchild-like person. If this suits your situation, please notice that a newborn child has some special medical problems. In the first place, the first year of life is unusually expensive; in the aggregate, 3% of all medical expenses are spent on the first year of someone's life. To anticipate a little, 8% of health cost are spent before age 21, which is generally held to be the beginning of the earning period. Children are generally pretty robust, but when a child is sick, he is vulnerable to lasting disabilities of a very expensive sort, so you don't like to see a family cut corners on child care.

But newborns have no earning power, their future is in someone else's hands. The average woman has 2.1 children today, two women thus have 4.2. Four grandparents roughly have one apiece. The way the law of averages is working out, if every grandparent took care of the health costs of one grandchild, things would be close to solved. Things would have to be adjusted for the non-average case, but they would be close to being solved by adding one grandchild's cost to each average Medicare cost for the elderly.

In this case, however, the legal and political problems are greater than the financial ones, so it would suffice for a beginning, just to permit those who want to volunteer, to be permitted to leave unused leftovers in their HSA to children under the age of 21. If there is concern about dynasties and perpetuities, it might be left to the child's HSA, to be exhausted by age 21, or transferred to the HSA of a second child. The sum in question might be around $8000.

How Does New Jersey State Aid Affect School Districts?

The Sunday, April 11, 2010 Philadelphia Inquirer contained an eighteen-page statistical summary of the schools within the eight-county area around Philadelphia. The New Jersey school districts, but not the Pennsylvania ones, report per-pupil spending right next to the proportion contributed by a state government. If you know something about the sociology of New Jersey, you form some conclusions about state school aid which probably apply to all states, while confessing they only provably apply to New Jersey. Let's therefore say, it only provably applies to New Jersey that you spend more on schools if you are spending someone else's money.

In the welter of numbers supplied by this statistical report, it seems useful to focus on the strip of school districts along Haddon Avenue, starting from the place where the retreating British soldiers once ferried from Philadelphia to Camden (in 1778, of course.) Haddon Avenue extends directly East until it strikes King's Highway, where the British then turned North to scuttle toward the safety of their navy at New Brunswick. We are thus talking about the school districts of Camden, Collingswood, Haddon Township, Haddonfield and Cherry Hill, with Haddon Heights and Pemberton thrown in because of special features they illustrate.

{Privateers}

Pemberton Township in Burlington County spends the largest amount of per-pupil school money in South Jersey, $18,970. It jumps right out at you that 82% of that money is contributed to the school district by the state government. Starting back at the Delaware River, 99% nonwhite Camden gets 88% of its school money from the state and has the second-highest spending of $16,131 per pupil. Moving along the path of the British soldiers, the next town after Camden on Haddon Avenue in Collingswood, spending $14,262. Next comes Haddon Township, spending $13,243. It thus seems to prove that the further you get from the Delaware River, the less you spend on education, because next in order comes Haddonfield, with spending of $12,273. But not quite, because Cherry Hill increases a little to $12, 914. The percentage of state funds follows a parallel sequence from Collingswood to Haddonfield (36%, 31%, 6%) and then rises slightly to 11% in Cherry Hill. For comparison, nearby Haddon Heights spends $13,449, of which 10% derives from a state government. And just in case you think there is a racial implication, nearby Gloucester City is 84% white, and gets 82% of the $16,046 it spends on schools, from the rest of the state by way of state contributions. However, these numbers also allow you to calculate how much the local districts spent of their own money. It turns out it is just the reverse. The more state aid a district gets, the less it spends, itself. The more state aid it gets, the more it spends, period.

The conclusion seems to emerge that an education assistance program designed to achieve equality, actually stimulates appreciably more spending in poor districts than in prosperous ones; at least so far, poor educational quality in poor districts is acknowledged to remain poor. There are some people who might say these statistics suggest a racial correlation, but some others could say the correlation is with distance from Philadelphia, while others would associate factors undisplayed in the statistics. Because there are more non-teachers than teachers employed by the schools, it is not certain that extra money going to schools will improve the teaching. Nevertheless, what is not demonstrated at all is a tendency for better education to be found where school money is most liberally applied. At least, it is safe to say that anyone who claims the quality of education parallels these spending patterns in New Jersey, would be laughed at.

{Privateers}
Robin Hood

Of course, it is true that prevailing opinions about the local quality of education are as biased as the opinions about the local football teams, or the differing quality of tomato pies. That's partly because the prevailing opinion of the school system has a strong effect on local real estate values, one of the main concerns of real estate agents. My neighborhood in Haddonfield is very close and sociable, so it's been confided that three empty-nest neighbors have sold their Haddonfield houses and moved to Haddon Heights to save money on taxes. When people make decisions like that, they generally know what they are doing. Available data, however, can be misleading to others because total school spending including subsidies does not reflect local property taxes, while local spending does. Empty-nesters are also very likely downsizing to less expensive homes, where of course the taxes seem lower and are also moving to districts which have fewer children per house. Where that isn't the case in the school districts from which they flee, subsidies are extracted from state income and sales taxes, which move from district to district, right along with empty-nesters who move. For those with children attending public schools, emphasis in these considerations is somewhat different.

The voters have no idea how "equal" became "more" money for education. A fair conjecture would be that the poorer districts kept pressing the legislature for more as a matter of "fairness", leaving the more prosperous districts to shout "outrage", but less effectively. By voting down a majority of local school budgets both groups are shouting, all right, although it would be more effective to shout at their representatives in Trenton. Especially in a census year, when gerrymandering is on every agenda.

Stress Tests for the European Union

{Dr. Ronald J. Granieri}
Dr. Ronald J. Granieri

Dr. Ronald J. Granieri of the office of Secretary of Defense recently spoke to the Right Angle Club about recent threats to the unification of Western Europe. One of his more striking points was that the 1989 collapse of the Soviet Union ending the Cold War, may have unintentionally thwarted the plans for a European Union. The Iron Curtain running from the Baltic to the Black Sea had served as an Eastern boundary for European dreams. When the curtain suddenly disappeared, the European Union was flooded with applications for membership from the recently liberated, formerly Communist-dominated, Eastern Bloc. It was understandable why these countries would wish to get away from Russia, and equally understandable that Russia would be annoyed. But bedazzling expansion was quite unexpected by the European Founding Fathers, who were having enough trouble without doubling their number with weak economies. If Napoleon or Bismarck or some other empire-builder had been in charge at that time, Europe would either have been expanded by brute force, or its borders slammed shut with brute force. But in the clutch, no one was thinking big. Acquiring twenty new nations was an undreamed-for opportunity, but a technical headache for academic theorists. It called for bold action at a time when bold actors were not in charge.

Although it hurts European pride to admit they were following the American model, most of the problems they were encountering were the same problems our own Founding Fathers encountered in 1789. There were two main differences, however, one of which had been written into our Constitution. The other went largely unnoticed. The written difference was we had a bicameral legislative branch, designed to address the issue of voting rights straddling three big states and nine little ones. Pennsylvania had already gone through a dispute over the unicameral Pennsylvania Legislature, which proved to have so much power it unbalanced the three-branch system of government. Consequently, the Philadelphia Constitutional Convention, held in that same building, was already uneasy about unicameral legislatures. It was John Dickinson the delegate from little Delaware, who went to James Madison (of Virginia, then the largest state) and told him bluntly that if Virginia persisted in demanding a unicameral Congress with representatives elected by population size, well, there just wasn't going to be any Union. The three big states refused to participate in any one-state, one-vote, system, while the nine small states wouldn't submit to large-state domination by population size. Either voting by state or voting by population would inevitably result in one side winning every hotly contested vote in a unicameral legislature. So, we had solved our problem by having two legislative houses, one of each kind, and agreeing that legislation would only proceed if both houses were in agreement. What made any legislation possible under these terms, was the informal system of "logrolling", in which informal agreements on seemingly unrelated matters would compensate the loser branch of government, and the states they represented. Since in modern Europe, any group of ten or twenty states in a union would surely have memberships of unequal size, bicameral legislatures seem to Americans to be a perfectly sensible arrangement, so get on with it. The insistence by the League of Nations and the United Nations for one-vote, one-nation arrangements, is a major reason the United States never permitted these supranational forums to have much power.

{Iron Curtain}
Iron Curtain

It's an unspoken truth however, that other nations do not see it our way. That's partly because the German and other parliaments going all the way back to the Roman Senate had established a unicameral tradition in Europe. The other main but unwritten cause of Constitutional differences between the two continents is that we had been surrounded by thousands of miles of ocean, and never had to consider the danger that external and internal enemies would join forces to frustrate our decisions. It is true that many attempts were made to do just this, but they were immediately recognized and easily quashed in the past. As long as the Iron Curtain was operational, Europe thought it might have such ocean-like protection as well, but events in 1989 swept that idea away. With a large addition of formerly hostile states, some members were occasionally bound to join forces with Russia or China, even though they were nominally loyal citizens of the EU. Traitorous behavior had long been an underlying cause of splinter parties and brutal suppression, but that was when Communists were thought by everyone to be agents of a hostile foreign power. With the end of the Cold War, they might become misguided local citizens exercising freedom of speech, claiming a right to argue for behavior which would have formerly been denounced as traitorous. Nations harboring few such inclinations soon became cautious about joining a government with nations who had a great many of them. Citizens of recently enslaved nations were particularly resistant to soothing arguments about unity. It must be confessed that the example of our own Civil War lends force to this feeling of what might happen.

{Baltic and Black Seas}
Baltic and Black Seas

It may be claiming too much to describe the fall of the Iron Curtain, as the major reason for the decline of interest in forming a political union in Europe. That decline did occur and was replaced by the rather weak stratagem of leaving unified government to another time. In its place appeared a strategy of economic unification, hoping the benefits to everyone would become so apparent that unified nationhood would follow. A substrate emerged, narrowing it to a unified currency, the Euro. Bankers and other financial experts argued that such unification would be fairly simple and effective. And so it proved until the same difficulty appeared in a different form. The design of the Euro Currency Zone had apparently underestimated the problems of a foreign currency operating together with the Euro, and variants of Gresham's Law surfaced. Small nation members like Iceland and Cyprus found their small banking systems could not cope with huge inflows of flight money, escaping to tax havens within the Eurozone. As well, underdeveloped member nations actually romanced non-member capital to relocate to their shores. Since local currency is ultimately supported by the full faith and credit of the nation, local banks and economies cannot easily deny equal protections to foreign capital, except temporarily while exchange controls are applied. But when a sufficiently small nation is thus forced to guarantee a sufficiently large amount of foreign money, local banks and markets will be destined to crash. If, in addition, the member nations are deprived of the ability to devalue their currency as the Eurozone could, some type of informal arrangement for a two-value currency had to be devised unless more prosperous members like Germany were willing to subsidize the money flows. When two currencies of unequal value circulate together, said John Gresham to Queen Elizabeth I, the more valuable one will quickly disappear.

Evo-Devo

{The Franklin Institute of Philadelphia}
The Franklin Institute of Philadelphia

THE oldest annual awards for scientific achievement, probably the oldest in the world, are the gold medals awarded by the Franklin Institute of Philadelphia for the past 188 years. Nobel Prizes are more famous because they give more money, but that in a way involves another Philadelphia neighborhood achievement, because Nobel's investment managers have run up their remarkable investment record while operating out of Wilmington, Delaware. In the past century, one unspoken goal of the Franklin Institute has been to select winners who will later win a Nobel Prize, the actual outcome more than a hundred times. That likelihood is one of the attractions of winning the Philadelphia prize, but in recent years some Nobel awards have acquired the reputation of being politicized particularly the Peace and Literature prizes. Insiders at the Franklin are positively fierce about avoiding that, so the Franklin Institute prizes have become known for recognizing talent, not merely fame.

{Dr. Sean Carroll}
Dr. Jan Gordon, Dr. Sean Caroll, and Dr. Cliff Tabin

Within Philadelphia, the annual awards ceremony is one of the four top social events. The building will seat 800, but reservations are normally all sold out before invitations are even put in the mail. A major source of this recent success is clear; in the past twenty-five years, the packed audience is a star in the crown of Dr. Janice Taylor Gordon. This year, she hurried back from a bird-watching trip in Cuba, just in time to busy herself in the ceremonies where she sponsored Dr. Sean Carroll of the Howard Hughes Foundation and the University of Wisconsin, for the Benjamin Franklin medal in the life sciences. Carroll's normal activities are split between awarding $80 million a year of Hughes money for improving pre-college education from offices in Bethesda, Maryland, and directing activities of the Department of Genetics in Madison, Wisconsin. His prize this year has relatively little to do with either job; it's for revolutionizing our way of thinking about evolution and its underlying question, of how genes control body development in the animal kingdom. Evolution and Development are academic terms, familiarly shortened to Evo-Devo.

{Dr. Carroll Butteries}
Dr. Carroll's Butterflies

My former medical school classmate Joshua Lederberg, also a resident of Philadelphia, was responsible for modern genetics, demonstrating linkages between the DNA of a cell, and the production of a particular body protein. For a time it looked as though we might confidently say, one gene, one protein, explains most of the biochemistry. In the exuberance of the scientific community, it even looked as though deciphering the genetic code of 25,000 human genes might explain all inherited diseases, and maybe most diseases had an inherited component if you took note of inherited weaknesses and disease susceptibilities. But that turned out to be pretty over-optimistic. Lederberg got into an unfortunate scientific dispute with French scientists about bacterial mating and now appears to have been wrong about it. But the most severe blow to the one gene, one protein explanation of disease came after the NIH spent a billion dollars on a crash program to map out the entire human genetic code. Unfortunately, only a few rare diseases were explained that way, at most perhaps 2%. Furthermore, all the members of the animal kingdom turned out to have pretty much the same genes. Not just monkeys and apes, but sponges and worms were wildly different in outward appearance, but substantially carried the same genes. Even fossils seem to show this has been the case for fifty million years. Obviously, animal genes have slowly been added and slowly deleted over the ages, but in the main, the DNA (deoxynucleic acid) complex has remained about the same during modest changes in evolution. Quite obviously, understanding the genome required some major additions to the theory's logic.

In late 1996, three scientists met in Philadelphia for a brain-storming session. Sean Carroll had demonstrated that mutations and perhaps an evolution of the wing patterns of butterflies and insects took place during their embryonic development, and seemed to be controlled by the unexplored proteins between active genes. Perhaps, he conjectured, the same was true of the whole animal kingdom. Gathered in the Joseph Leidy laboratory of the University of Pennsylvania, the three scientists from different fields proposed writing a paper about the idea, suggesting how scientists might explore proving it in the difficult circumstances of nine-month human pregnancies, in dinosaurs, in deep-sea fish and many remote corners of the animal kingdom. Filling yellow legal pads with their notes, the paleontologist (fossil expert) Neal Shubin of the University of Pennsylvania, genetic biologist (Sean Carroll of Wisconsin), and Harvard geneticist Cliff Tabin worked out a scientific paper to describe what was known and what had to be learned. The central theme, suggested by Carroll, was that evolution probably takes place in the neighboring regulatory material which controls the stage of life early in the development of the fetus, and these regulatory proteins consist of otherwise inactive residual remnants of ancient animals from which the modern species had evolved. As the fetus unfolds from a fertilized egg into a little baby, its outward form resembles fish, reptiles, etc. And hence we get the little embryonic dance of ancient forms morphing into modern ones. In deference to the skeptics, it would have to be admitted that the physical resemblance to adult forms of the ancient animals is a trifle vague.

{Haeckel's drawings of vertebrate embryos, from 1874}
Haeckel's drawings of vertebrate embryos, from 1874

Embryologists have long argued about Ernst Haeckel's incantation that "Ontology recapitulates phylogeny", which is a fancified way of saying approximately the same thing. Darwin's conclusion was more measured than Haeckel's and explanations of the phenomenon had been sidelined for almost two centuries. But it seems to be somewhat true that fossils which paleontologists have been discovering, going back to dinosaurs and beyond, do mimic the stages of embryonic development up to that particular level of evolution, and might even use the same genetic mechanism. The genetic mechanism might evolve, leaving a trail behind of how it got to its then-latest stage. Borrowing the "Cis" prefix ("neighboring") from chemistry, these genetic ghosts have become known as Cis-regulatory proteins as the evidence accumulates of their nature and composition. Growing from the original three scientists huddled in Shubin's Leidy Laboratories in 1996, academic laboratories by the many dozens soon branched out, dispatching paleontologists to collect fossils in the Arctic, post-doctoral trainees to collect weird little animals from the deserts of China, and the caves of Mexico, everywhere confirming Carroll's basic idea. Even certain forms of one-celled animals which occasionally form clumps of multi-celled animals have been examined and found to be responding to a protein produced by neighboring bacteria which induces them to clump -- quite possibly the way multi-cellular life began. Many forms of mutant fish were extracted from caves to study how and why they developed hereditary blindness; the patterns of markings on the wings of butterflies were puzzled over, and the markings on obscure hummingbirds. The kids in the laboratory are now having all the fun with foreign travel, while the original trio finds themselves spending a lot of time approving travel vouchers. Many fossils of animals long extinct have been studied for their evolution from one shape to another, especially in their necks, wings, and legs. Some pretty exciting new theories emerged, and are getting pretty well accepted in the scientific world. At times like this, it's lots of fun to be a scientist.

Meritocracies and Modern China

ARCHITECTURE OF GOVERNMENT: (1) ARTICLES OF STRUCTURE

Although an outstanding feature of the United States Constitution is its brevity, by contrast, the Articles of Confederation which it replaced contained scarcely anything at all. Stripped of boilerplate, the Articles amounted to an oath of perpetual allegiance between thirteen colonial tribes who banded together to fight a common enemy. The document began with a firm statement that the constituent states retained their right to write their own rules. No national rules could be made without the consent of every state. Moreover, since enforcement powers remained with the states, the states could ignore national rules at will, even if they had agreed to the rules. Once the Treaty of Paris concluded the Revolutionary War conferring an immense domain to the East of the Mississippi River, the thirteen states had to decide whether to remain united in a single nation or to parcel out the wilderness into thirteen pieces within a sort of Europe of North America. They tried to continue the Articles for four peacetime years, but their populations were too small for all the tasks. They could no more govern all that territory than they could individually defeat Great Britain in the recent war. Looking ahead for a moment, after another eighty years of immigration, the southern states would reopen that issue, but in 1787 such a demanding adventure seemed too daunting to everyone. While eight years of fighting a guerrilla war loosely bound together might have seemed the most they could do, George Washington now wanted a big nation he could be proud of, and meanwhile, Britain, France, and Spain were still making threatening gestures. It seemed plausible to consider what the new leadership forged in the Revolution could propose, maybe give it a try. George Washington certainly had the stature to step forward and say that the nation need not be bound by that silly wartime oath to make the Articles "perpetual" if the times required a different approach. And that was plainly the case. No one, not even Thomas Jefferson or Patrick Henry who privately disagreed, had the courage to confront the General.

Washington was in the embarrassing position of having made a great show of permanently withdrawing from public life, but he was willing to stage-manage his way around that issue. The greater problem was his inexperience in the design of governments; he had not even gone to college and was uncomfortable about it. His young Virginia neighbor James Madison had studied the matter seriously with Witherspoon at Princeton and was anxious to make a name for himself as the designer of a new government, basking in the protection of the great General. There was general agreement that the New England town meeting version of democracy, based on small towns in ancient Athens, was unsuitable without a better way to expand its size. Well before young Madison appeared on the scene, Great Britain had popularized the Roman Republic as a model, and it became practically a foregone conclusion the United States should be a republic. Local communities should identify some trusted representative to understand and represent their interests within a deliberative body collecting the best interests of the whole nation. Unfortunately, this had been vaguely the concept of the Continental Congress, in which actual governance was conducted through select committees of the Congress. It had really not worked very well, and Robert Morris as acting administrator in 1778 immediately replaced administrative committees with permanent departments of administration, which worked much better. The leaders of Revolutionary America were in rebellion against a heavy-handed King, so they intentionally avoided a chief of state who might get ideas resembling those of Julius Caesar. However, the contrasting experiences of Congressional committees and Morris's permanent departments emerged as fairly decisive after anti-monarchy feelings began to subside. Washington remained adamant he wanted no part of monarchy for himself or anyone else, however. The problem was resolved by recognizing that if a presidency were created, Washington would surely fill the office. It was more or less openly decided it was safe enough to put Washington in the job and let him figure out what to do with it. Unfortunately, Washington was not immortal, was succeeded by a tumultuous Presidency of John Adams, and the nearly disastrous tied election of 1800. While it could be argued that the vagueness of his powers and duties in the eventual Constitution was a necessary concession to the ambiguous requirements of the Presidency of a new nation, the flaws of the Constitution's address of Presidential succession were careless in the extreme. History is replete with hundreds of examples of wars and assassinations associated with the succession of chief executives. For thousands of years, many societies have even concluded that the obvious flaws of hereditary kingship were to be preferred to the chaos which regularly results from trusting the personal ambitions of candidates to sort matters out.

So it was almost a foregone conclusion the new government would have a congress based on the republican model and a president. It was also clear that the British common law was about as good a judicial model as could be devised by any convention, and it had the universal allegiance of the legal profession. To start a new nation it is necessary to have a comprehensive system of laws from the very first day; Congress could later review and modify the common law to suit American needs. What then remained to be decided was the method of appointing judges, a question to which there seems to be no perfect answer in any state or nation. The lawyers in a jurisdiction know well enough who of their number is fair and learned, but it does not always suit their clients to argue before a fair and learned judge; clients only want to win their case. The public might elect judges impartially, but the public is seldom in a position to know the candidates, so it abandons the elections to the politicians. The politicians have their own agendas, and it is unfortunately not considered necessary in some districts for a politician to be impartial or even honest. To become a judge you have to ask who has the power to appoint you. And then you have to ask, what does that person want in return? In some districts, the answer is $100,000 in a campaign contribution. A person who agrees to that condition is not necessarily a bad judge when in office, but if he wants a promotion to a higher judgeship he has to ask the same question: who has the power to promote me, and what does he want? The judicial appointment question seems to have no good answer, but many American lawyers have been persuaded that the British system of the Inns of Court is superior. That system can be roughly summarized as sending a likely youth to "Judge School" in early adolescence and intoning Judicial ethics at him for the rest of his life in a judicial cloister. It must be recalled, however, that Margaret Thatcher hated the Inns of the Court system for some reason, and did her best as Prime Minister to abolish it.

Under the circumstances, the Constitutional solution to appointing judges is the most appealing alternative we have. First of all, the appointment of state and local judges is a matter left to the individual states to decide. Justices of the United States Supreme Court are nominated by the President, appointed by a vote of the Senate to serve for a lifetime, subject only to impeachment proceedings for bad behavior. The Chief Justice (not the President or anyone else in the Executive Branch) is the chief administrator of Federal Courts, which essentially imitate the appointment process of the Supreme Court. It is remarkable how useful a lifetime appointment can be. Insulated from political pressures, federal judges can expect to serve under several different political parties. Except in a few rotten boroughs permanently under one-party control, a politician in power can expect to have any judge he offends, still be a judge after the politician leaves office, but the reverse is usually not the case. Although the rules are different, the effect of lifetime appointment is much the same as lifetime cloistering under the British system, with the exception that it does not apply to the barristers representing clients, as it does in England.

So now we have approximated the three branches of government before the Constitutional Convention has even convened: a republican-style congress, an independently elected executive, and a lifetime judiciary. The genius of the Convention was what they did with this set of expectations.

Signers and Non-Signers of the Constitution

{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.

{George Washington}
George Washington
{George Reed}
George Reed
{Gunning Bedford Jr.}
Gunning Bedford Jr.
{Richard Bassett}
Richard Bassett
{Daniel Carroll}
Daniel Carroll
{Charles Cotesworth} Charles C. Pinckney
{Charles Pinckney}
Charles Pinckney
{Abraham Baldwin}
Abraham Baldwin
{John Langdon}
John Langdon
{Nicholas Gilman}
Nicholas Gilman
{Nathaniel Gorham}
Nathaniel Gorham
{Rufus King}
Rufus King
{Rodger Sherman}
Rodger Sherman
{Alexander Hamilton}
Alexander Hamilton
{David Brearly}
David Brearly
{Jonathan Dayton}
Jonathan Dayton
{Benjamin Franklin}
Benjamin Franklin
{Thomas Mifflin}
Thomas Mifflin
{Robert Morris}
Robert Morris
{George Clymer}
George Clymer
{Thomas Fitzsimons}
Thomas Fitzsimons
{Gourvernor Morris}
Governor Morris
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{William Houstoun}
William Houston
{Caleb Strong}
Caleb Strong
{William Davie}
William Davie
{Alexander Martin}
Alexander Martin
{George Walton}
George Walton
{Charles Carroll}
Charles Carroll
{Gabriel Duvall}
Gabriel Duvall
{Thomas Stone}
Thomas Stone
{Francis Dana}
Francis Dana
{Benjamin West}
Benjamin West
{Abraham Clark}
Abraham Clark
{Ricahrd Caswell}
Richard Caswell
{Willie Jones}
Willie Jones
{Henry Laurens}
Henry Laurens
{Patrick Henry}
Patrick Henry
{Thomas Nelson}
Thomas Nelson
 

Constitution-tampering is Unwise

.

Unconstitutionality of Otherwise Desirable Laws

Note: James Madison, the central figure in the design and meaning of the Constitution, the only person allowed to keep a journal of the deliberations, and the main author of the Federalist Papers which explain and defend the final product, was eventually elected President of the United States. As such, he was acutely aware of the intention of the Constitution's limitation of federal powers, which particularly extended to prohibit the Federal Government from doing otherwise desirable things. On November 3, 2010, the Wall Street Journal republished part of Madison's veto message of March 17, 1817, in which he reminds the Congress and the nation that it was unconstitutional for the Congress to do prohibited things, thereby assuming unenumerated powers.

{Privateers}
President James Madison

"The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in Government of the United States."

"The power to regulate commerce among the several States" cannot include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce, without a latitude of construction departing from the ordinary import of terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress."

To refer the power in question to be "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation...It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by the law of Congress... Such a view of the Constitution, finally, would have the effect of excluding the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments..."

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the power of Congress as proposed in the bill, I have no option but to withhold my signature from it.."

Postscript: This veto was the last act of Madison's term in office, and probably does not adequately describe the problem or even Madison's view of it. The Louisiana Purchase had dramatized some awkward features of strict construction of the Constitution in areas never before considered or discussed. Albert Gallatin had earlier arranged the workaround of treating the limitation as applying only to the financing of interstate transportation arrangements and was starting the process of what we now call the "Living Constitution" by progressive circumvention. While following Madison's reasoning, he made the unfortunate choice of circumvention in preference to confronting issues directly through the Amendment process. The Tea Party movement of 2010 could be evidence that this choice is regarded by many as unfortunate. The Constitution has probably not adequately appraised the tendency of legislation to achieve final passage quite near the congested end of an electoral term, leaving little time to respond to Congressional action with the intentionally cumbersome Constitutional Amendment process. If there is a turn-over of party control at that time (which is usually the holiday season), a successful outcome appears still more unlikely in the time available. Fixing such an inadvertent technical problem would not appear to be difficult, and a Blue Ribbon study committee is suggested.

Be Careful What You Wish For

{https://www.philadelphia-reflections.com/images/pulsehmo.jpg}
Pulse

Events at the time of the introduction of the Clinton Health Plan to Congress were a confused jumble, but one vignette stands out in my memory. The five hundred or so members of the secret work group were all invited to the White House for a big party, with saxophones and all. On a television interview at home in Minnesota, Paul Ellwood said he wasn't going to the party. Indeed, he looked rather morose and had little to say. It is clear he had advance notice, before the plan even reached Congress, that things were not going the way he wanted. Since the public, even Congressional leaders, were still unclear just what was to be proposed, Ellwood's dejection, or rejection did not come from them. No one has said so, but it must be presumed the rejection came from his sponsors, the business leaders. Business, in short, had pulled out; responsibility probably lies with no more than half a dozen CEOs who continue to be anonymous fifteen years later.

At that confusing time, the reasoning of the masterminds was obscure. Perhaps they decided HMOs were no good; perhaps an outrageous political demand had been linked to the proposal; or there was to be too much political control, too little business control; or perhaps government costs had been shifted onto the backs of employers; perhaps the whole idea sounded too leftist to be comfortable. And perhaps a lot of other things, who knows. Even today, no one has written a book or even listed a few plain sentences of reminiscence.

What is known is that major business employers immediately launched a nationwide initiative to go ahead with a strong push to convert employer-based plans from fee-for-service to managed care HMOs. This was to be the way employers handled health care they were paying for; the government could do as it liked. It must be admitted it was a bold stroke, quite effectively handled. When you consider the rather uncertain legal right they had to impose a system of health care on their employees, it took more audacity to go ahead than you would suppose they could summon. It was a gamble that the Clinton White House would lack the courage to challenge a private initiative to go ahead with what they had so publicly endorsed, and that providers would be so surprised by the concerted coup that they would hold back legal challenge until evidence of antitrust or conspiracy emerged. It was a sort of Battle of the Bulge in reverse, and it might well have been hugely successful except for one thing they did not anticipate. Their employees almost universally hated HMOs when they tried them out. No one likes to be hustled into something he doesn't understand, no one likes to change doctors, no one like to be told he can't have what he expects to have. Employers expected resistance of this sort, but it simply had to be done to save the fiscal health of the business. Unfortunately, what emerged was that it didn't save much more money than its own extra cost to administer. The hard reality of business life is you regularly have to bully people in order to make any money. But bullying people without making any money is a quick route to dismissal. No wonder there have been no memoirs written.

A quick re-appraisal of the Clinton Health Plan was that the two systems, Medicare for people over sixty-five and employer-based for people under sixty-five, were to be merged into a single system for efficiency and better control. There were to be local, regional, and national governing bodies; evidently, the purpose of the National Business Coalitions for Health was to supply a unified business hierarchy to match it up and down the line. Hated politicians, hated bureaucrats and hated unions could be counted on to apply strong pressures; business would have to remain well informed, sternly disciplined, and speak with a single voice for any hope of surviving in such an environment. It is my surmise that such a prospect seemed to guarantee failure for a business. No, we're sorry, Business would draw a bright line at age sixty-five, and run its own show where it ruled the roost.

Repairing Constitutional Defects

{Privateers}
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.

First Amendment: Separation of Church and State

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

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

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

{London Yearly Meeting}
London Yearly Meeting
{Congress Hall}
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.

Second Amendment: The 28th Infantry Division

SINCE the nation was only formed in 1776, and the only memorable war before that was the French and Indian War of 1754, the origin in 1747 of the Pennsylvania 28th Division of Infantry needs a little explaining. The 28th is a National Guard reserve unit, taking its present organizational form 138 years ago. Even counting from that moment makes it the oldest (and third largest) division in the Army, but another 123 years of history stretch back before that.

{top quote}
AMENDMENT II A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. {bottom quote}
Second Amendment

A few people remember that Ben Franklin made his first step into politics during King George's War (1744-48), when French and Spanish privateers were suddenly roaming Delaware Bay . The pacifist Quaker government hesitated in confusion, so Franklin stepped forward to call for a volunteer militia. It was paid for with a lottery because the Quaker legislature resisted; there seemingly was no end to Franklin's ingenuity. The unit remained a permanent one, and since then served with distinction in the various conflicts through the Civil War, when it was organized into the National Guard. The volunteer movement it inspired was part of the impetus for the Second Amendment to the Constitution which the National Rifle Association will be glad to explain to you, although historians commonly trace the civilian soldier tradition back to King James and the English Civil War. Franklin was unfailingly patriotic, and never hesitated about military measures when they seemed necessary. He lived long enough so his military sympathies were still a dominant force at the Constitutional Convention, more than forty years later.

Major General Wesley E. Craig Jr., former commander of the Division, was kind enough to address the Right Angle Club about the 28th Division recently. Since the citizen soldiers of the National Guard all have other careers, his daytime job was as an executive for Strawbridge and Clothier. A moment of reflection about the Scottish origin of his own name, connected with a strongly Quaker firm, evokes the two strongest social and ethnic tensions of early Pennsylvania history.

The audience was treated to a description of the military history of the unit, whose largest battle was the Battle of the Bulge in World War II. But they are in Iraq today, with almost every soldier having served one tour of duty, many of them two or even more. They were the unit stationed in El Ambar province during the period before the Sheiks finally decided that America was going to win this war, and changed sides. General Craig had returned to America only a month before this famous turning-point. Before that, units of the 28th were in Bosnia and Kosovo, and are proud to have been chosen for the introduction of many innovative technologies. They are the only reserve division with Stryker vehicles, and before that employed unmanned drone aircraft for reconnaissance. Observer drones fly at 2000 feet and carry no weapons, unlike the Predator drones which carry rockets and fly at 10,000 feet.

Not everything is a story of combat action; the 28th Division is very proud of its activities in the Katrina rescue missions and other domestic emergencies. The Go Ahead Division is proud of its reputation for being on time, every time.

And it is mindful of the sad side. In Iraq, it is 31 KIA, with 167 WIA. If you're uncertain what that means, try a little harder.

Third Amendment and Privacy: The Constitution Wanders

{top quote}
Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. {bottom quote}
The Third Amendment

The Third Amendment to the Constitution received a few moments of attention during the War of 1812, and the Civil War, but has only been litigated once during a strike of prison guards in New York state. It is, however, the somewhat fanciful basis for the right of privacy, devised for Roe v. Wade, and related this to the controversy over abortion rights.

It would appear that requisitioning the homes of private citizens was largely an expense-saving feature of the peacetime standing armies of European nobility, and thus agitated the opponents of aristocracy and feudalism. Its expense-sparing feature was a source of discontent during the French and Indian War, with its long wilderness border making housing difficult to find. The memories of people living near the frontier were long, however, and Charles Pinckney introduced to the Constitutional Convention one of a great many ill-considered motions which were defeated by that body, opposing the quartering of troops in peacetime. This action was taken up in demagogic style by the Anti-federalist faction, and during the ratification process, quite an issue was made of woeful inadequacy of a Constitution which failed to protect a nation's defenseless households, etc., etc. Matters reached a point where Madison was afraid not to include the matter in the Bill of Rights.

The matter may come up again, however, not merely in abortion controversies, but related to the increasing tendency to wage undeclared wars. Apparently, it was Madison's intent to throw the issue into the Executive Branch in the case of "time of war". No declaration of war was made in the Civil War, or in several other conflicts so that the issue which remains unresolved is what to do about undeclared wars, wars against terrorism, and other conditions which are not exactly either peace or war.

Abortion

The official position of the Pennsylvania Medical Society on the topic of abortion is, we have no position on abortion. I ought to know because I was the author of this position, proposed at a moment when the PA Medical House of Delegates was obviously going nowhere. After two hours of angry debate, we had to stop before we split into two warring medical societies. The Pennsylvania delegation to the AMA was then obliged to hold the same no-position on a national level. As I recall, our position was likewise greeted by the AMA House of Delegates with great relief, and word quickly circulated in the corridors that Pennsylvania had a position everyone could endorse for the good of the organization. For several years, this no-position position was widely referred to whenever the topic threatened to arise. It almost invariably stopped the discussion in its tracks, as it was intended to do. In going back over the minutes, it would appear the AMA never actually voted to adopt a no-position motion, a discovery that surprised but did not change the basic determination to let the rest of the nation settle this. We were going to stay out of it.

{Roe vs. Wade}
Roe vs. Wade

Because, one hundred forty years earlier, we started it. If you actually read Justice Blackmun's opinion for the majority in Roe v. Wade, as very few agitated proponents seem to have done, the original medical origin is clearly laid out. Blackmun had been a lawyer for the Mayo Clinic before his appointment to the Supreme Court, acquiring unusual medical resources and experiences for a lawyer. Now prepare for a logical leap, to the The Gross Clinic, Thomas Eakins masterpiece painting of Philadelphia's pre-eminent surgeon in a black frock coat, holding a dripping crimson scalpel in his bare hand, encapsulates the original situation. Note carefully that anesthesia is being given to the patient, but the surgeon is not wearing a cap, mask, gown, or rubber gloves.

{Gross Clinic}
Gross Clinic

In 1850 medical science had progressed into a forty-year time window when anesthesia made abortions painless, but Pasteur had still not identified bacteria, and Lister had not devised a way to cope with them. Abortions, common in ancient Greece but forbidden by Hippocrates, suddenly were widely demanded by 19th Century women in a situation when their judgment was vulnerable. Abortions were easy to do, all right, but women died like flies from the resulting infections, and the American Medical Association was distraught about it. The Oath of Hippocrates was brought forward to emphasize its prohibition of abortion, and the performance was made unethical for a member of the Association, sufficient cause to warrant expulsion. When that proved inadequate, the delegates agreed to go to their local state legislatures and seek legislation prohibiting the performance of abortion by anyone, member or non-member of the Association. These laws were quickly passed, and it was the Texas version which was overturned by Roe v. Wade as an unconstitutional denial of privacy. Roe was a pseudonym for the patient, and Wade was then Attorney General of Texas, the officer charged with enforcing Texas law. By 1900 abortions became both easy and safe for the mother, and by 1911 the AMA had reversed its position. The scientific surgical situation is well illustrated by a later famous painting about Philadelphia surgery by Thomas Eakins, the Agnew Clinic, in which the surgical team is portrayed in its modern costume of sterile gowns and rubber gloves. But it didn't matter since by that time various churches had hardened their doctrines. Religious leaders and their constituent politicians simply no longer cared what the medical profession thought about it. For at least the following century, ideological combatants were plainly only interested in whether physician opinion might advance one side or the other of their argument with useful official statements. Our real position, if anyone cares, is that we started out seeking protection for the safety of the mother, but the issue got twisted by others into disputes about the welfare of the unborn fetus.

{Agnew Clinic}
Agnew Clinic

Since this is the case, there plainly may be a reason for state legislatures to reconsider the state laws they passed in the 19th Century, during that forty-year window of time when the scientific facts were in transition. But when a leap is made by the appointed referees of the federal government to overturn state laws, even about a basically medical issue, there has to be some legal reason to intervene; a medical reason somehow doesn't count. Justice Blackmun's discovery of an unnoticed right to "privacy" in the Constitution, where the word does not appear, is just too hard for us non-lawyers to deal with. Suppose we leave the fine points of the Bill of Rights to those constitutional lawyers. What's at stake here, among other things, of course, is whether the Federal Courts are justified in overturning well-intentioned state laws which had served well for at least fifty years -- simply out of impatience with the sluggishness and political timidness of state legislatures to revise obsolete laws. That's unbalancing the Constitution for a comparatively minor cause. Even major cause is something we have agreed to adjust in other ways, by amendment, not judicial opinion. And that's my opinion, having comparatively little to do with abortion.

Constitutionality of the Monetary System

{The Constitution}
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}
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}
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.

Evolving Constitution

Private Sector Disciplines Congress

{Adam Smith}
Adam Smith

Two centuries after our present narrative, when President William Clinton once proposed a financial adventure, Robert Rubin replied, "The bond market won't let you do it." In this way, the former Wall Street investment banker educated his politician boss that the most powerful wealth of any nation is hidden, locked up in homes, businesses, infrastructure, population education, and other long-term assets. Such wealth normally transforms into cash only when the Treasury borrows it (usually by selling government bonds) because by Constitutional intention the alternative of raising taxes is essentially confiscatory. By contrast, the use of bonds requires only an agreement on price. Bond use is thereby related to supply and demand, with the government generally selling bonds and the public generally buying them. The government sells as many bonds as it pleases, but the price received will immediately sink if too many bonds are for sale. Viewed another way, bond prices announce the market's daily assessment of probable government solvency because the isolated bond market is solely interested in the probability of being repaid.

{top quote}
In modern wars, the longest purse must generally determine the event. {bottom quote}
George Washington, May, 1780

In 1779 there was no bond market, so Robert Morris set about creating one. Acting then as only a private citizen, but faced with his government being run into the ground, Robert Morris proposed the creation of a "bank", the Bank of Pennsylvania, created, owned and managed by private citizens. The first bank in the nation didn't take retail deposits and was unlike banks we have today in other ways. Modeled more like a bond fund of the Twenty-first century, the Bank of Pennsylvania got its funds through fairly large subscriptions from wealthy people. Robert Morris himself was probably the heaviest subscriber. A bond market was thus created, with subscriptions flooding in when the public was pleased with its government, and flooding out when the public didn't like the looks of things. Naturally, there was a profit: the bonds the bank sold to subscribers were priced higher than the bonds the bank bought from the government. In this way, the public was assured the process of setting prices remained in neutral hands. The government could print bonds freely, but the Bank of Pennsylvania couldn't buy them unless somebody gave it some money, and that wouldn't happen unless prices rose to the "market clearing level," of agreement between potential buyers and sellers. The nature of the deal didn't change much when later banks got their funds from deposits, and one later enduring feature also didn't change: Governments hate banks because banks are in a position to frustrate governments intent on spending what they please.

{Jacques Necker}
Jacques Necker

Quite soon, the public could be visualized as composed of debtors and creditors; the two main political parties have mostly had a matching composition. Progressive politicians, like Albert Gallatin, Thomas Jefferson, Andrew Jackson, Robert LaFollette, William Jennings Bryan, Woodrow Wilson, and Barack Obama have demonized banks, often threatening to nationalize or eliminate what is basically a neutral bookkeeping function. Adam Smith had written The Wealth of Nations three years earlier; Morris gave copies to friends and had obviously read the book, as had Alexander Hamilton. Morris also entered into exciting correspondence with Jacques Necker, the Swiss/ French banking genius, but Necker soon died, leaving it uncertain how much influence he had on America. This group of people gave us a system in which the public markets set the price of a currency, not the other way around. In the 1779 case, galloping inflation quickly came under control and goods soon reappeared in the markets, although the continuing war exerted relentless pressure until 1783 for the government to do more borrowing.

{Bank of Pennsylvania}
Bank of Pennsylvania

In another irony, during the year he was totally out of office (conservatives were restored to power in the October 1780 election), Morris enjoyed his greatest personal prosperity and exerted almost total personal control of the currency; it was fruitless to accuse him of using government office for private gain when he held no office. During this brief interval, Morris also created the first American corporate conglomerate, the series of partnerships called Peter Whitesides and Company. At least as profitable were his personal relationships with the French Ambassador Luzerne and the emissary from Havana, Juan de Miralles, who introduced him to large pools of investment capital from abroad. His American businesses became almost too numerous to count, again highlighting his prodigious ability to work. Meanwhile, his social life was as active as anyone's, extending his hospitality and affability world-wide, and anticipating a return to public life. All of this took about a year.

During this period, his sole civic activity was the Bank of Pennsylvania. As a bank, it had a relatively short life. As a subtlety of government, it would be hard to find its equal in any other empowerment of the people. Many centuries of history had formerly taught the lesson that public office was the way to get seriously rich. Morris flaunted a brand new American banner: public corruption was a waste of time, like any other zero-sum game.

Bill Of Rights

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Revising, Amending, and Skirting The Constitution

{Tienanmen Square}
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,}
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}
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}
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}
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}
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.

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.

First Amendment

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Second Amendment

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Boalsburg

{Bolasburg}
Boalsburg

FIVE miles East of State College is Boalsburg, which is by far the most interesting place in Central Pennsylvania. First of all, the town itself is laid out around the most perfect surviving example of a Scotch-Irish diamond. The Scots in Northern Ireland were much resented by their Roman Catholic neighbors to the south of them, and gladly accepted James Logan's offer to come to William Penn's haven of religious freedom, in return for their settling near the Indians. This was Logan's solution to the problem of keeping the peace between the pacifist Quakers in Philadelphia, and the sensitivities of the Indians about settlers on their ancient lands. The Quakers wanted to avoid conflict with the Indians, wouldn't sell them either liquor or gunpowder, while Logan was under orders from Penn's descendants to sell the land. So, being Scotch-Irish himself, he felt confident his relatives would find ways of coping with the problem. Much of the turmoil of Pontiac's War and the French and Indian Wars, the marauding Paxtang Boys and King George's War, grew out of the resulting conflicts between the two notoriously combative groups. In any event, this decision explains why Scotch-Irish settled the frontier early, and surprisingly far west of the centers of Pennsylvania Dutch settlement. The Scotch Irish had a tradition of favoring the crossroads of two main highways. Their habit was to cut off the four corners of an intersection, leaving a diamond-shaped park in the middle. Traditionally, the enlarged intersection would have a flagpole in the middle.

{Boalsburg Diamond}
Boalsburg Diamond

Naturally, the diamond was a good place to put a post office, a general store, or a tavern. A man named Boal put up an early tavern, and this diamond became Boalsburg. Boal is the name of a type of Madeira wine, which may have some relevance here, having to do with old stories of some Portuguese debts which were paid off in the land of Center County. In any event, there is a log cabin near the diamond, with a dozen Boal tombstones in front of it. Quite a large and elegant restaurant is now more directly on the square. This town is a photographer's dream and well worth anyone's drive around the main streets.

At some time, the Boal family moved out of the center of town to a mansion about half a mile away. From the looks of it, five or six additions were made to house family and servants, and it almost looks like five houses joined together. The carriage house has a couple of ancient carriages, one with and one without, leaf springs. The walls are hung with dozens of sabers and swords from many different wars, each with its story. There are muskets and rifles, dating back to the Revolutionary War.

The main house is modest for a mansion but immoderate for a farmhouse. It has definitely been lived in, and it's built for comfort. The walls are covered with trophies and mementos, with five signatures of US Presidents identifiable. Lots of Boals seem to have married lots of European nobility, perhaps in one of these rooms. One old rake is quoted as saying he inherited three fortunes -- and spent 'em all. Over and over again the theme emerges: the Boals was a military family, often raising their own regiments. Across the road in what seems sure to have once been Boal property, is the Military Museum, with real battleship cannons at the gate. Memorial Day was started here after the Civil War, and it is the headquarters of the local National Guard Division; it's by far the most popular tourist attraction in town.

{The Columbus Family Chapel}
The Columbus Family Chapel

But off in one corner of the side yard of the mansion is a little stone house, perhaps two stories high. It is a replica of the Columbus family chapel in Spain, copied stone for stone. The stories vary somewhat between guides, but apparently, two or more relatives were descended from Christopher Columbus, and while one Boal was Ambassador to Bolivia, he married a lady in waiting to the Queen who was also descended. Possibly the Spanish Civil War had something to do with it, but in any event, the personal belongings of the Columbus family were judged to be the property of the Boals, so they were moved here to the chapel replica. A decade or so ago, the chapel was broken into by thieves, and since that time security is considerably enhanced. Two pieces of wood are still shown as pieces of the True Cross of Jesus, with authentication going back to the 5th Century, and numerous handwritten journals are there. The Goya paintings and tapestries, and a solid gold crucifix are among the pieces which are now somewhere else. The matter is one of considerable embarrassment. Most of the many pieces which remain, are seeming of the nature of things which would be enormously valuable if you knew what they were, but just about worthless if you don't. In a sense, the best protection is the ignorance which surrounds them. The guide last month remembers one day when 27 visitors came to the Mansion and many days when no one came. As he spoke, you could see at least five hundred cars parked in the Military Museum across the road. There may have been five cars parked in the diamond in the center of Boalsburg. It's sort of a shame that this would be true, just as it makes you grit your teeth to imagine the indifference the whole place would receive if you moved it to Times Square. But, let's face it, the main protection for these invaluable pieces of history lies in that general lack of interest in them.

Boston firearms license

This is the process my son went through in October-November 2012 to get a Boston firearms license.

  1. Call (617) 343-4425 to make an appointment; usually a month's wait.
  2. On the application appointment date, you go to 1199 Tremont St, Boston MA (Boston Police Headquarters)
    Bring:
    1. Birth Certificate
    2. MA Driver's license showing Boston address
    3. MA State Police Gun Safety training certificate
    4. $100 in cash (no credit cards!)
{top quote}
AMENDMENT II
A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. {bottom quote}
Constitution of the United States

The process at Police Headquarters is straightforward: arrive 15 minutes early to fill in paperwork and be out an hour later after answering simple, obvious questions and getting photographed and fingerprinted.

My son was told that the default is a restriction to Target and Sport; a letter showing a business or personal need for an unrestricted license is required after the initial restricted license is received.

His appointment at the Moon Island outdoor range was set for a week later. (It's an island in the harbor off Quincy.)

The qualifying shoot at the Moon Island outdoor range was easy:

  1. He got a very helpful lecture from a Police Dept. instructor, covering both shooting and safety
  2. At the outdoor range:
    1. 12 rounds at  7 yards: two hands, double action (one hand optional)
    2. 18 rounds at 15 yards: two hands, single action (hammer to be pulled with the supporting-hand thumb)

He got a 296 out of 300 (two 9's, one 8). He did well because of the 3 private lessons he took at the Mass Firearms School range where he shot two boxes each time using their 0.38 revolver (the equipment provided at the Moon Island range was brand new, much easier to use and more accurate so he was very well prepared). All the other scores were lower than his, one person out of six failed.

He was told his license would take 12 weeks to process; he received his Class A Large Capacity License to Carry Firearms, restricted to target and hunting, 51 days (7 1/2 weeks) after his qualifying shoot.

Third Amendment

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Fourth Amendment

{top quote}
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. {bottom quote}
The Fourth Amendment

Fifth Amendment

{top quote}
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. {bottom quote}
The Fifth Amendment

Sixth Amendment

{top quote}
Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. {bottom quote}
The Sixth Amendment

Seventh Amendment

{top quote}
Amendment VII In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. {bottom quote}
The Seventh Amendment

Eighth Amendment

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Eighth Amendment: Bail

{top quote}
Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. {bottom quote}
The Eighth Amendment

Ninth Amendment

{top quote}
Amendment IX Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. {bottom quote}
The Ninth Amendment

Tenth Amendment

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Tenth Amendment: Nothing Up Our Sleeve

The Tenth and Eleventh Amendments are the high-water mark of state power in the American Republic. The main 1787 Constitution lists what the Federal organization might do and might not do, but it only lists a few other things the states may not do. By implication, the states could do everything else. But a great many promises had been made during the ratification campaign, some of them weakened by the atmosphere of salesmanship. The members of the First Congress convened the new government with a long list of hostile, suspicious proposals for amending what many of their constituents regarded as merely honeyed promises. In effect, the anti-federalists were demanding to "have it in writing". Under the circumstances, the most effective promise was one that was simple and short:

{top quote}
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people {bottom quote}
The Tenth Amendment
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After Thoughts Amendments

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Eleventh Amendment

There are certainly a lot of Ingersolls in Philadelphia. A lot of Jared Ingersolls, a lot of Charles Ingersolls, and even a lot of Charles Jared Ingersolls. At a dinner party, a lady whose maiden name is Ingersoll was asked about Charles Ingersoll, and was forced to say, "Just how old would you say he is?"

{Jared Ingersoll, Jr.,}
Jared Ingersoll, Jr.,

The one we are talking about here is Jared Ingersoll, Jr., the son of a Tory who had once been tarred and feathered by Revolutionaries in New Haven. Young Jared was in England at the Inns of Court when the Declaration was signed, became a fervent Revolutionary, and represented Pennsylvania at the Constitutional Convention. It was thus difficult to predict where his sympathies would lie in the settling of debts and grievances associated with the Revolutionary War; in fact, he might be as impartial as any lawyer to be found at the time. At their best, all lawyers reach for the peaceful settlement of grievances, serving their clients best by finding a solution that puts an end to reprisals. Furthermore, he had excellent legal training, something which could not be said of most apprentice-trained lawyers of that time, and had faithfully attended every single session of the Continental Congress, while commenting very little about his own views. The first ten amendments are the Bill of Rights which had been promised during the ratification process, so the Eleventh became the first real amendment, in the sense that it specifically reverses some feature of the original design. To present observers it may not be easy to surmise just what the purpose might have been to outlaw the method which had been established for an injured citizen to sue a state. To be blunt about this point, the colonists wanted to welch on paying debts to Loyalists and Englishmen, those hated enemies, without admitting this was their motive. The spin they put on this shabby attitude was that states were now sovereign entities without a king, and since historically a British king could not be sued without his consent, therefore neither could the states. Probably the best that can be said for this cloud of words is the point that suing the government should not be made too easy, for fear of overwhelming the court system with endless clamor. The historical episode surrounding the Eleventh Amendment is an important one in our national struggle to balance the accusations of hypocrisy and chiseling, with the opposite tendency of slavish adherence to procedure, or "due process".

{Alexander Chisholm}
Alexander Chisholm

Ingersoll had attended the Constitutional Convention as part of the most influential state delegation of insiders and was set up to practice law in the capital city of Philadelphia just a few blocks from the heart of government. A case came up. The estate of Captain Robert Farquhar, an Englishman, was owed $169,613.33 for "goods" sold in 1777 to agents of the embattled State of Georgia during the Revolution. The executor of Farquhar's estate, a resident of South Carolina named Alexander Chisholm, then sued the state of Georgia after the war was over for that state's extinguishing the debt by a statute passed after the contract. This had been the rather common treatment of Loyalist debts by other colonies and thus enlisted their sympathies to Georgia in this case. Furthermore, it was the sort of uncivil behavior that had enraged John Jay and George Washington, leading them to press for the Constitutional Convention. On the other hand, the new state governments were hard-pressed for cash and had to contend with highly combative citizens who resented even the suggestion that they play fair with people who had so recently been trying to kill them. Furthermore, it was entirely realistic for them to fear a flood of lawsuits from people they mercilessly pursued under what "everyone" considered the rebellion's accepted rules of engagement. It was thus clever for Georgia to seek the help of Ingersoll in appealing to the Supreme Court, and the previous tarring and feathering of his Loyalist father was not entirely irrelevant. Ingersoll, unfortunately, lost his case of Chisholm v Georgia when the Supreme Court (John Jay, CJ) declared that Chisholm was indeed entitled to sue the State of Georgia. It is hard to see how Ingersoll (and his colleague Alexander Dallas) could have won this case when the Constitution which he helped write plainly provided the rules for citizens of one state suing another state; it seems remotely possible that the officials of Georgia were attempting to shift the blame of an inevitable loss of the suit:

Article III - Section 2 -The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

John Jay ultimately revealed the depth of his dismay at dishonoring debts when he negotiated Jay's Treaty during the Adams administration, providing for adjustment of such debts. Adams, in turn, was to reveal where his own sympathies lay by refusing to announce -- for three years -- the reversal of this position by the Eleventh Amendment, stirred up in his own state. Adams' rather flagrant abuse of a technicality might well have led to another constitutional amendment, except for the Supreme Court later ruling that official enactment of amendments did not require Presidential announcement, but took effect upon ratification by the required number of states.

Adams, in turn, had ample political problems in his home state of Massachusetts. John Hancock, then Governor, called a special session of the Massachusetts legislature to propose an amendment to reverse the Constitutional language on which the Supreme Court's decision had relied: It soon became clear, or perhaps Ingersoll was determined to make it seem clear, that Georgia had been smart to employ this political insider. Congress soon enacted, and the necessary states soon ratified the Eleventh Amendment. It stated that a citizen of another state may not sue a State government in Federal Court:

Amendment XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Later decisions included citizens of the same state, so in effect, this amendment stated that no one may sue a State Government unless the state agrees to be sued. That's essentially what is true of the federal government; the states were given the same sovereignty with all of its features, as the federal government and that was an intentional slap in the Federalist faces.

It sounds as though Jared Ingersoll might have been a states-righter, although nothing in his past or future behavior suggests that he was anything but an ardent Federalist. He was even proposed as vice presidential candidate for the Federalist Party. No one called him wishy-washy, or a traitor or a covert anti-federalist, and he never acted like one. He was just a lawyer with a client.

Twelth Amendment

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.

{https://www.philadelphia-reflections.com/images/955pres10.gif}
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.

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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.

Owen Roberts: A Switch in Time

{Privateers}
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. He was Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then, he abruptly became the source of one of the most radical revisions of our system of government since the Declaration of Independence. Nothing in his prior career and nothing afterward in his subsequent civic-minded retirement from the Court seemed to suggest any 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, unexpectedly, capriciously, who knows why.

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 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 certainly triumphed over the hated state legislatures, but the Supreme Court suddenly lost its power to overrule Congress, too. One side had won the old argument, by silencing the umpire. No wonder Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners.

To describe the background: The 1929 stock market crash was quickly followed by the economic Depression of the 1930s. Nothing of this magnitude had been seen before, and there was a 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 grasped for, many unfortunate actions were felt justified as a way to control the Bolshevik threat. Many of these New Deal actions were declared unconstitutional by the Supreme Court since they involved sweeping 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. Immediately after the start of the new term, he announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking. 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, and the idea of packing the Court with new appointees was exactly what Jefferson and Jackson had tried to do.

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Franklin Roosevelt

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 supply. 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, Filburn lost his case. Forever afterward, this change of position was referred to as the switch in time, that saved nine. Since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional, even though it is true that Congress promptly and resoundingly rejected the court-packing proposal.

And furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is federally regulated, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushes to intervene in commerce among the several states, formerly known as the Interstate Commerce Clause. Franklin Roosevelt had a certain right to gloat at Jefferson-Jackson Day dinners.

A few weeks before he died, Owen Roberts had all his papers burned. Apparently, we will never know whether the present outcome was the result he had in mind. Since he was later the author of Alfred Barnes' will, which strenuously sought to prevent the transfer of the Barnes art collection to Philadelphia County, anything written by a lawyer can apparently be reversed by other lawyers. One would have supposed that either the Original Intent would govern, or else the opinion of the Supreme Court on what the Constitution means, would prevail. Franklin Roosevelt showed us there is a third possibility: the President can overrule the Court by intimidating it.

Joseph Story on Politics Under the Constitution

{Joseph Story}
Joseph Story

The structure [of the Constitution] has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom and order; and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title.

It may, nevertheless, perish in an hour, by the folly, or corruption, or negligence of its keepers, THE PEOPLE. Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.


REFERENCES


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 Amazon
(for more article in this series, got to topic 383)

Thirteenth Amendment

Fourteenth Amendment

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Fifteenth Amendment

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Sixteenth Amendment

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Seventeenth Amendment

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Seventeenth Amendment

The Seventeenth Amendment of the Constitution provides for the direct election of U.S. Senators; prior to that, the states could decide for themselves how to select their Senators. The Amendment was proposed in 1912 and ratified in 1913. Today, most people have no opinion whether the Amendment was good or bad, necessary or unnecessary. The Progressives of 1912 professed to be shocked, shocked, that wheeling and dealing went on in the state legislatures every time there was a vacancy in the Senate. Indeed, few contestants on TV quiz shows would be able to tell you what the Amendment was about. It would be hard to find a person who would, without further study, be opposed to a reaffirmation of "The Senate of the United States" shall be composed of two Senators from each State, elected by the people thereof, for six years; and such Senators shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."

If you search for reasons -- why in the world would there be a fuss about this topic, 125 years after the "Constitutional Convention -- several plausible reasons are stated, all of them amounting to legislature incompetence. Such as deadlocks resulting in vacancies remaining unfilled, influence by corrupt political organizations and special interests through the purchase of legislature seats, and neglect of duties by legislators because of politics. Even though news of these matters has failed to persist in the national recollection, they seem plausible enough; it sounds like local politics, all right. But the plausibility was there in 1787, too, and surely the founding fathers expected something like that when they let the States select their Senators as they pleased. The whole idea surely was to give the states additional reassurance that they could block any further transfer of state power to the federal government; direct election of senators clearly reduced the power of state governments in the federal/state struggle. Mostly, of course, by the State Legislators selecting one of their own members to go to Washington.

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John Marshall

We have here a tilting of our governance from a Republic toward a Democracy, following the philosophy of John Marshall, of all people, that the behavior of all State legislatures everywhere will inevitably lead to mischief. Just a minute, please, let's give this a little thought. Surely the vast amounts of campaign money required to run for a Senate seat compare with the amount a special interest would have to spend to buy a majority in the Legislature of a State. As a practical matter, most special interests have lost interest in State politics and spend their money in Washington -- except for those few special interests that are exclusively State regulated. This comes down to the insurance and real estate industries, with insurance only there because of the McCarran Ferguson Act. This isn't only because of the Seventeenth Amendment, it also has to do with Franklin Roosevelt's Court-packing attempt, which is discussed elsewhere.

{Greek philosopher Plato}
" Plato" using Leonardo da Vinci as model.

The idea of a Republic, originally set down by the Greek philosopher Plato, was that a small group of elite philosophers (you will have to forgive his professional biases) who meet together occasionally, would be better able to pick a member of their group for higher responsibilities, than would the populace. The inner circle would know who was an alcoholic, a phony, a pervert, a coward or a loafer, whereas these qualities can be concealed from mass audiences long enough to get elected. Such an in-group in a legislature may pick a bad person, or deliberately reject a good one, but they do it on purpose, not because they are fooled. The issue of direct election of Senators comes down to whether you think it is more likely that a legislature will be corrupt, or the voting population will be ignorant. Hard choice.

Meanwhile, election to the State legislature has been reduced to an inconsequential backwater, almost guaranteed to have an adverse effect on the members. There was a time when people who wanted to be U.S. Senator knew they must first run for the Legislature, where their skills could be tested and perfected. National affairs became State affairs, with legislators well aware that they could unseat a Senator whose national behavior displeased them. There are many States, Pennsylvania among them, who collectively pay far more federal taxes than they receive in federal benefits. Call it pork barrel if you like, the present degree of interstate wealth redistribution could not possibly continue at present levels if we repealed the XVII Amendment.

Eighteenth Amendment

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Nineteenth Amendment

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Twentieth Amendment

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Twenty First Amendment

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Twenty-Second Amendment

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TwentyThird Amendment

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Twenty-Fourth Amendment

It is difficult to find any American who has heard of the Twenty-Fourth Amendment, but it is easy to find European clauses which sound like it. It proposes little which imports anything different from the rest of the Constitution, or what I happen to believe. But it manages to suggest wide-spread flouting of the compromises which will now need re-emphasis. The language of Gouverner Morris suggests total prior agreement or at least total contemporary obedience, and that is true of the Bill of Rights as well. This Amendment sounds like scolding and thus sounds political. It sounds as though a sizeable minority of citizens intend to flout it, even if maybe dangerously close to a majority. In short, it sounds like what the author believes they ought to believe, not what they agreed to do.

The author of this amendment ought to re-read the preamble, where it is stated that the people are the real source of power, and this is what we the people agreed to believe. This is not a Bible, telling people what to believe. It is a misstatement of what they already agreed to do in this case. They can change their minds, but they have agreed to do so in a certain way.

The nice way to say this without quite saying it is technical. It is an unconstitutional amendment of the amendment process set out in Philadelphia two hundred years ago. The older part of the same document holds that judging elections is a function of the several states. Taking another step and stating that federal elections obey a new set of different rules from what the states decide for their own elections, is a violation of the original compromises which made ratification possible. Thirteen colonies gave up some of their sovereignty in order to have a unified state. As John Dickinson said to James Madison: "Do you want a Union, or don't you?"The federal government retains control of the national defense, and the ability to collect unified taxes. In return for that, everything else stated several different ways, belongs to the several states, means acting in a prescribed way. If you want to fight the Civil War all over again, you need a convention or a war. The Twenty-Fourth Amendment is an unconstitutional method of amendment--of the amendment process.




Twenty-Fifth Amendment

Although William Henry Harrison is the only president to die in office, the incapacity of Woodrow Wilson is often described as the Presidential term where the 25th amendment would have made an important difference. On the other hand, since the enactment of the Presidential Succession Act, there has been at least one occasion for every President where invocation has been seriously considered. On balance, therefore, many commentators have expressed the opinion that the 25th Constitutional amendment should be viewed as doing more harm than good, and predict some occasion in the future when we will consider it a mistake.
There is little question that politicians are ambitious, who will occasionally regard the 25th Amendment as an opportunity to be used as a blueprint for advancement. Rules of the game, so to speak. Balanced against this viewpoint is an equal invitation for ambitious Presidents to conceal their handicaps, opponents in favor, incumbents opposed. The arguments have, so far, not changed with experience.


Twenty Sixth Amendment

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Twenty Seventh Amendment

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.......................................Marshall

{John Marshall}
John Marshall

Marshall had one advantage over Franklin -- youth. Seeing what was needed, and the first three Chief Justices had failed to supply, he accepted John Adams' appointment to be Chief Justice immediately. He then devoted his remarkable legal mind to a whole lifetime of strengthening the role of the Supreme Court as the Federalists had intended, and as the Jeffersonian party had attacked. Marshall promptly found ways to confer on the Court the ability to review and prevent unconstitutional behavior by the Presidents and Congress, the other two co-equal branches of the national government. But his main task, never completely successful, was to devise hammerlocks for those intransigent state legislatures. Marshall quickly acquired enemies who were allied with the legislatures, especially Presidents Jefferson, Madison (!) and Jackson, who would all gladly have cut his political throat.

Although Marshall always seemed to win his battles, he did have to exercise caution in the face of Andrew Jackson's ruthless willingness to fight dirty. In his own view, he probably would be said to have lost the whole war, if his life's goals could be stated as trying to prevent the country from disintegrating into a civil war by learning to play by fair rules. Lincoln gets credit for saving "The Union" (that is, national government under the 1787 Constitution), but at a price of 600,000 casualties. Only if you add a further century to the review, can Marshall (and the 1787 Constitution) be viewed as a success.

C16.......Marshall

CONTENTS: this is the main body of text

another paragraph

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}
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}
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.

Let's Give the Supreme Court Some Help

For

{Privateers}
Supreme Court, 2017

all the current wrangling about abortion, it continues to be implicit that the U. S. Supreme Court has a problem, which the Court needs to settle. But in fact, the Court didn't create the whole problem. The Court doesn't need to solve all of it.

First of all, privacy. That word doesn't appear in the Constitution, but surely no one is opposed to making privacy a right. Even

{Privateers}
James Madison

James Madison wasn't opposed to the idea so much as he wanted to avoid cluttering the Bill of Rights with unnecessary detail. Unfortunately, circumstances have now changed enough to make it useful to be explicit about a strictly defined right to privacy. Since no one is truly opposed, what harm would there be in passing a bill in both the House and the Senate, and then having the required number of states ratify it? Once both sides got over the suspicion that somebody was trying to put something over on them, it should be possible to design simple clear language that creates and defines the right to privacy -- and avoids the temptation for somebody to insert some sly wording that does in fact put something over on somebody else. At the very least, creating a written right to privacy by following the prescribed path for amendment should dispel the idea that the abortion issue is part of an elaborate effort to undermine the Constitution.

By itself, this hypothetical amendment would seem like a rebuke to

{https://www.philadelphia-reflections.com/images/Blackmun.jpg}
Justice Blackmun

Justice Blackmun and the rest of the Supreme Court. It needs something else added in order to look like a compromise, which it is. So, what's proposed further is a declared presumption that state laws written before 1890 which forbid the performance of abortion were written with the intent of protecting the health of the mother.

That seems to be historical fact. There was a forty-year window of time between the invention of anesthesia, which made abortion easy to do, and Lister's invention of aseptic technique,

{https://www.philadelphia-reflections.com/images/antiabortion.jpg}
anti-abortion

which make abortion safe. The anti-abortion crusade, led by the American Medical Association, took place during that window of time. The AMA was alarmed by the medical disasters it was witnessing and urged legal measures to curtail it. When the safety issue was resolved by Pasteur and his followers, the AMA greatly softened its position. It is now surely true that more mothers are protected by abortion than harmed by it. If the courts have a role in untangling this mess, it is to recognize that the original intent of the anti-abortion laws has become lost by ignoring the changed scientific situation.

Well, where would this leave us? It should get privacy out of the issue, by making it clear that the right to privacy in the new amendment is not to be stretched to legitimize

just anything that people want to keep private. Murder, for example, is something everyone might well wish to hide but could hardly be legitimized by a right to privacy. Nor is defecation, which everyone wishes to keep private, to be prohibited just for that reason. Abortion could be constitutionally established as something people have a right to keep private, but abortion -- other than to protect the health of the mother -- is not legitimized or de-legitimized by saying so.

Does teasing out the sophistries then settle the question of abortion? No, but it would reduce the problem to its essence. By the process of teasing away the irrelevance, abortion then becomes a process which is safe, easy to do, and legitimate whenever it protects the health of the mother. Whether to prohibit it when it lacks those features would be a decision for the individual state governments, so long as the threat of public exposure is not used as an enforcement weapon, as every reader of Hawthorne knows it has been.

Perhaps we can even imagine the day when stripped of emotional demons, abortion can be viewed as a rather cumbersome contraceptive method, currently resorted to far more frequently than is sensible.

Chief Justice John Marshall Enters (Kettledrums and Crashing Cymbals)

{Chief Justice John Marshall}
Chief Justice John Marshall

Chief Justice John Marshall first took his seat at the opening of the new term, in Washington the new capital, on Wednesday, February 4, 1801. It was also at the end of Philadelphia's twenty-five-year reign as the center of the country, and twelve-year Federalist domination of national power, except for the Supreme Court. The Presidency, both houses of Congress, and the federal bureaucracy were in the hands of Jefferson's party. Only the dwindling life tenure of federal judges permitted some power to remain in the hands of Federalists for several more decades. John Adams the defeated Federalist President realized this very well and hastened to fill any remaining vacancies before he left the office. The Jeffersonian Republicans understood what was happening, resented it, and referred bitterly to the "Midnight Judges". We discuss the Marshall Court in some detail because it leads to the Andrew Jackson escapade in high finance, which ultimately merges with evolving financial history back in Philadelphia at the crashing termination of "Biddle's Bank".

Marshall was himself a Midnight Judge in the sense he was the retiring (Federalist) Secretary of State, immediately appointed by Adams to the duties of Chief Justice. He was himself the office of the Adams Administration who neglected to deliver the certificate of appointment of Justice of the Peace to Marbury, who promptly sued James Madison the incoming Secretary of State, to give him his signed and ratified certificate. Jefferson the incoming President of the United States, ordered Madison not to give it to Marbury. The behavior of all these high officials was unbecomingly petty since it was within the power of several of them to end the tangle in simple ways. To make matters still more infuriating, Jefferson delivered a beautiful, heart-warming First Inaugural Speech, full of forgiveness and invitation to compromise ("We are all Republicans, we are all Federalists"), which his own intransigence before, during and afterward transformed into a Federalist by-word for hypocrisy exceeding anything in Shakespeare. It's hard to say whether it makes these performances more or less bearable to learn that Marshall and Jefferson were first cousins. In any event, Marbury v. Madison was the first example of a Supreme Court ruling that a law was unconstitutional. The legal point on which this titanic Constitutional point rested, however, seems mostly a minor procedural error, leaving poor Marbury's problem as a footnote, Marshall's negligence uncriticised, Jefferson's interference unimpeached, and the whole nation's opinion of its governance sadly disappointed. On vivid display was the dominance of petty private grievances of our most venerated Founding Fathers, in an era when a public policy seemed most in need of getting the highest priority. In 1800, the confluence of names alone suggested crisis: Aaron Burr, Robespierre, Bonaparte, Hamilton. It was certainly a dramatic way for John Marshall to make an entrance on the public stage, but compared with the tie-vote election of 1800, and the Trial of Aaron Burr the Vice President for treason, it scarcely seemed worth public notice.

Within legal circles, professional achievements of Judges are ranked by a different standard which seems obscure to both the public and historians. Oliver Ellsworth, Marshall's immediate predecessor, nowadays seems most highly esteemed in the legal profession for revising the nature of judicial opinions. Prior to Ellsworth, the seven justices gave their opinions individually and serially. Ellsworth simplified this to majority and minority opinions of the entire court, with individual concurring opinions if insisted upon. The Chief Justice selects who will write the majority opinion, and generally writes it himself if he is in that majority. Effectively this makes the Chief Justice the voice of the court in important cases. Ellsworth retired for reasons of health before he got many advantages from this change, so the full force of Chief Justice power began to appear with the voice of Marshall. John Marshall then added his own twist, which was the obiter dictum .

Judges often make little speeches from the bench, which sometimes are on the public record. If they are directly related to the decision or opinion, they have some force as precedents to lower or later courts. In other circumstances obiter dicta have little consequence, but Marshall recognized there was a very big difference when an obiter issued from the pen of the Chief Justice of the United States, speaking for a majority of the Supreme Court. All Judges of every Federal Court and the Judges of State Courts in many situations are then on notice that the obiter is the opinion of that court to which all appeals could ultimately be made. It would be a brave judge who ignored this warning, and only a foolish lawyer would bring a case which flouted it. John Marshall had found a way to legislate what was effectively the Law of the Land, one without the possibility of a veto while he was still on the bench. He had not been made an Emperor, because the power of his dicta would depend on how combative he and fellow justices chose to be about it. But, looking ahead, Andrew Jackson would have been showing a profound lack of subtlety about the way things really are, had he issued his famous jibe that "John Marshall has made his decision. Now let him enforce it." Jackson's most distinguished biographer Robert Remini maintains Jackson never said it, and prudently so.

Marshall was also prudent when he had to be, and acting as a Moses was careful to confine his Commandments to his mandate, which was the American law. Some of his obiter dicta might have been ignored as coming from the most powerful Federalist of his day, a former chief of the Virginia Federalist party, but with the passage of time several of these opinions have passed from statements of early Nineteenth century judicial policy into becoming the accepted American view of things. It is reasonably safe to say the following three dicta anticipate the coming of the Civil War, define its issues, and survived that war, reconfirmed:

The Federalist View of the Constitution. The Constitution is an ordinance of the people of the United States, and not a compact of States.

Enumerated powers. While the government which the Constitution established is one of the enumerated powers, as to those powers it is a sovereign government, both in its choice of the means by which to exercise its powers and in its supremacy over all colliding and antagonistic powers.

States Rights. The National Government and its instrumentalities are present within the States, not by the tolerance of the States, but by the supreme authority of the people of the United States.

{top quote}
Article 1, section 10, clause 1 No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. {bottom quote}
The Contract Clause

The Sanctity of Contracts. In a famous dialogue between James Madison and Roger Sherman of Connecticut, Madison identified the erratic and high-handed behavior of state legislatures as one of the main reasons to convene the Constitutional Convention. He was describing a long list of behaviors which included reclaiming sales which had been regarded as permanent, reversing statutes, interfering with executions or other verdicts of courts, intervening in private controversies, calling for new hearings, introducing new rules of evidence after a trial had begun, and so forth. To a considerable degree, these abuses grew out of a collision between the undeniable right of a later legislature to change the rules which had been established by an earlier legislature, balanced against the disruptive effect of making any changes in rules, no matter how beneficial. For their part, the courts were in need of restraining themselves with doctrines like stare decisis , while reserving the right to make desirable changes in the law after serious consideration. They were also in need of establishing best practices and insisting they be followed, eventually evolving into the concept of due process , which eventually became Constitutional doctrine by the XIV Amendment. The legislative equivalent of these judicial principles was seen in laws passed after the crime had been committed ( ex post facto ), special legislation for one case an exception to general rules, and a wide variety of other unfair practices which had grown up. Accordingly, Article 1, section 10, clause 1 of the Constitution was written but often evaded in practice by sly legal tricks with Latin names. Examples of the broad principles might be stated in the constitution, but it required an experienced Judge to recognize the many evasions for what they were and organize a set of rules to implement the Constitutional principle. Marshall appointed himself in that role and systematically integrated his judicial counter-attack into a coherent code of moral conduct, bit by bit in obiter dicta.

We should let the French traveling correspondent, Alexis de Tocqueville, pass the final judgment on Marshall's effort:

"Scarcely any political question arises in the United States which is not resolved sooner, or later, into a judicial question. Hence all parties are obliged to borrow in their daily controversies the ideas, and even the language peculiar to judicial proceedings. . . The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate."

John Marshall's Constitution

{Patrick Henry}
Patrick Henry

The best way to remind Americans, especially skeptical ones, of the unique value of our Constitution is to ask a question. "Can you name a single other examples in all recorded history where thirteen nations peacefully gave up sovereign power to become one unified nation?" No, but it took two hundred years of failures of similar attempts, to demonstrate the American achievement. The U.N. and the European Union are recent examples of other failed attempts to conciliate and unify; the French Revolution was an early botched one. With few exceptions, unions are unified at swords point. This dismal record exists in spite of abundant evidence that most nations are too small to prosper; it seems to be necessary to beat people over the head to make them agree to be prosperous. Even so, ratifying our unification was a close call, hotly resisted by notables like Patrick Henry and Thomas Jefferson.

{Thomas Jefferson}
Thomas Jefferson

Many historians conclude our Constitution was merely lucky, could not have been accepted at any other time, except immediately following a shared revolt against high-handed misrule. During that eight-year war, the follies of ruinous inflation, unenforceable contracts, drum-head justice and inability to collect taxes -- the collective anarchies of feeble government -- were everyday observations. America wanted to rid itself of a king, but it was plain that without that remarkable man, George Washington, peace and prosperity were inconceivable. In short, America had just felt the consequences of the many choices it would need to avoid, so in 1787 we avoided them. A much-criticized decision was made by the founders to avoid the slavery issue and a good thing we did. Eighty years later we still had to fight our bloodiest war, just to hold that Union together. The industrialized North did not go to war to free slaves. It fought to preserve a dynamic Union of expanding states. Even The South was not defending slavery so much as struggling to preserve a place in this new world until it could find some plausible way to escape its antiquated life support. That is not easy to do under a system of majority rule.

Although the Constitution enshrines majority rule, the American Union is held together with the glue of decent respect for minority viewpoints. That's fragile glue, indeed. In any unavoidable collision of interests, the main argument for still leaving the Constitution untouched is not respect for Original Intent. It is fear this unique accomplishment will disintegrate if tinkered with.

{John Marshall}
John Marshall

Three other introductory points need to be made, about John Marshall, about Philadelphia, and about the evolution of common law into statutory law. The Constitution we know did not emerge complete from the 1787 Convention, or even after the first Congress produced the Bill of Rights in 1791. John Marshall, who did complete it, was not even the first Chief Justice. Nevertheless, almost alone he forged national agreement on three essential points: 1. The Constitution is the keystone of our legal system, dominant over other authority. 2. Since the Republic began with a legal blank slate, English Common Law is the default position, but only until the Supreme Court rules on it or Congress asserts a statute. 3. The Supreme Court and only the Supreme Court may define what the Constitution means when challenged. These three unwritten axioms seemed so clear and irrefutable when Marshall deployed them, that they still stand -- because they are unchallengeable, not because they were ratified.

Finally, the rest of the nation may not be completely comfortable hearing a Philadelphian declare that our quite singular Constitution could not have emerged from any other city, as well as at any other time. The evidence to support what some may call chauvinism rests on the historically abrupt decline of American civic virtue as soon as the nation's capital moved to less utopian surroundings. Others may well have a different viewpoint, but the opinion remains that the nation survived the chaos from 1800 after the migration of the Capital from Philadelphia, until the end of Civil War -- only because we were protected by thousands of miles of ocean.

John Marshall Decides Three Cases

{Chief Justice John Marshall}
Chief Justice John Marshall

John Marshall, taking sixteen years to do it, transformed the Constitution internally into the cornerstone of the Rule of Law, making the legal profession its guardian. Nine respected justices now essentially hold lifetime appointments as bodyguards of the structure Marshall designed, with all lawyers acting as lesser officers. Nevertheless, four personal things are important to remember. Marshall had been a Revolutionary soldier, he wrote a five-volume biography of George Washington, he positively hated his first cousin Thomas Jefferson. And his thirty-five-year tenure as the third Chief Justice of the U.S. Supreme Court coincided with some of the dirtiest national politics the nation has ever seen. Marshall's enthronement of Chief Justice control of the federal courts was tolerated because it promoted them both to national power. And when this tough politician had earned the loyalty of both the court system and the legal profession to himself, he transformed the image of the Constitution from a contract between the states into an American Bible for the Rule of Law. Incidentally, he could beat anyone at horseshoes, a game requiring a winner to be both strong and precise. Much of his achievement grows out of three pivotal Supreme Court cases, which today might just as well be regarded as amendments to the Constitution.

{top quote}
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction {bottom quote}
Article 3, Section 2.3

Marbury v Madison (1803). The first of Marshall's three cornerstone cases involved the Chief Justice himself. After being defeated for reelection to the Presidency in 1800 by Thomas Jefferson, President John Adams hastened to fill up remaining judicial vacancies before Jefferson his successor could be inaugurated, in a maneuver described as "appointing midnight judges". In a sense, Marshall's appointment as Chief Justice had also been in anticipation of the coming eviction of Federalist office holders, so he was himself more or less a midnight judge, destined to become by many years the last Federalist to survive in office. In any event, he was Adams' Secretary of State, soon to be replaced by James Madison, who would then assume the duty to deliver judicial appointment papers to new judges. Marshall was an impassioned Federalist, bitter about the defeat of his party, nursing personal hatred for Jefferson after years of family differences. To say he had a conflict of interest is not only to brush hurriedly by the issue but also to dramatize what loose judicial standards prevailed at the beginning of his three-decade tenure as Chief Justice.

Appointment papers for the midnight judges were completed and lying on the desk of the Secretary of State when the Presidency changed hands from Adams to Jefferson. Had he known what was coming, Secretary of State Marshall would surely have hastened to deliver the papers, but he had not done so. His successor as Secretary of State, James Madison, on the orders from Jefferson, refused to do it, so Marbury sued for a writ of mandamus, or order from a court to deliver the documents. By this time, Marshall was in a new role of presiding over the Supreme Court, fearful to attack Jefferson head on, but nevertheless eager to command the most humiliating obedience from him. Using the technicality (actually, the plain language of the Constitution) that the request was made to the wrong court, mandamus was rejected by Marshall. However, he went on to say in a judicial aside (obiter dictum) that if the right request had come to the U.S. Supreme Court properly , the Court would have approved it. Thus, in one dazzling maneuver at the beginning of his term, Marshall simultaneously asserted the Court's right to review Presidential and Legislative actions, reproved Jefferson for his ignorant conduct, and boxed him into submission by seemingly letting him win a minor case, but one he could be sure would soon have been followed by major ones if the President somehow evaded this decision. Furthermore, he dazzled the legal profession with this tap-dance, guaranteeing their applause by greatly enhancing the status of judges within the Republic, especially compared with the President. And, it should be mentioned, he suppressed public outcry by performing this set of actions in full public view, cloaked within incomprehensible legal garments. The public could see he had done something important, which only lawyers would completely understand. Marshall plainly began his term by demonstrating the full meaning of the rule of law, and his own position astride that law. The main point was that when ordinary judges include offhand commentary in a decision, it might be ignored. But when the Chief Justice of the United States speaking for the majority of his court, makes a legal observation, it would be a brave lawyer indeed who would bring an action in conflict with it. And as for the President and Legislature, Marbury v Madison had also just brushed them aside. It was all done properly, using civil language but deadly logic.

Martin v Hunter's Lessee (1816). This case might be a little more understandable if retitled as "The Heirs of Lord Fairfax v Fairfax County, Virginia". A Virginia law permitting the seizure of Tory property, written decades before the Constitution, asserted its precedence to Federal Law, and therefore its precedence over Federal Law. (To this day, Virginia never quite forgets it was once the largest, richest state, founded nearly two centuries before the Constitution.) Like Marbury v Madison, the case is clouded by Marshall's personal involvement since the Chief Justice had signed a contract with Martin to buy the land himself. This impairment to the case's claim to legal cornerstone status is not entirely annulled by Marshall recusing himself, turning authorship of the opinion over to his faithful disciple Justice Story. Furthermore, the judicial establishment of the principle that an international Treaty (in this case, the Jay Treaty) takes precedence over an Act of Congress is one the nation may still someday come to regret, if movements for "International human rights" and "universal international law" continue to gain popular traction. Such movements are numerous, including international law for the conduct of wars, and the universal Law of the Sea.

The United Nations might now be more of a force if they had not stumbled over the franchise of hundreds of nations, each given an equal vote. To expect the major nations of the Security Council to obey the single-vote mandates of dozens of small African nations is to agree in advance that the UN must be disregarded. Nevertheless, Martin v Hunter's Lessee did eliminate an escape route from Supreme Court domestic domination which might have proved troublesome in Civil War nullification disputes, or in legal cases for which national uniformity is important. On appeal, the Supreme Court finally declared its absolute supremacy over State courts as a general matter, clarifying a number of legal loose threads which had been keeping the precedence issue alive.

McCullough v Maryland 1819) The facts of this case seem considerably simpler than Marshall's long and thundering opinion of them. Indeed, the opinion sounds more like an oration on the meaning of the Constitution, or an enraged obiter dictum , than a terse opinion that the State of Maryland's legislature had passed an unconstitutional law. His remarks are indeed an exposition on the general thrust of the Constitution, foreshadowing many disputes leading up to the Civil War. In effect, it began to make it clear to the slave states that their states-rights viewpoints might conceivably be upheld on a battlefield, but never in a Courtroom. It is thus an opinion which every law student should read several times, and every citizen would profit from reading at least once. At Gettysburg Abraham Lincoln was to restate the principles in concise, even poetic, language. But long before that, Marshall had stood upon a legal mountain, declaiming them in thundering detail.

{top quote}
The Congress shall have power---To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. {bottom quote}
Article 1, Section 8, clause 18

The United States Congress had chartered the Second Bank of the United States in 1816, which then established a Baltimore branch in 1818. There was a national financial panic in 1818, which probably hastened local bank lobbyists to the Maryland Legislature, looking for relief from the unwanted federal competition. Maryland passed a law imposing a fairly high state tax on the operations of the new federal bank. McCullough, the cashier of the federal branch bank, refused to pay the tax. On appeal, McCullough maintained the tax was unconstitutional, and the U.S. Supreme Court upheld him, ordering the opinions of the Maryland courts to be reversed. John Marshall wrote the opinion and took the occasion to set forth his views on constitutionality. Point by point, my point.

What it meant, the old Federalist in a sense intoned, was the states had lost power at the Constitutional Convention and were not going to get it back. The founding fathers and George Washington, in particular, had been uneasy about accusations they had gone beyond their mandate in even calling the Philadelphia Convention. The Articles of Confederation had declared its own provisions to be "perpetual", and the states had previously bound themselves to that. True, the Confederation Congress had authorized a study of how to improve the Articles, but it had never gone so far as to suggest the Philadelphia Convention toss them out.

When the Philadelphia Convention was finishing up its work, Gouverneur Morris had written a preamble beginning with "We the People" in order to assert that its authorization came from the people and not from the governments directly confederated under the Articles, which was true. The ratification process was carefully steered into the language which asked for ratification by the people, acting by states, and from which elected state officers were excluded. The state ratification conventions heard considerable concern about legitimacy voiced by those who probably really disapproved of one feature or another. But overall it was more importantly true that the people at the ratification conventions gradually grew intrigued by the mechanics of self-rule and appreciative of the depth of thought they could see the founders had displayed. By the time the necessary number of states had ratified, public enthusiasm was genuine, while the opposition was squelched into silence or else indirection of speech. Legitimate opposition was acknowledged by specifying that ratification was conditional upon the adoption of a Bill of Rights. Finally, after the new government was subsequently tested by wars and near-wars, pratfalls and triumphs interspersed, the opposition was not only widely judged to have had its say, but its own chance to stumble. After nearly three decades of this, Marshall seems to have decided it was time to lay down the law. All of that is behind us, he said in effect state governments have knuckled under, and the Constitution is indeed triumphant. It was time to snuff out the grumbling and the scheming, and to declare invalid any future attempts at evasion.

The constitutional compromise had confined federal power to a few defined activities and whatever else was proper and necessary within those powers. It did not limit Congress to "absolutely" necessary and "absolutely" proper actions which might heedlessly confine such limited powers to awkward and inefficient behavior. Rather, the Constitution identified areas of power where the two types of government were best suited, expecting them to do their best without hampering each other with turf battles. If Congress decided that banks, or chartered corporations, were desirable means of promoting commerce which had been left unspecified in the Constitution, states could not for that reason alone interfere with federal use of them. States could charter any corporations and banks they pleased, and the federal government could do the same, but only if necessary and proper. There were many other features left unspecified, proper enough for the states to do, but which the federal government might also do -- when necessary and proper to implement its enumerated powers. It was, in short, improper for states to interfere with what was desirable for the national government to do unless the Constitution prohibited it. And the U.S. Supreme Court would be there to decide close cases.

In particular, the states were not to undermine the federal government in the legitimate pursuit of its enumerated powers. Of the strategies available, taxation was particularly vexing, since the difference between a fair tax and a burdensome one can be a matter of opinion. Ultimately, the power to tax is the power to destroy, and it would be better not to have the states taxing the national government in its operations, like issuing currency. The exception might be made for traditional state activities like taxing the bank's real estate. But if the states can tax currency operations, they can set any price, taxing anything if they set about to undermine legitimate Federal activities; such hampering was not contemplated at the Philadelphia Convention, and it will not be tolerated by the courts. Legislatures whose sovereignty ends at their state borders have no right to tax the entire nation which extends beyond those borders. And since state courts must follow state interests and state constitutions, their rulings are subordinate to those of the federal courts, as well.

With the one possible exception of international treaties, all government entities which might challenge the Supreme Court had by now had their noses rubbed in subordination to it. John Marshall went a step further. He even invented a new way to fashion laws which no one at all could challenge: as long as he spoke for the majority, the asides and comments of the Chief Justice in his obiter dicta had become a sort of supreme law.

Unwritten Constitution

{Privateers}
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.

-->

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.

{Privateers}
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.

{Privateers}
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.

Unwritten Features of the Constitution

{top quote}
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. {bottom quote}

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 Robert Morris}}
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.

{Privateers}
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}
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}
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}
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.

xxxOur Unwritten Constitution

New blog 2012-05-21 16:13:41 contents

Void for Vagueness

{Question Mark}
Question Mark

BECAUSE otherwise, everyone would plead ignorance, ignorance of the law has been dismissed as a defense for thousands of years. What, then, is the situation when the statute itself is accused? Here, a group of citizens accuses the government of enacting vague laws, conceivably with the malicious intent to give government officers a free hand. Only the U.S. Supreme Court may decide Constitutional issues, and nine Justices are certainly inadequate to cope with a huge vagueness project. The Court must at least define a method for coping with imprecision. What is to be done with this?

{top quote}
Is it really any longer true that ignorance of the law is no excuse? {bottom quote}

This novel proposition is a recent one, mostly because the volume of laws has steadily grown since 1787, when we began the Republic without any statutes at all, to the present gargantuan size of the Federal, State and Local Codes requiring hundreds of feet of shelf space in a library. No human brain can contain all that information at once, not even to mention the interpretive Regulations which grow by hundreds of thousands of pages each year. The limits of practical governance by traditional methods have passed the point where ignorance of the law is a theory, it is an absolute certainty for every citizen in most situations. Is it thus really any longer true that ignorance of the law is no excuse? Perhaps modern computer search capability has advanced to the point where it can conquer this problem for judges in an appellate situation, but woe unto the financier or automobile driver who professes ignorance of the state of judicial dispute resting in the system. Sometime relatively soon, some legal genius must figure out a sensible, workable, way to reconsider the rule that ignorance is no excuse when plainly anything other than ignorance is a laughable pretense.

But this muddle is only a background for a new twist to the same issue. The synthetic process has now created a growing apprehension that duly elected officials have passed laws which are deliberately vague, forcing the country to surrender decisions to a tyrannical process. Leave motive and intent out of the discussion; a tyrant is being created whether a tyrant seeks the crown or not. Just review recent history.

{Privateers}
Lame Duck

We now grow accustomed to seeing proposed legislation thousands of pages long, appearing on the desks of elected congressmen who have been given a day or two, or sometimes less than a day, to approve them. The authors of this proposed legislation are often quite unidentifiable, and might sometimes not even be officials of the government. For a while, there was some talk of appointing "Czars" for certain areas of activity, but this has apparently provoked too much Congressional resistance. These multi-thousand page bills appear out of nowhere in particular, nominally authorized by the Speaker, the Committee Chairman, or some other official of Congress whose freedom of action is actually tightly controlled by arcane but irresistible partisan politics. A legislative body pretending that every member is the equal of every other, is in fact ruled with an iron hand.

Elected representatives of the people, charged with writing our laws, who even happen to belong to the majority political party, are powerless to refuse to adopt the legislation they have not read, and the minority is even more dismissively ignored. Confounding even careful reading of small sections of these bills, they are vague, potentially intentionally so. There is scant opportunity afforded legislators to question the authors of these legislative piles, not even the opportunity to have them reveal their names. Subscribe to this mystery package, or suffer unspoken political punishments. We are told assurances are privately given there will be an opportunity to correct errors when regulations are written by the Executive branch. The Legislative branch effectively removed itself from the expenditure of a trillion dollars for a medical reform that no one could lucidly explain, affecting a sixth of the gross domestic product. Within a month, this "reform" was followed by a highly similar process directed at the financial system of the nation, which likewise bears almost no resemblance to the problems it claims prompted the action. Small wonder the countryside is dotted with Tea Parties, and small wonder they are confused by what they want. Chief among their objectives is a demand to return to an understandable system, controlled by the legislative branch, not the executive one.

Whether the applicable term is "vagueness" or whether an underlying motive is to be alleged by calling it "deliberate ambiguity", a former Justice of the U.S. Supreme Court once supplied an adequate slogan for these legal barricades. Justice George Sutherland, who sat on the court from 1922 to 1938, constructed the legal standard for the unconstitutionality of criminal cases called Void for Vagueness . It seems a sufficiently evocative slogan for fall election campaigns, and it might even serve as a legal claim in a Supreme Court test of the matter.

{Lame Duck}

Meanwhile, we have wars to fight, and the deepest recession in eighty years, plus whatever events national or international news may force us to contend with. A monumental Supreme Court test seems an almost welcome alternative. To make it possible, the Court will have to resolve the difficulty that this issue is neither criminal nor civil in the usual sense, and there is no third alternative. Furthermore, there is the picky-picky quibble that the doctrine of "void for vagueness" has only previously been used in criminal cases. We will have to endure the Republican resurrection of George Sutherland as a former American Bar President, whose elevation to the Supreme Court was so anticipated by everyone that he was unanimously confirmed, without hearings, the day he was nominated.

The fact is, popping the bubble of "void for vagueness" in this particular political tap dance is only an early warning that the nation is already inundated in a sea of bewildering rules. To the point where ignorance of the law must be acknowledged to be the common fate of all citizens. The law must soon address the matter, uncharacteristically remembering that the first step in resolving any true crisis is to decide which rule must be broken.

Marshall's Predecessor, Oliver Ellsworth

{top quote}
Judiciary Act of 1789. Sec. 25.
That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceedings upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution.

But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute. {bottom quote}
Section 25 (In Full)

Oliver Ellsworth was a scion of several old Connecticut families, had nine children who were not only distinguished themselves, but whose descendants were similarly gifted, rich, and important members of New England society. The Ellsworth give every sign of possessing a very good gene pool. Unfortunately, Oliver's last years were agonized by some disease which gave him constant and sometimes excruciating pain making him terse and abrupt; eventually, he had to resign as Chief Justice after an unbearable recrudescence of his disease. His career almost reads as if he designed it to prepare the Chief Justice's role for his own enjoyment, but instead had to turn it over to John Marshall to enjoy. Associate Justice Joseph Story's career, in turn, reads as though he had been groomed to evangelize Ellsworth and Marshall's Constitutional achievements. Without Story's prolific writing all this Judicial revolution would merely have taken second place in public attention, competing with convulsive political battles, the shooting of Hamilton by Burr, wars and near-wars with European powers, dramatic increases in the population and land mass of the United States, a populace delirious with notions of its own sovereignty, and The Industrial Revolution. Publicity might not have been necessary in a calm, peaceful world, one with time and communication systems allowing public notice of what was happening.

Oliver Ellsworth had been a member of the Continental Congress, was an ardent rebel against British rule, had a flourishing law practice in Windsor, Connecticut, and later in George Washington's presidency was a leader in promoting Hamilton's economic and banking upheaval. He was, so to speak, Mr. Federalist. During the First Congress, he quickly invented and exercised the role we now would describe as Senate majority leader. Like others who had participated in the political science seminar we now call the Constitutional Convention, he had already formed his political beliefs, and when Congress finally opened, he hit the ground running. To understand Ellsworth however, is to understand his deeply-held preference for secrecy, which his opponents characterized as deviousness. He much preferred private negotiations to persuasive oratory, and for five years was able to prevent the Senate from having either minutes or visitors. In this instance, he began his negotiations about the Judiciary Act with James Madison, ostensibly about the Bill of Rights, which was the main activity in the House of Representatives at the moment. No wonder Senator Maclay of Pennsylvania said of Ellsworth, "He will absolutely say anything, nor can I believe he has a particle of principle in his composition," and "I can in truth pronounce him one of the most uncandid men I ever knew possessing such abilities."

On four occasions during the Constitutional Convention, Madison had proposed and been defeated on motions to create Congressional Review of State Laws, that is, the ability of Congress to declare State Laws unconstitutional. Ellsworth, fearing it would jeopardize state ratification of the new constitution, opposed and helped defeat the motions. Now, things were different, and Ellsworth negotiated Senate agreement to much the same idea, provided it could be changed to Judicial Review, and also provided the House of Representatives would agree to pass the Judiciary Act currently under development in the Senate. The deal was made, and both bills were duly passed. Whether Madison or anyone else understood what was in the Judiciary Act, is now unclear. Accordingly, the two-sentence Section 25 of the Judiciary Act of 1789 is appended for individual reader appraisal. In essence, it says the U.S. Supreme Court may hold unconstitutional a decision of a state supreme court to reject an appeal from an unconstitutional act. That is, the 25th section of a bill to organize and coordinate the Federal and State Court systems contained a mysteriously written, two sentence, a transformation of Congressional Review into Judicial Review. From this point onward, the U.S. Supreme Court was empowered -- by Congress -- to declare state laws unconstitutional. Wrapped in the same bicameral deal was an implicit subtle shift in emphasis of the Bill of Rights from protecting the States from the federal government, to one of protecting the people from any and all government over-reaching. It was a noble achievement, facilitated by some questionable maneuvers by the umpires to help it along.

Delaware's Court of Chancery

{https://www.philadelphia-reflections.com/images/chancerylogo60.gif}
Chancery

Georgetown, Delaware is a pretty small town, but it's the county seat so it has a courthouse on the town square, with little roads running off in several directions. The courthouse is surprisingly large and imposing, even more, surprising when you wander through cornfields for miles before you suddenly come upon it. The county seat of most counties has a few stores and amenities, but on one occasion I hunted for a barbershop and couldn't find one in Georgetown. This little town square is just about the last place you would expect to run into Sidney Pottier and all the top executives of Walt Disney. But they were there, all right, because this was where the Delaware Court of Chancery meets; the high and mighty of Hollywood's most exalted firm were having a public squabble.

Only a few states still have a court of Chancery, but little Delaware still has a lot of features resembling the original thirteen colonies in colonial times. The state abolished the whipping post only a few decades ago, but they still have a chancellor. The Chancellor is the state's highest legal officer, and four other judges now need to share his workload, which was almost completely within his sole discretion seventy-five years ago. In fact, the Chancellor usually heard arguments in his own chambers, later writing out his decisions in longhand. The Court of Chancery does not use juries.

Going back to Roman times, the Chancellor was the highest office under the Emperor, and in England, the Lord Chancellor is still the head of the bar in a meaningful way. Sir Francis Bacon was the most distinguished British Chancellor and gave the present shape to a great deal of the present legal system. A court of Chancery is concerned with the legal concept of equity, which is a sense of fairness concerning undeniable problems which do not exactly fit any particular law. The Chancellor is the "Keeper of the King's conscience" concerning obvious wrongs that have no readily obvious remedy. You better be pretty careful who gets appointed to a position like that, with no rules to follow, no supervisor, no jury, dealing with mysterious issues that have no acknowledged solution.

{https://www.philadelphia-reflections.com/images/Read_small.gif}
George Read

Delaware's Court of Chancery evolved in steps, with several changes of the state Constitution over a span of two hundred years. As you might guess, a few powerful chancellors shaped the evolution of the job. Going way back to 1792, Delaware changed its Supreme Court from the design of its Constitution, and George Read was the new Chief Justice. However, it was all a little embarrassing for William Killen, who had been the Chief Justice, getting a little old. Read refused to have Killen dumped, and in this he was joined by John Dickinson, who had been Killen's law clerk. So Killen was made Chancellor, and a court of Chancery was invented to keep him busy.

Under a new 1831 Constitution, the formation of corporations required individual enabling acts by the Legislature and limited their existence to twenty years. However, the 1897 Constitution relaxed those requirements and permitted entities to incorporate under a general corporation law and allowed them to be perpetual. By this time, other states were distributing equity cases to the county level, but Delaware was too small to justify more than a single state-wide Court. That court was attractive to corporations because it could become specialized in corporate matters, but retained a pleasing number of equity cases among common citizens, thus retaining a folksy point of view. In unique situations or those without a significant history of public debate, it was thought especially desirable to strive for unchallenged acceptance of the court's decision.

But other states thought they could see what Delaware was up to. In 1899 the American Law Review contained the view that states were having a race to the bottom, and Delaware was "a little community of truck farmers and clam-diggers . . . determined to get her little, tiny, sweet, round baby hand into the grab-bag of sweet things before it is too late." However, that may be, corporations stampeded to incorporate in the State of Delaware, and the equity of their affairs was decided by the Chancellor of that state. In one seventeen year period of time, the U.S. Supreme Court reversed the decision of the Chancellor only once.

{start quote}
Chancery's jurisdiction was complementary to that of the courts of common law.

It sought to do justice in cases for which there was no adequate remedy at common law. {end quote}
A. H. Manchester
Modern Legal History of England and Wales, 1750-1950
(1980)

Some legal scholar will have to tell us if it is so, but the direction and moral tone of America's largest industries has apparently been shaped by a small fraternity or perhaps priesthood of tightly related legal families, grimly devoted to their lonely task in rural isolation. The great mover and shaker of the Chancery was Josiah O. Wolcott (1921-1938), the son and father of a three-generation family domination of the court. Most of the other members of the court have very familiar Delaware names, although that is admittedly a common situation in Delaware, especially south of the canal. The peninsula has always been fairly isolated; there are people still alive who can remember when the first highway was built, opening up the region to outsiders. Read the following Chancelleries quotation for a sense of the underlying attitude:

"The majority thus have the power in their hands to impose their will upon the minority in a matter of very vital concern to them. That the source of this power is found in a statute, supplies no reason for clothing it with a superior sanctity, or vesting it with the attributes of tyranny. When the power is sought to be used, therefore, it is competent for anyone who conceives himself aggrieved thereby to invoke the processes of a court of equity for protection against its oppressive exercise. When examined by such a court, if it should appear that the power is used in such a way that it violates any of those fundamental principles which it is the special province of equity to assert and protect, its restraining processes will unhesitatingly issue."

That is a very reassuring viewpoint only when it issues from a person of totally unquestioned integrity, a member of a family that has lived and died in the service of the highest principles of equity and fairness. But to recent graduates of business administration courses in far-off urban centers of greed and striving, it surely sounds quaint and sappy. And many of that sort have found themselves pleading in Georgetown. Just let one of them a bribe, muscle, or sneak into the Chancellor's chair someday, and the country is in peril.

Sanctity of Contracts

{Constitution}
Constitution

THERE is little doubt many state legislatures behaved in a capricious and high-handed way in the twenty years prior to the 1787 Constitution. Outrage at this behavior was one of the important stimulants to writing the Constitution, as well as putting public pressure on state legislatures to ratify it in 1788. Section 10 of Article 1 is devoted to limitations on state behavior deemed to be generally offensive or otherwise contrary to the national interest. Among the comparatively short list of absolute prohibitions is found "No state shall......, pass any law.....impairing the obligation of contracts, or grant any title of nobility." This section condemns certain behavior as indefensible but does not specify the Federal government to be similarly limited, along with the states. However, the government which was established as one of the limited federal powers. Unless a power was specifically granted to the Federal government, the Tenth Amendment announces it belongs to the states, or, as the Ninth Amendment would have it, to the people. There seemed no need to limit the scope of a power which could not exist. The Tenth and final Amendment in the Bill of Rights ended the 1791 Constitution with the words:

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.

A modern capsulation might be: the Federal Government is no more empowered to impair the sanctity of contracts than it is to grant titles of nobility.

The Framers of the Constitution were inexperienced in the habits of a republic, or they might have anticipated the general tendency of those who are empowered to enforce the law, to flout it in their own behavior. Around the smallest courthouse in the nation, one need not be surprised to find the Sheriff or other local worthies, parking their cars in illegal spots without fear of punishment. It is not just state legislatures who are tempted to disobey the laws they pass, but a general tendency of all authority to do so. It requires a local citizenry with a very short fuse, displaying instant hostility to the first sign of this sort of swaggering, to keep their local newspapers from filling up with scandal stories in the weeks before an election. Many of these stories are politically motivated, of course, but it must be admitted that in a naughty world, they are necessary.

{top quote}

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

{bottom quote}
Article One, Section 10
Perhaps the framers did anticipate that the new government they created would behave in a self-exempting way; certainly, the Eighteenth-century antiFederalist party carried that expectation so far they opposed creating much government at all, and the modern Tea Party definitely looks for smaller government. No doubt, neither of them will ever be shocked to find courthouse employees parking illegally near the courthouse, but they restrain their irritation to use it for larger targets.

A 21st Century illustration is found in a letter sent to current beneficiaries of Social Security, reducing their monthly check by twenty or more percent in some cases, and in other cases just a few dollars. The notice says that this deduction is based on IRS reports of the individual's income, using material supplied by the Internal Revenue Service, thereby triggering an additional side question about the right of the government to use supposedly private information to impair the obligation of the Social Security contract. Setting the privacy issue aside, what is illustrated is an even more discouraging violation of the expectations for fair dealing. This is a privacy right which might have been enforced by an excruciating repetition of the time-consuming requirement of manual specification. Now that computers are more common, what formerly needed no specification, now perhaps begins to need it, since endless repetition is now so tediously conventional.

Governments casually violate the sanctity of contracts when it is self-serving to do so, and presumably, it can be shown that they neglect to violate, or even punish those who violate, whenever such violations are to the advantage of anyone else. It has been said that this matter has been adjudicated in favor of the government in the past, thus creating a precedent, stare decisis, so to speak. Whatever the logic of such precedents, growing Constitutional literacy among the public is going to demand that the matter be re-argued. That is to say, it is comparatively easy to imagine growing knowledge about the Constitution among the citizens, while it will never be easy to expect the public to puzzle through the steps in a judicial chain which explicates how the reverse is now a superior view. Therefore, the demand for re-argument should be a growing one.

The Supreme Court Gets Fed Up With Professors

{Supreme Court}
Supreme Court

In March 2006, years later, the Supreme Court, like a sleeping alligator, suddenly clamped its jaws on the whole Ivy League. Unanimously and without explanation, the Court told Universities they could not block the U.S. Armed Forces from recruiting on their campuses. A number of Ivy League Universities, in this case, the Yale Law School, had turned away Army recruiters because the Professors were offended by the Army's "don't ask, don't tell" policy on homosexual soldiers. The Supreme Court didn't even consider the reasons for the University's' policies, although private opinions of the Court conservatives could readily be imagined. The Court would not even dignify the matter with the thunderous phrases about first principles which otherwise might have seemed tempting. The Chief Justice signed the order, the Court unanimously agreed, and that's as final as you are going to get, for a show of power.

About a month earlier, things had seemed to be going the other way. The Harvard Faculty had forced out their president, Lawrence Summers because he violated their idea of politically correct speech. Quite significantly, two-thirds of the students took the side of Summers in the dispute, a warning that the faculty was getting itself into an isolated position. And if you look back, the nation had divided when it twice elected the younger George Bush, support for East Coast urban elitism was likely coming to the end of a fifty-year dominance of American life. Not to put too fine a point on it, the country was getting tired of the bitter-end Vietnam War protesters, now entrenched in academic strongholds like Robert the Bruce. It may well be that the country was irked by expensive gasoline, French disloyalty, and Middle East intransigence, while the Legal profession was having a private quarrel. Clever of the Chief Justice to allow people to think what they pleased. The Constitution directs the Armed Forces to defend us; interfering with recruitment is at best impertinent, at worst imperils the nation.

The Supreme Courts of the various states and the U.S. Supreme Court within the federal court system retain the power of administration of all the courts which report to them, but they rarely exercise that power actively. As the number of judges has increased significantly in the past thirty years, public oversight of the selection or election of judges has been stretched to the vanishing point. The result has been a strengthening of political control over the courts, a lessening of the quality of the judges themselves, and a growth of the influence of law schools. The same parade of professors keep appearing as friends of the court, the metropolitan newspapers can always count on them for Op-Ed pieces on difficult topics. Their opinions begin to surface as their graduates start to enter law practice. Slowly and relentlessly, the viewpoints of faculty members of the five prestige law schools have come to challenge, and sometimes to up-end, the rigidly organized opinions, right or wrong, of judge-made law. When it reaches the point where law schools can blithely block the ability of the armed forces to defend the country from foreign attack, it is past time to do something about it.

Some things never change. But this is going to change, and soon.

William Penn, Justice Holmes, and the Inner Light

{Privateers}
William Penn

WILLIAM Penn and Oliver Wendell Holmes, both lawyers, can be imagined debating fiercely across two centuries, about The Inner Light. Holmes famously stated his position at the opening of his book The Common Law : "The life of the law has not been logic, it has been experience." Penn, on the other hand, urged his Quaker followers to strip away centuries of books, teaching, and traditions, viewing in quiet contemplation their individual Light Within. Since the other central Quaker belief is that "there is that of God in every man", the implication is that it is open to everyone to know the right behavior by thinking hard enough about it. No books, preachers, ceremonies needed, and in fact, such tokens of society's experience can be badly misleading. Penn did not forcefully pursue how much of the outcome came directly from God and how much was then elaborated by logic; his point was the truth is most readily discovered by contemplation, uncluttered by the world's discussion.

{Privateers}
Oliver Wendell Holmes

That Penn would have acknowledged some truth to Holmes' position can be surmised from the struggle he had with the argument that solitary contemplation cannot lead to an organized moral code of behavior within a society. The example of his time was the Hippie generation, is a more familiar example. What is to prevent a society which depends on silent introspection from concluding that monogamy,personal Hygiene,, and recreational drug avoidance are useless intrusions into the joy of personal freedom? Responses having to do with sexually transmitted disease, harm to the education and welfare of unparented children, disagreeable responses to the undesirable body odors of others, and the spread of addiction by example to those who wish to minimize unnecessary temptations, are all examples of hostility by others who may not have achieved equal illumination from their inner lights. Over centuries of observed experience, societies have reached comparatively similar views on what behavior should be prohibited by force, or discouraged by social pressure. Societies which reach these conclusions may hold themselves open to discussion, but often assert a right to punish those who violate the codes without offering plausible arguments beyond merely mystical ones, closed to debate.

Penn's response to such critiques was of the nature of insisting that Quakers obey the law unless the law insists on behavior prohibited by their religion. Within the realm of unwritten societal pressures, Penn was more relaxed. Sometimes he urged bizarre behavior having to do with hats and clothing, as a silent reproach to society on some issue, but in general, he urged that Quakers consider themselves Protestant Christians as a general guide to behavior. A century after he died, most Quakers were abandoning plain dress and plain speech as not plain at all, but ostentatious. Pointless and therefore ostentatious eccentricity could be harmful to the occasional truly important witness about such things as conscientious objection to war. If the considered purpose is to be taken seriously, eccentric behavior about trivial issues is to be avoided.

Commentary

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Philadelphia in 1800

{Privateers}
Philadelphia 1800

IN the year 1800 Philadelphia, with a population of 70,000, was the first city in America: New York was growing rapidly (its population rose from 33,000 to 60,000 between 1790 and 1800); Boston, however, was a more or less static provincial town of 25,000. Philadelphia was not only the temporary capital of the new nation but also its publishing, artistic, literary, and social center. As Henry Adams put it, Boston was our Bristol, New York our Liverpool, and Philadelphia our London."

--E. Digby Baltzell, Puritan Boston and Quaker Philadelphia

Second Mortgages Want to Be First

{Chrysler Logo}
Chrysler Logo

In a bankruptcy proceeding, there has long been a traditional conflict between the holders of first mortgages and the holders of second mortgages. It goes like this: since the holder of a first mortgage gets paid first, his incentive is to hurry up the process and get the money. The holder of a second mortgage, however, only gets paid what is left, so this party will normally wish to stall proceedings in the hope the market will improve and give the second mortgage a better payout. Normally, this sort of predictable dispute is covered by contracts, and in any event, most banks hold both kinds of mortgages and are neutral about what is just and fair. In the current banking crisis, however, the major banks have developed an incentive to favor the second mortgage, so they have a new view of what is just and fair. Four of the largest banks hold a total of $440 billion of second mortgages but have very few first mortgages because they were sold off in the securitization process. The banks mostly retained the function of servicing first mortgages, however, so they now have quite a conflict of interest.

Something like this seems to be going on with the resolution of the Detroit auto makers, with the difference that politicians tend to favor the interest of the auto workers in the bankruptcies because there are more voters to be influenced. And in the case of the auto companies, there are stockholders who will be wiped out by a bankruptcy unless the liquidation of the company assets produces enough cash to satisfy the creditors, secured and unsecured. After all, stockholders aren't creditors at all; they are owners of the company. No matter how things turn out, however, the secured creditors would normally have the first call on whatever is salvaged. So, it's one class of secured creditor against another, or else it is the secured creditors against the "stakeholders", employees or any other unsecured creditor. If the government intervenes, there is the additional issue of the Fifth Amendment of the Constitution, which prohibits the government from the "taking" of private property without just compensation. Representative Conyers of Michigan, whose political allegiance is not in doubt, has introduced legislation to prohibit lawsuits in these matters. So now, the prospect grows of a constitutional clash between Congress and the Supreme Court, over the Constitutionality of such a law which denies due process. So that gets us into the fourteenth amendment, too. If we look beyond the technicalities, the looming clash is between President Obama and Chief Justice Roberts. One of them wants to take money from secured creditors and make it available to someone with more political clout; and the other surely wants to preserve the sanctity of contracts, the rights of property holders, due process, and the right of the Supreme Court to declare contrary laws to be unconstitutional.

Unless someone backs off, the situation would seem to be as monumental as Franklin Roosevelt's Supreme Court-packing proposal. Because -- there is every reason to anticipate a 5-4 vote by the Supreme Court, a 5-3 vote if Justice Souter is not replaced by that time, and strenuous efforts to alter the balance.

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}
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.

{top quote}
Vote-swapping. {bottom quote}

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.

{top quote}
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. {bottom quote}

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.

Human Rights

{AMA Logo}
AMA Logo

ABOUT ten years ago, I first encountered the use of the term "Human Rights". Seated as a member of the House of Delegates of the American Medical Association, I was distracted when a late resolution was passed around for urgent consideration. Such resolutions require a supermajority to be introduced as a business of the House, either two thirds, or three-quarters of the attendees, and a little speech by the author explaining the "reason for lateness". The resolution was a one-line request for endorsement of the concept of Human Rights by the American Medical Association. The stammering explanation for lateness (as distinguished from holding it over to the next meeting) was that it was self-evident that the Association would favor human rights and immediately place it on the "Consent Calendar" for approval without voting on it. Like everyone else in the room, I looked to my seatmate neighbor to ask what this was all about. No one knew, so the author was asked to explain. Well, it was about human rights, not animal rights or corporate rights, and was otherwise so self-evident it needed no further explanation. Just what was in the mind of others seated in that room I cannot say, but to me, the resolution seemed like nonsense, whose author seemed very innocent and naive. In any event, the resolution was dismissed, the paper discarded, and we went on to the medical issues we were there to discuss.

{Bill of Rights}
Bill of Rights
the committee to prepare the Bill of Rights, it is easily possible that he felt the same way about the ninety rights he decided to delete. The handful of rights which survived into the Bill of Rights seem to have been limited to preventing outrages (freedom of speech, assembly, petition for grievances, press, religion) which the British had committed during the Revolutionary War. The rest of the proposed rights would have to go through the process, one by one, of establishing that violations had indeed been numerous and notorious. By contrast in the recent construction of the Bill of Rights for the European Community, a far more relaxed attitude was in evidence. They are fifty pages long, including such things as the right to work half time when an employer wants you to work full time. The best I could say about that would be it is micro-management. The worst would be to imagine that a great many people who voted for it were displaying a deliberate intention to make the European Union unworkable, and that must have been at least a majority, if not a super-majority. Without more willingness to compromise than this, the EU seems doomed.

In fact, the whole concept of prosecution for human rights violation is too vague to be useful. When individuals commit outrageous crimes, the matter can normally be handled under the criminal code, with the offense defined and appropriate punishment described in advance. Murder and torture are not commonly affected by whether or not rights have been violated. On the other hand, offenses by component national states are usually regarded as acts of war; if Ghengis Kahn were accidentally admitted to the EU, the punishment would start with expulsion from the Union, and surely go on to war, essentially the same outcome. A nation which was able to deal with the Iroquois and the Comanche tribes surely has no nightmares about Nebraska electing Pol Pot as governor. The human rights advocates have simply got to make a more plausible case for revolutions in our criminal justice system, if they are to be taken seriously.

Terrorists: Mafiosa or Just Nuts?

{Privateers}
Dr. Eric A. Zillmer

At a recent meeting of the Right Angle Club, meeting in the Pyramid Club quarters nowadays, a psychology professor from Drexel gave a talk on the psychology of terrorists. He looks as though he played basketball himself, and rather favored the espionage approach to the law enforcement one. Together with the trouble exactly clarifying his role either with Drexel or the government, it all suggested the Yale approach rather than the Notre Dame one if you understand what I mean. He gave an excellent talk, and questions would have gone on for hours if he had been able to stay longer.

{Privateers}
al-Qaeda or ISIS

One interesting distinction he makes is between organized crime and mental illness. That is, between al-Qaeda or ISIS, and solitary Americans who shoot random schoolchildren in high school cafeterias. Both nationalities tend to end up dead at the end of the episodes, because the swat teams called in, have little patience (or trust) with risking lives to read Miranda Rights to people with smoking machine guns in their hands. But either because there are actually some survivors, or because other members of the criminal network are caught and interrogated, several hundred terrorists have ended up in Guantanamo for further interviews. Somehow, or for some reason, it was arranged for our speaker to interview them on cellphones, with a military interpreter on the line.

{Privateers}
Suicide Bombers

Now that the Middle Eastern uprising has gone on for a few years, he said is possible to distinguish two different types of Muslim terrorists, the ones who get blown up in the attack, and others, their handlers whom they have often never met before. These handlers are to pull the triggers on radio devices to set off the suicide vests worn by the "useful idiots", who are sometimes hesitating at the last moment. The ones who get blown up are usually educated young male idealists from the upper classes, quite sane and highly dedicated to the cause they serve. They and their families will be glamorized later for their sacrifice, whereas the gimlet-eyed handlers fade off into the distance through the networks of safe houses. When they do get caught by intelligence agents of various sorts, they generally prove to fit the mold of tough-minded mafiosa, in this tough business for long-run power and control. They might be conspirators, but could hardly be called idealists.

{Privateers}
Peaceful Domestic

At least, that's what our Drexel professor said he believed to be the case, and in general, his prescription for winning this war is to enlist the support of the wavering majority of Muslims who belong to neither one of the activist groups -- yet. Meanwhile, peaceful domestic American citizens can play an important role in distinguishing warrior enemies of several sorts from the occasional young American schizophrenics in cafeterias acting as lone wolves with their mayhem. The American variety needs electroshock therapy more than they need more rights, defense lawyers or longer prison terms. Strengthening or weakening the Second Amendment will have little effect on any of these people, Asian or American, but it might hamper the national survival to mischaracterize the two groups once they are taken into custody. Essentially, the intelligence community doesn't care what is done with the nutcases, as long as you don't hamper their efforts with the Mafiosa. And judging from the Human Rights protectors, they don't much care what happens to the Mafiosa, so long as we protect the rights of nutcases. There are surely a few double-agents mixed in, whose motives for saying what they say, are kept unclear. When the shouting dies down there are nevertheless elements of hope in this controversy. But it could easily get out of control. Because we are outnumbered worldwide, we might just lose.

Fisher on Representation Size


Fisher on Representation Size

{Constitutional Convention in 1787}
Constitutional Convention in 1787
Constitutional Convention in 1787

According to the last census, my Legislative district (#6 in New Jersey) has 224,000 residents. If I spent five minutes talking to each one, I wouldn't have time to sleep or eat. Therefore, I get mixed feelings when I hear only 43,000 of them are registered voters, and only 23,000 of them turned out for the last election. I guess I could talk to that many, but it is pretty sad only one resident in ten bothers to vote. The same number of people voted for every R candidate, and the same number of D's voted for almost every D candidate. So, it looks as though a lot of people vote a straight-party ballot.

That's something they surely wouldn't do if they knew each candidate. And that's pretty sad because it is easily managed by party machines. I have to think these things are caused by the steady growth of the population, without comparable growth in the number of representatives, at all levels from township commissioner to President of the United States.

George Washington was bothered by the same problem. In 1787 he had nothing to say about issues during all the time he was the presiding officer of the Constitutional Convention. But on the last day of the convention, he asked for permission to step down and address the group. His conviction was that no congressman should represent more than 30,000 people, and he begged for an amendment providing for it. The delegates meant to oblige him, but somehow it got lost. If they had done what he asked, we would now have about 5000 congressmen, so it doesn't sound workable. As a practical matter, in the early 1920's Congress finally limited the size of its members to 436. So now we have exactly what Washington feared, which is each Congressman represents 700,000 people, nobody knows his congressman, it costs millions of dollars to get elected, party machines dominate what decisions aren't dictated by lobbyists.

Exactly the same thing is true of legislative districts, except the lobbyists are probably less well funded. They seem to search for party machines and spend their time (and money) on unelected party leaders. Unelected is an important word here because many county leaders take care not to hazard their future on an election. I understand the county leader in Mercer county lives on eighteen acres in the center of Princeton. I don't know his name, in fact, almost nobody knows his name, but everybody knows that God himself couldn't afford eighteen acres of Princeton. I got this from a reporter, Bob Ingle, for the Trenton newspaper who wrote a book, called Soprano State. I wish more people would read that book, so I don't have to sound so negative at times. I gather from this book, there is much to talk about.

Anyway, this representation issue is starting to hurt. I go to all kinds of meetings in my district, at least to show my face. Little did I expect I would be sitting in the audience while a professor of history, would explain that Washington's proposal was already part of the Constitution. I woke up slowly and may have got this wrong, but I believe he said it was one of the two (of the twelve original) amendments of the Bill of Rights that Thomas Jefferson recorded as not being ratified. However, Kentucky was a long way away by horseback, and the ratifiers seem to have given up on the messenger who was bringing the duly recorded, on-time, ratification from Kentucky needed to reach the required number. I guess when it got to be dinnertime they decided no messenger meant no ratification.

However, Mr. LaVerne seems to have dug up photocopies of the Kentucky document of ratification, plus the bylaws stating amendments were to be effective as of the date of ratification. Somehow, the War of 1812 got things confused even more and burnt up enough, that Washington's pet idea sort of got lost. If that's really provable, it seems to mean we already have a mandate to have 5000 congressmen (and two or three thousand Assemblymen and women in New Jersey?). The contention seems to be that for two hundred years nobody knew what to do with this bit of history, and sort of decided to ignore it. My view is that even if you knew all about this strange history, you simply can't have it both ways. Either you get stuck with the present inability to represent all those constituents, or else you get stuck with having unworkable thousands of congressmen.

I promise to think about this. And when I get an answer, I'll let you know.

Adrift With The Living Constitution

{Senator Joe Setak}
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}
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.

Philadelphia: Charles Dickens Gives an 1842 Viewpoint

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Charles Dickens

In 1842, Charles Dickens wrote a short summary of Philadelphia for the readers back home in London-

My stay in Philadelphia was very short, but what I saw of its society, I greatly liked. Treating of its general characteristics, I should be disposed to say that it is more provincial than Boston or New York and that there is a float in the fair city, an assumption of taste and criticism, savoring rather of those genteel discussions upon the same themes, in connection with Shakespeare and the Musical Glasses, of which we read in the Vicar of Wakefield.

Mark Twain Sees Philadelphia in 1853

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Mark Twain

In 1853 Mark Twain, then a 17 year-old vagabond, made his first visit to Philadelphia. To support himself, he worked several months for the Philadelphia Inquirer as a typesetter, a fact that makes the present newspaper very proud. His comments (which differ strikingly from the sour views of his later Connecticut Yankee days) follow:

"The old State House in Chestnut Street, is an object of great interest to the stranger; and though it has often been repaired, the old model and appearance are still preserved. It is a substantial brick edifice, and its original cost was L5,600 ($28,000). In the east room of the first story the mighty Declaration of Independence was passed by Congress, July 4th, 1776.

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Philadelphia's Independence Hall

"When a stranger enters this room for the first time, an unaccountable feeling of awe and reverence comes over him, and every memento of the past his eye rests upon whispers that he is treading upon sacred ground. Yes, everything in that old hall reminds him that he stands where mighty men have stood; he gazes around him, almost expecting to see a Franklin or an Adams rise before him. In this room is to be seen the old "Independence Bell", which called the people together to hear the Declaration read, and also a rude bench, on which Washington, Franklin, and Bishop White

"It is hard to get tired of Philadelphia , for amusements are not scarce. We have what is called a 'free-and-easy,' at the saloons on Saturday nights. At a free and easy, a chairman is appointed, who calls on any of the assembled company for a song or a recitation, and as there are plenty of singers and spouters, one may laugh himself to fits at a very small expense. Ole Bull, Jullien and Sontag have flourished and gone, and left the two fat women, one weighing 764, and the other 769 pounds, to "astonish the natives." I stepped in to see one of these the other evening and was disappointed. She is a pretty extensive piece of meat, but not much to brag about; however, I suppose she would bring a fair price in the Cannibal Islands. She is a married woman! If I were her husband, I think I could yield with becoming fortitude to the dispensations of Providence, if He, in his infinite goodness, should see fit to take her away! With this human being of the elephant species, there is also a "Swiss Warbler"--Bah! I earnestly hope he may live to see his native land for the first time."

Philadelphia City-County Consolidation of 1854

{Consolidation Map 1854}
Consolidation Map 1854

Philadelphia is still referred to as a city of neighborhoods. Prior to 1854, most of those neighborhoods were towns, boroughs, and townships, until the Act of City-County Consolidation merged them all into a countywide city. It was a time of tumultuous growth, with the city population growing from 120,000 to over 500,000 between the 1850 and 1860 census. There can be little doubt that disorderly growth was disruptive for both local loyalties and the ability of the small jurisdictions to cope with their problems, making consolidation politically much more achievable. A century later, there were still two hundred farms left in the county which was otherwise completely urbanized and industrialized. For seventy-five years, Philadelphia had the only major urban Republican political machine. By 1900 (and by using some carefully chosen definitions) it was possible to claim that Philadelphia was the richest city in the world, although this dizzy growth came to an abrupt end with the 1929 stock market crash, and the population of Philadelphia now shrinks every year. In answering the question of whether consolidation with the suburbs was a good thing or a bad thing, it was clearly a good thing. But since Philadelphia is suffering from decline, it becomes legitimate to ask whether its political boundaries might now be too large.

{Philadelphia Map 1762}
Philadelphia Map 1762

The possible legitimacy of this suggestion is easily demonstrated by a train trip from New York to Washington. The borders of the city on both the north and the south are quickly noticed out the train window, as the place where prosperity ends and slums abruptly begin. In 1854 it was just the other way around, just as is still the case in many European cities like Paris and Madrid. But as the train gets closer to the station in the center of the city, it can also be noticed that the slums of the decaying city do not spread out from a rotten core. Center City reappears as a shining city on a hill, surrounded by a wide band of decay. The dynamic thrusting city once grew out to its political border, and then when population shrank, left a wide ring of abandonment. It had outgrown its blood supply. Prohibitively high gasoline taxes in Europe inhibit the American phenomenon of commuter suburbs. The economic advantage of cheap land overcomes the cost of building high-rise apartments upward, but there is some level of gasoline taxation which overcomes that advantage. Without meaning to impute duplicitous motives to anyone, it really is another legitimate question whether some current "green" environmental concerns might have some urban-suburban real estate competition mixed with concern about global warming. Let's skip hurriedly past that inflammatory observation, however, because the thought before us is not whether to manipulate gas taxes, but whether it might be useful to help post-industrial cities by contracting their political borders.

Before reaching that conclusion, however, it seems worthwhile to clarify the post-industrial concept. America certainly does have a rust belt of dying cities once centered on "heavy" industry which has now largely migrated abroad to underdeveloped nations. But while it is true that our national balance of trade shows weakness trying to export as much as we import, it is not true at all that we manufacture less than we once did. Rather, manufacturing productivity has increased so substantially that we actually manufacture more goods, but we do it with less manpower and less pollution, too. The productivity revolution is even more advanced in agriculture, which once was the main activity of everyone, but now employs less than 2% of the working population. This is not a quibble or a digression; it is mentioned in order to forestall any idea that cities would resume outward physical growth if only we could manipulate tariffs or monetary exchange rates or elect more protectionist politicians to Congress. Projecting demographics and economics into the far future, the physical diameters of most American cities are unlikely to widen, more likely to shrink. If other cities repeat the Philadelphia pattern, the vacant land for easy exploitation lies in the ruined band of property within the present political boundaries of cities, or if you please, between the prosperous urban center and the prosperous suburban ring.

Many American cities with populations of about 500,000 do need more room to grow, so let them do it just as Philadelphia did a century ago, by annexing suburbs. But there are other cities which have lost at least 500,000 population and thus have available low-cost low-tax land which would mostly enhance the neighborhood if existing structures were leveled to the ground. Curiously, both the shrunken urban core and the bumptious thriving suburbs could compete better for redeveloping this urban desert if the obstacles, mostly political and emotional, of the political boundary, could be more easily modified. But that's also just a political problem, and not necessarily an unsolvable one.

Funding the National Debt

{Alexander Hamilton}
Alexander Hamilton

Although Alexander Hamilton's arresting slogan that "A national debt is a national treasure" has diverted attention to the underlying idea toward him, Robert Morris had introduced and argued for the same insight in the preamble to his 1785 "Statement of Accounts". The key sentence was, "The payment of debts may indeed be expensive, but it is infinitely more expensive to withhold payment." This fatherly-sounding advice was surely a distillation of a long life as a merchant, and the gist of it may have been passed down to him as an apprentice. Failure to pay your debts promptly and cheerfully results in the world assigning a higher interest rate to your future credit; it is not long before compounded interest begins to drag you down. It doesn't exactly say that, but that's what it means.

{Privateers}
Liberty Bond

Another way of looking at this folk wisdom is that it leads to a simplified method of organizing the finances of an organization. Because higher rates of interest are demanded of long-term borrowing than short-term, it becomes efficient to segregate them. That is, to establish a cash account for every-day transactions, and a separate bond account for a long term, or capital, debt. As bills arrive, they need only be verified for accuracy and sent for payment from either a cash account or a capital account. The original responsibility for agreeing to such debts lies with top management, not the treasurer. The job of the treasurer's office is to pay legitimate bills as quickly and cheerfully as possible, ignoring any imprudence of earlier agreeing to them; rewards will come from lower interest charges and improved credit rating. An unexpected benefit of thus organizing institutions and governments is to make the accounting profession possible. Accountants perform the same function in every business, whether the business is selling battleships or parsnips. The accounting profession made itself computer-ready, two hundred years before the computer was invented.

{Privateers}
Robert Morris

In the same document, the retiring national Financier was advising the wisdom of "funding" the war debts, which were largely owed to France, with whom relations were rapidly souring. Lump them all together into a fund, issue bonds and sell them as representations of the nation's capital at the time of issue. Disregard what the money was used for, by either the debtor or the creditor. In spite of appearances, money sequestered in a fund for later payment belongs to the creditor the moment it is promised, not the moment it is transferred. Morris and Hamilton discovered that the fund itself had the property of a bank, in creating money. As long as the creditor did not cash your bonds, he could use them as money, in effect doubling the amount of money you yourself can spend. It was this discovery which so exhilarated Alexander Hamilton, causing him to over-praise the methodology to an already suspicious Congress. Tending toward the teachings of Shakespeare's Polonius, Hamilton's excitable manner caused them to remember, neither a borrower nor a lender is. But Congress was eventually persuaded. The federal government lumped the states' debts together in an "assumption of debts" , consolidated all these various little debts into a single "funded debt", and made the deal work with changing the "residency" of the nation's capital from Philadelphia to the banks of the Potomac. It was called the Great Compromise of 1790.

Morris well understood that a funded system requires some final payor of last resort. Such a payor need set aside only a small portion of the debt for dire contingencies, but his name gets first attention on the list presented to prospective creditors. In 1778 Morris had offered his own personal wealth as that last resort, which the public at the time trusted far more than the Treasury of the United States. Over the next twenty years, he came to realize that the last resort of established nations, no matter what the paper said, was the aggregate underlying wealth of the whole nation. With a vast continent stretching to the West, and countless immigrants clamoring to join from the East, the wealth supporting the debt of the United States in 1790 seemed endless. After two hundred years we have finally begun to accumulate a national debt which equals our Gross Domestic Product, and have only begun to pull back as we observe what happens to other nations who got to that point sooner. Let's hope devising an automatic check and balance does not require a second Robert Morris. Men like him can be hard to find, so limit your debts -- or your nation's debts -- to sixty percent of your assets. Financial geniuses are invited to devise a better debt limit, if they can.

Our Federal Reserve : Biddle's Bank (2)

{Privateers}
Nicholas Biddle

In 1823, the Biddles were prosperous, having made money in real estate (a Biddle ancestor had been a member of the Proprietors), and influential, having been Free Quakers who sided with the Revolution. So, Nicholas Biddle became the president of the Second Bank at 4th and Chestnut. Like all banks, he was given the ability to create money by taking deposits and loaning them out. Since in this process, two people (the depositor and the borrower) think they have the same money, there is effectively twice as much of it -- unless both actually demand it at the same time. If a bank has Federal revenues on deposit, as Biddle did, it is fairly easy for a politically active banker to predict whether that large depositor is likely to withdraw it. Political deposits seemingly make a bank stronger and safer, unless the banker has a fight with a politician. That's banking, but Biddle also became a central banker.

Biddle had ideas, derived in part from Alexander Hamilton. In those days, banks issued their own paper currency, or bank notes, representing the gold in their vaults or the real estate on which they held mortgages. There was a risk in one bank accepting bank notes from another bank that might go bust before you changed their notes into gold. The further away the issuing bank was, the riskier it was to rely on it. So, it was important to be a friendly sort of banker, who knew a lot of other bankers who would accept your money or who were known to be trustworthy.

Nicholas Biddle himself was well known to be pretty rich, and utterly trustworthy. He had a good instinct for how much to charge or discount the banknotes from other banks, or even other states. It was quite profitable to do this, but it became even more profitable when people began to use Biddle's own bank notes because they were safe. By setting a fair standard, he could control the exchange rate -- and hence the lending limits -- of banks that dealt with him. Sometimes a distant bank would get into cash shortages, and Biddle would help them out; if the other bank had a bad reputation, he might not.

{Nicholos Biddle}
Bank of the United States

In this way, the Second Bank was a reserve bank for other banks, with its banknote currency coming close to being the currency for the whole country. Soon, within a few blocks of Biddle's Bank, there were dozens of other banks, making up the financial capital of the country. Although it was a little obscure, and even Biddle may not have completely realized what he was doing, in effect his system automatically adjust the amount of currency in circulation to the size of the economy. If the correspondent banks prospered, they issued more currency, and if there was a recession, the country had deflation. The volatility of this system was related to the volatility of a pioneer economy, so Biddle made lots of enemies whenever he guessed about the direction of the economy. It wasn't a perfect system, but at least he kept politicians from inflating the currency to get re-elected, and hence annoyed politicians by constraining them. During the great western land rush of those days, all banks were under pressure to issue more loans than was wise, and politicians were under pressure to make them do so.

The worst enemy Biddle made was Martin Van Buren of New York. Van Buren was a consummate politician, one of whose many goals was to move the financial capital of the country from Chestnut Street--to Wall Street.


REFERENCES


America's First Great Depression: Economic Crisis and Political Disorder after the Panic of 1837 Alasdarir Roberts ISBN-13: 978-0801450334 Amazon

National Debt, Presidential Hat Tricks, Shale Gas and Argentina

{Alexander Hamilton}
Alexander Hamilton

This-here speaker at the Right Angle Club began a discussion of the "Fiscal Cliff" razzle-dazzle of 2012, by changing his mind about the causes of the financial crash of 2007. Originally, it seemed as though globalizing 500 million Chinese out of poverty had destabilized the exuberant American mortgage market by flooding it with cheap credit. Supplanting that idea, or perhaps only supplementing it, must now be added the overextension of national debt itself to a point of bringing national borrowing to a halt.

Early in the Eighteenth century the Dutch and English had monetized national assets through a system of national borrowing formalized by Necker in Europe, and Robert Morris and Alexander Hamilton in America. Aside from a handful, no one could understand what they were talking about. Try reading that sentence a second time.

It amounted to guaranteeing all the private credit in the banking, investment, and commerce systems, with a national debt (in the form of Treasury bonds) which monetized all the assets of the whole nation. That action more or less doubled their value, just as any bank loan is seemingly owned by two people at the same time. Carried to an extreme, it might imply that America could turn Guam and Hawaii over to China if we defaulted on our debt. That was never actually intended to happen, and it never has, because all nations now fear the deflation which could result from triggering a massive exchange of national assets. The nebulous issue of "National Sovereignty" interferes with territorial transfers by any means other than war. If one nation defaults against a second nation which is afraid to go to war, it is just the stronger nation's hard luck about the debts it has chosen to support unless a transfer of assets actually happens. The Treaty of Versailles did transfer assets to the victors, and set off World War II, although it is considered bad manners to mention it. That's a simplified view of our international financial system, which admittedly skirts uncertainty about how much national debt is too much.

In fact, no one knows how much is too much until everyone runs for the exits. Now that politicians have control of computers and "big data", a modern description places the blame on Alan Greenspan the former Chairman of the Federal Reserve. For eighteen years Greenspan produced delicious world prosperity by steadily increasing American national debt faster than the American economy was growing. Sooner or later this approach was going to uncover how much was currently too much Federal debt. With silver and gold removed from the equation, one could see that default would certainly loom whenever the size of the debt became so large it could never be serviced by the Gross Domestic Product (GDP), and possibly sooner than that, if enough people could guess what was coming. This reality might be obscured temporarily by reducing interest rates, modifying international trade balances, and inflation. When the stars were in alignment however, the system just had to collapse and start over. Because it happened gradually, perhaps it would unwind gradually. In 2007 what happened was that everybody tried to get out the door at the same time. Essentially, our two political parties made opposite assessments: the party of Hamilton -- Republicans -- announced this system was doomed, while Democrats --the party of Andrew Jackson -- announced they could stave off disaster by making the rich Republicans pay for it. Both parties were partly right but essentially wrong, and the Democrats hired a better magician.

{Henry Clay}
Henry Clay

It will take months or even years to be certain just what strategy was pursued. It would appear the Democrats chose to repeat the performance of the Obamacare legislation, eliminating national debate by eliminating the Congressional committee system of examining details in advance of a vote. Given one day to digest two thousand pages prepared by the Executive branch, no time was allowed for public opinion to form about Obamacare. In the case of the fiscal cliff episode, Congress was given less than one day to consider 150 pages allegedly prepared the day prior to the vote. Some will admire the skill of the executive branch in orchestrating this secret maneuver, but eventually, it must become apparent that policy decisions have been transferred from the legislative to the executive branch of government. Perhaps the Congressional Republicans are as stupid as the Democrats portray them to be, but it is also possible that a decision has been made to tempt the Democratic leaders into repeating this performance several times until eventually, the public is ready to consider impeachment for it. No matter what the strategy, we are now threatened with imagining some moment when gun barrels come level and live rounds slide home. We may pass up the opportunity to criticize Henry Clay for concentrating undue power in the Speaker of the House, or to uncover the way Harry Reid was persuaded to surrender Senate power to the Executive; both miscalculations are fast becoming irrelevant in the flurry of events. We came close to borrowing too much, exceeding our means to pay it back, that's all. A New York Times editorial economist feels we can "grow" our way out of this flirtation with danger, and we all certainly hope so.

Seemingly, there are only two ways to cope with over-borrowing, once we step over the invisible line. A nation may cheat its citizens with inflation, or it may cheat foreign citizens by defaulting on their currency. We are indebted to Rogoff and Reinhart for pointing out there is no difference between inflation and default except the identity of the cheated creditor; so most politicians prefer to cheat foreigners. Either way, cheating makes deadly enemies. Two centuries ago, Alexander Hamilton suggested a third way out of the problem, which we would today call "growth". But here, cheating is pretty easy: If the limit is some ratio of debt to GDP, find a way to increase nominal GDP.

{Privateers}
Shale Gas and Argentina

The most astonishing current example of the power of "growth", is shale gas. It may not be totally clean, but it is cleaner than oil or coal, and far cheaper. We suddenly have so much of it the price of energy is artificially lowered, and we talk, not merely of energy independence, but of restoring the balance of international payments by exporting it. Germany is constructing steel mills to utilize iron ingots made in America with gas instead of coal. Pittsburgh was once the center of steel production because that's where the coal was, the most expensive ingredient to transport. Suddenly it is now apparently cheaper to transport the energy source to wherever you find limestone and iron ore. JP Morgan got rich the other way, transporting limestone and iron ore to Pittsburgh, where the coal was. Russia now finds it has lost its leverage over Eastern Europe's energy supply, and the Arabs (?Iranians?) will no longer have a monopoly to provide the wealth supporting Middle-Eastern mischief. China may lose interest in Africa. And in America we may develop the courage to rid ourselves of the corn subsidies for gasoline; cutting the wind and sunlight fumbles also emerge as obvious ways to cut the deficit. That's what we mean by growth. It's so powerful it makes action by any American President seem trivial by comparison.

Presumably, President Obama does not welcome being upstaged by an economic force he doggedly resisted. He may seek ways to imply it was his idea all along. When that happens, rest assured that everyone else is then a fracker. But there is another alternative Presidential path, which in extreme form is emerging in Argentina without much media attention. In short, Argentina discovered signs of oil deposits but was unable to exploit them. A European oil company was enticed to develop the oil reserves at its own expense, and effectively did so in expectation of reward from the resulting oil sales. Suddenly, the Kirchner government expropriated the oil company, paying for it with Argentine bonds. The ink was scarcely dry before the Argentine government abruptly turned around and offered to buy back the bonds for 24 cents on the dollar. And unless someone is willing to send gunboats, the previous owners of the oil company are just out of luck. Appeals to the UN are futile; because on the one-nation, one-vote principle, there are more expropriator votes in the UN than potential victims. The only thing visible which could save capitalism in South America from the revolution in shale gas competition. Presumably, Argentina has lots of shale gas, but who will lend them the money to frack it?

After the Convention:Hamilton and Madison

{Privateers}
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

{https://www.philadelphia-reflections.com/images/geowash.jpg}
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

{a hamilton}
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

{https://www.philadelphia-reflections.com/images/DavidHume.jpg}
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.

{Privateers}
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."

Why Jefferson Hated Banks and Hamilton Loved Them

{Privateers}
First Bank of Philadelphia

Some things are easier to understand when they start before they get complicated. That's true of banking, where it can now be puzzling to hear there was a strong inclination to forbid banks by law. While we were still a colony, the British discouraged bank formation, fearing strong concentrations of wealth at a great distance could lead to ideas of independence. Anti-bank sentiment was thus a Tory characteristic, although as the Industrial Revolution progressed, Karl Marx and Fredrick Engels stamped it permanently with a proletarian flavor. Large owners of farmland were displeased to see their power weakened by urban concentrations of wealth, while poor recent settlers of America wanted to buy and sell land cheaply, so they favored a currency that steadily declined in value. People with wealth have an incentive to keep money stable, but people with debts have an incentive to pay them off with cheap money. After these battle lines clarified and hardened, the debate has transformed from an original dispute about banks, into catfights about a strong currency. As Rogoff and Reinhart have pointed out, inflation is a way for governments to cheat their citizens, devaluation is a way of cheating foreigners. Naturally, politicians prefer to cheat foreigners, but national tradition curiously seems to favor one style more than another. Essentially, they are the same thing with the same motive, although outcomes may be different. One is restrained by fear of revolution, the other by fear of an international currency war.

{Alexander Hamilton}
Alexander Hamilton

While George Washington was America's first president, Alexander Hamilton was Secretary of the Treasury and Thomas Jefferson was Vice President; the cabinet contained only four members. Although Hamilton was born poor, the bastard brat of a Scottish peddler in the view of John Adams, he had learned about practical finance in a counting-house, and later gained Washington's confidence on the headquarters staff; Washington eventually made him a general. Jefferson was part of the slaveholding Virginia planter elite, elegant in writing style and knowledge of art and architecture, sympathetic to the French Revolution; eventually, he died bankrupt. Early in the Washington presidency, Hamilton produced three long and sophisticated white papers, advocating banks and manufacture. Jefferson was opposed to both, one facilitating the other, which we would today describe as taking a green, or leftish position. Banks were described as instruments for accepting deposits in hard currency, or specie, and lending it out as paper money. The effect of this was a degrading of gold into paper money, or if not, an inflationary doubling of currency. Banks would be able to create money at will, a capriciousness Jefferson felt should be confined to the sovereign government. Just keep this up, and one day some former banker from Goldman Sachs would be able to tell the President of the United States, "The bond market won't let you do that." In this sense, the bank argument became a dispute about public and private power.

{Thomas Jefferson}
Thomas Jefferson

Hamilton, a former clerk of a maritime counting house, could observe that sending paper money on a leaky wooden boat kept the real gold in the counting-house even after the boat was lost at sea. To him, prudent banking transactions enhanced the safety of wealth, reducing risk rather than enlarging it. Later on, he learned from Robert Morris that a bank floating currency values on the private market disciplined the seemingly inevitable tendency of governments to water the currency. Once more, banks should enhance overall safety in spite of being vilified for creating risk. To both Hamilton and Jefferson, all arguments in an opposing direction seemed specious, designed to conceal ulterior motives.

Banks came and went for a century. By the time they almost were a feature of every street corner, banks were taking paper money (instead of gold and silver) as deposits and issuing loans as paper money, too; the gold was kept somewhere else, ultimately in Fort Knox, Kentucky. With experience, deposits could stay with the bank long enough that only a rare run on the bank would require more than 20% of the loans to be supported by physical ownership of gold. By establishing pooling and insurance of various sorts, banks persuaded authorities it was safe enough for them to hold no more than 20% of their loan portfolio in reserves. By this magic, loans at 6% to the customer could now return 30% to the bank. A few loans will default, a reserve for defaults was prudent, so the bank with a 2% default rate could settle for a 20% return rate. A bank which was deemed "too big to permit it to default" was invisibly and costlessly able to trim its reserves, and thus receive a 25% return by relying on the government to bail it out of an occasional bank crisis. With this sort of simple arithmetic, it is easy to see why multi-billion dollar banks were soon arguing that 5:1 leveraging was too small, a reserve of gold and silver was unnecessary, and the efficiencies of large banks were needed to compete with big foreign banks. By the time of the 2007 crash, many banks were leveraged fifty-to-one, which even the man on the street could see was over-reaching. The ideal ratio was uncertain, but 50:1 was certain to collapse, probably starting with the weakest link in the chain.

{Alan Greenspan}
Alan Greenspan

This brings banking arguments more or less up to date. Except in 1913, an "independent" Federal Reserve Bank was created. It was a private reserve pool balanced by a public partner, the government. In time, the need for gold and silver was eliminated entirely, by the wartime Breton Woods Agreement, and the Nixon termination of it. The predictable inflation which could be expected to result from a world currency without physical backing was prevented by allowing the Federal Reserve to issue, or fail to issue as necessary, the currency in circulation. This substitution was deemed possible by having the Fed monitor inflation, and adjust the flow of currency to maintain a 2% inflation rate. Although 100% paper money was an historic change, it has endured; it has withstood efforts by the politicians to re-define inflation, undermine the indices of its measurement, and brow-beat the vestal virgins appointed to defend the value of the dollar. The old definition of money has changed: it is no longer a store of value, it is only a medium of exchange. The store of value is a nation's total assets. Jubilant politicians have added an additional burden of preventing unemployment, to the original one of defending price stability. In practical terms, the goal is defined as maintaining a 2% inflation rate, while achieving a 6.5% unemployment rate. It remains to be seen whether the two goals can exist at the same time, particularly if the definitions of inflation and unemployment become unrecognizably undermined.

And it even remains to be seen whether the black-box system can be undermined from within. The Federal Reserve is so poorly understood by the public that his enemies now accuse Alan Greenspan of causing the present recession. It is argued that the eighteen years of banking quiet which his chairmanship enjoyed, was only gradual inflation, deeply concealed. It is contended that the unprecedented steady rise of the stock market during those eighteen years was financed by a small but steady loosening of credit by the Federal Reserve. Perhaps what this means is: the definition of inflation must be tightened so its target can be made and adjusted, not to 2%, but to some number slightly less than that, measured to three decimal places. Or that the 6.5% unemployment target must be jettisoned in order to preserve the dollar. With that prospect including international currency wars as its corollary, it will be an interesting debate, and immigration policy is related to it. Because one alternative could become the abandonment of the fight against inflation, in order to sustain the new objective of reducing unemployment, Jefferson would have won the argument.


REFERENCES


The History of the United States: Course 8500, 15 Hamilton's Republic: ISBN: 156585763-1 The Great Courses
This Time Is Different: Eight Centuries of Financial Folly: Kenneth Rogoff, Carmen M. Reinhart: ISBN-13: 978-0691152646 Amazon

Hayek Confronts Keynes

{The Four Horseman}
The Four Horseman

Catastrophes seem to have fashions. There was a time when the four horsemen of the apocholypse -- pestilence, war, famine, and death -- rounded up the main things to keep you awake with worry. Perhaps it is too soon to gloat, but pestilence and famine seem tamed, even ready to be "put down". War remains a serious cause for concern, but a case can be made that two economic disasters, inflation, and recession, have moved up to dominate our nightmares. Indeed, it is the Summer of Love in 1967 which seems to mark the watershed moment, when basic survival stopped being the main risk in life, supplanted by threats to existence that are largely self-inflicted. The first warning of this sea-change appeared in the fall of 1929 when it seemed to be deflation, unemployment and all the other havoc of economic recession that caused wars, famines, and pestilences. The 1929 crash did not send a fully readable message, however, because it was so one-sided. It took another 37 years for the world generally to appreciate there was an opposite side to it; inflation was just as bad as recession, and both problems were largely man-made. One person gets most of the blame for the distorted emphasis. John Maynard Keynes, later Lord Keynes, was the prophet who seemed to save the world with the doctrine that the deflation emergency was so dire that civilization could not afford to worry about the long-term drawbacks of deliberate inflation. He persuaded world leaders to inflate the currency before civilization disappeared. After all, in the long run, we are all dead.

{Roosevelet and his Stamps}
Roosevelt Stamps

There's an irony that Franklin Roosevelt was a hobbyist who collected postage stamps because stamp collectors were about the only Americans who were dimly aware that Germany and Austria had hyper-inflation as the main curse. Austrian postage for billions of marks gradually filtered into our collections of odd foreign stamps, arousing mild international curiosity. But Friedrich August von Hayek was living in the midst of it, painfully aware of its pain and chaos. It became the central focus of the life of an aristocratic decorated war veteran who became a distinguished economist, eventually winning a Nobel Prize. What caused inflation? Why didn't it stop? Why was it so destructive? How can inflation be prevented? How could Maynard Keynes possibly urge the leaders of nations to inflate their currency deliberately?

As a scholar in the dismal days of world depression, Hayek had a hard time, living for long periods on the charity of a few philanthropists who recognized his talents. He is best known for his scorching analysis of collectivism, a craze which swept through academic and political leadership, particularly in Europe, and his persuasive views probably constitute the main intellectual force which ultimately ended the Cold War. It is seriously stated that personal animosity by Socialist-leaning academics materially injured his academic career, although it probably gave him more time, and motive, for serious writing. Inflation and political collectivism do not seem tightly connected, but it is easy to observe that command economies do inevitably clash with private property and market decisions. For the present, it seems useful to set aside Hayek's monumental political achievement of discrediting Communism and focus on his penetrating view of inflation.

{August von Hayek}
August von Hayek

You can almost watch his mind at work. If you give long hard consideration to the topic of inflation, you have to conclude that there seems no reason for it to be a bad thing. It may take a little time, but the price of everything will eventually readjust to a new higher level, and relationships will go on undisturbed. At first glance,

You can almost watch his mind at work. If you give long hard consideration to the topic of inflation, you have to conclude that there seems no reason for it to be a bad thing. It may take a little time, but the price of everything will eventually readjust to a new higher level, and relationships will go on undisturbed. At first glance,

inflation is just a harmless numbers game. You can understand the power of inflation; everybody likes a little of it for his own personal benefit. If everybody enjoys a little of it in his own sphere, then the whole world is pushed to a higher numerical level.

After long consideration, Hayek came to see that the disruptions of inflation are caused by the uneven speed of penetration throughout an economy or nation. If the price of oil goes up, the price of transportation goes up, then the price of home heating. But those who take the train or who heat their homes with coal are not affected so soon. Mortgages carry a fixed interest rate for thirty years until the unwisdom of such agreements becomes clear, but it takes time. The process of inflation creates winners and losers, and disruption in the culture of payments. The speed of payment is itself a factor in the virtual size of the monetary pool. In the long run, we're all dead and it all settles out unless we set in motion a universal scramble to get out the door before others get there. Inflation is just as much evil as collectivism, and somehow the two are usually seen together. The Road to Serfdom sits on the shelf, right next to The Austrian Theory of the Trade Cycle, and Other Essays .

Alexander Hamilton, Celebrity

{top quote}
He had the kind of taudry private life and flashy public behavior that Philadelphia will only tolerate in aristocrats, sometimes. {bottom quote}

It comes as a surprise that most of the serious, important things Alexander Hamilton did for his country were done in Philadelphia, while he lived at 79 South 3rd Street. That surprises because much of his more colorful behavior took place elsewhere. He was born on a fly-speck Caribbean island, the "bastard brat of a Scots peddler" in John Adams' exaggerated view, was orphaned and had to support himself after age 13. The orphan then fought his way to Kings College (now Columbia University) in New York in spite of hoping to go to Princeton, and has been celebrated ever since by Columbia University as a son of New York. He did found the Bank of New York, and he did marry the daughter of a New York patroon, and he was the head of the New York political delegation. As you can see in the statuary collection at the Constitution Center, he was a funny-looking little elf with a long pointed nose, frequently calling attention to himself with hyperkinetic behavior. Even as the legitimate father of eight children, Hamilton had some overly close associations with other men's wives, probably including his wife's sister. Nevertheless, he earned the affection of the stiff and solemn General Washington, probably through a gift of gab and skill getting things done, while outwardly acting as court jester in a difficult and dangerous guerilla war. There is a famous story of his shaking loose from the headquarters staff and fighting in the line at Yorktown, where he insolently stood on the parapet before the British enemy troops, performing the manual of arms. Instead of using him for target practice, the British troops applauded his audacity. Harboring no such illusions, Aaron Burr later killed him in a duel as everyone knows; it was not his first such challenge.

{Alexander Hamilton}
Alexander Hamilton

Columbia University President Nicholas Murray Butler told other stories of celeb behavior to reinforce Hamilton's New York flavor. But in the clutch, General Washington learned he could always trust Hamilton, who wrote many of his letters for him and acted as his reliable spymaster. When the first President faced signing or not signing the fateful bill to create the National Bank, a perplexed Washington had to choose between: the violent opposition of Thomas Jefferson and James Madison, or the bewildering complexity of Alexander Hamilton's reasoning in arcane economics. On the one hand, there was the simple principle that owing money was seemingly always evil; on the other was the undeniable truth that for every debit created, you create a balancing credit somewhere. Washington ultimately chose to go with Hamilton, whose reasonings he likely didn't understand very well. If you doubt the difficulty, try reading Hamilton's Report on the Bank, written to persuade the nation and its first President of the soundness of his ideas. And then consider the violence of even present-day arguments about such "supply side" economics.

{ Nicholas Murray Butler}
Nicholas Murray Butler

All of these momentous events happened in Philadelphia at places now easily visited in a morning's stroll. But Hamilton's image as a Philadelphian, doing great things in and for Philadelphia, was forever tarnished at one single dinner he hosted. Jefferson and Madison, his political opponents but his guests, were persuaded to provide Virginia's votes for the federal takeover of state Revolutionary War debts, in return for offering New York's votes for moving the nation's capital to the banks of the Potomac. True, Pennsylvania allowed itself to be pacified with having the capital remain here for ten years while the southern swamps were being drained. But it was Hamilton who cooked up this deal and sold it to the other vote swappers. Philadelphia felt it was entitled to the capital without needing to ask, felt that Hamilton was deliberately under-counting Pennsylvania's war debts, and this city has never appreciated the insolent idea that its entitlements were forever in the hands of wine-swilling hustlers. As the economic consequences of this backroom deal became evident during the 19th Century, it was increasingly unlikely that Philadelphia would lionize the memory of the man responsible for it. Let New York claim him, if it likes that sort of thing. When Albert Gallatin, who was more or less a Pennsylvania home town boy, attacked Hamilton as a person, as a banker, and as a Federalist -- he had a fairly easy time persuading Philadelphians that this needle-nosed philanderer was an embarrassment best forgotten.


REFERENCES


Alexander Hamilton Ron Chernow ISBN:978-0-14-303475-9 Amazon

Implicit Powers of the Federal Government

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The two highest achievements of James Madison, had been and still remain, the writing of the Bill of Rights, and acting as a close collaborator with George Washington in fleshing out the role of the President in the new government. The Ninth and Tenth Amendments made it clear that the federal government was to be constrained to a limited and enumerated set of powers, while all other activities belonged to the states. This was already clear enough in the main text of the Constitution, which Madison also dominated after close consultation with Washington before the Constitutional Convention. So he had battled and successfully negotiated one matter twice, before the most powerful and distinguished assemblies in the nation. As to the second matter, circumstances had promoted a shy young bookworm into the role of preceptor to the most famous man in America. In the earliest days of the new republic, certainly during the first year of it, Washington and Madison worked closely together in defining the role of the Presidency.

{George Washington}
George Washington

During the first weeks of that exploratory period, Washington induced Congress to create a cabinet and the first four cabinet positions, even though the Constitution did not mention cabinets. It all was explained as an "implicit power", inherently necessary for the functioning of the Executive branch. Soon afterward, Alexander Hamilton as Secretary of the Treasury proposed the creation of a national bank. Madison and his lifelong friend Thomas Jefferson were bitterly opposed, using the argument that creating banks was not one of the enumerated powers granted by the Constitution. Hamilton's reply was that creating a bank was an "implicit power" since it was necessary for running the federal government. Of course, Hamilton and Jefferson both had other unspoken motives for their position: for and against promoting urban vs. rural power, for and against the industrialization of the national economy, and dominating the states in matters of currency and financial leadership. It empowered a national rather than a confederated economy.

{Alexander Hamilton}
Alexander Hamilton

For Madison, the legalism probably carried considerably more weight than it did for Jefferson and Hamilton because it demonstrated the enduring consequences of being vague about the boundaries of any constitutional restriction. If this loophole got firmly established, it might reduce the whole federal system to a laughingstock. In order to promote the "general welfare", anything at all could be called an implicit power, and both separation of powers and enumerating federal powers would soon become quaint flourishes. The whole Constitution might fall apart in endless debates. On a personal level, Madison's highest achievements would have to be supplanted by something more practical. Besides which, Madison was a Virginian, a rich slave-holding farmer, and a young politician, seemingly on the verge of a promising career which might easily lead to the presidency for himself. Hamilton his most visible opponent, was already proposing a tax on whiskey which would almost surely antagonize farmers to the west, and assuming the Revolutionary debts of the states was equally divisive.

{Mt. Vernon}
Mt. Vernon

As matters eventually worked out, the main disputants made ostensible constitutional arguments, while the real political dispute would be settled by a political deal struck at a dinner. It traded relocation of the national capital to Virginia, for the assumption of the debts of all states (when Virginia had already paid off its debt.) Location of the capitol opposite George Washington's home at Mt. Vernon also took care of difficulties coming from that direction. By the time the uproar about this arrangement subsided, the precedent for settling the inherent conflict between enforcing Constitutional limitations versus enlarging their boundaries had been set. The most opportune time for stricter interpretation was fading while the most likely advocates of it were restrained by their own example. The negotiation was a little unseemly, and probably encouraged similar decisions to migrate to a less conflicted body, which eventually John Marshall would define as the U.S. Supreme Court.

Lowering the Taxes on Corporations

In the early years of the 21st Century, Ireland lowered taxes on corporate profits to a 12.5% rate, far lower than neighboring countries. Whatever else it did, it promptly encouraged corporations in Germany, Denmark, the United Kingdom, and other neighbors -- to move headquarters to Ireland where taxes were so low. Ireland is primarily rural, and a housing shortage developed in the cities as workers migrated to take advantage of the new jobs. Home prices went through the roof, mortgage applications overwhelmed local banks, who promptly re-sold mortgages to foreign banks. Sound familiar? It caused a housing bubble and then a horrendous international financial crisis. The European Union is financially and politically strained by the consequences and threatened to break apart over it.

{Privateers}
Irish Jig

That sounds pretty bad and should be a lesson to others. What Canada and a number of the individual United States got out of it was mainly this: if you lower corporation taxes, it causes prosperity. And so it might if politicians would do it gradually and moderately. Gradually and moderately are unfamiliar words in politics. Furthermore, there has long been a fundamental unfairness in taxing corporate profits twice -- once when the profits are made, and a second time when dividends are paid to shareholders. But it is obviously dangerous business, particularly when the governments involved are inexperienced. Canadians started talking about lowering their taxes to 16.5%, and no one could say whether that is a safe level or not. Within weeks, twenty-nine states with Republican governors were sending up trial balloons about joining this movement, and Governor Mitch Daniels of Indiana was much in demand as a consultant, and maybe a Presidential candidate, because Indiana had lowered corporate taxation some time ago, with favorable results.

This was exactly the sort of behavior James Madison had in mind when he designed the United States Constitution; it gave the people a way of disciplining overbearing state governments. Raise our taxes, and we will move. So there are strong arguments that these governors are approaching the right thing, and equally strong indications that everybody had better be plenty careful how this is approached.

The basic idea is good; double taxation should stop, and there is nothing in Madison's Constitution to prevent the Governors from doing what they say they would like to do. So how's this for a suggestion: if this movement gets started, let's take the opportunity to reduce all corporate income tax to zero. If everybody has the same zero rate, the incentive to migrate will disappear, and that's a good thing.

But if a major revenue source for the states disappears, what will take its place? At that moment of what would look like a crisis, it would be time for a national reconsideration and revision of the tax codes. And that would be an even more desirable outcome, provided it is done in an orderly and sensible way.

Corporations: Property, but also Immortal Persons

{Proprietor House}
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.

Globalization

{Peter Aloise}
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}
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.

Regulation Precision: Not Entirely a Good Idea

Obamacare's Constitutionality

{President Barack Obama}
President Barack Obama

Any idea of a smoothly orchestrated introduction of the new law was jarringly interrupted by the U. S. Supreme Court, which granted a hearing to a complaint by 26 State Attorney Generals, that the ACA Act was unconstitutional. It was big news that the whole Affordable Care Act might be set aside without selling a single policy of insurance. The timing (before the Act had actually been implemented) served to guarantee that the constitutional issue, and only that issue, would be discussed at this Supreme Court hearing. By implication, there might be more than one episode to these hearings.

While many could have declaimed for an hour without notes, about difficult issues perceived in the Obama health plan, questioning its constitutionality had scarcely entered most minds. Then of a sudden, near the end of March 2012, a case testing the constitutionality of mandatory health insurance was granted certiorari and very promptly argued for three full days before the U.S. Supreme Court. Twenty-six state attorneys general brought that case, so it was not trivial. In jest, one Justice quipped he would rather throw out the whole case than being forced to spend a year just reading 2500 pages of it. But Justices are practiced in the art of quickly getting to the heart of a matter; it soon boiled down to one issue: was it constitutional for Congress to force the whole nation to purchase health insurance? Is there no limit in the Constitution about what the federal government can force all citizens to do, even though the federal government itself is severely limited in scope? Even though the Tenth Amendment states that anything not specifically granted to the federal becomes the province of the states? Would a people who fought an armed revolution for eight years over a 2-cent tax on tea, now consent to a much larger requirement which it was not constitutionally authorized to impose? Most people finally wrapped their heads around some formulation of this non-medical concept to a point where they vaguely understood what the Judges were arguing about. This was beginning to look like a topic where We The People made a covenant with our elected leaders, and reserve the sole right to change it.

{top quote}
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. {bottom quote}
Tenth Amendment

The Constitution describes a Federal system in which, a few enumerated powers are granted to the national government but every other power is reserved to the state legislatures. The Constitution had to be ratified by the states to go into effect, and the states had such strong reservations about the surrender of more than a handful of powers that they would not ratify the document unless the concept of enumeration was restated by the Tenth Amendment. If states could not be persuaded of the need for a particular power to be national, they might refuse to ratify a document which enabled permanent quarrels about the issue. That wariness explains why The Bill of Rights goes to the extra trouble of declaring certain powers are forbidden to any level of government.

Separation of powers further explains why Mr. Romney's mandatory health insurance plan might be legal for the Massachusetts legislature but prohibited to Congress. After Chief Justice Roberts got through with it, whether that truly remains the case will now depend on whether it is described as a tax, a penalty, a cost, or whatever, and only if the U.S. Supreme Court later agrees that was a proper definition. Because -- to be considered a tax it must be too small to be considered coercion. The law itself apparently does not underline this distinction in a way the Justices felt they could approve. Indeed, while Mr. Obama in his speeches firmly declared it was not a tax, later White House "officials" declared it might be. There was agreement the Federal government could tax, but no acknowledgment that taxes might have any purpose other than revenue.

Under circumstances widely visible on television, however, it was clear that the House of Representatives had been offered no opportunity to comment on this and many other points in this legislation. To a layman, that fact itself seems as clear a violation of constitutional intent as almost any other issue, since the Constitution indicates no idea was ever contemplated that any President might construct laws, nor like the courts, interpret their meaning. The first three Presidents repeatedly raised the question of whether they had the authority to do certain things we now take for granted. And Thomas Jefferson was similarly boxed in by a clever Chief Justice, who said, in effect, Agree to This Decision, or be Prepared to Get a Worse One. The Constitution says it is the function of the Executive branch to enforce the law, "faithfully". Presumably, all of the thousands of regulations issued by the Executive Branch under this law must meet the same test.

Given that the Justices now hold it constitutional for the federal Congress to mandate universal health insurance, based on some authority within taxation, the immediate next issue is paying for it. Millions of citizens, usually young and healthy but sometimes for religious reasons, do not want to buy health insurance and would be forced to do so by this law because the only available alternative is to pay a revenue tax. The purpose of including them is to overcharge people who will predictably under-use community-rated insurance, and thus enable the surplus to reduce costs for those who do want to buy health insurance. (Here, the Court had the pleasure of reducing an unusually opaque law to an unusually succinct summary.) To avoid the charge of a "taking", the Administration must either surrender on the universal mandatory point or else surrender the level premiums of community rating. The lawyers for the complaining attorneys general laid great stress on this particular issue in their arguments, and it occasioned much of the discussion from the bench. However, until the law is in action there is as yet no cause for damages.

Here it will depend on whether you call it a permissible activity for Massachusetts or for the Federal government. The Constitutional point seems to be that it is a legitimate Federal power to tax for the "general welfare", so it now becomes essential to know if the taxes for noncompliance in Obamacare are really a penalty. The Justices seemed to be questioning whether the whole scheme would collapse with the forced subsidy eliminated, and because of that be deemed to have been a "general welfare purpose" adequate to meet the constitutional requirement of a permissible enumerated purpose. Lawyers can generally find such a defined purpose in the words of the Constitution, even if they have to dip into the penumbras and emanations of the words. So the question might just devolve into whether a majority of the Justices wish to declare the penumbra to be within the enumerated powers of Congress. To all of this, the lawyers for the attorneys' general reply that such an enumerated power is impossible because there is no limit to what could be done by this method. Congress would then be allowed to mandate that everyone eat broccoli for dinner, or buy a General Motors car in order to pay for the deficits of rescuing that company from bankruptcy. Almost anything could be mandated by establishing a penalty called a tax; including a mandate that everyone buys a product in order to pay for the deficits of mandating it, illustrates there exists at least one circularity of enumerating something like a power of Congress. According to this reasoning, mandated health insurance cannot, therefore, be an enumerated power of Congress, either now or at any time in the future. The sort of speculative law outlined in this paragraph is exactly the sort of thing the Supreme Court dislikes and shows the utility of denying access to the courts to anyone who cannot claim "standing", defined as a claim of actual injury from a law.

The Justices undoubtedly had to weigh the fact that the American public has a strong distaste for this sort of convoluted reasoning, which sounds like a convention of Jesuit priests having fun. On many other occasions, however, the public has accepted the judgment of people it hired to understand this sort of thing; that's called respect for the law. Eighty years ago in the Roosevelt court-packing case, there was the same sort of collision between the Court and the President, and the Court knuckled under even though the public supported the Court. In both cases, the Court seemed to be yielding to the President, with the unspoken compromise that the President would not pursue his earlier course with quite so much vigor. Since the really central 1937 question of overturning the Interstate Commerce clause ("Commerce among the several states") was left unaddressed, the velvet glove might yet contain an iron fist.

Vote Counting, Past and Future

{Greg Harvey}
Greg Harvey

The Right Angle Club was recently fascinated to hear Greg Harvey, a Montgomery McCracken expert on election laws, discuss the snarled Florida situation in the 2000 Presidential race, and the prospects for similar problems in upcoming elections. With the aid of retrospect, candidate Al Gore deserves much of the blame for his own loss, and the U.S. Supreme Court does seem to have terminated the uproar without affecting the final result.

A consortium of major newspapers funded an extensive investigation of the Florida election and were forced to agree that George W. Bush would probably have won that election no matter what. The central issue in these contests is the 35-day time limit to contesting elections. It is true that right or wrong, the country needs to settle its elections promptly and get on with its business. Furthermore, if a national election is so close that it takes months to decide the winner, there can't be a great deal of difference between the candidates, so who cares.

{Al Gore}
Al Gore

Looking back at the 2000 election with the leisure of time and appreciable resources, it is possible to see that Al Gore might have won that election if he had made several lucky choices in contesting its result. But it seems highly unlikely that anyone in his position would have been able to identify the winning combination of choices -- within the 35 day time allowed for pursuing them. He had to guess that ballots with two candidates marked ("over balloting") would pick up more Gore votes than ballots without an indicated choice ("under balloting"); he guessed wrong. He had to decide whether challenging late ballots from absentee military was worth the unpopularity of pursuing such a technicality to the disadvantage of soldiers serving overseas. His ticket-mate Joe Lieberman urged him to avoid that touchy issue which did prove to cost him some votes he needed. The decision was one to be proud of but is the main reason why his party faithfuls later turned rather viciously against Lieberman. A second wrong guess was to fail to go after the software mixup on invalidating the ballots of convicted felons. He might have picked up a couple of thousand votes, but only if willing to have the world learn that convicted felons are overwhelmingly pro-Democratic voters. The one decision he made that makes him look rather sappy to professional pols was to challenge ballots in the districts where he was already very popular.

{Privateers}
Vote

Vote counters and poll watchers tend to be strong political partisans, usually drawn from the local district. When votes are ambiguous, these people lean in the direction of their party. Therefore, most party insiders would know immediately; if you challenge districts, challenge the districts which favor your opponent. Choices like this do have to be made. The thirty-five-day rule makes a challenger run out of enough time to look elsewhere if early guesses prove wrong. So, although it is possible in retrospect to construct for Gore a winning strategy for selective challenges, the newspaper consortium and the Supreme Court which pondered the choices before him rightly concluded he was destined to lose.

{HAVA}
HAVA

Some of these lessons are enduring ones, but future elections face unexplored difficulties. A new election law (the Help America Vote Act, or "HAVA") sought to reform the election system by prohibiting the use of punch card ballots, requiring states to use auditable vote records and provisional ballots in doubtful cases, stricter voter identification methods, and statewide voter registration databases. In response to these record requirements, many states opted for complicated data in code, sequence-scrambled to prevent individual identification. In the event of a challenge, however, deciphering these records will be time-consuming, and the potential is created for the candidate who is initially ahead to stretch out the process until the challenge effort collapses at the 35-day time limit.

Several states, including Ohio, are thought to have the potential for very close 2008 results. In that particular state there are some complicated rules about voting in the "wrong" district, that is, to be registered in one district, but attempting to vote in another. It would not seem difficult to do a little of this on purpose, either as a voter, or an election registrar. It seems unlikely that very much challenge among the three possible culprits could be accomplished within thirty-five days of a contested election. So the challenger in Ohio would be faced with the same sort of impossible snap decisions that faced poor old Al Gore, surrounded by excited partisans shouting at the top of their voices.

So perhaps Greg Harvey's law school classmate Appellate Judge Richard Posner has a sustainable position on this. It was his judgment that the 2000 election was essentially a tie. Letting the Supreme Court decide it wasn't the worst possible choice.

www.Philadelphia-Reflections.com/blog/1515.htm

Anatomy of an Urban Political Machine

{One Big Family}
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.

American Articles of Confederation, Valuable or Hindrance?

{Continental Congress}
Continental Congress

THE British may well have been high-handed with their American colonies, but they were precise while enacting the Prohibitory Act of December 1775 about why they would attack militarily in 1776. Their American subjects had formed a rebel government in 1775 called the Continental Congress, which then dispatched an Army under George Washington to wage war against British forces in Boston; and then showed no signs of disbanding. What could you call that, except an armed mutiny?

{Articles of Confederation}
Articles of Confederation

The American colonists naturally had a different viewpoint. Because of the Prohibitory Act of 1775, they needed an established government of some sort to exist if war came, preferring not to be hanged for treason in defense of their rights as British subjects. Their primary grievance, at least at first, was taxation without representation. Many colonists were resistant to more than temporary independence from Britain. The most common goal of American moderates was then a variant of commonwealth similar to what was being discussed for Ireland. Once the British navy actually attacked, however, a strategic document describing what was contemplated for the far future was counter-productive. Strategic discussion bogged down into meaningless disputes between conservatives who wanted a strong central government, and radicals who argued for states' rights, neither of which was sufficiently tactical with British soldiers marauding the land.

To repeat the default position: Fighting the British fleet off Staten Island risked immediate hanging from the yardarm for treason, and the Articles of Confederation served the immediate purpose of legitimizing that. Lawyers may sometimes get lost in their own reasoning, but in this case, the advice was sound. Reconsidering the Articles after the Treaty of Paris was more appropriate, a smokescreen now only useful for confusing an angry British Admiral.

Although John Dickinson produced a workmanlike document in 1777 called the Articles of Confederation, it was weakened and not closely followed; formal ratification drifted during the first four years of the war. The chaotic situation also provided a pretext for some of the colonies to contribute less money or troops than their representatives promised. However, after five years of bloody warfare, an unratified Constitution became increasingly hard to justify, its disadvantages eventually outweighing any argument in favor. Robert Morris also decided the Articles needed to be ratified, as a sign of sufficient unity to justify long-term loans to them.

{Robert Morris}
Robert Morris

Morris at that time was called the Financier, a poorly defined office which in his aggressive hands meant Morris was effectively running the country. His position put him in the center of unenforceable promises of aid from the thirteen states, justified to him in all the contradictory ways of beleaguered debtors. Morris was enough of a businessman to know that hard-pressed debtors frequently offer weak excuses. So, whether he felt he was thwarting phony evasions, or really believed the states had legal concerns, he pressed ahead vigorously for ratification of the Articles of Confederation. This was soon accomplished in 1781, but unfortunately, it made little difference. It can be safely surmised this experience hardened his long-expressed conviction that every federal government must at a minimum have realistic power to collect taxes to service its debts. But to accomplish that, now required those ratified Articles must be amended or replaced; he had made everything more difficult. It would now be six more years before the "perpetual" Articles could be unraveled, in the form of a new Constitution. That provided for federal taxation and going forward made it considerably easier to amend than by unanimous consent of all the states. There remained the awkwardness of that term "Perpetual". The whole experience was exasperating, but it surely left him and others determined not to be dissuaded by fine points of legal language.

{George Washington}
George Washington

Any perpetual agreement never to allow amendment (except by unanimous consent) is visibly unwise, but that was what confronted those who now proposed to amend the Articles. At the least, it pushed the decision in favor of replacing the whole document. It was easier to brush aside a perpetual legal document, as unreasonable than to argue that obtaining thirteen votes was impossible. George Washington had spent a lifetime constructing a reputation for always keeping his word. If even Washington could agree the situation was unreasonable, the public was of a mind to accept that absolutely anyone should agree. Anyway, the reasoning behind the language in the first place was that thirteen former colonies were joining together for a larger Union which would continue after the Revolution. It was the Union which was meant to be perpetual, not the Articles. Curiously, this change also made it easier to expand the union; imagine the difficulty of obtaining unanimous votes from fifty constituent states. There almost seems to be an ominous political axiom buried in this situation: as the number of voters grows, the majority margin must narrow if a deadlock is to be avoided.

The Revolutionary War, begun in 1775, continued from 1781 (Yorktown) to 1783. Even during four succeeding years of peaceful governance under the Articles, from the Treaty of Paris (1783) to the Constitutional Convention (1787), not a great deal happened. But a few things did come up to test the usefulness of the Articles. The small war between Connecticut and Pennsylvania was settled by the Decision of Trenton, although state boundaries became largely formalities after the country was unified by Article IV of the Constitution. The Northwest Ordinance was passed. And the Constitutional Convention was agreed to. Several flags were tested and adopted. Robert Morris had swept aside the habit of micro-managing the country by Congressional Committee, delegating government departments to bureaucracy in the process. Of all these activities, the most important was the Northwest Ordinance, which demonstrated that important governmental innovations could actually be accomplished under the Articles.

Democracies all like to talk too much. Their constitutions typically run to hundreds of micro-managed pages, and get everyone confused, unless they are unwritten, which is really confusing. It's hard to remember, but the Articles were the first written constitution, and to this day no other former member nation of the British Commonwealth has a written constitution. By giving things a trial run in the Articles of Confederation, we learned what is important and wrote it down. The second time around, tested in war and in peace, we made important revisions. By the time of the Civil War, we had a written governing document that men would die for because they understood it and approved.

Constitutional Judicial Branch Clauses

{top quote}
Article III - The Judicial Branch Section 1 - Judicial powers The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3 - Treason Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have the power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. {bottom quote}
Constitutional Powers of Judicial Branch

Tax Legislation--Just A Condominium Squabble

{Privateers}
Constitution

Congress meets every year and, almost every year, most Americans are more interested in athletic games. People who make politics their profession may be more involved more of the time, but eventually, it is taxes which supply the force to involve the public. Occasionally it is the Constitution, but the Constitution mainly establishes structure, and people are generally satisfied with the present structure. There is limited time for debate, and to tell the truth, limited patience for it so the party leadership is left with the power to manipulate timing around holidays And the leaders organize the limited "floor" time carefully to preserve their control of it. Right now is one of those corners of our time, when an important issue gets crowded next to a holiday recess, the issue gets explained to the public, and public opinion is closely divided at first. It all sounds familiar, but there are important particularities.

Everybody is affected, everybody thinks he knows what George Washington thought. We had once just finished the Revolutionary War, almost losing that war because we had so much trouble agreeing to tax ourselves, to defend and govern ourselves thereby. When the Continental Congress abandoned Philadelphia to the British in 1779, only Robert Morris stayed behind as acting President, and never forgot the dreadful experience of governing without a government. In fact, about five future Constitutional delegates were trapped by an angry mob in the upper floors of James Wilson's house at the so-called Battle of "Fort Wilson". There was no need for these patriots to debate later about the need for taxes, law or order. This experience settled the tax issue for them, permanently.

{Privateers}
Revolutionary War

A whole host of tax issues are vitally important to someone somewhere, but the tax issue dominates almost all three hundred million citizens of every age and occupation. lowering by how much is desirable for corporate taxes, and lowering by how much is ideal for federal taxes shared with state and local governments. Corporations were then a new and unanticipated way to run a business, and generally, a more efficient way, although not a perfect one. About half the country half-believes it is urgent to go in opposite directions on details and divide in opposite directions on a subject, but the other half is suspicious of some hidden agenda. There probably isn't enough slack in the systems to do split the difference. If we try to change, we dispute how much to change. In this case, we have the example of southern Ireland, which went too far in lowering corporate taxes to 12.5% in a single step. It seems simple enough, but we dispute who gets the credit, and most of the leadership is fearful of getting too far ahead of the public. The Civil War is the only time in our history when compromise wasn't sufficient, and in retrospect, it probably might have been handled without a war.

{Privateers}
The Civil War

The result needs improvement because of repeated patching, so simplification is desirable but not paramount. It would be nice to stop gerrymandering, but no one proposes a feasible way, as is true of the narrow balance between the two parties. It is clear that the Congressional power of the purse is weakened by overspending the budget and then demanding that we avoid a default by funding an unauthorized deficit. Since it is unclear how to accomplish these three structural approaches peacefully, we probably can't do them. So we will probably resort to half-measures, with fuller measures after we can see what happens. The risk is that the North Koreans, or the Saudi princes, or the defeated Russians, or some other foreign power will solve the problem for us in the meantime. This approach amounts to buying some time by surrendering some control, and we may be sorry we did it. But we keep on building more condominiums, so it must have some utility.

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.

Tammany: Philadelphia's Gift to New York

{Tammany Hall}
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.

{/Treaty of Penn By Benjamin_West}
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}
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.

The Civil War

War of Northern Aggression or Treason?

Aftermath: Who Won, the States or the Federal?

{Thirteen Sovereign States}
Thirteen Sovereign States

In the case of the American Constitution, the initial problem was to induce thirteen sovereign states to surrender their hard-won independence to a voluntary union, without excessive discord. Once the summary document was ratified by the states, designing a host of transition steps became the foremost next problem. The dominant need at that moment was to prevent a victory massacre. The new Union must not humble once-sovereign states into becoming mere minorities, as Montesquieu had predicted was the fate of Republics which grew too large. Nor must the states regret and then revoke their union as Madison feared after he had been forced to agree to so many compromises. As history unfolded, America soon endured several decades of romantic near-anarchy, followed by a Civil War, two World Wars, many economic and monetary upheavals, and eventually the unknown perils of globalization. When we finally looked around, we found our Constitution had survived two centuries, while everyone else's Republic lasted less than a decade. Some of its many flaws were anticipated by wise debate, others were only corrected when they started to cause trouble. Still, many tolerable flaws were never corrected.

{top quote}
Great innovations command attention to their theory, but final judgments rest on the outcome. {bottom quote}
.

Benjamin Franklin advised we leave some of the details to later generations, but one might think there are permissible limits to vagueness. The Constitution says very little about the Presidency and the Judicial Branch, nothing at all about the Federal Reserve, or the bureaucracy which has since grown to astounding size in all three branches. Political parties, gerrymandering, and immigration. Of course, the Constitution also says nothing about health care or computers or the environment; perhaps it shouldn't. Or perhaps an unmentioned difficult topic is better than a misguided one. Gouverneur Morris, who actually edited the language of the Constitution, denounced it utterly during the War of 1812 and probably was already feeling uncomfortable when he refused to participate in The Federalist Papers . Madison's two best friends, John Randolph, and George Mason, attended the Convention but refused to sign its conclusions, as Patrick Henry and Thomas Jefferson almost certainly would also have done. On the other hand, Alexander Hamilton and Robert Morris came to the Convention preferring a King to a President, but in time became enthusiasts for a republic. Just where John Dickinson stood, is very hard to say. Those who wrote the Constitution often showed less veneration for its theory, than subsequent generations have expressed for its results. Understanding very little of why the Constitution works, modern Americans are content that it does so, and are fiercely reluctant about changes. The European Union is now similarly inflexible about the Peace of Westphalia (1648), suggesting that innovative Constitutions may merely amount to courageous anticipations of radically changed circumstances.

{President Franklin Roosevelt}
President Franklin Roosevelt

One cornerstone of the Constitution illustrates the main point. After agreeing on the separation of powers, the Convention further agreed that each separated branch must be able to defend itself. In the case of the states, their power must be carefully reduced, then someone must recognize when to stop. If the states did it themselves, it would be ideal. Therefore, after removing a few powers for exclusive use by the national government, the distinctive features of neighboring states were left to competition between them. More distant states, acting in Congress but motivated to avoid decisions which might end up cramping their own style, could set the limits. The delicate balance of separated powers was severely upset in 1937 by President Franklin Roosevelt, whose Court-packing proposal was a power play to transfer control of commerce from the states to the Executive Branch. In spite of his winning a landslide electoral victory a few months earlier, Roosevelt was humiliated and severely rebuked by the overwhelming refusal of Congress to support him in this judicial matter. The proposal to permit him to add more U.S. Supreme Court justices, one by one until he achieved a majority, was never heard again.

{taxes disproportionately}
Taxes Disproportionately

Although some of the same issues were raised by the Obama Presidency seventy years later, other more serious issues about the regulation of interstate commerce have been slowly growing for over a century. Enforcement of rough uniformity between the states rests on the ability of citizens to move their state of residence. If a state raises its taxes disproportionately or changes its regulation to the dissatisfaction of its residents, the affected residents head toward a more benign state. However, this threat was established in a day when it required a citizen to feel so aggrieved, he might angrily sell his farm and move his family in wagons to a distant region. People who felt as strongly as that was usually motivated by feelings of religious persecution since otherwise waiting a year or two for a new election might provide a more practical remedy. However, spanning the nation by railroads in the 19th Century was followed by trucks and autos in the 20th, and then the jet airplane. While moving residence to a different state is still not a trivial decision, it is now far more easily accomplished than in the day of James Madison. A large proportion of the American population can change states in less than an hour if they must, in spite of a myriad of entanglements like driver's licenses, school enrollments, and employment contracts. The upshot of this reduction in the transportation penalty is to diminish the power of states to tax and regulate as they please. States rights are weaker since the states have less popular mandate to resist federal control. It only remains for some state grievance to become great enough to test the present power balance; we will then be able to see how far we have come.

{high gasoline taxes of Europe}
High Gasoline Taxes of Europe

Since it was primarily the automobile which challenged states rights and states powers, it is natural to suppose some state politicians have already pondered what to do about the auto. The extraordinarily high gasoline taxes of Europe have been explained away for a century as an effort to reduce state expenditures for highways. But they might easily be motivated by a wish to retard invading armies or to restrain import imbalances without rude diplomatic conversations. But they also might, might possibly, respond to legislative hostility to the automobile, with its unwelcome threat to hanging on to local populations, banking reserves, and political power.

It helps to remember the British colonies of North America were once a maritime coastal settlement. The thirteen original states had only recently been coastal provinces, well aware of obstructions to trade which nations impose on each other. Consequently, they could readily design effective restraints to mercantilism within the new Union. Two centuries later, repeated interstate quarrels provided fresh viewpoints on old international problems. As globalization currently becomes the central revolution in trade affairs of a changing world, America is no beginner in managing the intrigues of international commerce. Or to conciliating nation states, formerly well served by nation-state principles of the Treaty of Westphalia, but this makes them all the more reluctant to give some of them up.

As Europe Learned: Common Currency Without Common Government Spells Trouble

When the Europeans decided to edge gradually into united nationhood, step by step, starting with a unified currency, Milton Friedman was immediately scornful. Mr. Friedman had won a Nobel Prize for his work in monetary matters and told the world that he didn't think the Euro would last ten years. At the end of ten years, it began to look as though he was right. Since even pirates had once been willing to accept Spanish gold coins at face value, it takes a little explaining to understand why it makes any difference whether the issuing countries of the Euro are yoked in common nationhood.

Other Constitutional Issues

Is It Better to Die in America?

The purpose of healthcare financing is to redistribute the pain of paying for it. Otherwise, the patient doesn't want to be sick or die; illness itself is a disincentive to abuse. The concern about abuse mainly arises when someone else pays for it. The indigent patient doesn't want to be sick, either, but somehow that's different. Not only does the public resent the cost, but the public also resents the need for the cost, as well.

Two of the central figures in devising Obamacare -- supposedly free healthcare for everyone -- have framed the issue as to whether it is better to die in America or somewhere else. Just about no one wants to die anywhere, at any time I notice. The mortality figures are too fuzzy to judge whether the extra cost is worth the money, but essentially there isn't enough provable difference among developed nations to assert most care lengthens the lifespan of the patients. Especially for cancer patients. Apparently, the diffusion speed of new knowledge makes it impossible to tell how much it helped. Or else the amount of new knowledge isn't sufficient to show up in such crude data. By that standard, medical care is just as "good", one place or another, one insurance system or another. It just costs more, that's all. When some research laboratory finds a cure for cancer, health care still won't seem to have proved it helped.

But life expectancy will increase; in the long run, costs will come down. It can be very confidently assumed that those who invest their savings early in life will enjoy a more prosperous retirement than those who depend on entitlements.

Mexican Immigration and NAFTA

{George H.W. Bush}
George H.W. Bush

The North American Free Trade Agreement (NAFTA) was signed on December 17, 1992, by President George H. W. Bush for the United States, Prime Minister Brian Mulroney for Canada, and President Carlos Salinas for Mexico. It was intended to eliminate tariffs from the North American continent, with long-run benefits for the three nations who made the agreement. Essentially, it was President Bush's idea, growing out of the long period of public service in which he prepared himself for the Presidency in most of the major components of the American government. After his election, he immediately started to implement the many ideas he had formulated, characteristically worked out in considerable detail, and assigned to government officials he had worked with and knew he could trust. The twin results were that he advanced sophisticated ideas much more quickly than is customary, but then experienced backlash from a public which was accustomed to understanding programs before they assented to them. NAFTA was a prime example of both the advantages and disadvantages of an expedited approach.

Tariffs are a tangled ancient political dispute between nations; George Bush got his two neighbors to sweep them away in a remarkably short time for diplomacy. However, plenty of people benefit from the pork barrel, the unfairness and the economic drag of tariffs, so Bush even got ahead of that opposition, essentially presenting it with a done deal. However, he failed to be re-elected because his fellow Texan Ross Perot campaigned as a third party candidate, thundering about a "giant sucking sound" which was predicted as American businesses would flood into Mexico. Whatever Bill Clinton may think, he won the election as a result of the third-party divisiveness of Ross Perot. And Clinton furthermore got to take credit for NAFTA largely because he claimed the credit. Poppy Bush followed Reagan's strategy of winning by letting others take the credit.

{Privateers}
NAFTA

NAFTA had a lot of minor provisions, but the main feature was to help Mexico with manufactures, compensating for America hurting Mexican agriculture with cheaper United States agricultural imports. The usual suspects howled about the unfairness of such a dastardly deed, but they lost. Helping Mexican manufactures took the tangible form of the "maquiladoras", which were assembly plants from the United States re-located just south of the border, assembling parts made abroad into machinery and other final products, for sale in the United States. The general idea behind this was that Mexican immigration was mostly driven by a hunger for better jobs; give them jobs in Mexico, and they would stay home. That's a whole lot better than an endless border war. Even today, it would be hard to find anyone who would contend that fences, searchlights and police dogs were a superior way to control the borders.

For a while, the maquiladoras were a huge success. But then, China got into the act, paying wages so low that even Mexicans could not live on them. No doubt Ross Perot rejoices that the maquiladoras promptly collapsed, leaving abandoned hulks of factories just across the dried-up Rio Grande. And eventually, we even have tunnels bored under the border and more illegal Mexicans in America than we have people in prison who might take the same jobs. Not the least of the consequences came from the other parts of the same country. Mexico traded an injured agricultural economy for the promise of high-paid manufacturing jobs in maquiladoras. So, masses of impoverished Mexican farmers were made available for illegal immigration, up North.

It is now anybody's guess whether Chinese wages will rise enough, soon enough, to reverse the economics of their destruction of the Mexican economy. The election of a union-dominated Clinton/Obama presidency in the meantime does not bode well for actions which would reverse that result, which now would threaten American-Chinese relations of an entirely different sort. It is true that Chinese wages are relentlessly rising, and that transportation costs now favor assembly-factories closer to the American consumer. But maybe the moment for this approach is passing, or possibly has passed.


REFERENCES


George H. W. Bush: The American Presidents Series: The 41st President, 1989-1993: Timothy Naftali, ISBN-10: 0805069666 Amazon

Paying For College - II

{The Cosmos Club Washington D.C.}
The Cosmos Club Washington D.C.

To begin with an anecdote, I belong to a Philadelphia club which reciprocates with the Cosmos Club in Washington DC. It's a handy place to stay overnight on the rather infrequent occasion of visits to Washington on business. It happened I had an early breakfast at the Cosmos and was the only guest in the dining room. A pleasant well-dressed man came in and asked if I minded if we sat together. "I'm Bob Goheen. I work at Princeton." Since he was widely known as the President of Princeton University, he was indeed welcome. He could hardly be expected to know my daughter was then a sophomore at his college, so he was, of course, unprepared for what I had to say.

{Empty Pockets}
Empty Pockets

After introductory pleasantries, I told him of my arithmetic problem. My daughter was taking five courses, so the family was paying ten thousand dollars a year, per course. Since most of her courses had over two hundred students in the lecture hall, the University was being paid two million dollars to teach each course. Was it possible I had got the arithmetic wrong? Mr. Goheen neither flushed nor displayed hostility, but his manner did change. Well, of course, the tuition pays for far more than direct teaching costs. It's expensive to maintain a first-class library, the University has a responsibility to help the town of Princeton with its problems, the University is proud of its very extensive scholarship program for needy students, there is research to be sponsored. Yes, said I, you have fallen into the trap I prepared for you. My complaint is that if I had donated money for those worthy causes, it would all be tax-deductible; but by having it extracted from me under the name of tuition, I was denied the tax advantage. As expected, he quickly changed the subject. And to his evident relief, I let him do so without resistance.

Since that time, I have had the opportunity to play the same game with several college presidents; not all of them have been suave about it. The only one who took me by complete surprise was the President of Lehigh University, who not only told me he agreed but added that he had made himself unpopular with his peers by promoting exactly similar ideas. There is a very serious problem, here. Somehow, the higher education industry has got to engage in some statesmanship because it is only a matter of very short time before someone proposes a government solution.

{National Institutes of Health}
National Institutes of Health

It is possible to treat this issue as a problem of how to pay for universal college education, which would put it in a category now occupied by health care, and probably reach a political impasse for similar reasons. Or it could be treated as a problem of teasing apart the instructional costs from the research and scholarly costs. The problem to be solved, viewed from this latter direction, assumes that excellent teaching could occur, isolated from the scholarly activities, in the manner now accepted for secondary and elementary teaching. Conversely, research institutes with no teaching responsibilities are widely accepted in Europe, for instance, while in America the National Institutes of Health are their most prominent example of its workability. It can be argued that a scholar engaged in research makes a better teacher; it can also be argued that talent for teaching is not necessarily found in those with a talent for research. While it is true that some researchers are productive even in old age, for the most part, research is like poetry and sports, a young person's game. A creative scientist can usually look forward to acting as an administrator after reaching a certain age; why not instead look forward to a career in teaching? There appears to be no serious problem with this suggestion, except the nontrivial issue of relative prestige linked to ascending income. In summary, the question is whether we can afford to put another Harvard in every town of a specified size, or whether we will be forced to transform most existing colleges into enlarged high schools, as we build more of them. Obviously, that's a cheaper method, the question is whether it is a good enough product. Whatever the model to be mass produced, the overall cost would be reduced by stripping out populations who do not need so much education, and getting Google or IBM, or someone similar, to apply massive amounts of information technology to reducing the cost. In achieving universal health care, by contrast, we can reasonably foresee research reducing most of the delivery costs we now contend with, even eliminating some of the major diseases. In education for a service economy, the potentially increasing educational need is unfortunately endless.

Therefore, no matter what pattern we adopt, it must be organized to be in competitive tension with the manpower needs of the economy, rather than unmeasurable goals like becoming well rounded. If the reason we need a vastly more educated population is to supply better-educated graduates to run the economy, some kind of tension must exist between the two, or the educational establishment will ruin us with purposeless expansion, just as some elements of the healthcare industry might wish to do with their services, and almost all trial lawyers unashamedly wish for in their area of expertise.

In this area of economic design, lies the answer which President Goheen should have made to me in the Cosmos Club. By asking for a massive tax deduction, I was yielding to the idea that education was always a responsibility of government, always paid for by rejiggering the tax code. In that direction lies disaster, since control of the tax code lies in the realm of politics and leads to populist solutions. We must not unbalance power relationships so that economic leaders, asking for a better-educated workforce, are not eventually confronted with crippling taxation for the betterment of bloated academia. A typical college has as many employees as students. We cannot get caught up in an unrestrained process leading to half of the population teaching the other half, except for those who have retired and receive a pension from both activities. Rather, this expensive quest for quality must be seen as the other half of the immigrant's dream, which is no longer that of average performance in an industrial economy, but rather that of excellence in a service economy.

Special Education, Special Problems

{Privateers}
School Bus

President John Kennedy's sister was mentally retarded; he is given credit for immense transformation of American attitudes about the topic. Until his presidency, mental retardation was viewed as a shame to be hidden, kept in the closet. Institutions to house them were underfunded and located in far remote corners of a state. Out of mind. And while it goes too far to say there is no shame and no underfunding today, we have gone a long way, with new laws forcing states to treat these citizens with more official respect, and new social attitudes to treat them with more actual respect. We may not have reached perfection, but we have gone as fast as any nation could be reasonably expected to go.

However, any social revolution has unintended consequences; this one has big ones, surfacing unexpectedly in the public school system. For example, the king-hating founding fathers were very resistant to top-down government, so federal powers were strongly limited. So, although John Kennedy can be admired for leadership, the federal government which he controlled only contributes about 6% of the cost of what it has ordered the schools to do, and the rest of the cost is divided roughly equally between state and municipal governments. As the cost steadily grows, special education has become a poster child for "unfunded mandates", increasingly annoying to the governments who did not participate in the original decision. We seem to be waking up to this dilemma just at a time when the federal government is encountering strong resistance to further spending of any sort. The states and municipal governments have always been forced to live within their annual budgets, unable to print money, hence unable to borrow without limit. As Robert Rubin said to Bill Clinton when he proposed some massive spending, "The bond market won't let you."

The cost of bringing mentally handicapped individuals back into the community is steadily growing, in the face of a dawning recognition that we are talking about 8% of the population. Take a random twelve school children, and one of them will be mentally handicapped to the point where future employability is in question; that's what 8% means. Since they are handicapped, they consume 13% of the average school budget and growing. The degree of impairment varies, with the worst cases really representing medical problems rather than educational ones. Small wonder there is friction between the Departments of Education and the Medicaid Programs, multiplying by two the frictions between federal, state and municipal governments into six little civil wars, times fifty. An occasional case is so severe that its extreme costs are able to upset a small school budget entirely by itself, tending to convert the poor subject into a political hot potato, regularly described by everybody as someone else's responsibility. There are 9 million of these individuals in public schools, 90,000 in private schools. They consume as much as 20% of some public school district budgets.

All taxes, especially new ones, are bitterly resisted in a recession. Unfortunately, the school budgets are put under pressure everywhere by a growing recognition that our economic survival in a globalized economy depends on getting nearly everybody into college. Nearly everybody wants more education money to be devoted to the college-bound children at a time when there is less of it; devoting 13% of that strained budget to children with limited prospects of even supporting themselves, comes as a shock. Recognizing these facts, the parents of such handicapped children redouble their frenzy to do for them what they can, while the parents are still alive to do it. It's a tough situation because a simultaneous focus on specialized treatment for both the gifted and the handicapped is irreconcilably in conflict with the goal of integrating the two into a diverse and harmonious school community, with equal justice to all.

As school budgets thus get increasingly close scrutiny by anxious taxpayers, handicapped children come under pressure from a different direction. It seems to be a national fact that slightly more than half of the employees of almost any school system are non-teaching staff. Without any further detail, most parents anxious about college preparation are tempted to conclude that teaching is the only thing schools are meant to do. And a few parents who are trained in management will voice the adage that "when you cut, the first place to cut is ADMIN." Since educating mentally handicapped children requires more staff who are not exactly academic teachers, this is one place the two competing parent aspirations come to the surface.

Unfortunately, the larger problem is worse than that. When the valedictorian graduates, the hometown municipal government is rid of his costs. But when a handicapped person gets as far in the school system as abilities will permit, there is still a potential of state dependence for the rest of a very long life. The child inevitably outlives the parents, the full costs finally emerge. We have dismantled the state homes for the handicapped, integrating the handicapped into the community. But when the parents are gone, we see how little help the community is really prepared or able, to give.

SEPTA's Long Term Planning

{Privateers}
Septa

Byron S. Comati, the Director of Strategic Planning and Analysis for SEPTA (Southeastern Pennsylvania Transportation Authority), kindly gave the Right Angle Club an inside look at the hopes and plans of SEPTA for the near (five-year) future. Students of large organizations favor a five or six-year planning cycle as both short enough to be realistic, and long enough to expect to see tangible response. If plans continuously readjust to fit the five-year horizon, the concept is that the organization will move forward on these stepping stones, even accounting for setbacks, disappointments, and surprises. Furthermore, a serious level of continuous planning puts an organization in a position to react when funding opportunities arise, such as the sudden demand of the Obama Administration that economic stimulus proposals be "shovel ready."

{Privateers}
The Silverline V

So, SEPTA is currently promoting five major expansions, based on the emerging success of an earlier plan, the Silverliner V. Silverline is a set of 120 shiny new cars, built in Korea on the model of electrical multiple units, which are expected in Spring 2011 to replace 73 cars or units which were built in 1963. Obviously, 120 are more expensive than 73, but they are more flexible as well. And less wasteful; most commuters are familiar with the model of three seats abreast which unfortunately conflict with the social preferences of the public, tending to make the car seem crowded even though it is a third empty. When a misjudgment like this is made, it takes fifty years to replace it with something better. For example, there's currently a movement toward "Green construction", which is acknowledged to be "a little bit more expensive". The actual costs and savings of green construction have yet to become firmly agreed on, so there's an advantage to being conservative about what's new and trendy in things that take fifty years to wear out.

{Privateers}
Septa Regional Map

Four of SEPTA's five major proposed projects are in the Pennsylvania suburbs. New Jersey has its own transportation authority, and Philadelphia is thus left to struggle with the much higher costs of urban reconstruction assigned to its declining industrial population. And left unmentioned is the six hundred pound gorilla of the transportation costs of new casinos. A great many people are violently opposed to legalized gambling, and even more upset by the idea of crime emerging in the neighborhoods of gambling enterprises. Even the politicians who enacted this legislation are uncomfortable to see the rather large expenditures which will eat into the net revenue from this development. Nevertheless, if you are running a transportation system, you have an obligation to plan for every large shift in transportation patterns, no matter what you might think of the wisdom of the venture. The alternative is to face an inevitable storm of criticism if casinos come about, but without any preparation having been made for the transportation consequences. At present, the public transportation plan for the casinos is to organize a light rail line along the Delaware waterfront, connecting to the rest of the city through a spur line west up Market Street; it may go to 30th Street Station, or it may stop at City Hall. That sounds a lot like the present Market-Frankford line, so expect some resistance when the cost estimates are revealed. Because all merchants want to have the station stops near them, and almost no residents want a lot of casino foot-traffic near their homes and schools, expect an outcry from those directions, as well. It would be nice to integrate this activity with something which would revive the river wards, but it seems a long stretch to connect with Wilmington on the south, or Trenton on the north.

The planned expansions in the suburban Pennsylvania counties will probably encounter less controversy, although it is the sorry fate of all transportation officials to endure some hostility and criticism for any changes whatever. Generally speaking, the four extensions follow a similar pattern of building along old or abandoned rail lines, following rather than leading the population migrations of the past. When you are organizing mass transit, there is a need to foresee with some certainty that there will be a net increase in commuters in the region under consideration. The one and two passenger automobile is a much more flexible instrument for adjusting to the growth of new development, schools, retail, and industry. Once the region has become established, there is room for an argument that transportation in larger bulk is cheaper, cleaner or whatever.

The Norristown extension follows the existing but underused rail connections to Reading. Route US 422 opened up the region formerly serving the anthracite industry, but now the clamor is rising that US 422 is impossibly crowded and needs to be supplemented with mass transit.

The Quakertown extension follows the rail route abandoned in 1980 to Bethlehem and Allentown, although the extension is only planned as far as Shelly, PA.

The Norristown high-speed extension responds to the almost total lack of public transportation to the King of Prussia shopping center, and will possibly replace the light rail connection to downtown Philadelphia.

And the Paoli extension follows the mainline Amtrak rails as far as Coatesville.

All of these expansions can expect to be greeted with huzzahs by developers, land speculators, and newsmedia, but resistance will inevitably be as fierce as it always is. Local business always fears an expansion of its competitors; the feeling is stronger in the suburbs than the city, but local business always resists and local politicians always follow their lead. To some extent, the suburbs have a point, since radial extensions are usually much cheaper to build than lateral or circumferential transportation media; bus routes are the favored pioneers in connecting one suburb with another. Therefore, the tendency in these present plans remains typical by threatening the suburbs with a need to travel toward the center hub, then take a reverse branch back in the general direction of where they started, in order to go a short distance to a shopping center or school system. The two main river systems around Philadelphia interfere with the construction of big "X" routes from the far distance in one direction to the far distance in the opposite direction. Euclidian geometry makes the circumferential route elongate as the square of the radius. And jealousies between the politicians in three states create rally foci for the special local interests which feel injured. Since it seems to be an established fact that the proportional contribution to mass transportation by the surrounding suburbs of Philadelphia is traditionally (and considerably) lower than the national average, a political reconciliation might do more for the finances of SEPTA than any federal stimulus package could do. For such reconciliation, a few lateral connections in the net might pacify the suburbs enough to justify the extra cost. Unfortunately, the main source of unjustified cost in regional mass transit is the high wage and benefit levels of the employees, a situation inherited from the old days when commuter rail was part of the stockholder-owned regional railroads. Just as featherbedding was the main cause of the destruction of the mainline railroads, health and pension benefits threaten the life of mass transit. In the old days, local governments acted as a megaphone for union demands. So the railroads just gave the commuter system to the local governments, and let them wrestle with the unions themselves. Since the survival of the urban region depends on conquering this financial drain, the problem must be gradually worn down. But it has been remarkable how long the region has been willing to flirt with bankruptcy rather than bite this bullet.

If anything, this friction threatens to get worse. In 2009, for the first time, a majority of union members in America -- work for the government, the one industry which thinks it cannot be destroyed by losing money. True, SEPTA is not exactly a government function, but it has enough in common with a government department to arouse suburban voters, who regularly refer to it as an arm of the urban political machine. SEPTA isn't too big to fail, but there exists little doubt that government at some level would probably try to bail it out if it did.

Ms. Mayor

{Mayor Letitia Columbi}
Mayor Letitia Colombi

One of the great treasures of Haddonfield is a letter from Benjamin Franklin to the husband of Elizabeth Haddon, to the effect that she was the most forceful woman of the region. Indeed, it is part of the tradition of the Haddonfield Meeting of Friends that the men's meeting and the women's meeting met is separate rooms and kept separate minutes at that time. Elizabeth was the clerk of the women's meeting, and while the men's meeting would sign the minutes as "The Meeting on Stoy's Landing" or the "Meeting near Cooper's Creek" or something else topical, the minutes of the women's meeting were consistently signed in a single way. They were from the meeting in Haddonfield. Ultimately, everybody gave up and named the town Haddonfield.

{Haddonfield Borough Hall}
Haddonfield Borough Hall

Without being able to recall a single other woman who was Mayor of the town, it does seem appropriate that its present mayor is a lady and a forceful one at that. Letitia Colombia has been on the Borough Board of Commissioners for nearly twenty years and seems likely to remain Mayor for as long as she wishes. In the tradition of forcefulness, a number of old timers in the town remember when she first got elected by knocking on every door in the town, and then marched down the main street in the July 4th parade, wearing high-heeled red shoes.

The Right Angle Club was curious to see what this was all about, and her performance was a brilliant demonstration why politics is a full-time sport of every town in Texas. Odessa, her home town, is a few miles from Midland-where-the-oil-comes from, and she and Laura Bush probably attended the same high school. They are certainly both members of the same school.

{Al Driscoll}
Al Driscoll

In many ways it was Al Driscoll who as Mayor asked why Haddonfield couldn't be like Princeton, where he once went to school. The answer he got was to change the zoning ordinances and then just wait thirty years. It worked fairly well, although Haddonfield got a parking and traffic problem along with the good features of looking like Princeton. But it wasn't Tish's way; one might say it wasn't the Texas way. She hired some consultants at a cost of $125,000 to work out a detailed plan for changing Haddonfield for the better, and then followed the plan. It included a list of the kind of stores you do and don't want in a town of this type and the general strategy of attracting them. The zoning laws are sort of like Princeton's, but different enough to matter. Year by year, you can see the town change from a sleepy little place into a lively place to be. There are no empty lots in Haddonfield; to change the town, you have to remodel everything, house by house. On a summer evening, there are throngs of people on the sidewalks downtown, entertained by three or four street bands, wandering up and down at the sidewalk sales of the merchants. Haddonfield is "dry" in the sense that liquor sales are prohibited; that policy was recently reconfirmed by a four-to-one vote. But it hasn't kept restaurants away. The residents like BYOB a lot, and fully understand what it means.

Taxes in Haddonfield are, well, generous. But Haddonfield gets no state school aid; its schools are much like a thirty-million-dollar private school system, run by locals to local taste. And a quarter of our taxes go to Camden County. Tish boldly announces we get nothing whatever for those taxes in return. With a slogan like that, it's pretty hard to doubt she's a Republican.


REFERENCES


Heroines of Haddonfield 1713-2013: Christie Castorino: ISBN: 978-1-4836-2719-9 Xliris

Paying for College I

It's almost two platitudes that during the Nineteenth century America changed from a largely agricultural nation into a largely industrial one. And toward the end of the Twentieth century, we are going on from an industrial economy toward a service economy. This latest shift of direction is one of the main causes of soaring college tuition costs. Demand for first-class college education grows faster than price increases, competition, and internal efficiencies can seemingly control.

{College Cost}
College Cost

Tuition costs at the top of the educational pecking order have now reached $52,000 annually, with room and board and other costs sometimes adding another fifteen thousand. Attending college already costs well in excess of the average after-tax income of working Americans, perhaps even in excess of the average income of college graduates. College costs regularly exceed the disposable income of undergraduates' parents and must be temporarily subsidized while the nation collects its wits, but subsidy cannot be a permanent solution to a problem so large. Average incomes of college graduates do exceed the average income of those who only finish high school. That extra income is gamely said to justify the investment, even taking into account the invisible loss of 4 years of earnings, perhaps even a trailing six-figure indebtedness. However, a meaningful score can only be toted up in retrospect, after inflation and taxes work their way into a net-net appraisal. Faith in some postulated answer to this accounting puzzle colors various belief systems, like: How much should we worry about widening income gaps between any income segments? What is the particular value to society of income redistribution between those who pay full tuition and those who receive financial aid?. There could be legitimate questions about many other values throughout the whole system. During the Vietnam War, many uncomfortable questions were raised about the educational system, even leading to riots on college campuses. It was often implied that many students were in college merely to escape the military draft. While that may have been precisely what was in many minds, the scramble for elite college admissions has intensified since the end of the draft, seemingly proving a college education has other merits. Steadily rising tuition costs are rapidly narrowing the income advantage, so one supposes the intrinsic merits of higher education can soon be measured by whatever enthusiasm for admission survives the bursar's bite. There are a few reasons for doubt, many reasons for anxiety.

In the first place, undergraduate tuition charges are poorly related to underlying instructional costs. It is natural to expect some markup for any product on sale, and some cushion for the unexpected. However, the difference between the tuition for night school and day school is a pretty disconcerting example. Comparatively few universities offer the same undergraduate courses as night-school courses, but a number of them do. The tuition for regular undergraduate courses is about average, somewhere around $5000 per course, but the tuition for night school is around $1200 per course -- same teacher, same textbook, same exam. Without access to the accounting data, one is led to suppose the tuition for night school comes pretty close to the true instructional cost of these courses. And therefore led to the supposition that the 300% markup for undergraduates implies that undergraduates, blue jeans and all, subsidize a great deal of unrelated activity throughout the university. This sort of discovery does not enhance the image of justice in academia.

In the second place, colleges can as easily re-direct surpluses into the endowment fund as out of it. They batter the concept of donor intent in both directions, breaking the linkage of tuition to underlying costs, and the linkage of donations to needs. Ultimately universities may be defined as mere steps to a higher income for wise investors, and cannot complain if proof of adequate return is demanded. Such accountability might even be a wise precaution, based on observation of the way Great Britain has made Oxford and Cambridge dependent on government subsidy, then subsequently allowing class warfare antagonisms to degrade the government contributions. These prestigious universities are now much humbled by transforming income inequality into a mark of shame. Unless American universities are designed to follow the same path, they will be forced to choose between competing for the way businesses do, or the way churches have traditionally done. Unfortunately, there is a reason to fear which was a college president will tip, with a cash register in one hand, and a begging cup in the other.

America is almost unique in its large proportion of small liberal arts colleges. No doubt, many of them would prefer to remain as they are, but it seems attractive to encourage thirty to fifty of them to become universities. When asked the differences, one college president replied the main difference is the presence of graduate students. Judging from the competitiveness of admission, the demand for graduate students is much closer to supply than at the undergraduate level; some tuition distortion reflects an effort to increase the supply of college teachers. Income prospects after graduation are probably an influence, but since the main occupational opportunity for graduate students is to teach undergraduates, increasing the openings for college graduates in a service economy must also imply matching the increase with more people to train them. However, only a minority of university undergraduates go on to become graduate students, so creating fifty universities also rebalances the incentives to become teachers. There are observers who advocate replacing teachers colleges with universities, a proposal which necessarily collides with the present informal dual-track system. High school teachers are mainly trained in teachers colleges, while university professors are products of graduate schools. The two streams are kept carefully separate because the commotion created by mingling them would probably be considerable. Nevertheless, this may be the rate-limiting step which will have to be addressed.

Mention of secondary education must be made, however, in order to grapple with the issue of automating education. It must be obvious that one distinguished Shakespearean scholar could replace thousands of lesser teachers of the same subject by the use of video recordings of the distinguished lecturer at work, both for introductory college courses and more advanced levels in high school. True, a small handful of pure scholars needs to be segregated away from the mass of college teachers, most of whom might prove to be graduate students. Face to face interaction is essential at every level of education of course, but automation holds such huge financial promise that greater experimentation and innovation seems inevitable. The education industry needs to make much more strenuous efforts to reduce its costs through greater adaptation to information technology if only to improve its ability to teach such adaptations to entrants into other industries. Shortening the school year, wider expansion of the Junior year abroad, and employing graduate students to teach, are debatable methods for reducing the cost of education; but an enthusiastic embrace of the computer revolution must improve educational quality before other nations leave us in their dust.

And finally, caution must be mentioned. Some degree of specialized focus of college courses is inevitable; we cannot develop scientists and engineers without it. But we must not eliminate the liberal arts, carelessly calling them luxury in a busy age. To a probably excessive degree, universities have replaced religions as a secular place to examine and teach young people how to live and behave. In little more than a generation, universities have a determined (long) hairstyle and (blue jeans) dress style, sexual morals, and political belief systems, mostly in a libertarian direction. That is not why we have colleges, or at least not why students must pay a quarter of a million dollars to experience them. There is another layer of intangible value in a liberal education, perhaps only perceived by personal experience. As I look back on a great many decades, I realize that almost every important step upward in my life was unexpected, almost unwelcome. Someone came out of the blue and offered it to me. Other people were watching and judging from behind some social bush. By contrast, almost every advancement that was strived for mightily, perhaps even a little too competitively, was to some degree gratuitously thwarted by others, often quite openly. Unobserved headhunters are watching for many qualities, particularly the ability to play this game. Spending some extended time learning what our society is all about through liberal education is a technique for self-advancement, too; universities would impair their customers' main chances in life by disturbing it.

Disappearing Stock Power

The Right Angle Club of Philadelphia recently heard two presentations on newer investment strategies, one by our member on hedge funds and private equity, and a week later by his guest from Black Rock, on ETF funds. For the purpose of this review, both presentations ultimately got around to the same issue.

In the case of private equity, the investor purchases a share of aggregated profits from a company in the business of buying a substantial or controlling interest in corporations, usually underpriced or underperforming ones. And then, the private equity fund attempts either to fix up the company and sell it or fix it up and hold it indefinitely. Whether or not he achieves a profit, the individual investor in the fund loses the opportunity to vote the shares, or has it offered in such an awkward way the opportunity is meaningless.

{Privateers}
Hedge Fund

A hedge fund similarly buys and sells stock on its own account, employing the money of investors, and generally adding huge amounts of borrowed debt. In this case, the stock is often held for such short times that voting rights are lost in the registration requirements. Taken as a whole, however, the issue is substantial, since it is reported that 70% of recent transactions have been conducted by unattended computers operating by pre-arranged contingency instructions, often responding in fractions of a second. While the resulting immobilization of voting rights is substantial, the main problem with hedge funds has been the way very small profits have been magnified by staggering amounts of borrowing, potentially causing very large losses if the transaction system is slowed for whatever reason. While hedge funds did perform well during the 2007-2009 crash, it will be 2012 before the incredible volume of transactions can be analyzed to see how close we were to disaster. There is definitely a risk in doing nothing, but probably less than the risk of ill-informed legislation making matters worse in some way.

In the case of ETF, the operator or "manufacturer" of the fund attempts to buy blocks of stock in all or representative samples of the companies listed on some index, weighted in proportion to their weight in the index. The intent is never to sell that stock, merely evaluating the fund price and its dividends as a mathematical exercise, and repurchasing or reselling the calculated bundle to other investors, but never disturbing the contents of the bundle unless the index changes its composition.

In all third-party investing cases except hedge funds, the advantage is that reduced tax and transaction activity saves costs, and avoiding internal selling of stock means essentially no taxes are payable until the investor ultimately sells the fund. The managers of funds maintain that these tax and overhead savings completely compensate for losing whatever opportunities for profit would come along and be exploited by expensive "active" managing of the funds. (Some investment funds employ more Ph.D.'s than any American University does.) Even if the performance turns out to be somewhat lower, there is a safety factor of exactly matching the averages, and thus agreeing to surrender the opportunity to join half of the universe of investors in beating the average, in order to avoid joining the other half of investors in doing worse. Furthermore, distributing the investment over a large group of corporations confers diversification, and thus surrendering the chance of a windfall profit in return for avoiding the occasional disastrous loss. In a sense, the fund investor no longer hopes for a company to do well, he hopes for the whole nation to do well. Summarizing the details, these funds provide safety of diversification and reduction of turnover costs, in return for assured but marginal above-average performance. Since this outcome is so greatly superior to the actual experience of non-professional investors overall, it is highly attractive to many investors and should be attractive to more of them.

In addition to these common features, the hedge funds and private equity expose the investor to the risks and rewards of choosing a skillful manager, who may or may not choose the portfolio wisely, and who may or may not use leverage wisely. The choice of portfolio companies, on average, justify a greater degree of borrowing as their quality improves, and all investment borrowing involves a risk that interest rates may go up for reasons unrelated to the investment. In the recent debacle, hedge funds did comparatively well, but nevertheless, there are times when it is unwise to borrow against even the safest securities. And finally, because of the risk of stock market raids by outsiders, hedge funds are quite secretive about their portfolio contents and force the investor to "lock in" his illiquid investment for several years at a time.

There remains one characteristic of both funds, and for that matter mutual funds, annuities, life insurance and all other forms of aggregated investing through a third party. The third party retains the right to vote the shares, admittedly with some little-used and generally unworkable opportunities for investors to request their own proxies. Such third parties almost always vote the shares in their custody in favor of management. There are occasional exceptions, as when union-managed funds will vote their shares in a political manner, or as when some mutual funds attempt to obtain pension fund business in return for cooperation on selected proxies, or in one legendary story the custodian was instructed: "Always vote AGAINST any management proposal." But these are presently exceptional situations. In the vast majority of cases, the proxy votes effectively disappear, and control of the companies in the portfolio gradually gravitates into the hands of those few stockholders who retain direct ownership and take the trouble to vote it. In fact, it is increasingly the case that the most effective way to frustrate a management proposal is not to vote against it, but to abstain entirely, in the hope that a quorum cannot be assembled.

Another popular movement augments this unfortunate situation. Increasingly, it is urged that top management be paid substantial parts of its reimbursement by stock in the company or options on it. The argument is that it is important to align the motives of top management with the rest of the stockholders. Reflecting concern about some recent events, such stock is or should be forced to bear the covenant that it may not be voted in a stock take-over by an outside raider, to frustrate the commonly used inducement to the manager to sell out his stockholders in a merger. Even when this particular contingency has been foreseen and prevented, the effect of increasing the shares in the hand of management and decreasing the voting shares in the hand of the outside public by freezing them in third-party funds -- soon puts the idea in the heads of managers that they own the company. The recent public indignation about inordinately high salaries for top management, can in large part be traced to the plain fact that voting control of the companies is visibly shifting into the hands of the people who receive those salaries.

Puritan Boston & Quaker Philadelphia

{Digby Baltzell}
Professor Digby Baltzell

Digby Baltzell had something of the defiant rebel in him. He surely didn't imagine his employer, the University of Pennsylvania, was pleased to have him a document that Harvard is a better college than Penn. Nor were fellow members of the Philadelphia Club pleased to confront scholarship that his city's gentry was too devoted to money-making to accept the ardors of public leadership. Nor would his relatives in the Society of Friends enjoy accusations their religion impaired the pursuit of excellence in all fields of the city's endeavor. Later articles will here take up some unfair assaults, and defend Quaker simplicity and Peace Testimony. Some blame must, of course, be shared, some mitigating circumstances acknowledged. And let it be said in Baltzell's support that it truly is remarkable how many cultural features do get passed down for ten or more generations. Or even longer; look at the persistence of ancient Chinese, Indian, Esquimo, Viking, Roman, Christian and other cultural heritage. The Quakers got to Pennsylvania early, they are now vastly outnumbered. Many Quaker ideas continue to influence present inhabitants, some ideas probably hold us back. Substitute "Puritans of Boston" for "Quakers" in the foregoing sentence, and conclude by saying "some of those ideas probably give Bostonians an edge". Those two rather unexceptional declarations summarize a controversial book, although they do not completely capture its overall censorious flavoring.

To a certain extent, Digby is his own worst enemy. While alive, he was one of the world's most charming raconteurs, a walking encyclopedia of local lore. Like a good docent in a museum, he could walk into a room hung with portraits, and charm any audience for an hour; presumably, his sociology lectures at Penn held the same magnetism for his classes. In a book for popular readers, however, it is overdone to go on about the same point for six hundred pages. He needed a better editor, or perhaps he needed to permit a better editor to make him restrain his tendency to multiply illustrations beyond the point where the reader loses the thread of the argument. Not all readers will agree with his argument; they can only be legitimately defeated by focused argument. That's perhaps unrequired of college professors holding the power of grade-point averages over nineteen-year-olds, but it is expected of conversation with other adults. If an editor wants to sell books to a general bookstore audience, he should induce authors to overcome the take-it-or-leave-it habit.

As a general reaction to this book, Baltzell seems to think Quakers do not want to be rich and that consequently, latecomers into the region tend to share this feeling. My own view is that Quakers see they can have almost all of the value of being moderately rich -- by disdaining the trivial luxuries of the middle classes. They do not exactly renounce fame and power but are unwilling to gamble much or sacrifice much, in order to enjoy the comparatively small exhilaration of being very rich. They are now no longer surrounded by junior versions of themselves, but by bank-robbing Willie Suttons who readily attack Quakers for being where the money is, and appear to be pushovers at that. When Quakers then promptly demonstrate they are not pushovers at all, they are treated like outsiders in their own town. In many ways and at most times, the populist crowd gives up trying to understand Quakers and decides they must somehow always behave in ways that others would not. It's hard to achieve much deference in such an environment.

Many of Baltzell's important insights grew out of his position as a Philadelphia and academic insider; he personally knew many of the people he described. However, such an infiltrator runs the constant risk of being viewed as a tattle-tale, so a cover is required. Batzell's technique involved frequent use of quotations from others, not so much to prove a point as to rephrase it. This is another feature of the book which might have benefited from a hard-nosed editor. However this is how he wanted it, and in a post-publication revision, here is a condensation of how he summarizes his argument:

When studied with any degree of thoroughness, the economic problem will be found to run into the political problem, the political problem, in turn, run into the philosophical problem, and the philosophical problem itself to be almost indissolubly bound up at last with the religious problem.

--Irving Babbitt

In the South, ....left-wing Quakers came to the fore in the pine barrens of North Carolina-- to this day, North Carolinians speak of their state as "a valley of humilities between two mountains of conceit."

--E. Digby Baltzell

The world is only beginning to see that the wealth of a nation consists more than anything else in the number of superior men it harbors.

-- William James

I believe that ambitious men in democracies are less engrossed than any other with the interests and judgments of posterity; the present moment alone engages and absorbs them...and they are much more for success than for fame. What appears to me most to be dreaded, that in the midst of the small, incessant demands of private life, ambition should lose its vigor and its greatness.

-- Alexis de Tocqueville

Our rulers today consist of a random collection of successful men and their wives. ....They have been educated to achieve success, but few of them have been educated to exercise power. Nor do they count with any confidence upon retaining their power, nor of handing it on to their sons. They live therefore from day to day, they govern by ear. Their impromptu statements of policy may be obeyed, but nobody seriously regards them as having authority.

--Walter Lippmann

Equalitarians holding...extreme views have tended to believe that men of great leadership capacities, great energies or greatly superior aptitudes are more trouble than they are worth.

--John W. Gardiner

In the Jacksonian era in this country, equalitarianism reached such heights that trained personnel in the public service were considered unnecessary...Thus, in the West, even licensing of physicians was lax, because not to be lax was apt to be thought undemocratic.

--Merle Curti

In the late eighteenth century we produced out of a small population a truly extraordinary group of leaders-- Washington, Adams, Jefferson, Franklin, Madison, Monroe, and others. Why is it so difficult today, out of a vastly greater population, to produce men of that character?

--John W. Gardiner

It is nevertheless certain that the high quality of Virginia's political leadership in the years when the United States was being established was due in large measure to those very things which are now detested. Washington and Jefferson, Madison and Monroe, Mason, Marshall, and Peyton Randolph, were products of the system which sought out and raised to high office men of superior family and social status, of good education, or personal force, of experience in management: they were placed in power by a semi-aristocratic political system.

--Charles S. Syndor

Another clue to the relationship between hierarchy and leadership is suggested by Gardner's list of the Founding Fathers. All of these men were reared in Massachusetts or Virginia; none was reared in the colony of Pennsylvania, though Philadelphia was the largest city in the new nation and contained perhaps the wealthiest, most successful, gayest, and most brilliant elite in the land. Not only had Pennsylvanians little to do with taking the lead in our nation's founding, but the state has produced very few distinguished Americans throughout our history...I shall concentrate here on the commercial cities of Boston and Philadelphia, whose great differences in leadership and authority were far more likely to reflect differences in ideas and values.

--E. Digby Baltzell

Whatever else ...America came to be, it was also an experiment in constructive Protestantism.

--H. Richard Niehbur

All this is only to say that man is a product of his history, where nothing is entirely lost and little is entirely new.

--E. Digby Baltzell

For the wine of New England is ...more like the mother-wine in those great casks of port and sherry that one sees in the bodegas of Portugal and Spain, from which a certain amount is drawn off each year, and replaced by an equal volume of the new. Thus the change is gradual, and the mother wine of 1656 still gives bouquet and flavor to what is drawn in 1956.

--S.E. Morison

New Englanders, ambitious beyond reason to excell.

--Henry Adams

{Henry Adams}
Henry Adams

Pennsylvania became the ideal state, easy, tolerant and contented. If its soil bred little genius, it bred less treason. ... To politics, the Pennsylvanians did not take kindly. Perhaps their democracy was so deep an instinct that they knew not what do to with political power when they gained it; as though political power was aristocratic in its nature, and democratic power a contradiction in terms.

--Henry Adams

The reproach I address to the principles of equality is that it leads men to a kind of virtuous materialism, which would not corrupt, but would enervate the soul, and noiselessly unbend its springs of action.

--Alexis de Tocqueville

In our egalitarian age of mistrust, trustworthy men of great ability are increasingly refusing to run for public office or to serve in positions of authority and leadership in our society...In the rest of this book, I shall try to show how and why the Quaker city of Philadelphia, in contrast to Puritan Boston, has suffered from that virus of virtuous materialism for almost three centuries and how its best men, on the whole, have seldom sought public office or positions of societal authority and leadership outside business.

--E. Digby Baltzell


REFERENCES


Puritan Boston and Quaker Philadelphia: E. Digby Baltzell. ISBN-13: 978-1560008309 Amazon

Forming the State of Delaware

{Philip Yorke 1st Earl of Hardwicke}
Philip Yorke, Earl of Hardwicke

When the Duke of York was within hours of being banished, he told his agent Sir John Werden to give the contested strip (now the state of Delaware) to Penn, but save out the town of Newcastle with a twelve-mile strip of land around it. Werden wrote that into the charter with a proviso based on the idea that the fortieth parallel was to the south of Newcastle, when in fact it was fifty miles north of it, and could not possibly conform to the stated boundaries. Both Penn and Baltimore learned the true situation in a year or two, and both attacked the other for dissembling ignorance, each seeking to take advantage of implausible arguments. What in fact they both discovered was that if the dividing line could be pushed a few miles south, Penn would acquire the mouth of the Susquehanna in the Chesapeake Bay, while if it went north a few miles, Maryland would acquire most of Philadelphia. Lord Hardwicke worked out a reasonable compromise which, while ignoring some plain language in the documents, eventually resulted in the Mason-Dixon line which is now reasonably comfortable for everybody, although first subjected to another two decades of wrangle.

{Delaware Wedge}
Delaware Wedge

Even part of the eventual compromise, a semicircular northern border, didn't come out right, resulting in a wedge of no-man's land. Landowners didn't enjoy paying disputed taxes, so they held up the settlement of the wrangle into the Twentieth Century. Eventually, the U.S. Supreme Court cut the wedge into two pieces, giving one piece each to Pennsylvania and Delaware. Meanwhile, disputes continued which had their basis in the way the semi-circular line was plotted out on the land. The surveyors ran 120 straight-line radii outward from the courthouse tower in Newcastle, and then connected the ends. Obviously, that resulted in 120 straight chords instead of a smooth semi-circle, and a couple of bulges had to be accommodated where the circle grazed other straight borders. The semi-circle crossed the Delaware River, so New Jersey helpfully abandoned its portion, only to regret its decision later when toll bridges were constructed, and ship channels deepened.

{King Charles I}
King Charles I

Two major societal changes took place between 1632 -- when Charles I granted the proprietorship of Maryland to the first Lord Baltimore -- and 1776 when all American real estate changed its rules. The first change was that the Delaware Bay morphed from a swamp into settlements of people; settlers came into possession. The second evolution was to the current view that if you sell some real estate it is no longer yours; in earlier eras, everything belonged to the king, who could take it away and give it to others as often as he pleased. In legal terms, the last king had the last word. Although acres of parchment were scribbled by lawyers pro and con, these considerations are what make clear how Lord Baltimore could hold the unchallenged legal title for fifty years to everything up to the fortieth parallel, but then have a court take away thousands of square miles. A land which was to become the three lower counties of Pennsylvania was given to William Penn by the Duke of York in 1682, using some flawed documents and only fully enjoyed by Penn's heirs for six years until they morphed into the new State of Delaware. From 1684 to 1769, legal ownership was a matter of continuing dispute. The exasperated Lord Chancellor (Hardwicke) in 1750 declared the case as one "of nature worthy of the judicature of a Roman senate rather than of a single judge".

{Lord Baltimore}
Lord Baltimore

Lord Baltimore had been given "unsettled" land, occupied only by savages. William Penn's lawyers struggled to prove the Dutch had settled the area before 1632, while Baltimore's lawyers sought to prove that pirates and wandering fur traders don't count, nor do villages of thirty people who were wiped out by the Indians. By the Doctrine of Discovery, taking land from pagans was encouraged, but taking land from Christians required special formalities. Since this Doctrine dates back before there were Protestants, it might have been pertinent to inquire whether the Dutch should be regarded as pagans, as the Spanish surely did when they suppressed Dutch independence in the Eighty Years War, ending in 1648.

Lord Baltimore advertised land along Delaware for sale to settlers while the matter was still under litigation. That was the foulest play said Penn, a weak argument to make if litigation was intentionally pursued for a century.

Maryland favored the Catholic cause, so it seemed plausible for them to want to stall, hoping the Catholic Duke of York would ascend to the throne. Under the new King James II, however, Baltimore seemed unlikely to prevail that the same person, as Duke of York, really didn't own the land he was trying to give to William Penn. So of course, Lord Baltimore claimed he never stalled.

{Cape Henlopen}
Cape Henlopen

And by the way, ocean currents moved Cape Henlopen a mile or so southward, but the real boundary problem was that common usage over the centuries confused Cape Henlopen with Fenwick's Island (to which it is usually attached by a thin barrier island), making an implicit difference in the Maryland/Delaware ownership of the corresponding strip of land at the southern border of the State of Delaware, a matter of a hundred or so square miles.

And all of this confusion was merely about the borders of one of the smallest of our fifty states. The political manner in which Delaware became a colony without a charter to the King, and became a state by gradual and mystifying degrees separate from the other counties of Pennsylvania are other complicated stories. Never mind the reasons Delaware remained in the Union during the Civil War, even though it also remained a slave state.

With gratitude to the memory of Dudley Cammett Lunt 1896-1981, whose books are a most readable but scholarly analysis of this complicated history. In particular, The Bounds of Delaware and, for the Mason-Dixon Line, Taylor's Gut in the Delaware State are recommended. The courts rejected arguments that the land was essentially wilderness when Lord Baltimore acquired his patent, and history has been sympathetic to Penn, the winner. The contention was the Dutch owned the land by right of discovery ( a Doctrine applied to land ruled by pagans by Pope Nicholas II in 1454), while the Duke of York later took it from the Dutch by surrender to force of arms -- another legally benign method of acquiring sovereignty. However, Lunt points out that a far more significant issue was the southern border of Pennsylvania in Penn's original grant, which asserted geographical impossibility to replace Maryland's plain and simply defined boundary. History has tended to regard this as understandable error, and subsequent legal quarrels to have been perpetuated by William Penn's greedy heirs. However, Lunt seems to reveal his own opinion of the affair by ending his book with a July 31, 1683 quotation from a letter by William Penn to Colonel Thomas Tailleur:

I, finding this place necessary to my Province and it ye Presence of Ld. Balt. was at Law, civil & common, I endeavoured to get it, & have it, & will keep it if I can.

Thieves of Baghdad

{Col. Matthew Bogdanos}
Col. Matthew Bogdanos

Col. Matthew Bogdanos, of the U.S. Marines, gave an interesting insight into what the Baghdad Museum really was, how it was captured, and how the treasures were recovered, at the University of Pennsylvania Museum the other night. Our own museum is said to be the second largest archeology museum in the world, after the British Museum. After discovering what was really in the Baghdad museum, that ranking may have to be revised; but the chief Philadelphia interest traces back to the discovery of the ancient city of Ur by Philadelphia archeologists during the last century, an event which essentially created the University Museum. This was where civilization began, and we discovered it.

The reserve Colonel happens to be a prosecutor for the New York District Attorney, was trained extensively in classical antiquities; and so was the perfect point man to lead the capture of the Museum during the Iraq war, very well suited to follow the looted treasures into the international antiques market -- and recover substantially all of it. Something like 62,000 pieces were recovered, and all of Nimrud's Treasure, the prize possession of the museum.

{Privateers}
The Baghdad Museum

There has been criticism of our troops -- some of it right out of this evening's Philadelphia audience -- for allowing the place to be looted in the first place. But that sort of assumes the place was lying vacant and undefended while our troops were out shooting innocent civilians. That's a misapprehension quickly dispelled by videotaped scenes of real live shooting and rockets coming out of the place at the time, which the Colonel was happy to display. Questioners were invited to claim they would have been willing to go into that hornet's nest in order to save alabaster statues, but others in the audience inclined to giving the Marines some benefit of doubt.

{Privateers}
Hussein Millions

That place was vandalized when the troops got into it; to say it was thoroughly vandalized is only true in a sense. There was indeed a lot of looting, but the bigger surprise was to find there were hidden storage rooms behind steel bank doors, filled with the really best antiques, as well as vast boxes of American hundred-dollar bills. By weighing the hundred dollar bills (22 pounds for every million dollars) it was estimated that Saddam Hussein had about $800 million in U.S. currency stored in that one place. Gold as a raw commodity has since gone up considerably in value, but many of the best antique gold pieces on display in the museum were only copies, the originals were kept in the secret vaults. The international market appraises quite a few of these pieces at over $10 million apiece. Apparently, the thieves knew exactly which pieces were valuable, and went straight to them without even pausing to notice other rooms full of objects of lesser value. The museum had been closed to the public for the previous twenty years; it seems rather obvious that Saddam was storing these objects in order to buy weapons for continuing guerilla activities underground, or in exile. The museum itself consisted of nearly twenty separate buildings in the center of Baghdad, and the custodians obviously must have known where things of serious value were kept, in order to get to them so precisely.

{Privateers}
Nimrud's Treasure,

Offering an amnesty, no questions asked, brought in thousands of recoveries from the local public. Getting other pieces back from art galleries in London, Geneva and Berlin required methods that were not described in detail. Some of us who remember the German and Japanese mementos which were "liberated" during World War II have an immediate appreciation of the improved American troop discipline which must have been imposed in the Iraq War. That's something to think about, too. Our troops had been given extensive training to respect the cultural heritage of the enemy, and they evidently did so to a remarkable degree. One certainly has to doubt that Saddam was locking that material in vaults for twenty years in order to preserve the culture of any sort. If it had any other purpose than to serve as a way of transforming oil wealth into munitions, it's a little hard to imagine what it was.

Frank Furness (1):PAFA

{Pennsylvania Academy of the Fine Arts}
Pennsylvania Academy of the Fine Arts

The Pennsylvania Academy of Fine Art is notable for its place in Art history, for its faculty over the centuries, and for its influential student graduates. It is therefore not to slight the institution's remarkable place in the world of art if we pause to notice that the building itself, the place that houses all this, is itself an outstanding work of art. Whenever mention is made of Frank Furness, its colorful and influential architect, the first stop on the list is the building he built to house a school and display its glories. Perhaps the best way to illustrate the achievement is to compare it with the Barnes Museum, which also was built to house a school. It also has an outstanding permanent collection, perhaps a greater one than PAFA. But the Barnes building scarcely gets a mention and is about to be abandoned for a preferable location. The Furness building, however, is a massive pile of solid rock, immovable throughout massive changes in its neighborhood. To move that building out to the Parkway has never even been suggested. You can move if you like; we were here first.

The exhibition rooms are interesting, even clever, but the hand and mind of the architect are best seen in the school, the Academy. Seldom seen by the public, the entrance to the school is underneath the front staircase which sweeps the public visitors off to see the exhibition. Up to the stairs, admire the carved walls, the massive supports and the iron railings and out into rooms with scarlet and gold walls, and a blue ceiling with stars. When it leaves, the public sweeps back down the inside stairs and out the tunnel-like entrance, then down the outside stairs. Where was the school?

{PAFA Marker}
PAFA Marker

It's underneath the exhibition area, reached by a door under the stairs, unnoticed unless you ask for it. There you will find a darkened lecture hall and corridors lined with plaster casts for teaching purposes. But an artist's studio must have diffused northern light, and lots of it; the problem for the architect was to provide a huge slanted northern skylight over a basement. This trick was accomplished by pushing the walls of the first floor out to the street and installing a slanted skylight in the "ceiling" of the overhang. When the overall effect is that of a fortress meant to defend against a barbarian invader, built with massive walls and roof -- hiding a glass skylight is quite an achievement. Furness was a showman; it was not beyond him to place an architectural tour de force right in front of generations of students looking for something to portray.

We are told the building was five years in construction, designed and re-designed as it rose. The resulting effect is achieved by building around its interior as it evolves from bottom to top. Quite a difference from buildings laid out in advance, forcing the interior contents to conform to the initial design without regard to cramming down its contents. There is an overall design at work here; it's evocative of a Norman church with side extensions, but you have to look for that rather than having the architect thrust it in your face.

Rationing, No Matter What You Call It.

{Arthur L. Caplan}
Arthur L. Caplan

The Right Angle Club of Philadelphia was recently addressed by Arthur L. Caplan, Director of the Center for Bioethics of the University of Pennsylvania. His topic was Healthcare Rationing. It was interesting to hear the viewpoint of someone who views the 2010 mandatory health insurance system primarily through the lens of its ethics; just like the Tea Party objectors on the other extreme of politics, he sees the new law as merely a rationing system. However, his initial salvo is similar to that of the bill's proponents before it was enacted: "Every system always rations in some way or another." If you expected the outcome to be rationing from the beginning, your focus is naturally fixed on just what sort of rationing you get, perhaps measured by whatever kind of rationing you had formerly hoped for.

Ethics is, after all, a system of constraining native, unconstrained, outcomes into something deemed more suitable. That's a definition which could be equally well applied to the reform of all sorts and repeatedly tends to cast reformers as underdogs fighting the establishment. Since the American healthcare system in 1950 could fairly be described as rationing healthcare with money, and its history from then to now has been one of jumbled similarity to 1950, most discussion accepts a financial rationing description for what Obamacare changed. There is much uneasiness about totally supplanting the marketplace with insurance since universal insurance leaves no room for setting prices -- except by government proclamation, filtered through some sort of insurance bureaucracy. There was a time when many people thought that was better than paying for it yourself, but now that it's here, there are growing doubts.

{UPENN}
UPENN

There's surely going to be a last-ditch effort to overturn Obamacare, whether through Congress or the Courts and failing that, through stalling it until the President can be replaced in 2016. Let's assume for the moment that such efforts fail, and are not followed by armed rebellion. If the central issue is how do we find more acceptable methods of rationing, two proposed methods have begun to seem attractive. The first is proposed by Congressman Ryan of Wisconsin, to the general effect of taking what we now spend, chopping it up, and issuing vouchers for the same amount less net middle-man costs. This approach stops the rise of costs right where they are, and thus pleases Congress. But the thing to be rationed is redefined as well. It rations future cost rises, net of any savings wrung out of the system by competition for voucher money. It's fair to claim this system should not deny the present level of care to almost anyone. It has a price, however. If you want future miracles, you have to pay for them.

A second proposal depends on the observation that most healthcare costs are concentrated in the first year of life, and the last year of life. Strip those costs out, and what is left would almost surely be manageable, particularly in view of how the concentration of costs in those two areas steadily increases. Essentially, this system promises to take generous care of the helpless when they are born and when they die. Healthcare costs during the years of school and employment, however, could more confidently be left to people who are sentient and reasonably healthy, so that's where the inevitable rationing would be concentrated. Once more, the payment system has been modified to avoid such third-rail issues as euthanasia for Grandma or for self-inflicted diseases, or even for abortion. Those would be left to the public to manage during stages of life where there is a reasonable likelihood that the patient's own wishes can be paramount. For now, we pass over the technicalities of last-year-of-life insurance, but it could fairly begin with reliance on reimbursing Medicare after the fact, while traditional first-dollar insurance for pregnancy and newborns, or even mandatory government reimbursement, might seem acceptable even to strong conservatives.

So, what's proposed here is a substitute for both the traditional system and the bewildering command and control system of Obamacare. It shifts the subject matter for rationing away from those areas that frighten the public the most, toward either: rationing future unknown scientific advances, or, rationing healthcare during the years when it is comparatively predictable and involves patient cooperation during the years of reason. That's the summary; other proposals are welcome.

Regrettably, after each November election, we first must potentially endure a lame-duck Congress, followed by two years of White House-Congress gridlock. There will, unfortunately, be scant tolerance for ethicists, during those grievous national experiences.

Wood Turning

{The Wood Turning Center}
The Wood Turning Center

A lot of people are named Turner, probably reflecting some degree of ancestry of wood turners. That's an ancient skill, using wood lathes. In Colonial days, commercial wood turning had a focus on banisters of houses, flag poles, and even toothpicks. At the present time, it is mostly a hobby conducted in garages by people who are mechanically inclined; but when a skilled artist takes it up, the products can be exquisite works of art. Because this is America, there is a national club of artisans and admirers, called the Furniture Society, and a local Philadelphia club called the Wood Turning Center. It's located at 141 North 3rd Street. Because of one-way streets, you are advised to consult a map if you plan to drive there, on the north edge of the Ben Franklin Bridge, rather near the Constitution Center. Ron Humbertson, the curator of the museum, recently visited the Right Angle Club and talked about the subject.

The average skilled amateur takes ten or more hours to produce a wooden bowl on a wood lathe, but the professionals manage to do it in about five hours. If you start with a gnarled tree trunk, the product has many interesting lines and whorls. But then the artisan has to contend with knot holes, unexpected holes of wood rot, and the likelihood of cracking the piece in the process of carving it. By far the majority of a piece of raw wood is then carved away and discarded, something that bothers real tree lovers.

Because of all these unexpected features of the wood, the thinner the final piece, the more likely it is to crack and experience other mishaps, perhaps even leading to discards and starting all over. Even just drying the raw wood can lead to cracks, and sometimes even before the carving begins, so real artists gently dry the wood themselves as part of the whole process of producing art. Even if it doesn't crack, the usual finishing process involves five or more layers of clear epoxy finish, to reduce scratching and to hold it together to prevent those cracks. Those bowls which are intended to hold salads had better be crack-free if salad oil is to be poured on the food. Like any other piece of art, the really outstanding pieces are not intended to go on dining tables.

Killer Instinct

{Jerry Leon}
Jerry Leon

Once every year or two, a speaker at the Right Angle Club fails to show up. That happened recently, and as usually happens, one of the members stood right up to the microphone and gave an impromptu speech. The volunteer was Jerry Leon, who surprised us all by announcing he spent thirteen years in the Marines as a fighter pilot on aircraft carriers. You would never guess that from his behavior as a successful businessman, and to some extent that was his whole point.

In the first place, he volunteered as a Marine during the Korean War, and worked his way through boot camp and all that, until one day an officer brought them all to attention, asking for volunteers to fly airplanes. After flight training school, he might have flown air freight or eight-engine bombers, but he volunteered to fly fighter planes off the deck of an aircraft carrier. In those days, the carrier plane was fired by a steam driven catapult off the flight deck like a projectile. You go from zero speed to two hundred miles an hour in two or three seconds; the experience is arresting. After he recovers his wits, the pilot is expected to take sole control of the plane, fly around the carrier a few times, and then land the plane on the postage stamp flight deck. Fighter planes come in at a lower altitude than commercial aircraft, and steeper, and faster. The tailhook catches one of the three wires across the deck, and then the plane jolts to a stop. Or not, in which case the pilot must retake immediate control, take off at full speed, circle the carrier, and try it again. That's hard enough on a calm sea, but the Navy never stops for rough weather, so at night in rough seas, you have to do it in the dark with the ship rising, falling, pitching and yawing, right or left in three dimensions. That's somewhat harder. There are usually four planes in the air at any one time, all doing the same thing every ninety seconds, and if the plane runs off the end of the landing strip the pilot must remember to eject before he goes down with the plane. This whole process must be repeated six times in one day with only one aborted landing, in order to qualify for carrier duty. Saying nothing of the sudden bumps and jolts, the process of qualifying is pretty hard on the sphincters, it's pure terror no matter who you are. Like stage fright for an actor, crash landing does seem easier with practice but having done it seven hundred times, Jerry still wasn't able to do it calmly.

{Privateers}
P40 War Hawk

Unusually good eye/hand coordination is something you are born with, and baseball seems to require the same ability. Ted Williams, the famous .400 hitter for the Boston Red Sox, was an outstanding fighter pilot, and many less famous professional baseball players have also gravitated to the role. To be called a fighter ace a pilot must have shot down five enemy planes, and one pilot became a fighter ace at the Battle of Midway on his first mission. Because of his lack of experience, this pilot was only detailed to hunt for the battleship Yamamoto, but he found it, radioed its location, and on the return flight ran into 30 enemy planes. Tearing into them alone, he shot down five, becoming an ace before he returned to the carrier deck from his first mission. Now there's the killer instinct with eye/hand coordination, the combination which seems to make you an ace. He wasn't alone in these qualities, although 30% of the pilots do seem to account for 90% of the victories. In those days "between W-2 and Korea" the American pilots were flying propeller planes, while the Chinese pilots were flying jets, and even the Germans were flying some jet-powered Messerschmidts. That's five hundred miles an hour versus seven hundred, and the enemy planes would often swoop past in a whoosh. So, the Americans developed a technique. When the jet came up on your tail, you pulled back as hard as you could with all flaps down. The enemy jet pilot had to pull up his nose, flew over the top of the propeller-driven American, and then was blasted out of the air by the prop plane now waiting for him from behind. They say it worked every time, but of course, it only worked for the pilots who came back to talk about it. A former pilot with Chenault once told the story of letting go with fifty-caliber machine guns into the tail of a Zero, causing the Zero and its pilot to vanish into a puff of smoke and debris. Of course, the prop plane then just flew through the cloud.

{Pilots Hat}
Pilot's Hat

The fly-boys were of course chased by hordes of women, particularly in the bars around the training school in Pensacola. They drank hard, at reckless heedless parties; it was reported that Australian pilots even had two or three drinks before taking off, but our Navy strictly policed going that far. Nobody saved any money, nobody cared one whit about being promoted or demoted. Getting to be an Admiral was something that attracted what were disdainfully referred to as "politicians". And nobody bragged about his exploits, even to friends and family. What mattered was that word of mouth had carried your exploits to your buddies. The senior George Bush flew a bomber not a fighter plane, but he played baseball like an angel, and you never heard him boast of his adventures; that's a fair approximation of the personality type, although George Bush was unusually tall for a pilot, and clearly better bred. If you can't guess what he thought of Bill Clinton and Ross Perot, it isn't necessary to relate it here.

Somehow, feminist women intruded themselves into this fraternity, and some who seemed well-qualified got hustled along through token promotions. But few women have the real killer instinct, and just getting equal opportunity won't get you through those six gut-wrenching flights in a carrier qualification. Thirteen women pilots were killed in qualification flights before the Secretary of the Navy intervened and put a stop to it. To new entrants from a previously shunned group, achieving the same status as men is a form of promotion, and lusting for promotion is despised by natural-born fighter pilots. It's sort of a Catch-22 situation. What killers want, is to excel at things that are viciously dangerous, getting the esteem of others who tried to do as much and maybe failed; like tournament golf, in this game, you are really playing against yourself. And so this Greek tragedy finally came to a confused pause with the famous Tailgate party incident. To preserve appearances and rescue The Service from the press corps, the Navy brass was shocked, shocked, to discover what was going on. Women weren't being respected if you can believe such a thing of fly-boys.

"Hey, fellas, c'mon. Do you want to win this war or don't you? Professional killers have been behaving like this for centuries. And because you come along, we've got to change and do things your way?"

Cushman Club for Lonesome Actresses

{Charolotte Cushman}
Charolotte Cushman

Lydia Ellicott Morris was married to another member of the Quaker colonial aristocracy, George Spencer Morris; both of them were active members of many organizations, including the Philadelphia Savings Fund Society, Friends Hospital, and several of the clubs on Camac Street. Their home for many years was located at 225 South Eighth Street. George Morris was a senior partner of Morris and Erskine, Architects. One day, Lydia was riding on a trolley car.

On the trolley, she overheard two young actresses fretting over the problem that traveling actresses were forced to live in hotels and boarding houses along with traveling salesmen. This circumstance forced them to experience much-unwanted attention and made being an actress a difficult occupation for respectable women. Lydia promptly got off the trolley and formed an organization raising funds to create in 1907 a boarding home to provide safe, respectable, inexpensive lodgings for actresses in traveling shows, playing in Philadelphia. It was named after Charlotte Cushman, the first internationally famous American actress, and located at 1010 Spruce Street. Charlotte Cushman had no connection with the club, but her fame can be appreciated from the fact that in 1874 after her final performance, 15,000 people were reported to have serenaded her outside of New York's Fifth Avenue Hotel. The Ninth Regimental Band played, while fireworks illuminated Madison Square. Ms. Cushman died in 1876.

Another major donor to the club was a Mr. Peterson, otherwise unidentified, who gave them $50,000. Further funds were raised at five annual teas. In 1925, Philadelphia was a major center for the film industry, and much Charlotte Cushman Club early history relates to movie associations. Much of the early endowment was unfortunately lost in the 1929 stock market crash, however, and the club continued only a subdued presence for a number of years. By 1999, it was clear that the original purpose was not really needed, and the club was disbanded. Its possessions, including the last of several clubhouses, the collections, and a rather valuable library, were sold off, and most of its other belongings were donated to the Franklin Inn Club. The club began a new existence as the Charlotte Cushman Foundation, first endowing the Charlotte Cushman Board Room and Exhibit, at the University of the Arts, and then in 2001 began making grants to local nonprofit theatre groups. At present, the Foundation dispenses an income of about $45,000 yearly among 43 non-profit theatrical societies which continue in Philadelphia. Present dominant activity is to select the Leading Actress in a Play, as part of the annual Barrymore Awards. The rise of the club reflected the vibrant downtown social life of Philadelphia at a time when almost all Philadelphians were residents of the center city. And its decline parallels the loss of civic-minded center city residents following the spread of household automobiles and the continuing wreckage of traditional civic feeling following the 1929 crash.

The Foundations's website is www.charlottecushmanfoundation.org, and its email address is CharlotteCushmanFoundation@gmail.com

Reservoir on Reservoir Drive

William Penn planned to put his mansion on top of Faire Mount, where the Art Museum now stands. By 1880, long after Penn decided to build Pennsbury Mansion elsewhere, city growth outran the capacity of the new reservoir system which had then been placed on Fairmount. An additional set of storage reservoirs were placed on another hill across East River (Kelly) Drive, behind Robert Morris' showplace mansion now called Lemon Hill (Morris merely called it The Hill); the area was eventually named the East Park Reservoir. In time, trees grew up along the ridge and houses got built; the existence of these reservoirs right in the city was easily forgotten, even though the towers of center city are now plainly visible from them. These particular reservoirs were never used for water purification; that's done in four other locations around town, and the purified water is piped underground to Lemon Hill, for last-minute storage; gravity pushes it through the city pipes as needed.

Now, here's the first surprise. Water use in Philadelphia has markedly declined in the past century. That's because the major water use was by heavy industry, not individual residences, so one outward sign of the switch from a 19th Century industrial economy to a service economy is -- empty old reservoirs. Only one-quarter of the reservoir capacity is in active use, protected by a rubber covering and fed by underground pipes. The rest of the sections of the reservoir are filled by rain and snow, but gradually silting up from the bottom, marshy at the edges. Unplanted trees have grown up in a jungle of second-growth, attracting vast numbers of migratory birds traveling down the Atlantic flyway. Although there are only a hundred acres of water surface here, the dense vegetation closes in around the visitor, giving the impression of limitless wilderness, except for the center city towers peeping through gaps in the forest. It's fenced in and quiet except for the birds. For a few lucky visitors, it's easy to get a feeling for how it must have looked to William Penn, three hundred or more years ago, and Robert Morris, two hundred years ago. In another sense, it demarcates the peak of Philadelphia's industrial age, from 1880 to 1940, because that kind of industrialization uses a lot of water.

The place, in May, is alive with Baltimore Orioles. Or at least their songs fill the air and experienced bird watchers know they are there. Even a beginner can recognize the red-winged blackbirds, flickers, robins, and wrens (they like to nest in lamp posts). The hawks nesting on the windowsills of Logan Circle suddenly makes a lot more sense, because that isn't very far away. In January, flocks of ducks and geese swoop in on the water surface, which by spillways is kept eight feet deep for their favorite food. Just how the fish got there is unclear, perhaps birds of some sort carried them in. The neighborhoods nearby are teeming with little boys who would love to catch those fish, but it's fenced and guarded much more vigorously since 9-11. In fact, you have to sign a formal document in order to be admitted; it says "Witnesseth" in big letters. Lawyers are well known for being timid souls, imagining hobgoblins behind every tree. However, there are some little reminders that evil isn't too far away. Just about once a week, someone shoots a gun into the air in the nearby city. It goes up and then comes down at random, with approximately the same downward velocity when it lands as when it left the muzzle upward. That is, it puts a hole in the rubber canopy over the active reservoir, which then has to be repaired. No doubt, if it hit your head it would leave the same hole. So, sign the document, and bring an umbrella if the odds worry you.

A treasure like this just isn't going to remain as it is, where it is. It's hard to know whether to be most fearful of bootleggers, apartment builders or city councilmen, but somebody is going to do something destructive to our unique treasure, possibly discovering oil shale beneath it for example, unless imaginative civil society takes charge. At present, the great white hope rests with a consortium of Outward Bound and Audubon Pennsylvania, who have an ingenious plan to put up education and administrative center right at the fence, where the city meets the wilderness. That should restrict public entrance to the nature preserve, but allow full views of its interior. Who knows, perhaps urban migration will bring about a rehabilitation of what was once a very elegant residential neighborhood. And push away some of those reckless shooters who now delight in potting at the overhead birds.

This whole topic of waterworks and reservoirs brings up what seems like a Wall Street mystery. Few people seem to grasp the idea, but Philadelphia is the very center of a very large industry of waterworks companies. The tale is told that the yellow fever epidemics around 1800 were the instigation for the first and finest municipal waterworks in the world. There's a very fine exhibit of this remarkable history in the old waterworks beside the Art Museum. But that's a municipal water service; why do we have private equity firms, water conglomerates, hedge funds for water industries, and other concentrations of distinctly private enterprise in the water? One hypothesis offered by a private equity partner was that the success of the municipal water works of Philadelphia stimulated many surrounding suburbs to do the same thing; it was surely better than digging your own well. This concentration of small and fairly inefficient waterworks around the suburban ring of this city might well have created an opportunity for conglomerates to amalgamate them at lower consumer cost. Anyway, it seems to be true that if you want to visit the headquarters of the largest waterworks company in the world, you go about seven miles from city hall and look around a nearby shopping center. If you are looking for the world's acknowledged expert in rivers, you go to the Academy of Natural Sciences of Philadelphia on Logan Square and look around for a lady who is 104 years old. And if you have a light you are trying to hide under a barrel, come to Philadelphia.

Go to Delaware, Elephants?

{Dead Elephant}
Dead Elephant

No one is supposed to know where elephants go to die, but if they are smart as people say they are, my suggestion is to search for dead elephants in the state of Delaware. Most taxes, and estate taxes, in particular, are considerably lower, there. At least this was the message Christopher J. Topolewski, Esq. conveyed to the Right Angle Club recently. His firm, West Capital Management, has prepared a table comparing the taxes in the three states that come together at the southeast corner of Pennsylvania, which for residents of the Philadelphia area are within easy commuting distance of each other. Although Delaware has a marriage penalty (one couple is taxed more than the sum of two singles), it has no estate tax at all, no sales tax, and a property tax rate only half that of Pennsylvania, only a quarter of that in New Jersey. For residents of New Jersey, there is almost no tax which is not lower in Delaware, because but ex-Pennsylvanians would then have to be careful to die or cohabit since ordinary income tax and capital gains taxes are higher in Delaware than Pennsylvania. If you must die (and who doesn't?), go die in Delaware.

This was a situation specifically contemplated as a way to discipline greedy state governments, by James Madison when he was formulating the U. S. Constitution. And there is evidence it is working. By happenstance, I once encountered an official of New Jersey taxation, who told me that 43% of New Jersey taxes are paid by 1% of the population. And that 1% was moving out of the state as fast as it could. If it does, the other 99% of New Jersey residents will find their taxes rising by 43%. West Capital reports that taxation as a percent of income is 1.23% in Delaware, 3.46% in Pennsylvania, and 5.82% in New Jersey, suggesting that a selective flight of the 1% would raise the state taxes of everyone else by 43%, and thus make state taxation as a percent of lowered average income rise to roughly 20%. Relating total income to total tax revenues would be an even better way to detect hidden indirect taxes, such as overtaxing utilities in the knowledge it will be passed on to the consumer. I recently discovered that a few years ago, the Legislature got tired of hearing complaints about local taxes, so they transferred half of the local taxes to the state tax. That's pretty much like taking it from one pocket and putting it into another because now all the hubbub is about state taxes. Armed with even partial information, it becomes easier to understand why New Jersey would evict a governor who had been Co-chairman of Goldman Sachs, during a financial crisis. If a financial whiz can't change this, maybe it requires a meat ax.

This is a time of growing restlessness about public spending, and Tea Party revolts are likely to accelerate during the remaining nine months before the next election. The conjecture is growing about a coming deadlock between a Republican Congress and a Democratic President, lasting at least two more years. What might emerge from a strong third party congressional delegation is too arcane to discuss. But at least the Republicans who leave can console themselves they are selectively raising the taxes of Democrats.

It seems almost inconceivable that professional politicians would demonstrate such a forest of tin ears as to let this happen, but the rest of Mr. Topolewski's talk just heated up the fire. His long-scheduled talk was designed to give guidance about the new estate tax laws, but he found himself confounding his audience with the news that there are no new estate tax laws; in fact, there will be no estate tax laws at all after this year unless they emerge from the congressional gridlock we already have. Which apparently will be followed by a gridlock we can scarcely imagine. Imagine asking your lawyer to write a will which straddles the contingencies that there will be no law, that there might be a continuation of the present one, or there might be some new law of quite uncertain wording. One of the suggestions offered is to allow your executor the discretion to accept or disclaim certain hypothetical provisions.

And that brings up an old story. William Penn was the largest private landowner in the history of America, possibly the whole world. He had a trusted agent, who gave him an enormous pile of papers to sign. A busy rich man like Penn is regularly confronted with a discouragingly large number of routine legal documents to sign. So, Penn signed them all, not noticing that one of the various papers in the pile gave the entire state of Pennsylvania -- to his agent. The outcome of the ensuing uproar was that Penn spent six years in debtors prison.

Frank Furness (2) Rittenhouse Square

{Privateers}
Frank Furness

George Washington had two hundred slaves, Benjamin Chew had five hundred. It wasn't lack of wealth that restrained the size and opulence of their mansions, particularly the ones in the center of town. The lack of central heating forced even the richest of them to keep the windows small, the fireplaces drafty and numerous, the ceilings low. Small windows in a big room make it a dark cave, even with a lot of candles; a low ceiling in a big room is oppressive. Sweeping staircases are grand, but a lot of heat goes up that opening; sweeping staircases are for Natchez and Atlanta perhaps, but up north around here they aren't terribly practical. Building a stone house near a quarry has always been practical, but if there is insufficient local stone, you need railroads to transport the rocks.

{Victorian}
Early Victorian

So to a certain extent, the advent of central heating, large plates of window glass, and transportation for heavy stone and girders amounted to emancipation from the cramped little houses of the Founding Fathers. Lead paint, now much scorned for its effect on premature babies, emancipated the color schemes of the Victorian house. Many of the war profiteers of the Civil War were indeed tasteless parvenu, but it is a narrow view of the Victorian middle class to assume that the overdone features of Victorian architecture can be mainly attributed to the personalities of the Robber Barons. This is not the first nor the only generation to believe that a big house is better than a small one. The architects were at work here, too. It was their job to learn about new building techniques and materials, and they were richly rewarded for showing the public what was newly possible. Frank Furness was as flamboyant as they come, a winner of the Congressional Medal of Honor for heroism, a man who wore a revolver in Victorian Philadelphia and took pot-shots at stuffed animal heads in his office. He affected the manners of a genius, and his later decline in public esteem was not so much disillusion with him as with the cost of heating (later air-conditioning), cleaning, and maintenance which soon exceeded provable utility. The simultaneous arrival of the 1929 financial crash and inexpensive automobile commuting to the suburbs stranded square miles of these overbuilt structures. It was the custom to build a big house on Locust, Spruce or Pine Streets, with a small servant's house on the back alley. During the Depression of the 1930s, there were many families who sold the big house and moved into the small one. Real estate values declined faster than property taxes and maintenance costs; incomes declined even faster.

{Delancey Street}
Delancey Street

It thus comes about that large numbers of very large houses have been sold for very modest prices, and the urban pioneers have gentrified them. You can buy a lot of house for comparatively little if you are willing or able to restore the building. We thus come back to Frank Furness, who was the idolized architect of the Rittenhouse Square area, in addition to the massive banks and museums for which he is perhaps better known. Unfortunately, most of the Furness mansions on the square have been replaced by apartment buildings, but one outstanding example remains. It's sort of dwarfed by the neighboring high-rises, but it was originally the home of a railroad magnate, a few houses west of the Barclay Hotel, and it holds its own, defiantly. Inside, Furness made clever use of floor-to-ceiling mirrors to diffuse interior light and make the corridors seem wider. Although electric lighting made these windowless row houses bearable, modern lighting dispels what must have been originally a dark cave-like interior on several floors, held up by poured concrete floors. Furness liked to put in steel beams, heavy woodwork, and stonework, in the battleship school of architecture. If you were thinking of tearing down one of his buildings, you had to pause and consider the cost of demolition before you went ahead.

{Baywindow}
Frank Furness Window

There are several others of his buildings around the corner on the way to Delancey Street, one of them set back from the street with a garden in front. That's what you expect in the suburbs, but the land is too expensive in center city for very many of them; this is the last one Furness built before rising real estate costs drove even him back to the row-house concept. On Delancey Street, there is a house which he improved upon by adding an 18-inch bay window in front. The uproar it caused among the neighbors is still remembered.

{Dr.s Home (?)}
Doctor Home and Office

A block away on the part of 19th Street facing down the street, Furness built another reddish brownstone house to glare back at the neighbors. The facings of the front suggest three-row houses, and it was indeed the home of a physician who had his offices on one side, entrance in the middle, and living room on the right. The resulting staircase in the middle is used to good effect by opening a balcony on the landing overlooking the parlor below. As befits the Furness style, the wall is thick, the wooden beams heavy. And, in a gesture to the lady of the house, the room adjoining the living parlor is a modern kitchen so the kids can play while mama cooks or guests can wander by as she gets dinner ready. Times have changed, the servants quarters once were plain and undecorated. The lady of the house never set foot in the kitchen so she could care less what it looked like.

{Privateers}
Frank Furness Home

As a matter of fact, that's the remaining problem for these places, the rate-limiting factor as chemists say. Automatic washers, microwaves, electric sweepers, spray-on cleaning fluids and similar advances are the new industrial revolution which makes these hulking mansions almost practical. What's still lacking is the social structure of Upstairs and Downstairs, the servant community overseen by the lady of the house, who once was sort of the Mayor of a town. The lady of the house is now a partner in a big law firm, or similar. It simply is not wise to leave a big expensive place unattended by someone constantly supervising the domestic help. It is never entirely safe to leave the financial affairs of the household in the hands of someone who is not a central member of the owning family. Perhaps the father of the family can be brow-beaten into spending some quality time with the children once in a while.

{Privateers}
Structure of Upstairs and Downstairs

Perhaps an accountant can for a fee be trusted with the finances; perhaps a butler can be found who will whack the staff when they get out of line. But the plain fact is these monster houses were built around the assumption that the lady of the house would run them, and the old style of manorial life cannot return unless the house is completely redesigned for it. Someday, perhaps a genius of the Frank Furness sort will make an appearance, change everything, and make everybody want to have it. But it is asking for something else when you insist on this happening in an old stone fortress that was designed to house a different style of life.

The Republican Court

{Ann Willing Bingham}
Elizabeth Schuyler Hamilton

A popular legend of our founding fathers depicts a sudden 18th Century flowering of talent, even genius, establishing a new nation. More recently, historians have searched for personal material about the individual founders, humanizing them with warts, so to speak. A question nevertheless arises how a nation with the present population of Detroit could produce such outstanding leadership in what was then a scattered colonial frontier region. Men, that is. In our legends, the founders were all men.

Long before the feminist movement gathered momentum, historians like Rufus Wilmot Griswold and Abigail Adams Smith had chronicled the impact of the high society of George Washington's term of office as president, which was in part a conscious effort by Washington to show the new republic to the world, cutting just as fine a figure as the nations of old Europe. Martha Washington, soon called Lady Washington, was an uncomfortable central figure in the new social scene, and her dismay at being the President's wife, her anxiousness to retire from prominence as soon as his term was over, suggest the idea for a Republican Court probably did not start with her. Elizabeth Schuyler Hamilton, Alexander Hamilton's wife, might seem more likely but the real originator is not known. For present purposes, a plausible theory is that soldier George Washington and bachelor James Madison had the concept but couldn't pull it off; and then some determined ladies of the court soon showed them all, what was what.

{Ann Willing Bingham}
George Washington

George Washington began the process by instituting formal receptions for visiting males and Martha cooperated by holding Friday evening receptions, at which she was introduced to the wives of important political figures. The regular weekly events of the Presidency soon consisted of a reception by George Washington for new foreign ambassadors and other important foreign visitors, with a formal state dinner with a politically balanced invitation list on Thursday evening, and Lady Washington's reception on Friday with primarily a social purpose, leaning somewhat in the direction of letting the wives of important politicians shine in the social limelight. While the receptions were usually conducted with scripted formality, some notable exceptions were thought worthy of comment. Over twenty years earlier, Washington at Valley Forge had danced for three hours with Cathy Greene, the wife of Nathaniel Greene. When the widow Greene passed through one of the much later presidential levees, Washington suddenly bent over and kissed her, as "an impromptu act of spontaneity." The effect of the levees was to unite the elites of wealth and power, coming to Philadelphia from all thirteen colonies, now risen to statehood. Plantation owners from the South, ship owners, and merchants from the North met the daughters of socially prominent families and quite frequently married them. A courteous and civilized environment unified the new nation at its pinnacle by having local leaders mixing with other local leaders, becoming national leaders in the process. A politician in this new nation could rise to being someone of consequence socially. To be skillful in the social graces, particularly if there was wealth associated, was to advance in politics; to be boorish or loutish was to drop down somewhat in the scale of political influence, slowly but surely losing power to those who did have such graces. Put a backwoods politician into new formal clothes, force him to behave in an unaccustomed way in the midst of those more skillful at it, enlist the fearsome pressure of his ambitious wife to shine in the spotlight; and the fear of looking foolish soon enough pushes him toward conformity.

{Ann Willing Bingham}
Anne Willing Bingham

After the first year, then the developing Republican Court. Martha Washington, of course, had her own mansion at Mount Vernon, but Anne Bingham had one within easy walking distance of Independence Hall. The Wife of the richest man in America, Anne Willing Bingham was the daughter of Thomas Willing the head of the most prominent merchant family in Philadelphia. Anne's husband William Bingham had achieved richest-man status at the age of 28 (by running a large privateer fleet in the Caribbean)and was not only able to build a splendid mansion patterned after that of a London aristocrat at 3rd an Spruce Streets,but had taken his young and beautiful wife on an extensive tour of the royal courts of Europe which lasted several years. It is said that Robert Morris later contributed to his own bankruptcy by attempting to match the Bingham mansion with a Morris mansion at 7th and Market, which had to be torn down for lack of money before it was completed. Since most of the wealthy hostesses attempting to achieve prominence in the newly forming Court had never been to Europe, there was no choice but to accept the judgment of Mrs. Bingham in such matters, especially since she had the biggest showplace in town. While the truth of a story about her is uncertain, it accurately illustrates the flavor of the social atmosphere that it could be said that the Dauphin, heir to the throne of France, once went to her father to request her sister's hand in marriage. The young prince was then living in exile at 4th and Locust, in temporarily impoverished circumstances. Old Tom Willing, as the story goes, said No. "If you do not become the King of France, you will be no match for her. And if you do become the King, she will be no match for you."

It does seem to be true almost every prominent lady in the Republican Court was described by contemporaries as astonishingly beautiful, but at least in the case of Anne Willing Bingham, her surviving portraits support this description. John Adams, who had his brilliant wife Abigail for comparison, was overwhelmed by Mrs. Bingham's ability to hold her own on political subjects at the dinner table. And George Washington, who loved to dance with the prettiest lady available, greatly favored Anne as a partner. In time, she asserted herself to the extent of pestering Washington into having his portrait painted by Gilbert Stuart when the painter was in town. Washington ordinarily disliked having his pictures painted, avoiding it when he could. There are nevertheless a great many pictures of Washington on display, crossing the Delaware and whatnot, all showing the same grim face. After his death, it became necessary for most of the many new pictures of him to attach the same Gilbert Stuart head to a variety of imaginary depictions. Benjamin Franklin, by contrast, seemed to enjoy the experience of being a sitter so there are many more portraits of him actually drawn fro life. Add Washington's social sponsorship an almost unlimited personal budget for parties, and Anne Bingham quickly established herself as the reigning queen of the court without even provoking Martha Washington's hostility. This was a busy ladies' world; one new arrival in Philadelphia described herself as exhausted by having to return the courtesy visits of ninety different ladies during her early weeks in town. The expense of such competition emerges from brief reflection on the variety of clothes needed to keep up with changing styles, and the elegance of carriages, footmen, etc.

{Ann Willing Bingham}
The Chew Sisters

Anne Willing Bingham was soon joined at the center of things by two Chew sisters, naturally referred to as astonishingly beautiful, who not only had their own mansions, but also Cliveden the summer place in Germantown as available venues for parties. It was commonly stated to be "social suicide, not to be home when the Chew sisters came to call." Delicious gossip was, of course, a strong undercurrent in such a social whirl, and Harriet Chew Carroll made a significant contribution. This daughter of Benjamin Chew the former Chief Justice (and Son of William Penn's personal lawyer)had married the son of very rich Charles Carroll of Carrollton, Maryland, but had to drop out of society because of notoriety associated with her abusively alcoholic husband. Similarly, Catherine Alexander Duer, who had married the son of the New Jersey patriot Lord Stirling, lost her social standing when her husband got deeply into debt in ventures with Robert Morris to the tune of today's equivalent of $40 million. As a Treasury official, there was a question of Duer's using public money to speculate privately, although he died in debtors prison before matters were completely clarified. His wife, who was known for having fifteen different wines on the dinner table, ended up her days running a boarding home to support herself. No doubt other transgressions were suppressed or covered up, while the political process was sufficiently advanced even in the early days of the Republic, to introduce some deliberate falsehood into the gossip mill. No doubt, one of the strongest drinks at the receptions was the bubbly wine of knowing all the inside scoop. And meanwhile, the potential disgrace of falling from favor was immensely powerful in enforcing conformity among those who might otherwise think themselves immune to it.

Some People were left out for various reasons, even if they could keep up financially or politically. It's always a little hard to identify why some people are social duds. Abigail Adams Smith seems to have been one of these, a constant source of adverse commentary about the extravagance, hypocrisy, etc., etc. English literature at this time has Jane Austen and William Makepeace Thackery, Pope Swift, and Dr. Johnson to satirize and constrain the social whirl, but American seems to have produced little more than correspondence and hushed remarks. The feeling of resentment was constantly growing in Republican circles, however, feeding a growing undercurrent of hostility undermining something so elitist and therefore somehow UnAmerican. After ten years in Philadelphia elegance, the District of Columbia was discovered to be scarcely more than a dismal swamp when the capital moved there, a place quite unsuited to high society. Dolley Madison revived things somewhat while acting as hostess for the widower Thomas Jefferson, and when her husband became the next President, opened her receptions to the general public. One can easily imagine the intense hostility of Andrew Jackson to any of this, however. Washington DC has since evolved a pallid political social whirl because America still has politically ambitious rich folks and plenty of money for indirect lobbying. But it hasn't ever been the same as the glory days in Philadelphia, and probably never will be. Present members of the financial/political elite who now work in Washington are in a great hurry to leave town every weekend, abandoning its empty office building to the tourists and civil servants.

The Republican Court

The Republican Court served an important role in helping America unify thirteen colonies into a single nation. Because Philadelphia was for a time the center of the country, economically, socially and politically, all people of prominence in here, wanted to know each other. Variations of wealth and breeding stratified the women somewhat differently from the Variations of wealth and power of their husbands, ad constant mixing of the two strata unified the leadership of the new nation in ways that would have developed more slowly without it. The forced conversations of the receptions stratified independently but helped all the newcomers to the scene to adapt to the realities more comfortably. Each group, private and public watched a constant parade of aggressive climbers sort themselves out and searched for how they had made out; wealth got you to the top in one group, private and public, watched a constant parade of aggressive climbers sort themselves out and searched for how they had made out; wealth got you to the top in one group, power got you there in the other. But in both groups, the cruelties of social striving made the iron rule clear that such things as wit, gracefulness, physical attractiveness, education and breeding were qualities that floated you to the top of the soup of any flavor. When you are forming a new nation, perceptions of that sort are important to acknowledge. The American aristocracy could be circumvented among the many ways to the top, could be sneered at by those who lacked its unattainable features, and could be sniggered at by real aristocrats of real aristocracies in Old Europe. But it served well enough as a role model for a constant stream of new immigrants, and set a pattern for new communities of the interior, also seeking a sense of cultural direction. Like the breeding of horses and dogs that is such a constant upper-class avocation, there is a genetic message, too. Rich men marry beautiful women, so their children or grandchildren tend to be handsome. Handsome or not, gracefulness in social circles is learned at home. Darwin teaches you one thing, Adam Smith's hidden hand teaches another; both are worth attending to. Given eight or ten generations, this sort of evolutionary pressure forms a community, then a nation. It has certainly left major imprint on Philadelphia.

Abigail Adams Smith

On the rest of the nation as well, but in different ways. Along the East Coast, first families tend to persist and went to school so to speak in Philadelphia during Washington's presidency. Mary Ann Goodrich was a witty and Wealthy wife of a Connecticut political leader. Elizabeth Schuyler Hamilton was the famously vivacious wife of Alexander Hamilton of New York. Alice De Lancey Izard was the toast of Charleston, South Carolina. Patsy Jefferson Married Thomas Randolph of Virginia. Mary White Morris of Philadelphia had a bumpy trip as the wife of Robert Morris. In East Coast high society, the ladies usually have middle names.

Over three centuries, three main streams of immigrants plodded their way across the continent to the West and then merged. There were westward pioneers from north of Philadelphia with a certain kind of accent, from South of Philadelphia with another, and from Philadelphia with the normal way of talking. Each of them was following role models within its own cultural pattern, but the significance of middle names is now only a tip-off to insiders. There are patches of country, like Appalachia we are Texas, which brush off any allegiance to distant origins. But to the degree we are unified, the Philadelphia mixing bowl of the Social Scene during George Washington's presidency is a big part of how we got that way.

Selling Entire Towns

{Jason Duckworth}
Jason Duckworth

Recently, Jason Duckworth of Arcadia Land Company entertained the Right Angle Club with a description of his business. Most people who build a house engage an architect and builder, never giving a thought to who might have designed the streets, laid the sewers, strung out the power and telephone lines, arranged the zoning and otherwise designed the town their house is in. But evidently it is a very common practice for a different sort of builder to do that sort of wholesale infrastructure work -- privatizing municipal government, so to speak. A great deal of what such a wholesale builder does involves wrestling with existing local government in one way or another, getting permits and all that. In a sense, the existing power structure is giving away some of its authority and does so very cautiously. Sometimes that involves suing somebody or getting sued by somebody. Perhaps even greater braking-power on unwelcome change is that the wholesale builder is in debt until the last few plots are sold, and realizes his profit on stragglers. Since it often happens that the last few plots are the least desirable ones, this is a risky business. Big risks must be balanced by big profit potential, and one of the risks of this sort of privatization is that too much consideration may be given to the players at the front end, the farmer who sells the land and the builder who must keep costs down, at the expense of the long-range interests of the people who eventually live in the new town. Top-down decision making is much more efficient, but its price is decreased responsiveness to citizen preferences.

{For Sale}
For Sale

As it happens, Arcadia specializes in towns designed to look like those built in the late 19th Century. Close together, a front door near the sidewalks, front porches for summer evenings. To enhance the feeling of being in an older village, Arcadia specifies certain rules for the architecture, to make it seem like Narberth or, well, Haddonfield. Until recently, suburban design emphasized larger plots of land, and few sidewalks, with streets often ending in cul-de-sacs instead of perpendicular cross-streets in the form of squares. The "new urbanism" appealed to those who were seeking greater privacy, revolving around the idea that if you wanted anything you drove your car to get it. Three-car garages were common, groceries came from distant shopping centers. There are still plenty of new towns built like that today, but Arcadia appeals to those who want to be close to their neighbors, want to meet them at the local small stores scattered among the houses. In the 19th Century, this sort of town design was oriented around a factory or market-place; since now there are seldom factories to orient around, the appeal is to two-income families who want to live in an environment of similar-minded contemporaries. The whole community is much more pedestrian-oriented, much less attached to multiple automobiles.

Since Mr. Duckworth mentioned Haddonfield, where I live, I have to comment that the success of living in a town with older houses depends a great deal on the existence of a willing, capable yeomanry. Older houses, constantly at risk of needing emergency maintenance, need available plumbers, roofers, carpenters, and handy-men of all sorts. Because it is hard to tell a good one from a bad one until too late, this yeomanry has to be linked together invisibly in a network of pride in the quality of each other's work and willingness to refer customers within a network that sustains that pride. A tradesman who is a newcomer to the community has to prove himself, first to his customers, and almost more importantly to his fellow tradesmen. If you happen to pick a bad one, good workmen in other trades are apt to seem mysteriously reluctant to deal with you as a customer, because you too are somewhat on trial. Maybe you don't pay your bills, or maybe you are picky and quarrelsome. In this way, the whole community is linked together in a hidden community of trust. Over time, the whole town develops certain recognizable social characteristics that a brand-new town doesn't yet need. If that time arrives without a network of reliable tradesmen, the town soon deteriorates, house prices fall, people move away.

{Fannie Mae}
Fannie Mae

It's curious that the residents of such a town are a breed apart from the merchants in the nearby merchant strip. If the merchants of town life in that same town, there is much less conflict. More commonly, however, the merchants rent their commercial space and commute from distant places. That disenfranchises them from voting on school taxes and local ordinances and creates a merchantile mentality as contrasted with a resident community, dominated by high school students. One group wants lower taxes, the other group wants to get their kids into Harvard. One group wants space for customer parking, the other group is opposed to asphalt lots. And in particular, the residents want to avoid garish storefronts and abandoned strip malls. Since the only group which has an influence on both sides of this friction are the local real estate agents and landlords, their behavior is critical to the image of the town. When real estate interests are not residents of the town it is ominous, and they are well advised to remember that the sellers of houses are the ones who choose a real estate agent for a house turn-over. There's more to this dynamic than just that, but it's a good place to begin your analysis. Suburban real estate interests are constantly tempted to get into local politics, but politicians are the umpires in this game, and it soon becomes bad for their business if real estate agents potentially put their thumb on the scales.

{FHA Seal}
FHA Seal

All politics is local, but all real estate is not entirely local. The present intrusion of the Federal Government into what is normally a purely local issue has become more pointed in the present real estate recession. Almost all mortgages are packaged and sensitized by "Fannie Mae and Freddy Mac". By overpaying for the mortgages they package, these two federal agencies are subsidizing the banks they buy the mortgages from. Or, that is half of the subsidy. The other half is the Federal Reserve, which presently lends money to banks at essentially zero interest. Acquiring free money from the "Fed", while selling mortgages to Fannie Mae at above-market rates, the federal government supports the banks at both ends. And that's not quite all; there is something called the FHA, Federal Housing Authority, which guarantees mortgages. Essentially an insurance policy, the FHA guarantee is issued for a cost to home buyers who meet standards set by Congress (for which, read Barney Frank and Chris Dodd). Although houses during the boom were selling for 18 times the estimated rental value, they are now selling for 15 times rental. FHA will insure such risks, but the banks won't lend more than the normal proportion, which is 12 times rental. Consequently, almost all mortgages are FHA insured, while the federal administration storms with a fury that the banks "won't lend". And indeed it begins to look as though banks will never issue uninsured mortgages until home prices fall another 25%. If home real estate prices do decline to a normal 12 times rental, a lot of people (i.e. voters) will be unhappy, and not just homeowners who bought at higher prices. The market is fairly screaming that you should sell your house and rent, but so far at least, these federal subsidies seem to be holding prices up. When normal pricing arrives, the recession is just about over, but it certainly won't feel that way if you are a seller.

Urban Transportation

Stuart Taylor, who spent twenty years working for the Pennsylvania Railroad in the company of our member Bill Brady, recently gave the Right Angle Club his observations about urban transportation, which grew out of his second career as a consultant. As he describes the evolution from the horse-drawn omnibus carriage to the horse-drawn trolleycar, to the steam-driven trolley, to the electric trolley, to the underground subway, certain parallel historic movements occurred to at least one member of this audience.

{Privateers}
Horse-Drawn Trolley Car

In the first place, mass transportation is only of value when cities grow to a large enough size to justify the expense. And the growth of cities in the 19th Century was propelled by the Industrial Revolution attracting mass immigration into urban centers. Whether the Industrial Revolution is over or not, is a topic which could be debated, but it was the gasoline engine which made buses and autos attractive, and the decaying slums made cities sufficiently unattractive to cause the flight to the suburbs in the 1920s and 1930s, heavily resumed after World War II in the 1950s. During the heyday of city growth, the evolution of mass transit seemed to be driven by technology, and that in turn attracted private ownership. When the gasoline engine and/or the decline of the Industrial Revolution made the Flight to the Suburbs possible, it made urban transportation unprofitable and hence unattractive to private business owners. Somewhere just before or after the 1929 Crash, the changing situation made it more attractive to live and/or work in the suburbs. A sign of this change in dynamics was the total disappearance of private ownership of public transportation and its supporting infrastructure, and replacement by public ownership and public tax subsidy. As local politics began to reflect this change, Urban politics somehow became dominated by Democrats, and Suburban politics became dominated by Republicans; so the enthusiasm for mass transit has waxed and waned as the political domination of federal subsidies has shifted between the parties. That's probably only an outward sign, however. The real issue is that urban transportation now has to be subsidized since its base has shrunk to the point where people like Widener and Elkins invest in other things. And do so from their homes in exurbia, where the neighbors could care less about subways, let alone pay taxes to subsidize them. And until the city gets control of its crime, public schools, and taxes, it's hard to see what will attract them back in town.

{Electric Trolley}
Electric Trolley

That's perhaps an overly censorious view, coming from a resident of the suburbs. A more economic view of things would be that the construction of underground subways now costs about a billion dollars a mile. Very few cities and no private entrepreneurs can justify costs of that magnitude since the potential ridership cannot afford the costs per ride which are implicit in that capital expenditure. Until the cities can manage to entice the suburbanites back into town, those people will solve their air pollution problems by avoiding the cities. Living to the windward seems much more plausible to them. China is just beginning this process, but they have the advantage of building the subways first, then the surrounding skyscrapers, and thus greatly reducing the costs of avoiding underground sewer systems, etc. If you could call it that, the Europeans had the advantage of massive war destruction, along with much more expensive farmland to inhibit suburbanization. None of this is an argument that we shouldn't build subways, or clean up the atmosphere. It's just a warning of the daunting construction costs and staunch political opposition to mass transit. Not to mention featherbedding, over-hiring, massive hidden benefits costs, and other features which seem to be inherent in union activity, at least of the historical variety.

A member of the Right Angle audience asked the speaker what he thought of the proposed Market Street light rail line. Insane, was the answer. No visible ridership. And that seemed to summarize the present debate.

Except that it really shouldn't frame the argument for Philadelphia. Philadelphia doesn't need a mass transit network, it already has a mass transit network. Much of it is growing obsolete, but the land costs and local opposition to change are greatly diminished when the network is already there. If any city can do it, Philadelphia can. The technology will surely evolve enough for our purposes if the money is there, and the money will be there if people return to using the city. What Philadelphia needs is a return of business headquarters and other sources of employment, bringing the ridership and the public demand along with it. And for that, what is essentially needed is for government to address our problems of uncontrolled crime, inferior public schools and maladministered taxes.

Exercise As Fun

{Privateers}
Exercise Against Resistance

Almost every retirement community, cruise ship, and the large hotel have a "fitness center", so there really is no excuse for retired people to be as weak and flabby as they generally are. Arthritis is pretty common, but it is ordinarily so mild that taking a large aspirin or a small Ibuprofen tablet will cause you to forget about arthritis pain long enough to get some exercise. Stretching exercises will often get rid of what pain remains, and you should feel better as a consequence, not worse. All sorts of good things happen when older people start getting regular exercise; but if you are really crippled, the following is not written for you.

A friend who regularly "goes back" to Princeton reunions reports that about half of his class was still alive for the 60th reunion this year. Unfortunately, only eight members of the class were able to walk in the parade. The rest rode in golf carts. Speaking with the understandable bias of a Yale alumnus, I have to say this sort of thing is not necessary at all.

Almost everyone graduates from high school in pretty good condition, and the majority of college graduates are pretty fit at the time of graduation, too. Speaking from the vantage point of the 60th reunion, the fellows who were the athletic campus heroes are generally the ones who have serious hip, knee and shoulder disabilities which become fairly troublesome by the time of their retirement from the workforce. Either that or they soon regale you with stories of their artificial joint replacements. Nevertheless, it is curious that these are the class members who keep up their exercise in some way, usually golf or tennis, sometimes sailing; it almost seems as though it should be mandatory to learn golf or tennis in college, so that by the time retirement comes along, exercise has become a lifetime habit. That even seems to be true of the ones in golf carts because of football injuries in the past, but scientific studies don't seem to have established whether vigorous football, baseball or polo as a youth make you pay too great a price in later life; it would be interesting to know the overall trade-off.

The majority of Americans have a different life pattern and must be urged to change it. After they get married and have a steady job, they abandon exercise pretty completely. A few games on weekends, perhaps, and vigorous summer vacations for a few years in their 30s and 40s. After that, there is essentially no exercise at all, a steady gain of weight ("My, don't you look good,") and if they are lucky, no major illnesses until they retire. The fact is, most people don't much enjoy exercise, and arrive at retirement age with the bravado boast they haven't had much exercise for thirty years. Even the medical profession has abandoned them; doctors tell them that exercise is good for you, a most unwelcome scientific opinion.

{Exercise}
Combatting Sarcopenia

Let's simplify some of the confusion which abounds among trainers and physiotherapists, about the various competing types of exercise. There are three types, and you need all three of them. First, you need to overcome the decades of disuse atrophy which come from endlessly sitting at a desk. The muscles get thin and withered, a condition which luxuriates in the descriptive term "sarcopenia". Start out with about six weeks of the kind of exercise a lot of people say you shouldn't have, the weight-lifting variety, chin-ups, and push-ups, possibly Charlie Atlas-type of pushing one hand up while pushing the other one down, or pushing one foot against another. That's sometimes called "Dynamic Tension". The purpose of all this is to build muscle size or bulk. The professional athletes who look so grotesque with their shirts off tend in addition to resort to self-medication with a mixture of testosterone and growth hormone, but that's not advised for them or for you. It may be that thirty years of administering illicit muscle-building hormones will prove to be statistically harmless, but right now it doesn't seem exactly a wise or harmless thing to do. The professional athletes imagine they can make many millions if they just get a small edge on their competitors, and after that, they can retire in luxury. Even if that dubious claim eventually proves to be true for them, it isn't true for most of the rest of us. If someone is as emaciated as a concentration-camp survivor, perhaps hormones are justified, but it is only wise to undertake it under a doctor's supervision, and only for a few months.

After the muscles have been bulked up for a month or two, perhaps longer if you are incorrigibly lazy, it is time to go to stretching and platform building. Some effort should be made to rotate muscles of the whole body, particularly if there is still an appreciable amount of muscle soreness for a day or two after each session. This is the time for a gym with a dozen different types of machines, each one aimed at a different muscle set. The magic number is five; stretch and pull each muscle group five times and then go to another; usually, it's five times on each side of the body or ten times per machine. Take an aspirin or ibuprofen before each session, and drink at least a glass of liquid afterward. Three times a week is often enough for a beginner to get started; but remember if you give yourself a month's vacation, it will take another month of hard work to get back to 80% of what you had only recently achieved.

After six months or so of this drill, start building endurance. A stationary bicycle, a treadmill, or swimming pool laps are useful for almost anyone. Running on a track is fine, but the majority of retirees have enough arthritis somewhere that they have to be careful about jogging. If the pain appears while doing this, especially chest pain, stop immediately.

A word about shoes. People with ankle injuries, chronic flat feet, or arthritis in the feet and ankles may well find they can't get any endurance exercise because their feet hurt. Before rushing into bunion surgery or some other drastic response, try some foam rubber shoes. These were once special-ordered by a famous seven-foot professional basketball player, who wanted to be three inches closer to the basket when he threw the ball. So, three inches of foam rubber was glued to the sole of his running shoes. Well, you trip if the edges aren't trimmed at the heels and toes, so various other small modifications evolved. Eventually, a commercial version emerged in which the foot is essentially encased in foam rubber, and after walking on them for a couple of weeks, the rubber gets crushed down appropriately. The effect is a molded shoe, just like molded ski boots, with crushed foam rubber instead of fiberglass. Quite often, the effect is to push the bones back into ideal arrangements, with dramatic relief of the chronic pain. If your feet don't hurt, you walk more, maybe even start to jog. During the first few weeks, be careful, or you may stumble and fall on your nose. After a month, you'll forget you have them on, and maybe even forget your feet used to hurt. Progress can be measured by the ability (usually after six weeks or so) to put on regular shoes for a day. Without pain.

The Trigger and the Cliffhanger

Our own John Fulton recently told the Right Angle Club the market gossip about just who did what, and to whom, in the March 2008 beginning of the investment banking collapse. It begins to look as though Merrill Lynch had quite a bit to do with the mechanics of starting this impending market melt-down, although lots of other people helped.

Bear Stearn

Going back to 2005, Merrill was late to the securitized debt party and stretched to catch up. The broker reportedly sold large quantities of mortgage-backed securities (CDO) to the two hedge funds run by Bear Stearns. A buyer was able to convince himself such securities might pay as much as 20% income if leveraged up -- so attractive that Merrill independently decided to keep a lot of them for its own account. Nevertheless, the primary business of any broker is to buy and resell quickly, holding as little inventory as possible. Such sales, especially to hedge funds and institutional investors, were largely on margin. When suddenly the price of CDOs started to fall -- the rumor is that some unknown European bank started unloading them -- someone at Merrill made the decision to issue a margin call, that is, ask for cash to replace the loans. Bear Stearns reportedly asked for extra time to get the money together, but Merrill was adamant. So, Bear Stearns had to sell some of the CDOs in question to raise cash, dropping the market price. (this had not been the case seven months earlier when a bewildering market saw good stocks being dumped to cover losses in bad stocks.) But remember, in addition to the securities sold to Bear Stearns, Merrill itself had acquired huge quantities of similar CDOs; the internal coordination of Merrill has to be doubted. So the market value of what Merrill held declined, too, quickly forcing Merrill to announce an $8 billion mark-to-market write-down of its holdings, eventually followed by write-downs approaching $100 billion. In time, its own losses greatly exceeded the debt it was forcing Bear Stearns to pay. Merrill had shot itself in the foot.

{New York Stock Exchange}
New York Stock Exchange

At that point, suddenly no one would write Merrill insurance against price declines through the Credit Derivative market, so it's stock price declined on the New York Stock Exchange, further reducing the amount it was allowed by regulators to lend. Because Bear Stearns was a major bookie in the Credit default swap market, both the insurers and the insurees were at risk; doubled-up "counterparty risk" was so enormous the Federal Reserve and U.S. Treasury felt they had to bail the situation out, even though other failing institutions of comparable size had been allowed to disappear. At a minimum, two parties were at risk, at worst, a whole daisy chain of companies insuring other overlapping companies multiplied the risks to much more than the loss that originally triggered the chain reaction. At $62 trillion, the Credit Derivative market is so much larger than other markets that anything to calm it seemed an urgent necessity. (As a matter of fact, when the swaps were sorted out they canceled each other by at least 90%) Every bettor had seemingly felt justified in betting the ranch, because some other bettor stood behind them, and then another and another; hard though it is to believe, that was nearly the case. Since Bear Stearns held thirty times as much debt as its total stockholder equity -- quite a different situation--, an average price drop of only three percent was enough to wipe them out. When margin calls went out to people who themselves had to issue more margin calls to pay the bill, the chain reaction did indeed bring markets to a precipice.

Until better gossip surfaces, this is the description now in circulation for the details of the slide which got going in March 2008. A larger view might be that things were starting to get ugly in 2005, and Merrill should never have entered this particular market at all.

{Fanny Mae Freddy Mac}}
Fanny Mae Freddy Mac}

We are definitely not out of the woods. John Fulton pointed out the next crisis is that Fannie Mae and Freddy Mac are best regarded as insolvent. But since the credit crunch dried up the other half of the CDO market for mortgages, only Freddie and Fanny now remain to support housing transactions, with $5 trillion at risk in the market. That's about the size of the national debt, so when the Government assumed the risks of these two corporations, the national debt was effectively doubled. That could potentially send the dollar into a tailspin, along with U.S. Treasury bonds, while sending the price of oil skyward. So far, the Chinese have been remarkably cooperative, and Ben Bernanke and Hank Paulsen have been remarkably sure-footed.

So, what do we do if we fall into this abyss? Well, one thing debtors usually consider when threatened with insolvency is to walk away from either their debts or their creditors. In the nation's case with its debts, one major victim would be our system of entitlements. The national debt is now effectively $10 trillion. The unfunded entitlements are about $52 trillion; this is much the larger problem. Is it really true? Are we really saying these things?

John did indeed keep us awake, which is the major duty of a Right Angle speaker. .

www.Philadelphia-Reflections.com/blog/1509.htm

Reading Books Compared With Computer Viewing

{Privateers}
Ebooks Vs. Paper

Old folks fumble with computers and are afraid of them, but even the younger generations brought upon the use of computers generally prefer the ease and eye comfort of books. Fortunes await entrepreneurs who first overcome the technical resistance to the coming inevitable disappearance of paper books.

Electronic books are better than paper ones, not just cheaper. They are easier to search; their contents are available to the whole world, and can even be automatically translated. For browsing and scanning, everyone prefers to browse pictures, and here the Internet offers an unbeatable price advantage; color pictures in a book are prohibitively expensive, while any child with a point-and-shoot camera can broadcast pictures of his dog to the world. Movies are coming along fast, cheap sound reproduction is already available.

In the here and now present, if you have both a paper book and an electronic version available to you, which would you choose? The answer depends on how old you are, but it also depends on the age of the book. Old classics were written for paper books, while electronic books are written to exploit plentiful colored images, sound, movies and search potential. What's so far missing is a publishing industry for electronic books, offering to take the text manuscript from an author and add all of the bells and whistles. At the moment, a technical problem holds that back: electronic books are too easy to counterfeit. The genius who invents a way to prevent electronic book piracy, in a technical way that cannot itself be pirated, would sweep all lesser objections away. The protection cannot rely on patent protection alone; just think how patents could not have protected Gutenberg right up to the present struggle. The protection of paper book printing rested and still rests, on the enormous cost of high-speed, quality, printing presses.

What follows are a few observations on the current technicalities, added in the hope that understanding the issue will make some reluctant readers less timid about it.

www.Philadelphia-Reflections.com/blog/1485.htm

Federal Reserve Changes Its Business Model

Americans generally do not begrudge the success of neighbors; the achievement of someone else takes away nothing from me. In that spirit, we like to see developing countries rise up out of poverty. A more prosperous world is a safer one.

{Federal Reserve Bank of Philadelphia}
Philadelphia Federal Reserve

Rising international prosperity can, however, disrupt matters. When developing countries become producers, they can get inflation if they suddenly have more money than they know how to spend. Sudden wealth can come from discovering oil or gold or copper; slowly learning how to manufacture something is a safer way to prosper. Inflation and huge internal income disparities often lead to revolutions, so the wiser countries sterilize local money by exporting it. Coups and dictatorships are what happens if a developing country doesn't export its inflation; sudden wealth gives the appearance of being underserved. Conversely, our recent dot-com and Sunbelt real estate bubbles show what happens to the neighbors if developing-world inflation gets dumped on them. Eventually, of course, developing countries eventually balance their new production with new consumption, and the world settles down to a new balance. Never mind denouncing the rubbish the newly-rich decide to consume; its only problem for others lies in using up the world's resources faster. Developing countries commonly export inflation to other nations in the form of commodity inflation. The neighbors can soon have a commodity bubble on their hands; when any bubble bursts, a sharp recession can quickly follow, and after that, some other kind of bubble appears. What is new and disruptive is not oil or gold or copper; it is too much money.

With luck, these disruptions consequent to a neighbor's prosperity are soon overcome by improvements in productivity. But productivity itself can create a bubble. One huge productivity windfall for America is the astonishing thirty-year extension of longevity we have experienced; in time, we will surely devise occupations for retirees more productive than thirty-year vacations. Such balancing adjustments right now seem most likely to grow out of electronic productivity, using home sites as work sites.

So in short, America must read just like everyone else and one systematic readjustment has just surfaced at the Federal Reserve. The flood of money from China and the Persian Gulf sought an outlet in our economy, adopting the device of shifting American credit sources from banks to Wall Street ("securitization"). Cheap money once derived from bank deposits in local banks; since it now often originates abroad, it now must travel through the "carry" trade and similar innovative channels for foreign surpluses to get to Wall Street investment banks, which in turn distribute the money ("credit") to American businesses which can use it more productively than the developing countries can. Through securitization (turning loans into securities), Wall Street was able to make home mortgages directly, with only token involvement of local banks. Credit markets froze up because the new procedures had neglected to enlist local bankers in the process of checking the credit-worthiness of borrowers. So long as Wall Street can continue to find new sources of cheap money, this upheaval of finance is likely to be permanent because it is desired by both sides. Access to cheaper loans and access to safer investment harmonize the needs of the haves and the have-nots. Because in its haste this new development precipitated a banking crisis, there is some danger that Congress will overreact by prohibiting securitization rather than correcting its flaws. In every participant's eyes, it's cheaper and more efficient, but new efficiency threatens old inefficiencies. This one threatens the old deposit-based banking system, and since the Fed's control of the currency is based on its control over the depository banks, it threatens the Federal Reserve. That's the real driving force behind the Fed seeking control of non-traditional credit sources; that's now where the money is.

On March 16, 2008 things came to a head with the impending collapse of Bear Stearns, a Wall Street investment bank heavily involved in Credit Derivatives. There are rumors the rescue plan implemented over a weekend had actually been devised and held ready long before then. Many imperfections now surface with experience, but at least the plan had likely been explored as thoroughly as logic without direct experience ever allows. For example, the dispersal of manufacturing around the globe favored making pieces of a product and selling them to an assembler, rather than enveloping the whole process of making a product in one giant corporation. It's cheaper, that's why they do it. But the process of buying and selling pieces to other companies greatly expanded the need for short-term credit. Therefore, it was quite unexpected that Lehman Brothers, which specialized in such short-term loans, suddenly went bankrupt for lack of quick access to capital. In the panic, it is unfortunate that Lehman apparently concealed its situation from investors. There is a danger that Congress will draw the wrong moral and somehow block the globalization of manufacture.

The Federal Reserve Act was passed by Congress in 1913, and most observers believe the Fed's inexperience in 1932 repeatedly made matters worse in that formerly greatest of all bank panics. The new plan of 2009, therefore, had to step around some limitations imposed by Congress in the past, the political pressures generated by an impending presidential election, and the powerful resistance from private industries whose future was affected. The adroitness with which such a complex matter was handled over a weekend will surely become legendary, but maybe not soon. Probably because of existing legal roadblocks, three "lending facilities" were created, but a single device was at the heart of it. Instead of lending money, the Federal Reserve offered to swap securities with new non-bank managers of retail credit. The investment banks held massive security for loans which could not be sold in paralyzed markets but could be swapped or used as security for a loan, particularly if the government stood behind the innovative transactions. Wall Street in a word had plenty of wealth, but could not turn it into money fast enough to pay its bills. So sidestepping the legal constraints, instead of giving Investment firms money as a lender of last resort, the Federal Reserve swapped Treasury Bills for the "frozen" assets held as security for mortgage loans. The securities had been "caught in a loan" as the expression goes. There isn't much difference between Treasury bills and cash, or between exchanging bonds and selling them. But the new approach could be quickly and legally accomplished, and once done, the Federal Reserve was the master of investment banks. It became effectively their lender of last resort. A great deal of advance thought must have gone into devising this readjustment to the reality that over half of loans were not backed by bank deposits, but by the securitized debt of foreigners. Regulations will ensue, hearings will be held and laws passed, but the Fed has regained control of the money supply if it can manage to make this maneuver understandable by the public.

There was a moral hazard in this; the presence of a lifeguard tempts swimmers into deeper water. It was somewhat inflationary in the midst of an inflation threat. No doubt the Federal Reserve regards these negatives as prices worth paying, and they probably are. The decisive remaining issue is not whether the initial shape of this transformation is exactly correct; it surely isn't. Just as was true in 1932, what will ultimately matter most will be whether, with this altered stance, the Fed will adjust quickly and appropriately to future difficulties. And whether politicians will even permit it to do the right thing, assuming anybody then knows what the right thing might be.

www.Philadelphia-Reflections.com/blog/1465.htm

Commercial Academic Think Tank

{Stephen P./ Mullin}
Stephen P. Mullin

Stephen P. Mullin recently addressed the Right Angle Club of Philadelphia about assorted economic subjects; he is certainly qualified. He was once the only Republican in Mayor Rendell's cabinet, acting first as Finance Director and then as Commerce Director. At first, he doesn't appear extroverted enough to be a politician but quickly demonstrated that he knew the first names of more of the members of the club than the president did, so maybe he does have the innate talents of a politician. Urban political machines don't usually respond cordially to graduates of Exeter and the Wharton School of the University of Pennsylvania. A number of University professors are consultants to the firm, which offers statistical economic advice to the many law firms in town, to philanthropic organizations considering public-interest projects in the region, to government agencies faced with regulating unfamiliar activities, and very likely to anyone else willing to pay for the service of academics, statisticians and analysts. It certainly sounds like a service that governments and philanthropies need, and which the region needs to avail itself of. In a way, it is probably something the University needs, as well. A friend of mine is now retired, but at one time I commuted on the train with an academic administrator of the Wharton School, who was quite obviously disturbed by handing diplomas to students who promptly took jobs which paid those graduates more than he was paid himself. Obviously, such a system cannot persist very long without creating a brain drain, so income supplementation by commercial consulting is a necessary and valuable support for academics. There are, of course, probably some negative features as well.

{Privateers}
The Wharton School

It is interesting to hear from Steve how Philadelphia can be variously described. We have, for example, significantly less foreign immigration than other cities. New York, by contrast, has net immigration of about 700,000 persons a year; such forces can quickly transform a city in a variety of ways. The bombing of West Philadelphia during the Goode Administration was news for a while, then vanished from the papers. But it had a shattering effect on Philadelphia commerce, leading to a period of 8 or 9 years when there was essentially no private investment in the city. Philadelphia indeed now needs to have its municipal bonds issued by the state bonding authority, because our own bond rating is so low the extra cost of municipal debt is a significant one. And there is the cost of invisible shifting of power to Harrisburg. An unexpected result is that sales and real estate transfer taxes escalated to make up for property taxes which they could not possibly be raised as much as inflation. Real estate was in big trouble; whether ingenious strategies like the 10-year tax abatement for a new property will be successful in rescuing the real estate industry, remains to be seen. New office towers have been built, but they drain off tenants from older office buildings. We're seeing a massive conversion of older office space into residential apartments, an apparently successful maneuver. But that drains the older residential areas, which leads to -- well, who knows what it will lead to, but it could be slums.

{Privateers}
Mayor Michael Nutter

The traditional hostilities between Philadelphia and its neighbors can be defined in a new way, too. For a century, Philadelphia contributed more tax money to the rest of the state than it received in state services. But in the past 20 years, Philadelphia city has become a net importer of an annual billion dollars -- from the rest of the state. Two or three billion go to the schools, which the rest of the state regards as a deplorable waste in view of the quality of the product. And yet, the most hopeful feature of the situation is the vigor and ingenuity of the attempts being made to rescue the situation. In a certain sense, Mayor Nutter is the candidate of the Wharton School. He may well have some innovative ideas, and academic places like the Wharton School will surely suggest others. It remains to be seen whether Nutter can combine idealism with sufficient ruthlessness to make the city function. Cynical oldtimers will grumble that a mayor has to employ a moderate amount of deception and corruption in order to accomplish his mission. Maybe that overstates things, but it is very certain he must be tough. He's dealing with construction unions who will certainly be tough, and whose interest in sacrificing their own agendas in order to help the schools or street crime -- always fairly small -- is even further impaired by the econometrics that 70% of them live in the suburbs. We wish our new mayor all the best, since he seems smart enough to know what needs to be done, and is definitely smart enough not to drop any bombs on houses. He's smart enough to see that extra city revenue derived from gambling might permit the lowering of wage taxes, and hence an urban business recovery. But is he tenacious enough to stay in office long enough to achieve the balanced result; or will the forces of evil simply kick him out of office before wage taxes can be lowered and gambling discontinued? He won't break his promises, but will they break them for him? Beyond being competent, a city mayor needs to be tougher than the convivial but very mean friends he needs to associate with. He must, for example, decline to run for national office, the traditional way that city machines rid themselves of pointy-headed reformers.

Chester: To the Dark Tower

{Privateers}
William Penn

Chester is the original word for Castle in old English, and accounts for towns called Manchester, Lancaster, Dorchester in the Midlands of England. Although much is made of his Welsh ancestry,William Penn grew up and lived in the neighborhood of Manchester. When he first landed in his new colony, he named the place Chester before deciding to move upriver to be above the mudflats and snags at the abrupt turn of the river where we now have an international airport. On several occasions, this protection from pirates and invaders made it possible to remain rich and prosperous without abandoning Quaker pacifist principles. As a further bit of history, the second public reading of the American constitution took place in the courthouse at Chester. During the industrial revolution, Chester became a mighty industrial town somewhat in advance of Philadelphia. The industry has, sadly, abandoned Chester.

Chester repeats the age-old tradition that slums are created when towns are abandoned, making cheap housing available. There's even a particular Chester twist to this principle: the old Sun Shipyards have been turned into a casino. Now, that will create poverty if anything will.

{Amtrak's Northeast Corridor}
Amtrak's Northeast Corridor

Peter Barrow is a local real estate man who is determined to lead a revival of the old Chester, and certainly makes a good case for its future. Although much of the city was abandoned, the infrastructure remains. The roads, sewers, water supply, railroads, port facilities may be old but they are essentially intact, making revival much cheaper. Chester is still served by the R2 train from Philadelphia to Wilmington, and is on the main line of Amtak's Northeast Corridor. It's now near the airport, and near the electronics industry developing in Chester County along Route 202. Those things are economic drivers, and they are social ones, too. The old Chester urban Democratic machine and the rural Delaware County Republican machine can no longer afford to remain ossified in perpetual denunciation, in the face of new residents with new outlooks on things. So, there's agitation for reforms and both votes and discontent to propel it forward.

Given a magic wand, the one thing Mr. Barrow would change would be education. The public schools are undisciplined and unsafe, and mobilized by the teachers' unions to resist charter schools no matter what. Things have even gone to the point where Widener University is thinking about starting a charter high school, and the more graduates of charter schools the more momentum builds up for still more charter schools. Hidden in this struggle are two less defensible issues: parochial schools and vocational schools, pro, and con. The struggle over church schools goes back to the founding of our country in the sixteenth century and firmly resists any objectivity about whether parochial schools are better schools, or not. For them, that's not the point. The other tradition at play here is the historic opposition to vocational schools by trade unions. This one might be a little easier to work with since resistance to the development of more plumbers and carpenters was understandable enough during the industrial days of the city, but really is no longer relevant in an era when we now must import illegal immigrants to serve our needs in the mechanical trades.

Chester seems to have a chance to get its act together. Success or failure of this important the struggle could well depend on one or the other of the entrenched political machines, urban and suburban, seeing an opportunity -- and grabbing it.

WWW.Philadelphia-Reflections.com/blog/1322.htm

Quaker Efficiency Expert: Frederick Winslow Taylor 1856-1915

{F.W. Taylor}
F.W. Taylor

For at least seventy-five years after Fred Taylor turned it down, any rich smart Philadelphia Quaker attending Phillips Exeter would have been automatically admitted to Harvard. We don't know why he did it, but instead F.W. Taylor just walked a few blocks down the hill from his Germantown house and got a job at the Midvale Steel Company as an apprentice patternmaker. During the twelve years, while he rose to become chief engineer of the company, he took a correspondence course for a degree in mechanical engineering at Stevens Institute and invented a process for making tungsten steel, called high-speed steel. That made Midvale Steel rich, but Taylor was going to make Philadelphia rich, and after that, he was going to make America rich. When he died, he was widely hated.

Evidently his lawyer father greatly admired German efficiency, having sent little Freddy to a famous Prussian boarding school where he was in attendance at the time of the

{General von Moltke}
General von Moltke

Battle of Sedan. General von Moltke had used Prussian efficiency and discipline to defeat those indolent lazy French, and Fred Taylor evidently absorbed and retained these stereotypes for the rest of his life. Whatever he was looking for at Midvale Steel, what shocked him most was to find workers "soldiering on the job". That's a Navy term, by the way, invented by sailors to describe the useless shipboard indolence of any Army they were transporting. Taylor later went to Bethlehem steel, reduced the number of yard workers from 500 to 180, and was promptly fired. It seems that most of the foremen at the plant were owners of local rental houses, which were emptied of tenants when Taylor reduced the workforce. Even management came to mistrust Taylor. When the railroads wanted a rate increase, Louis Brandeis defeated them with the argument that they wouldn't need higher rates if they adopted Taylor's system of efficiency. In his later years after he became enormously rich, he toured the country giving speeches without fees, promoting the doctrine of finding the one best way and then doing everything that way.

{Louis Brandeis}
Louis Brandeis

Over time, Frederick Taylor had come to see that the industrial revolution had proceeded to the factory stage by merely bringing craftsmen indoors, each one treasuring his little trade secrets. Bringing the point of view of the company's owners onto the shop floor, Taylor could see how vastly more profitable the steel company would be if all those malingering tradesmen would stop soldiering on the job. No doubt the young Quaker soon learned that little was to be accomplished by remonstrating with workers, just as bellowing foremen had learned that bullying was also useless. Out of all this familiar scene emerged Taylorism, the idea of paying financial incentives to those who produced more, splitting the rewards of efficiency with the management. It sort of worked, but it didn't work enough to satisfy F.W. Taylor. When he walked around with a stopwatch, he collected the data showing how much more might be produced if the workers were perfectly efficient. Not only did that create the stereotype of the stop-watch efficiency expert, but it also provoked Congressional hearings and federal law against stopwatches which stayed on the books from 1912 to 1949. Although management responded by forming dozens of Taylor Societies to honor the approach, the unions invented the term "Taylorism" and bandied it about as the worst sort of epithet. Curiously, the Taylor approach proved to be enormously appealing both to Lenin and Stalin, who applied it as a central part of their five-year plans and general approach to industrialization. As we now all recognize, the Communist approach was a two-tier system instead of the three-tier system that was needed. It isn't enough to have a class of comrades called planners and another called workers; you need a layer of foremen, sergeants and chief petty officers in the middle. In addition to the elaborate time and motion studies leading to detailed written procedures, there needs to be an institutional memory for the required skills of the trade. In a funny sort of way, Fred Taylor the Quaker may have organized the downfall of the communist state before it was invented.

{Herbert Hoover}
Herbert Hoover

Another peculiar outgrowth of Taylorism may be the partisan lines of our own political parties. If you trace the American ideological divide to the 1932 election of Franklin Roosevelt, you can see we are still fighting the battles of the depression. It happens that Herbert Hoover, another Quaker, was totally captivated by Taylorism. Not only that, he was adamant that to get rid of the depression all the country needed was to return to self-reliance, individual responsibility, and hard work. Those were qualities Hoover himself had in superabundance. One telling remark that he probably regretted saying but nonetheless firmly believed was, "If a man hasn't made a million dollars by the time he is forty, he can't amount to much." Franklin Roosevelt had the million all right, but his family had given it to him. The Cadburys and Clarks could have given it to Fred Taylor, too, but he chose to make it himself.

www.Philadelphia-Reflections.com/blog/1296.htm

Philosophy Means Science in Philadelphia

American Philosophical Society Seal

In the age of the Enlightenment, science was called natural philosophy; that accounts for the present custom of awarding PhD. degrees in chemistry and botany. The sort of thing which interested Ralph Waldo Emerson was called moral philosophy, and you will have to visit some other place than the A.P.S. if that is what interests you. Roy E. Goodman is presently the Curator of Printed Material (some would say he was chief librarian) at the American Philosophical Society, founded in 1743 by Benjamin Franklin who was clearly the most eminent scientist of his day, having discovered and explained the nature of electricity.

{Roy E. Goodman}
Roy E. Goodman

Roy Goodman is descended from cowboys and rodeo stars, but in spite of that he gave an entertaining talk recently at the Right Angle Club about this society devoted to useful knowledge, this oldest publishing house and scholarly society in America, once the home of the U.S. Patent Office, and scientific library and museum. They have many rare items in their collection, but the unifying theme is not a rarity, but curiosity. You might say some of the items reflect the whimsy of Franklin, but it would be fairer to say it is an enduring monument to Franklin's universal curiosity about all things.

https://www.philadelphia-reflections.com/images/Nobel_medal.jpg
Nobel Prize Medal

There are about 900 members of APS, about 800 of them Americans, about 100 of them winners of a Nobel Prize. Let's just make a little list of a very few notables in the past and present membership. Start with the first four Presidents of the United States, add Alexander Hamilton and Lafayette, David Rittenhouse and Francis Hopkinson and you get the idea that Founding Fathers got in early. Robert Fulton, Lewis and Clark, Alexander Humboldt, John Marshall were early members, and more recent ones were Madame Curie,

Turtles and Bananas

{Snapper Turtle}
Snapper Turtle

Snapper soup, the old Philadelphia stand-by, probably got its name from snapping turtles. But for a century or two, the ingredient turtles came from the Caribbean or even further south. The huge tortoises of the Galapagos were once picked up by whalers, stored alive in the hold of the ship, to be used as needed by the sailors. Only the paws were edible. In time, the more usual imported turtle had a diameter of two feet and was picked up on South American voyages. By the end of the nineteenth century, the steamship trade was dominated by Moore-McCormack, United Fruit, and the Grace lines, who all sailed much the same kind of steamship, carrying a few passengers and a lot of cargo. Generally speaking, the cargoes going out of American East Coast ports consisted of machinery, while the cargoes coming back were bananas. If a ship carried more than twenty-five passengers it was required to have a physician on board, so passengers were either just a handful or about a hundred in number; it made for two general classes of vessel.

As a throwback to the Galapagos business of the sailing-vessel era, United Fruit would always bring home about fifty live turtles in the hold for the Waldorff in New York. It's now unclear who supplied Bookbinders and the Union League in Philadelphia, but it was apparently the same sort of arrangement: turtles came back with the bananas. It's getting hard to find snapper soup anymore; the explanation is probably mixed up with disturbances to this historical source.

www.Philadelphia-Reflections.com/blog/1481.htm

Rise and Fall of Books

{Privateers}
The Library Company of Philadelphia

John C. Van Horne, the current director of the Library Company of Philadelphia recently told the Right Angle Club of the history of his institution. It was an interesting description of an important evolution from Ben Franklin's original idea to what it is today: a non-circulating research library, with a focus on 18th and 19th Century books, particularly those dealing with the founding of the nation, and, African American studies. Some of Mr. Van Horne's most interesting remarks were incidental to a rather offhand analysis of the rise and decline of books. One suspects he has been thinking about this topic so long it creeps into almost anything else he says.

{Privateers}
Join or Die snake

Franklin devised the idea of having fifty of his friends subscribe a pool of money to purchase, originally, 375 books which they shared. The members were mainly artisans and the books were heavily concentrated in practical matters of use in their trades. In time, annual contributions were solicited for new acquisitions, and the public was invited to share the library. At present, a membership costs $200, and annual dues are $50. Somewhere along the line, someone took the famous cartoon of the snake cut into 13 pieces, and applied its motto to membership solicitations: "Join or die." For sixteen years, the Library Company was the Library of Congress, but it was also a museum of odd artifacts donated by the townsfolk, as well as the workplace where Franklin conducted his famous experiments on electricity. Moving between the second floor of Carpenters Hall to its own building on 5th Street, it next made an unfortunate move to South Broad Street after James and Phoebe Rush donated the Ridgeway Library. That building was particularly handsome, but bad guesses as to the future demographics of South Philadelphia left it stranded until modified operations finally moved to the present location on Locust Street west of 13th. More recently, it also acquired the old Cassatt mansion next door, using it to house visiting scholars in residence, and sharing some activities with the Historical Society of Pennsylvania on its eastern side.

Old Pictures of the Library Company of Philadelphia

The notion of the Library Company as the oldest library in the country tends to generate reflections about the rise of libraries, of books, and publications in general. Prior to 1800, only a scattering of pamphlets and books were printed in America or in the world for that matter, compared with the huge flowering of books, libraries, and authorship which were to characterize the 19th Century. Education and literacy spread, encouraged by the Industrial Revolution applying its transformative power to the industry of publishing. All of this lasted about a hundred fifty years, and we now can see publishing in severe decline with an uncertain future. It's true that millions of books are still printed, and hundreds of thousands of authors are making some sort of living. But profitability is sharply declining, and competitive media are flourishing. Books will persist for quite a while, but it is obvious that unknowable upheavals are going to come. The future role of libraries is particularly questionable.

Rather than speculate about the internet and electronic media, it may be helpful to regard industries as having a normal life span which cannot be indefinitely extended by rescue efforts. No purpose would be served by hastening the decline of publishing, but things may work out better if we ask ourselves how we should best predict and accommodate its impending creative transformation.

www.Philadelphia-Reflections.com/blog/1470.htm

Volunteerism Needs a Business Plan

{Alexis de Tocqueville}
Alexis de Tocqueville

The visiting Frenchman Alexis de Tocqueville was struck most by the volunteerism he found everywhere in the young American nation; in his view, the first reaction of 19th Century Americans to a problem was to create a volunteer organization to fix it. Benjamin Franklin, who created dozens of such initiatives, was held up as its great exemplar. But de Tocqueville visited us at the beginning of the Industrial Revolution, and we are now well past that into the Information Revolution; volunteerism has noticeably declined. Not only have the great volunteer organizations like the Masons and the Red Cross suffered, but it is far more difficult to enlist the help of others to form a pick-up group to attack some issue or other. It is in that sense the general spirit of volunteerism has declined. The likely difficulty is not selfishness, but the helplessness of people to control their own time.

When volunteer groups to assemble, they are mostly composed of self-employed people like plumbers and dentists, free to be somewhere else during "normal business hours", which although shorter than they once were, seem extended by commuting time and by chores pushed aside during workplace confinement. To some extent longer commuting distances make it physically impossible to do personal chores in the vicinity of the workplace. But constrained personal time is also related to increased control behavior by management. A successful big business has to employ strategies to get employees with cell phones to stick strictly to business while the employer is paying for their time. Now that so many women are going out to work, the family unit needs to struggle to coordinate everyone's work time so there will be some remaining opportunity to conduct family life. When a working couple shares the home tasks and babysitting, the preempted time now extends to two working partners, and what is left is called "quality time". A probably temporary elaboration of this time competition is the need to chauffeur teenagers to their resume-enhancing activities. For the time being, you don't pick a college, the college picks you, and parents desperately labor to assist their children on a career path. Quite obviously, America needs to evolve better ways of trading work at home for more flexibility in the actual workplace, and we also need to build more first-rate colleges, but those issues are not the present topic. To summarize: It's awfully hard to assemble a group of volunteers simultaneously because employers have so successfully assembled their time. Failing to appreciate the tradeoffs inherent in commuting time is a secondary but still important factor, somehow related to the recent housing/schools mania.

Consequently, volunteer organizations increasingly tend to regard their chores as something you hire someone else to do if it proves impossible to dump them on someone who is retired or unemployed, or too timid to refuse. Even nominal volunteers are reluctant to step forward. This leads to recruitment lectures along the line that naturally you must sacrifice if you really truly believe in the goals of the dear old Whatsis Association, surely just a coercive speech pattern. That claptrap was never heard during the age of universal volunteers; volunteering was just one of those things everyone expected to do to get community activities accomplished. We're losing something important if we continue to endorse this attitude. Sometime during the first twenty-four hours in military service, for example, someone will surely advise the new recruit -- never volunteer.

For a penniless non-profit to adopt the solution of hiring staff when there is no revenue stream to pay them, is the first step toward the dissolution of the organization. Essentially, the non-volunteers are ordered to contribute money if they choose to be draft-evaders, and eventually, the officers and staff begin to look back at the organization members as cows to be milked. A class of people who are only making a living is substituted for those who understand and promote the goals, and it just goes downhill from there.

Instead, all volunteers really must each do some unpaid work, and the officers and directors must set an example of it. What an organization does next is crucial. Individual members, either anonymous or hoping to remain anonymous, must be approached with the suggestion they accept responsibility for a task. The wild-eyed response to this approach is quite familiar, like the lame excuse that there is no time. A counter response that I'm busier than you are, does not improve the conversation because it suggests the refuser is merely a selfish shirker. Instead, initial requests must take the following form: They should be for a simple, limited task without any obligations stretching to infinity. Almost everyone will be glad to bake a cake for a party, but almost no one will agree to be chairman of the cake-baking department unless the boundaries of that commitment are more reliably limited than they usually are.

In modern times, any major undefined volunteer responsibility is seen as potentially leading to an unthinkable conflict with gainful employment or else its ill-considered outgrowths like commuting. Since that's the basic problem, all-volunteer invitations must respect the true issue and devise workable ways to circumvent it. Role models certainly help if you have any.

www.Philadelphia-Reflections.com/blog/1448.htm

Report Identity Theft to the Secret Service

The Internet provides new blessings, but new problems as well. Identity theft has now ballooned from a rarity to a fairly serious issue. After initial turf confusion, the issue has been assigned to the U.S. Secret Service. If it happens to you, that's where you make your anguished call. (1-877-ID-THEFT) or www.consumer.gov/idtheft

There's a certain logic to regarding identity theft as a modern form of counterfeiting, which has been with us since the days of William Penn. Shirley Vaias, representing the Philadelphia regional Secret Service, recently addressed The Right Angle Club of Philadelphia on the topic. It makes sense to learn the Service is headquartered on Independence Mall, across from the Mint. The crude forms of printing in the 18th Century made counterfeiting easy, and ever since the early days, there's been a race between improvements in technology and improvement in counterfeiting. We now have a paper with little red fibers in it, watermarks, serial numbers, color-shifting inks, microprinting of secret messages in the portraits, special magnetic strips, and probably lots of other clever things we aren't told about. The Bureau of Printing and Engraving is changing the currency, one bill at a time, and recently there was a new ten-dollar bill. A counterfeit version was in circulation within six hours.

ATM machines are equipped with counterfeit-recognition devices, and special gadgets are provided for banks and retail stores, but one detection device traditionally catches most fake bills. After handling huge amounts of currency, bank tellers catch a counterfeit just by the feel of the paper. Color photocopiers are getting better and cheaper, but of course, they can't change the serial numbers, so they aren't as smart as they seem. About one-hundredth of one percent of the currency in circulation appears to be fake, so you are pretty safe, but the possessor of a bad bill is deemed to be the one out of luck. The consequence is that many citizens suspect a bad bill, take it to a bank and have it instantly confiscated without recourse. That would seem to discourage reporting a counterfeit, encourage passing it off to an unsuspecting friend, and overall seems terribly unfair; but it results from the wisdom of the ages. Experience shows honest citizens are indeed tempted to try to pass the money on. While the banks don't enjoy being policemen, the effect is that counterfeits will circulate until they hit a bank, and thus confiscation is fairly comprehensive.

As the printing of money gets more complicated, the special presses needed to produce good money has become a monopoly of certain German companies, who sell the machines to other countries. Some of the American presses thus got into the hands of some Russians, who sold them to the North Koreans. So for a while at least, the North Korean government was printing American currency. It provoked vigorous countermeasures, the nature of which is confidential.

A bill of any denomination costs the government about half a cent to produce and lasts about four years in circulation. When tons of old bills are retired from circulation, the serial numbers are recycled; to an outsider, that sounds like an impossibly tedious job, but they say they do it. There's also the issue of seignorage, a term for the profit the government makes when the paper currency gets destroyed in one way or another, costing less than a cent to replace. Just how profitable the currency business is, cannot be accurately determined, because a lot of it is buried or hidden in mattresses and might someday resurface. But there is a substantial profit, which like any shrewd businessman, the government weighs against the cost of detection. Bail bonds and casinos are big sources of bad money, as could be readily imagined, and hence it is in their interest to get pretty sophisticated (and extremely unpleasant) about detection. On balance, however, it can be expected that legalized gambling in Philadelphia will promote more counterfeiting in the local economy, and hence is an offsetting cost of the tax revenue.

Over the centuries, governments have learned how to cope with counterfeiting, and there is actually much less of it than a century ago. You win some and you lose some; life just goes on. With internet identity theft, however, the criminals are developing techniques faster than governments have learned to combat them, and it is governments who struggle to catch up. Unfortunately, everybody takes a business-like approach to the matter, asking whether the precautions cost more or less than the losses. It would seem that if money continues its migration from paper currency to bookkeeping entries, it will eventually seem unsatisfactory for only one party in a transaction, a bank let us say, to keep the books while the public simply trusts them. Eventually, each individual will be forced to seek the protection of some sort of computerized system keeping the counter-parties honest, on behalf of the public, and to prevent a paralysis of commerce. Identity theft is getting expensive enough to warrant the effort.

Just how to do all that is not too clear. So, in the meantime, just let the Secret Service figure it out.

Pakistan and Democracy

{Pakistan's Democracy}
Pakistan's Democracy

The Philadelphia Right Angle Club has mainly local speakers, so topics tend to concentrate on the Philadelphia scene. Recently, a Philadelphia resident was asked to speak, and chose the intriguing topic of the lack of democracy in Pakistan. Explaining, to general surprise, why that lack may be inevitable in all undeveloped countries, and therefore not to be criticized too harshly in this one.

As a starting generalization, he pointed out that democracy is almost never found in countries where the average annual income is less than $6000, and almost universally found in countries where income is above that level. The main exception is India, which was described as having a "sham" democracy. Historical exceptions like ancient Athens and Iceland were not elaborated upon, so perhaps it might be better to say poverty is a hindrance to democracy, and let it go at that. The general idea is that Pakistan needs to get more prosperous, and particularly needs to get rid of the things making it less prosperous. When that's accomplished, democracy will establish itself without help. At the very least it cannot be expected to establish itself before then. One subtle jibe at the British (and the American Democrat party) is the point that it helps establish democracy if everybody is a taxpayer, not just the filthy rich. Democracy is helped to emerge when universal taxation provokes a demand for universal representation. Even a second historical echo might have been hidden in our speaker's pointing out that because much of Pakistan is in the feudal hands of two hundred families; the poor serfs of their fiefdoms invariably vote as their owner wishes, thus leading to a small political oligarchy. Americans were not twitted, but might have been, whether the Pakistan constitution should have imitated our own provision for 3/5 votes for slaves.

To go back to poverty itself, it is probably possible to editorialize that other main factors hindering democracy's development could be viewed as expedients evolved to sustain a functioning society in the midst of poverty, or are inherent limitations of poverty. Like lack of education, overpopulation defined as a ratio of population to resources, ethnic enclaves organized around religious leaders, feudal systems of self-defense, and vulnerability to invasion leading to overspending on defense. Even the suppression of women can be viewed as a poor, weak society's way of sustaining the number of soldiers while cutting the number of people needing costly education by half. These are not congenial concepts for Americans, but it must be granted they have importance if you adopt our speaker's central thesis: the military government of Pakistan may be the least bad choice now available to that country. At least two other epigrams touch the same conclusion: survival may temporarily seem more important than democracy, and/or democracy may be unachievable until prosperity is first achieved by authoritarianism. That last one is really uncomfortable, because it may imply that revolution is the second step in a three-step process.

Meanwhile, we have to be sympathetic with Pakistan's struggle with a problem any fair-minded person would agree is not an easy one. Their country is a series of valleys between some of the highest mountains in the world, with the rest of the countryside either desert or in contention with India. Pakistani must police a border cut down the middle of the mountains by the British, separating two portions of the same tribe who share the common bond of survival in the harshest climate in the world. They are in constant international contention with India, both sides brandishing nuclear arms. The bitterness of the Israeli-Palestine conflict inflames religious sentiment. America pursues its international interests within Pakistan's borders and against some who are regarded as fellow tribesmen, certainly co-religionists. The opium trade from Afghanistan infiltrates the borders. The nation is composed of five feudal states, united only in their annoyance with Moslem immigrants from India who are better educated than the locals, and who offend the local cultures with jarring dissimilarities. And finally, Bin Laden and his fellow Wahhabi zealots are in their midst, funded with vast amounts of Saudi money to pursue worldwide disruptions, hotly pursued by Americans who are not of their religion and not particularly careful of local sensitivities. Under the circumstances, perhaps our demand that they adopt a perfect democracy, and right now, is understandably exasperating.

www.Philadelphia-Reflections.com/blog/1524.htm

South Amboy Explodes

{Privateers}
Explosion

South Amboy, New Jersey, is a waterfront industrial town on a remote promontory behind Staten Island, jutting into lower New York Bay. It's across the Raritan River from historically important Perth Amboy, but it's fair to say that few people ever heard of South Amboy until sunset on May 18, 1950, when they suddenly heard a lot. An entire freight train, five lighters, and a railroad pier suddenly exploded and disappeared. About twenty-five people were never seen again; the largest piece of metal from the explosion was only about a foot in length. A significant part of the town was leveled, steeples were knocked off churches, and windows were broken in five surrounding counties. Considering what caused it, it seems remarkable that so few people were killed. The explanation usually given is that the explosion blew straight up and straight down; the distant windows were smashed by pressure implosion.

When Pakistan split off from the rest of India, there were bloody migrations in which millions of people died. So Pakistan bought the rights to the design of certain land mines to protect its new borders and contracted with a firm in Newark, Ohio to manufacture the mines. Two trainloads of these explosives were shipped from Ohio to a railroad pier owned by the Pennsylvania Railroad in South Amboy, to be lightered out to a waiting cargo ship and sent to Pakistan. The first of these two shiploads sailed off uneventfully, and on May 1, 1950, the second shipment had already left Ohio and was underway, when the Coast Guard suddenly declared the South Amboy pier to be closed and forbidden. As the train chugged slowly eastward, frenzied negotiations took place with Admirals in Washington. There was plenty of time, because the train moved very, very slowly and it was detoured over six different railroads to Wilmington Delaware, where the Hercules Powder Company had packed two freight cars with dynamite, which were to be hooked onto the end of the train as it inched its convoluted way to South Amboy.

{Privateers}
South Amboy Explodes

The method of packing the land mines was of some importance during the huge litigation which inevitably followed. Land mines were packed in cardboard boxes about six feet long, divided into six compartments. Our own Army regulations about such things state that never, never should fuse be packed in the same carton with the mines. However, this particular shipment had five mines to a carton, with the fuses in the sixth. It was later argued that this particular arrangement proved harmless in the first of the two Pakistan shipments, but there was the testimony that defective fuses were removed from those boxes and passed back up the line, where those deemed satisfactory were re-packed in the cartons which were in this, the second shipment. A fuse, by the way, does not quite describe these objects, which were screwed into a hole provided on the bomb part. They contained a spring and a steel ball in a tube; when the gadget was cocked it was held by a hare-trigger. The idea was that the pressure of stepping on the mine shot the steel ball into the ball of explosives, and boom.

The railroad ammunition pier, for some reason called The Artificial Island, consisted of two rail lines extending a quarter mile from land, but no structures. Stevedores transferred the boxes from the train to the lighters, and then five lighters took the partial shipments out to the anchorage where the ocean freighter was waiting. The deck of the lighters was lower than the train tracks, so a wooden ramp was laid from the freight car to the lighter, resting on several mattresses on deck. It all worked on the first shipment, didn't it?

Well, it didn't work this time, and we have no way of knowing who stumbled or dropped something; we only know it all went sky-high. For this, the ship-owners were delighted because it is a well-established principle of Admiralty law that unless the ship was in contact with the owners, their liability is limited to the value of the damaged vessel. Under conditions of total disintegration, that means the lighters had a liability of zero. But there were six railroads, the Pakistani government, the Coast Guard and the two manufacturers of the explosives available to sue. Everybody had insurance, so a dozen insurance companies were involved. All of the victims and hundreds of people with property damage, all had lawyers; everyone agrees that many lasting friendships were established among lawyers who were milling around. Finally, the judge declared this case just had to be settled, or else it would continue for the rest of everybody's lifetime. The total amount of the claims submitted came to $55 million. Obviously, the settlement would be for less than that, but settlements are kept secret and you are not supposed to know how it turned out.

So, the question that remained was this. If everybody was insured, why not let the insurance companies haggle about who owed what to whom. Why did all of those railroads have lawyers hanging around? Well, the answer is a lesson for all of us. You need a lawyer to watch your insurance company's lawyer, because once a claim action begins, you and your insurance company develop a conflict of interest.

www.Philadelphia-Reflections.com/blog/1482.htm

Gettysburg

{General Robert E. Lee}
General Robert E. Lee

It's quite a long drive from Philadelphia to Gettysburg, but General Lee was attempting to disrupt supplies to the "Arsenal of the North" by capturing the railroad center at Harrisburg. Furthermore, Philadelphia reacted as if Lee's advance was aimed straight at us, creating hysterical preparations for an invasion which had to be stopped before it got here. And finally, George Gordon Meade, the Union commander, was a Philadelphia home town boy. So, regard the Battle of Gettysburg as part of Philadelphia history, please.

{General George Gordon Meade}
General George Gordon Meade

Major (ret.) Lawrence Swesey is a West Point graduate and currently Administrator of the 1st City Troop; because of his enthusiasm for the subject, he runs a tour agency which specializes in battlefields, especially Gettysburg. From him, the Right Angle Club recently learned much that made the whole episode comprehensible. Such as Lee's purpose in going there, which appears to have been based on the growing recognition that the South was likely to lose the war, and desperately needed some major victory in Northern territory, both to take the pressure off the Southern homeland and to improve whatever terms might be extracted at a peace negotiation. To fight successive battles against a larger enemy, with larger economic resources, was to doom the South eventually as resources and men were depleted with no hope of replacing them. Sooner or later, some Union General like Grant would settle down to a grinding unrelenting assault, with the willingness to trade one death for another, until only the larger side was left standing. That's quite different from guerilla warfare of the type Washington fought, where the way to win was simply to avoid losing until the stronger side lost its civilian support. Lee could feel the South beginning to lose its nerve to fight on indefinitely, without any visible route to victory. Although Grant eventually did defeat him by attrition, Grant's own opinion appears to have been more personalized. In every war, he was later to say, there comes a time when both sides want to quit. The side that wins is the one with a general who keeps fighting for no particular reason until the other side finally quits and he wins the war.

Major Swesey emphasizes that rifles were available, but they cost four times as much as smooth-bore muskets which were only effective for twenty or thirty yards. Rifles were reserved for sharpshooters, and the enemy at a distance was bombarded by artillery as the two sides approached. So, in Pickett's famous charge, most of the casualties took place in the last fifty yards. Pickett's men had to contend with trudging stoically through an exploding field of cannon fire, unable to fire effectively at the Union men behind a stone wall, who were also supposed to lie passively on the ground while the Confederate artillery pounded at a stationary target. Somehow, most of the Southern artillery fire went over the Union heads and landed beyond the crouching line; in many ways, this was the main factor in the Union victory.

As the waves of attackers got within musket shot of the wall, they formed into three ranks. Since it took about a minute to reload the musket, a more or less continuous fire could be maintained by rotating three successive volleys rank by rank, at more or less point blank range. Then, fix bayonets, and the real slaughter became a hand to hand, in the blazing heat of summer.

www.Philadelphia-Reflections.com/blog/1436.htm

Detroit Makes, Philadelphia Takes

{Privateers}
Junk Yard

Let's look at the economics of a junkyard in a business-school way. Derelict auto bodies worth $80 a ton at current prices can be profitably converted into $235 worth of scrap metal, provided the cost of doing so can be kept below $155 a ton. The Camden Iron and Metal company are able to do so for $115 in expenses, and so reaps a profit of $40 a ton. That's not to mention the relief the owner of a useless car feels when the derelict hulk is taken off his hands, or the relief the City feels in ridding itself of thousands of vehicles abandoned in various alleys and public places. Or the worth to the steel mills of being able to produce new metal at a reduced price compared with starting with iron ore and limestone. Or the benefit to our balance of trade from being able to export the motor blocks and transmissions salvaged intact from the wrecks, leading to foreign motor cars of a quality that may, or may not, withstand impartial examination..

Camden Iron and Metal, Inc. is crawling with engineers who help cope with the currently dwindling steel content of contemporary autos, and the consequent increase in non-ferrous metals, glass, plastic and whatever. The most profitable component of the salvage company thus lies in a subsidiary, Innovative Recycling Products, Inc. The copper content of scrap used to be a headache, but is now a revenue center, for example. There once was a time when scrap iron was chopped up and buried in landfills. Nowadays, people are getting rich digging up such landfills and mining the scrap metal. There are other problems you probably wouldn't imagine, such as the disagreeable discovery that lots of those crushed auto bodies have dead dogs locked in their trunks.

It's big business, where a single crane, of which this company has a great many, costs $1 million, and the grinding mills and purifiers cost much more, last only a year, and must be maintained or replaced. There is an increasing plastic content in cars, so that stuff is ground up, pulverized, and burned to produce energy to run the shredding operation. Trucks bringing in a scrap for processing typically run all night on the highways, which reduces the public profile of the salvage operation but increases its 24-hour efficiency. When metal is torn apart, internal friction creates 2000 degree heat, cooled by water, producing huge clouds of steam. The closing of the Bessemer Steel Works reduced the local market for scrap steel, prompting more exports of scrap, and stimulating more search for ways to salvage other ingredients of the scrap. Increasingly, the purification of the raw material has thrust the scrap processors into the role of a pre-processing step in the steel industry. Just as slaughterhouses used to boast of using all of the pig except the squeal, hardly anything is now left of the bodies of discarded autos except for the unattractive scrap heap. Hey, if every housewife admires the idea of household recycling, maybe they can grow to love auto body recyclers.

And then, friends, this is Philadelphia so politics enters in. It has come in the form of visits from the Governor who wants the shredder to move to the waterfront, but who also has a struggle with New Jersey over dredging the river channel to balance in his mind. So, sometimes expensive relocation proposals are made, partially implemented, and then suddenly abandoned for reasons best known in Harrisburg and Trenton. It's conjectured that a central issue in this scrap iron struggle is the high price charged for electric power by New Jersey utility monopolies, tending to drive the scrap salvagers over to Pennsylvania. Since macing utilities is a central feature of modern urban political financing, it's equally possible that Pennsylvania power is produced at a subsidized loss in this struggle, or that New Jersey is concealing its tax burden within electric bills. One would have to know more facts to form an informed judgment, in a situation where facts are hard to come by.

Securities Trading Across Time Zones

Almost every day, stock market averages take a sharp jump, either up or down, a few minutes before closing time. Two explanations are usually offered. Regulations require brokers (but not banks, unfairly) to "mark to market", which is to reveal their newly calculated positions based on market prices, whether they traded or not. Those whose assets changed market value are aware of it, and may see an opportunity to speculate on the market's reaction prior to opening their own Kimonos. Mutual funds settle their accounts with customers based on end-of-day prices, but often fill their orders based on prices prevailing during the day; it's one of the advantages of exchange-traded funds (ETF) over index funds that they trade and settle at the same time. Short sales and hedges often wait to the last moment to close their positions; hedge funds and quantitative traders may lie in wait for this to happen and take advantage of it. Some quantitative traders use computers to transact tens of thousands of trades in an hour. The sums of money involved can often be considerable, and it wouldn't matter what different time was selected for a closing hour; the phenomenon would simply shift its timing to match. A second main reason for this explosive end of day activity is the New York Stock Exchange rule that members of the exchange must transact all business in listed stocks during business hours on the floor of the exchange. The self-serving motives behind that rule are evident to all; so a growing proportion of trades, possibly a majority, are transacted on other exchanges five minutes before the New York exchange opens and five minutes after it closes.

When some world-shaking event takes place after the closing bell, it is possible to watch the reaction of the world's stock exchanges moving around the world hour by hour, time zone by time zone. Announcing major financial news is often intentionally delayed until the New York markets are closed, as was the case with the forced merger of Bear Stearns into JP Morgan Chase. Other markets are open, however. The Japanese markets, in this case, responded with a 3% drop, and it was followed all night by a 3% drop every hour in each successive time zone until finally, the New York markets opened unchanged the next morning. After that big Kahoona had its say, all littler markets then scuttled back into line.

With electronic exchanges and trading becoming increasingly common, there is no technical reason why all exchanges worldwide could not remain open every day of the year, twenty-four hours a day. To make that work, however, all trading would have to be conducted by the machines without reference to human opinion. The machines can respond to sales volumes even better than floor traders can, but they would not respond to contingent orders on the specialists' books, or to the opinion of floor traders that hysteria was somehow getting out of hand. With some adjustments, even this could be handled, but the customers would resist. Customers have to get some sleep, even if machines do not; customers want to be able to change their minds in response to market action. Modern portfolio management theory suggests these customers might be better off if the whole thing were on auto-pilot. But just try to tell that to the customers; even the little old ladies would shake their umbrellas at you if you suggested it.

That doesn't mean the public is ready to go back to the Buttonwood tree, once a week. In France, the government has responded to the public clamor by shortening the work week to thirty hours, with plenty of long weekends. Where a holiday falls on Thursday, Friday is automatically a holiday as well. When it falls on Saturday or Sunday, Monday is a holiday. France isn't very religious, but is intensely respectful of scads of Saint's days. That happens often enough that there are quite a few five-day weekends.

Philadelphia's Global Interdependence Center was recently touring Paris during one of those five-day weekends, on a Friday. The Americans were the only people in a town of five million people who were wearing ties and jackets, and the natives at the sidewalk tables didn't need to hear our accents to know who we were. A visit had been arranged at the Bourse, for a nice lunch with the marketing folks and a sales pitch by an official of the stock exchange. With masterful diplomacy and graciousness, we were told interesting stories about the history of the place, ending up with a description of their deep sorrow that so few Americans list their stocks on French Exchanges, or even trade their European holdings in France. After all, Paris is only a one-time zone away from London.

"It isn't the time zone, sir", spoke up one American unaccustomed to wine with lunch. "It's the five day weekend."

www.Philadelphia-Reflections.com/blog/1483.htm

The Corinthos Disaster

Oil Tanker on Fire

Fire, huge fire. The Corinthos disaster of January 30, 1975, was the biggest fire in Philadelphia history, and one hopes the biggest forevermore. Its immensity has possibly lessened attention for some associated issues which are nevertheless quite important, too. Like the issue of punitive damages in a lawsuit, or the need to balance environmental damage with a national need for energy independence. And the changing ways that law firms charge their clients. We hope the relatives of the victims will not be offended if the tragedy is used to illustrate these other important issues.

On that cold winter day, two big tanker ships were tied up alongside the opposite banks of the Delaware River at Marcus Hook. The Corinthos was a 754-foot tanker with a capacity of 400,000 barrels of crude oil, tied up on the Pennsylvania side at the British Petroleum dock with perhaps 300,000 barrels still in its tanks at the time of the disaster. At the same time, the 660-foot tanker Edgar M. Queen

Edgar M. Queeny

with roughly 250,000 barrels of specialty chemicals in its hold, let go its moorings to the Monsanto Chemical dock directly across the river in New Jersey, intending to turn around and head upstream to discharge the rest of its cargo at the Mantua Creek Terminal near Paulsboro. Curiously, a tanker is more likely to explode when it is half empty because there is more opportunity for mixing oxygen with the combustible liquid sloshing around. A tug stood by to assist the turn, but the master of the Queeny felt there was ample room to make the turn under her own power. With no one paying particular attention to this routine maneuver, the Queeny seemed (to only casual observers) to head directly across the river, ramming straight into the side of the Corinthos. Actually, the Queeny had engaged in a number of backing and filling maneuvers, and the sailors aboard were appalled that it seemed to lack enough backing power to stop its headlong lunge at the Corinthos. There was an almost immediate explosion on the Corinthos, and luckily the Queeny broke free with only its bow badly damaged. Otherwise, the fire might have been twice as large as it proved to be with only the Corinthos burning. The explosion and fire killed twenty-five sailors and dockworkers, burned for days, devastated the neighborhood and occupied the efforts of three dozen fire companies. A graphic account of the fire and fire fighting was written by none other than Curt Weldon who was later to become Congressman from the district, but was then a volunteer fireman active in the Corinthos tragedy.

There were surprising water shortages in this fire on the river because the falling tides would take the water's edge too far away from the suction devices for the fire hoses on the shore. The tide would also rise above a gash in the side of the burning ship, floating water in and then oil up to the point where it would flow out of the ship onto the surface of the river. Oil floated two miles upstream from the burning ship and ignited a U.S. Navy destroyer which was tied up at that point. Observers in airplanes estimated the oil spill was eventually fifty miles long. All of these factors played a role in the decision whether to try to put the fire out at the dock or let it burn out; experts continue to argue which would have been better. There were always dangers the burning ship would break loose and float in unexpected directions, that the oil slick would ignite for its full length, and that storage tanks on shore would be ignited. The initial explosion had blown huge pieces of iron half a mile away, and the ground near the ship was littered with charred, dismembered pieces of flesh from the victims.

, Of course, there was a big lawsuit. When a ship is tied up at a dock it certainly feels aggrieved when another ship crosses a river and rams it. The time-honored principle of admiralty law holds that the owner of an offending ship is not liable for damages greater than the salvage value of its own hulk, which in this case might have been about $3 million. The underlying assumption is that the owner has no way of knowing what is going on thousands of miles away, no control over it, no power to respond in a useful way. Enter Richard Palmer, counsel for the Corinthos. Palmer was aware that the National Transportation Safety Board collects information about ship maintenance inspections in order to share useful information for the benefit of everyone. His inquiry revealed that the inspections of the Queeny for four years before the crash had repeatedly demonstrated that the stern engine had a damaged turbine, and was only able to drive the ship at 50% of its rated power. Why this turbine had not been repaired was now irrelevant; the owners of the ship did have relevant information and had failed to act in a timely safe fashion. The limitation of liability to the salvage value of the hulk now no longer applied if the negligence was judged relevant. The defendants, the owners of the Queeny, decided to settle. While the size of the settlement is a secret of the court, it is fair to guess that it approached the full value of the suit, which was $11 million. Mr. Palmer, by using his experience to surmise that maintenance records might be available at the Transportation Agency, and recognizing that the awareness of the owner might switch the basis for the compensation award from hulk value (of the defendant's ship) to the extent of the damage (to the plaintiff's ship), probably tripled the damage settlement.

Reflections on the extraordinary benefit to the client from a comparatively short period of work by the lawyer leads to a discussion about the proper basis for lawyers fees. Senior lawyers feel that the computer has revolutionized lawyer billing practices, and not for the better. Because it is now possible to produce itemized billing which summarizes conversations of less than a minute in duration, services for the settlement of estates can be many pages long, mostly for rather routine business. Matrimonial lawyers are entitled to charge for hours of listening to inconsequential recriminations; lawyers can bill for hours of time spent reading documents into a recording machine, or sitting wordlessly at depositions. Since the time expended can now be flawlessly measured and recorded on computers, there is little room for a client to remonstrate about their fairness. Discomfort about this system underlies much sympathy for billing for contingent fees, where the lawyer is gambling all of his expenses and effort against a generous proportion of the award if he wins the case, nothing at all if he loses. This latter system, customary in slip and fall cases and justified as permitting the poor client to have proper representation, undoubtedly promotes questionable class action suits and often leads to accepting personal liability suits which should be rejected for lack of merit. The thinking underlying personal injury firms is widely said to be: most insurance companies will settle for modest awards in cases without merit because the defense costs would be no less than that amount, and occasionally a personal liability case gets lucky and extracts a huge award.

Listen to one old-time lawyer describe how legal billing used to be. After the case was over, the lawyer and the client sat down to a discussion of what was involved in the legal work, and what it accomplished for the client. A winning case has more evident value than a losing one, provided the lawyer can effectively describe the professional skills that helped bring it about. The whole discussion is aimed at having both parties leave the discussion satisfied. To the extent that both parties actually are satisfied with the value of the services, the esteem and reputation of the legal profession are enhanced. And the lawyer is a happy and contented member of a grateful community. If he can occasionally claim a staggering fee for a brief but brilliant performance, as in the case of the explosive fire on the Corinthos -- well, more power to him.

It does not take much familiarity with oil refineries to make you realize that cargoes of crude oil are a very dangerous business. We are accustomed to hearing jeers at those who protest, "Not in my backyard", and we deplore those who would jeopardize our national security to protect a few fish and trees in the neighborhood of potential oil spills. Since we do have to import oil and we do therefore have to jeopardize a few selected neighborhoods to accomplish this vital service, the opponents are sadly destined to lose their protests. But that doesn't mean their concerns are trivial. The shipping and refining of oil are dangerous. We just have to live with it and be ready to pay for its associated costs.

SCORE

{Mark Maguire}
Mark Maguire

Frank Pace, formerly Secretary of the Army, founded SCORE, the Service Corps of Retired Executives, in 1964. Philadelphia was one of the main founding chapters but tended to dwindle as business large and small dwindled after the bombing of West Philadelphia by the then-Mayor; former executives living in the suburbs lost interest. In December 2006, Mark Maguire took charge and gave SCORE a new direction. This former executive of Rohm and Haas is not related to the baseball home-run king, but at least his name is easy to remember.

The new sociology of center city demanded that more small businesses be started by minority residents, who have very little family and cultural experience in this sort of activity, which nevertheless is recognized as the main source of job creation in any area. It turns out that the main source of energy in the minority community is among minority women, who are particularly unfamiliar with the problems of small business. So, SCORE needs to dispel a number of misconceptions and unrealistic ambitions, and familiarize these budding entrepreneurs with the tax and regulatory headaches ahead of them, and teach them to be watchful of common traps and obstacles, learn to cope with fair competition, and how to recognize the signs of fraud before it happens to them.

The usual vehicle for teaching these elements of commercial life is to induce the writing of a detailed business plan, which executives can criticize for lack of realism or inadequate capitalization, suggesting ways to succeed in a field that experiences 50-60% failure in the best of circumstances. Some of this requires face-to-face discussions, lectures, and required reading. But much of it can be handled with weekly email consultations, a favorite tool of Philadelphia's SCORE chapter. Much of it can be addressed by referring the client to the proper agency or service business, or bank. SCORE has a strict ethical code for its volunteers, including a prohibition of becoming a vendor or participant in the business.

In addition to the changing nature of new small businessmen, there is a changing demographic of the volunteer executives who do the advising. Over 80% of them describe themselves as retired, but in fact, it is rare for one to be totally retired from all business activity. These guys really like to work, and a thirty-year vacation is not their goal in life. Just by acting as an example, they are establishing an important goal for the young businessmen and women who look to them for guidance. Work is how you accomplish something in life, and work, believe it or not -- is fun.

www.Philadelphia-Reflections.com/blog/1430.htm

Burlington County, NJ

{Burlington County Map}
Burlington County Map

Burlington County used to be called Bridlington. It contains Burlington City, formerly the capital of West Jersey, which is how they styled the southern half of the colony, the part controlled by William Penn. In colonial times, the developed part of New Jersey was a strip along the Raritan River extending from Perth Amboy, the capital of East Jersey, to Burlington. To the north of the fertile Raritan strip, extended the hills and wilderness mountains; to the south extended the Pine Barrens loamy wilderness. The Raritan strip was predominantly Tory in sentiment, while the remaining 90% of the colony consisted of backwoods Dutch farmers to the north, and hard-scrabble "Pineys" to the south, except for the developments farmed by Quakers. The Quakers had ambiguous sentiments during the Revolution, leaving conflicts between pacifism and self-defense to individual discretion. The real fighting mostly went on between the Episcopalian Tories and the Scottish-Presbyterian rebels, both of which were sort of newcomer nuisances in the minds of the Quakers. The warfare was bitter, with the Tories determined to hang the rebels, and the rebels determined to evict or inflict genocide on the loyalists. Standing aside from such blood-letting of course inevitably led to a loss of Quaker political leadership. When East and West Jersey were consolidated by Queen Anne into New Jersey in 1702, the main reason was ungovernability, with animosities which endure to the present time in the submerged form. Benjamin Franklin's son William was appointed Governor through his father's nepotism, but when he turned into a rebel-hanging Tory, his father extended his bitterness about it into a hatred of all Tories. The later effect of this was felt at the Treaty of Paris, where Ben Franklin would not hear of leniency for loyalists, striking out any hint of reparations for their property losses. In a peculiar way, the factionalism resurfaced at the time of the Civil War, where the slave-owning Dutch in the North came into conflict with the slave-hating Quakers in the South. The problem would have been much worse if the Jersey slaveholders had been contiguous with the Confederacy, but it was still bad enough to perpetuate local sectionalism. A few decades ago, it was actually on the ballot that Southern Jersey wanted permission to secede.

Under the circumstances, when James K. Wujcik wanted to work for progress in his native area, he avoided any ambition to enter State politics and concentrated his efforts on Burlington County. He is now a member of the Board of Chosen Freeholders of Burlington County, along with four other vigorous local citizens. Most notable among them is William Haines, the largest landholder by far in the area, whose family still controls the shares of the Quaker Proprietorship. Membership on the Burlington County Board of Freeholders is a part-time job, so Mr. Wujcik is also president of the Sovereign Bank. We are indebted to him for a fine talk to the Right Angle Club avoiding, with evident discomfort, many mentions of state politics or sociology.

{Congressman James Saxton}
Congressman Saxton

Burlington is the only New Jersey county which stretches from the Delaware River to the Atlantic Ocean, including the Pine Barrens occupying 80% of the land mass in the center; fishing and resorts dominate near the ocean and former industrial areas along the river. Much of the area has been converted to agriculture for the Garden State, but about 10% is included in a National Preserve. The population has doubled in the past fifty years, so urbanization is replacing agriculture, which had earlier displaced wilderness. The county includes Fort Dix and Maguire Air Force Base, strenuously promoted for decades by now-retired Congressman James Saxton.

Somewhere in the past few decades, Burlington became quite activist. Although many tend to think of real estate planning as urban planning, this largely rural county went in for planning in a big way, deciding what it was and what it wanted to be. Generally speaking, its decision was to replace urban sprawl with cluster promotion. The farmers didn't like an invasion by McMansions or industries, while the towns lost their vigor through tax avoidance behavior of the commuter residents. Overall, the decision was to push urban development along the river in clusters surrounding the declining river towns, while pushing exurban development closer to logical commuting centers, leaving the open spaces to farmers. Incentives were preferred to compulsion, with a determination never to use eminent domain except for matters of public safety. To implement these goals, two referenda were passed with 70% majorities to create special taxes for a development fund, which bought the development rights from the farmers and -- with political magic -- re-clustered them around the river towns. The farmers loved it, the environmentalists loved it, and the towns began to revive. The success of this effort rested on the realization that exurbanites and farmers didn't really want to live near each other, and only did so because developers were looking for cheap land. Many other rural counties near cities -- Chester and Bucks Counties in Pennsylvania, for example -- need to learn this lesson about how to stop local political warfare. Corporation executives don't want to live next to pig farms, but pig farmers are quite right that they were living there, first. When this friction seeps into the local school system, class warfare can get pretty ugly.

{Burlington Bristol Bridge}
Burlington Bristol Bridge

In Burlington County, they thought big. The central project was to push through the legislature a billion-dollar project to restore the Riverline light rail to the river towns, along the tracks of the once pre-eminent Camden and Amboy Rail Road. It was an unexpected success. During the first six months of operation, ridership achieved a level twice as large as was projected as a ten-year goal. Along this strip of the Route 206 corridor, the old Roebling Steel Works are becoming the Roebling Superfund Site, now trying to attract industrial developers. The Haines Industrial Site originally envisioned as a food distribution center was sold to private developers who have created 5000 jobs in the area. Commerce Park beside the Burlington Bristol Bridge is coming along, as are the Shoppes of Riverton and Old York Village in Chesterfield Township. As Waste Management cleans up the site of the old Morrisville Steel plant across the Delaware River, a moderate-sized development project is becoming an interstate regional one.

No doubt there will be bumps in these roads; the decline of real estate prices nationally is a threat on the horizon, because it provokes a flight of mortgage credit. It works the other way, too, as banks decide to deleverage by reducing outstanding loans; this is the way downward spirals reinforce themselves. And anyone who knows anything about all state legislatures will be skeptical about political cooperation in a state as tumultuous as New Jersey. The Pennsylvania Railroad destroyed the promise of this state once; some other local interest could do it again. Nevertheless, right now Burlington County looks like a real winner, primarily because of effective leadership.

Port of Philadelphia

{Privateers}
Ports of Philadelphia

When federal appropriations are doled out, it is a great advantage for the Port of Philadelphia to appeal to six U.S. Senators. However, the overlapping control of port operations can come close to paralysis. In short, we may have less chance of agreement on what we want -- but a greater chance of getting it. Right now, the ports of the world are struggling to adjust to revolutions of containerized cargo and gigantic oil tankers, plus political pressure from concern about the environment.

Some of the main arenas of our gladiator fights are as follows:

DRPA: The Delaware River Port Authority operates several large bridges, the PATCO high-speed subway line, and the cruise terminal, all leading to control of potentially large sources of revenue. The 1992 Congress expanded its charter to include the economic development of the port region.

SJPC: The South Jersey Port Corporation owns two marine terminals in Camden, and is planning a third in Paulsboro.

DSPC: The Delaware State Port Corporation operates the Port of Wilmington, DE.

PRPA: The Philadelphia Regional Port Authority has little to do with city politics, but is an arm of the state government of Pennsylvania, operating 7 marine cargo facilities, and planning more.

In addition, every county, city, and town along the riverbank has some degree of authority. Every business and union involved in regional or international trade is desperate to protect its interest in the politics of port regulation. Lately, the Homeland Security Agency has taken a large role. Scientists, engineers, fishermen, oil refinery operators, economists, and others abound. The news media convey their own opinions and the opinions of others. Opinions abound because most issues about ports are important.

In addition to the traditional cargoes of coal, petroleum, iron ore and forest products, which are mostly declining in importance, the rising cargoes include meat, cocoa beans, and South American fruit. General, or casual, cargo tends to be more valuable than bulk cargo, but greatly complicates the Homeland Security risks. The ratio of imports to exports is important because it is expensive to have a ship return empty. Shippers will, therefore, favor a port where there are expectations of return cargo. Oil tankers are particularly likely to return empty since their ballast is mostly river water; but, who knows, perhaps global warming will make dirty river water seem valuable to some tropical oil producer. A quirky problem is that most of the crude oil entering East Coast ports are currently coming from Nigeria, a notoriously corrupt nation. This has led to a thriving business of car-jacking in the Philadelphia suburbs, with the stolen cars promptly packed in empty containers returning to Africa.

Of the 360 major American ports, the Delaware River ranks second in total tonnage shipped, and eighth in the dollar value of the cargo. Every year, 2600 ships call into our port, which claims to employ 75,000 people. According to Bill McLaughlin of the PRPA, the future of the port will depend on the settlement of three major disputes:

1. Deepening the Channel. The historical natural level of the river is 17 feet, artificially deepened to 40 feet up to the level of the Walt Whitman Bridge. It sludges up by two or three feet every few years, so dredging is a continuous issue. The enlargement of tankers and container ships has led to a need to deepen the channel to 45 feet. It is true that the Wissahickon schist pokes up at Marcus Hook and will have to be blasted out, but mainly the issue is dredging up the gunk on the river bottom, and hauling it away somewhere. In Delaware Bay below Pea Patch Island, the bottom is sandy and hence valuable. The State of Delaware has plans for riverfront development, and would actually like to have the 8 million tons of sand, so no problem. The 7 million tons of clay and silt which must be dredged out of the upper Delaware River channel for a 45-foot depth is more of a problem, but users can be found for most of it. Or so the Pennsylvania representatives maintain; the New Jersey representatives led by Congressman Rob Andrews say it would be an environmental disaster to dump a thimbleful on New Jersey. Feelings get pretty hot in these things. The Haddonfield representative is portrayed as selling out his district in order to further his own state-wide aspirations, acting on the orders of North Jersey politicians who dominate New Jersey politics, who want to lessen competition with the Port of New York, which also shares a border with New Jersey. Feelings are not soothed to see the Port of New York deepening its channel to fifty feet while resisting forty-five in the Delaware port.

The document currently at the center of this interstate dispute is called PCA, the Project Cooperation Agreement. New Jersey won't agree to sign the proposal, which contains clauses to remove the DRPA from authority and replace it with PRPA(essentially transferring control and revenues from Philadelphia to the State of Pennsylvania) as the "non-federal sponsor". PRPA would then enter into a contract with the Army Corps of Engineers to get the work done.The price, probably low-balled, is $219 million, to be compared with the Port of New York's dredging price (probably high-balled) of $50 billion. There are, of course, a great many features of this political negotiation which are unlikely to appear in print.

2. Southport. The grand plan for the Philadelphia Port is to center on an intermodal complex of piers, railroads, and highways which would extend as a continuous terminal from the Walt Whitman Bridge to the old Naval Yard. No doubt this idea is linked to the round-the-world concept of Philadelphia as a way station from India to Vancouver, overcoming the empty return cargo problem by never looking back. Good luck.

3. Monetizing the Port. Like the turnpikes, ports could be sold to private investors. Of course, that could extend to selling the property to foreign investors, triggering the nationalist reaction readily observed when port management was once offered to Abu Dahbi. It could well give a new meaning to the expression, being sold down the river, but who knows maybe it's a good idea. When you criticize motives it never bothers real political pros, because it's simple to say you don't have such motives, and who knows. But the people seriously involved in government finances say they most fear that the do-gooders will be allowed to sell or lease publicly-owned facilities to improve the financial balance sheet. And then the pros will just take the money and use it to pay interest on more borrowing.

WWW.Philadelphia-Reflections.com/blog/1337.htm

Doing Well, Doing Good.

{Lynmar Brock}
Lynmar Brock

Lynmar Brock is a Quaker, so what he does is surprising. He lives on a farm, but is Chairman of the Board of a food distribution corporation. He's also chairman of several other boards. He's written several books, and among them, a novel Must Thee Fight? relates the tribulation of one of his pacifist ancestors who nevertheless became a soldier at the Battle of Brandywine. The theme of this emotional conflict parallels the author's own struggle over being a conscientious objector who ultimately volunteered for the Navy because he felt he could not stand by while others fought his battles for him. The face of the soldier with a musket on the book jacket is his own.

{Rotary Seal}
Rotary Seal

When American forces recently entered Afghanistan, a great many people were forced to become refugees. Lynmar Brock was on the board of Rotary International, where a decision was made to provide relief for the refugees, and Mr. Brock flew over to lead the effort on the ground. Rotary raised $2 million almost immediately, and the task was to translate the money into something the refugees really needed. Since "shrinkage" is a common fate for refugee shipments, Rotary bought locally. They were able to distribute 83,000 pairs of shoes, 53,000 blankets and similar quantities of a number of other basic needs. Ultimately, the three-year effort raised $115 million and distributed items in the millions. It was important to give the goods to the local tribal chief, who then redistributed to the members of the tribe. To give it directly would undermine the authority of the chief, very likely provoking him to interfere with it. Accordingly, it is essential for relief workers to make friends with the chieftains, and it is essential to avoid the appearance of being a sap. All of the clothing was stamped with a big indelible yellow Rotary Seal; if it turned up in the black market, it would still be obvious what its source had been. At the same time, it was essential for donors not to appear to be soldiers. One of the missions of the group was to show the Afghans that Americans were real people who cared, and not all were soldiers. That they were successful in this way was brought out by one tribal chief coming forward and saying, "Teach us English. It's the language of the world."

Some influential Rotarians are active in American ophthalmological circles, and arranged to have American eye surgeons extract a great many cataracts from Afghans otherwise destined to a life of blindness. Since the Taliban routinely poisoned the wells, it was vital that farmers like Lynmar Brock were able to show how to repair or replace the local water supply. It might have been better to replace opium farming with tomatoes, but a compromise was made to replace opium with marijuana. That's an improvement, of sorts. The danger inherent in this work must not be shrugged off. All vehicles of foreigners were preceded and followed by at least six local soldiers. As the cavalcade moved from one tribal area to another, the soldiers were changed for soldiers of the new tribal area; their loyalty just had to be trusted. And, indeed, the co-chairman of the committee was mysteriously murdered one day.

The Rotarians return home full of praise for the U.N. field workers, mostly European, who are actually engaged in foreign relief work. The headquarters staff back home at the U.N. are described with only a shrug that speaks volumes, but it is useful for us all to keep the distinctions in mind.

Lynmar says it's great to be home. In his busy life there's work to be done on the farm, and in his corporation, and writing another novel. And there is supervision also needed for the Rotary efforts in the Ivory Coast. It's not completely certain, but sometimes he actually gets some sleep.

Google Earth Tour of Franklin Locations

On the front page of Philadelphia Reflections is found a button which will download Google Earth, and if you follow instructions on the left column, will give you a satellite tour of every blog let on the site. At least, it will when we get it finished; it's only about half complete at present. If you are unfamiliar with this approach, we suggest you download the Earth program from the Google site and get acquainted by locating your own house, or Independence Hall, or the Vatican.

In addition, every Topic (listed in the left-hand column of the front page of Philadelphia Reflections) will contain a button which generates a tour of the geoTags of that particular Topic, providing there are three or more such tags. You will generally get the best results from tours developed by unknown authors if you turn off ALL of the layers provided in the lower section of the left-hand panel of Google Earth, although you might turn them on, one at a time if you want to enhance the effects. Generally speaking, the route of Interstate 95 seems a little out of place among the local wanderings of Ben Franklin.

{Take a satellite tour of nearly every place Ben Franklin ever visited.}
Take a satellite tour of nearly
every place Ben Franklin ever visited.

You should also become familiar with KMZ files and KML files. Keyhole markup language gives instructions to Google Earth, allowing authors like Bob Florig to organize tours of a particular subject. KML files are quite large, so they get compressed to make them easier to send over the Internet. Compressed files of KML are designated KMZ, referring to Winzip the decompressor. Other decompressors will often work, too, especially Stuffit for Apple users. The extra step of decompression is a nuisance, and it is possible to have the file do things itself, to become known as a self-extracting file. Self-extracting files are often, but not always, designated as EXE files.

You are here invited to take a tour of every site Benjamin Franklin is known to have visited as if you were an interplanetary alien riding a flying saucer. Double-click the blue link to download a copy of Google Earth if you don't already have one, followed by a self-extracting KMZ file constructed by Bob Florig and used with his kind permission.

There's one other feature you should know about, called overlays. Bob took an 18th Century map of Philadelphia and substituted it for the satellite map of contemporary central Philadelphia. That lets you see Philadelphia as Franklin saw it, and by changing overlays, also allows you to see the little red-brick buildings which remain standing among the skyscrapers. Both he and I are uncertain about the copyright status of the old maps and may have to remove them if the author identifies himself and protests.

China Bubble

{Foreign Money}
Foreign Money

China's rise to prosperity is the biggest, fastest industrial revolution in human history. Arriving two hundred years late, naturally, it has disruptive effects on the rest of the world. The Chinese want most to avoid a revolution, but also want to prolong the bonanza phase of their cycle. America must first avoid getting swamped by this tidal wave of foreign money. After that, adjust to an inevitable outcome: a more powerful China, but one with far slower growth, maybe a recession or two. Their wages must rise so our wages may rise; a future difficulty for both countries, with hyperinflation a danger. The Pacific Ocean may not prove as peaceful as we hope, but first, we must get through the Straits of Magellan.

Although the financial storms had been brewing ever since Richard Nixon visited China, the violent arrival of these issues first burst in on the American public during vacation, in the middle of sunny August, 2007.

www.Philadelphia-Reflections.com/blog/1486.htm

Onward, Christian Soldiers

Among the ten largest cities in the United States, Philadelphia at 24% has the highest poverty rate. Why that should be so, and what should be done to change it, are questions for another article. Meanwhile, many helpless hopeless people need immediate help with problems of daily survival. No doubt, Philadelphia's long history of practical charity has acted as a magnet for victims of social problems caused elsewhere, and many of our locals who deserve some blame have moved away to more promising environments. For those who remain and want to help the immediate need, these things don't matter, just so long perhaps as emergency measures do not interfere with long-term solutions.

{William Booth}
Salvation Sign

Among many private relief efforts, the Salvation Army is widely acknowledged to be the most efficient and most effective, as well the largest. Before the big event in 2004, it had a $3 billion budget and 3 million volunteers; an army, indeed. Except for Quaker charities, which mean to spend nothing on solicitation except through their own example, the Army spends a notable record of 91% of its budget for direct relief. In Philadelphia, they have 9 community centers, 8 residential centers, and 2 children's shelters. This is the largest charity in the United States, with branches in 110 other countries. There are 65,000 homeless people sheltered, every night.

{William Booth}
William Booth

A moment should be spent on the history of the Army. It was founded by William Booth, who was a London pawnbroker before he became a Methodist minister. Sir Arthur Sullivan wrote "Onward, Christian Soldiers" in 1871 a decade before it became so aptly associated with the Salvation Army, and indeed before it became attached to the words of Sabine Baring-Gould . Originally the music had to do with St. Gertrude. The militarism of the organization has offended some people, even elders of the Methodist Church, and the Christian emphasis offends non-Christians. United, or Community, Funds are miffed that the Army usually will not agree to limit its solicitations to their umbrella, and modern sophisticates scorn the 19th Century traditions of Christmas Kettles, and such like. Since the main emphasis of the Army has been on relieving the problems of the Industrial Revolution, like alcoholism, drug addiction, prostitution, some see an implied criticism of modern progress, or of capitalism, or the entertainment business in general. Some people don't like the fact that most of the causes of poverty could be described as self-inflicted. You simply can't satisfy everybody. But when the rehabilitation of alcoholism and drug addiction generally carries a success rate of 25%, the Salvation Army approach -- no matter what you may think of its symbols -- is able to defend the claim of 65% success. If you don't like "Human Needs in Jesus' Name", just try "Practical Success in a Difficult Field" for a subtitle.

{Privateers}
Joan Kroc

It thus becomes understandable that when in 2004 Joan Kroc, the widow of the founder of McDonalds Hamburger chain, decided to leave her estate of $1.5 billion to relief of the poor, she chose the Salvation Army to run things for her. Her interesting will divide the country into four parts, with 28 cities to receive $36 million grants for the construction of community centers, plus an equal amount for the endowment to run them. The size of the grants was calculated to force the local cities to match them (Philadelphia still has $20 million to go) and the endowments specify no income to be derived if the amount falls below the original $36 million, or otherwise to be limited to a 5% spending rule. She was perhaps optimistic that investment advisors could regularly produce a 17% return, and really truly optimistic if she believed our government could restrain inflation within those bounds. But a sharp business mind shines through these covenants, a very necessary ingredient of successful philanthropy.

{Privateers}
Salvation Workers

Mrs. Kroc wanted these centers to be located in the areas of worst need; that explains the choice of a 12-acre plot in Nicetown, at the corner of Wissahickon and Hunting Park Avenues. The area now surrounding a former factory for the Budd Company has a 35% poverty rate. But after 2009 it will have an aquatic center of several swimming pools, gyms and fitness centers, a computer laboratory, arts and performing theater centers, and other more traditional Salvation Army facilities. It will also have 27 other American cities with comparable centers to share experiences with, to compete against, and to be put to shame by Philadelphia's superior ideas. We hope.

www.Philadelphia-Reflections.com/blog/1425.htm

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Not Only to Own, but to Govern

And him the said William Penn his heires and As-signes Wee doe by this our Royall Charter for us our heires and successors make, create and constitute the true and absolute Propriertaries of the countryes aforesaid and of all other the premisses, saveing alwayes {to us our heirs and successors} the Faith and allegiance of the said William Penn, his heires and Assignes, and of all other {proprietaries, tenants and inhabitants that are, or shall be, within the Territories and precincts aforesaid, and {saving alsoe every unto us our Heirs and successors, the sovereignty of the aforsd country} the sovereignty 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 behoof of the said William Penn his heires & Assignes forever To be holden of us, our heirs and successors, Kings of England as of our Castle of Windsor in our County of Windsor, Berks, in Free and common Soccage, by fealty only for all Services and not in Capite or by Knights Service, Yeilding and paying therefore to us our heirs and successors Two Beaver skins to be delivered {at our said Castle of Windsor} on the First day of January in every year if demanded. And also 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 all charges}. And of our further grace, certain knowledge, and mere motion wee have thought fit to erect and wee doe hereby erects the {afore}said Country and Islands into a province and Seigniory and doe call it Pennsylvania and so from henceforth we will have it called Pennsylvania. And forasmuch as we have hereby made and ordained the aforesaid William Penn his heirs and Assigns, the true and absolute Proprietaries of all the Lands and dominions aforesaid Know yee {therefore} that wee reposting special trust and confidence in the fidelity, wisdom, Justice, and provident circumspection of the said William Penn for us our heirs and successors Doe grant free full and absolute power by virtue of these presents to him and his heirs and to his and their Deputies and Lieutenant for the good and happy government of the said Countries to ordain, make, enact and under his and their seals to publish, any Laws whatsoever for the raising of money for the public uses of the said Province or for any other end appertaining either unto the public 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 Countries or the greater part of them or of their

Delegates or Deputies whom for the enacting of the said Laws when and as often as need shall require {x} Wee will that the said William Penn and his heirs shall assemble in such sort and forme as to him and them shall seem best and the same Lawes duly to execute unto and upon all people within the said countries and limits thereof {x x}. And we do likewise give and grant unto the said William Penn and his heirs, and to his and their Deputies and Lieutenant, full power 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 heirs shall seem most convenient. Also to remit release, pardon, and abolish, whether before Judgment or after, all Crimes and offenses whatsoever committed within the said Country against the said Laws Treason and willful and malicious murders only excepted and in those cases to grant reprieves until our pleasured may be known therein and to do all and every other thing and things which unto the complete establishment of Justice unto Courts and Tribunals formes of Judicature and manner of proceedings doe belong, Altho in these presents express mention be not made thereof And by Judges by them delegated to award proc-esse hold, please, and determine in all the said Courts and Tribunal all actions suits and causes whatsoever as well Criminal as Civil, personal, real and mixt, which Laws so as aforesaid to be published. Our pleasure is and so we enjoy, require, and command shall be most absolute and available in Law and that all the Liege people {and subjects} of us our heires and Successors do observe and keep the same unavoidably in those parts so far as they concern them under the pain therein expressed {or to be expressed}, Provided Nevertheless that the said Laws be consonant to reason and bee not repugnant or contrary but as near as conveniently may be agreeable to the Laws, Statutes, and rights of this our Kingdome of England. And saving and reserving to us our heirs and successors the receiving, hearing, and determining of the appeal & appeals of all or any person or persons or in or belonging to the Territories aforesaid, or touching any Judgment to be there made or given And forasmuch as in the government of so 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 making of laws, neither will it be convenient that instantly upon every such emergent occasion so great a multitude should be called together. Therefore for the better government of the said Country wee will and ordain, and by these presents, for us, our heirs and Successors Doe grant, unto the said William Penn and his heirs by themselves or by their magistrates and Officers in that

behalf duly to bee ordained as aforesaid to make and constitute fit and wholesome 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 publicly to notify the same to all persons who the same doth or anyway may concern Which ordinances our will and pleasure is shall be kept {observed} inviolably within the said Province under pains therein to be expressed {[illegible deletion]}. Soe as the said ordinances be consonant to reason and bee not repugnant nor contrary but so far as conveniently may be agreeable with the Laws of our Kingdome of England and so 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 in their Life, members 2' Freehold goods or Chatties. 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 treasonc 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 them {x x x And to the end the said William Penn or his 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 color of any Extent or Largeness of [illegible deletion] {Powers} hereby given, or pretended to be given, Or by force or color 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 with the Sovereignty 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 void 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 } then, & from thenceforth, such Laws concerning with such Judgement & Declaration shall be made, shall become void, & other ways, the said Laws so transmitted shall remain & stand in full force, according to the true intent & meaning thereof.

Freedom, But Not Independence

Navigation and Mineral Rights

{Delaware Bays}
Delaware Bays

Wee doe also 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 Doyle, Lands, Feilds, woods underwoods, mountains, hills, Fenns Isles, Lakes, Rivers, Waters, Rivulets, Bayes and Inletts Scituate or being within or belonging unto the Limits 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 premises and the Fish are therein taken. And also all vines, Mines, and Quarries as well discovered as not discovered, of gold, silver, gems, and other {pretious} stones and all other whatsoever bee it of stones, metals, or of any other thing or matter whatsoever, found or to be found within the Country, Isles, or limits aforesaid.

Money as Political Speech

The U.S> Supreme Court decided, in a case called xxx that campaign contributions were a form of political speech and reaffirmed that corporations were to be treated as individuals. The leaders of the Democratic party maintained they were outraged by such a nonsensical position had been made the Law of the Land, although the contribution of nearly a billion dollars to the 2018 midyear elections soon raised a question of their sincerity in demanding the court reverse its position. Nevertheless, it is clear a sizeable population holds these views. How Congress might reconcile these two appreciable viewpoints remains an open question of unsettled law. The following is an attempt to modify the position somewhat, in order to make the matter less contentious.

Let's begin with a tentative position, whether as a beginning statute, or a beginning Constitutional Amendment: Any political contribution in order to escape taxes, is limited to the equivalent of $100 in 2020 value unless:

Employees Can Try to Force Companies To Ease Burden of Rising Medical Costs

Your Money Matters: Michael Waldholz (Staff Reporter of The Wall Street Journal)

If you aren't already paying a larger portion of your health-care bills, you probably will be soon.

In an effort to break their rising health-insurance costs, a growing number of companies are for the first time requiring employees to pay a deductible typically $100 to $200 a year family member before receiving benefits. Some companies that already had deductibles are raising them to as much as $500 a person. And some employers are no longer paying 100% of hospital bills.

You may pay as much as $1,000 to $2,000 a year of your medical bills under the new plans, instead of several hundred dollars. Adding to the pain, recent tax changes have made deducting medical expenses more difficult.

What can you do if your employer wants to change your health insurance? Although looking for a new job may seem to be the only solution, many personnel managers and benefits consultants say you may be able to persuade your company to ease the additional cost burden if you have the right information. It won't be easy, and many employers won't budge. But, in exchange for requiring you to pay more of your doctor bills, employers can upgrade other aspects of the health plan that won't necessarily cost them extra and could save you plenty.

"I'd adamant with my employer," says Joseph H. Rossmann, a consultant with A.S. Hansen Inc., "If he wants me to pay more of my medical bills, he has a responsibility to set up programs to help me be a better buyer of medical services."

Benefit managers say recent research shows that employees who pay a greater share of their health bills sharply reduce their use of company health-insurance plans. Although some public-health officials say higher costs may cause patients to postpone needed care, insurers and employers say there isn't any evidence that employees health suffers. Rather, they say, the new plans encourage employees to seek less expensive but equally effective treatment.

Exactly how much this actually reduces health care costs isn't known. But Hewett Associates Inc., a consulting firm, estimate a $100 deductible can save an employer 14%. A $200 deductible can mean a 21% savings, and a $300 deductible can save 25%, the firm says.

Much of this savings result from what H+James Norton, a principal partner with benefits consultants William M. Mercer-Meidinger Inc., calls a "blatant cost shift" from employer to employee. To soften the blow, many employers couple higher deductibles and other changes that cost employees more money with broader coverage and added benefits including fitness programs, or other Sweeteners.

Berol Corp., a Danbury, Conn., company that makes pencils and Pens, used to cover almost all medical bills after employees paid a $100 deductible for outpatient treatment. It now covers 80% of medical bills after employees pay a deductible of $175 per person or a maximum of $350 per family, But as an incentive to limit the use of the plan Berol also pays each employee $500 a year, less any benefit payment. For instance, a worker who has $350 in covered medical bills will pay the first $175; the insurance plan will cover 80% of the rest, or $140. At the end of the year, the employee will get $360-$500 minus the $140 benefit payment.

Moreover, Berol pays for service it didn't previously cover, including routine doctor visits, physicals, and all infant medical care. The company also invites area doctors and nurses to speak at seminars advising employees on how to diagnose common illness and on where to find less expensive, out-of-hospital services. Berol's medical insurance spending, which had been rising 18% a year, has been steady since the new plan began three years ago.

Employers are finding that higher deductibles are more effective in reducing costs when targeted at the most expensive types of care. William Byrd Press Inc, of Richmond, VA., requires employees to pay the first $100 of every hospital admission, an additional $20 for each hospital day outside intensive care 20% of the doctor's hospital bill. "We want our employees to have an incentive to ask their doctor's whether they really need to be hospitalized, and then, if they are admitted, to press their physicians to discharge them as quickly as possible," says Stephen Lane, the company's director of human resource management.

Some companies use other approaches, such as paying the full cost of laboratory tests needed for hospitalization if they are performed before a patient is admitted. Some pay 100% of certain operations, such as tonsillectomy, that is performed in a doctor's office or surgery center that doesn't require an overnight stay. Others waive the deductible for hospitalization if it is approved by the company's insurance carrier or other so-called pre-admission certification agency.

There are also special programs that can save money for your employer and you. Health-maintenance organization, for example, usually provide all care without any deductibles, often charging employers a premium at or below the cost of other coverage. No Law requires employers to offer HMO membership, but you can encourage an HMO in your area to make a presentation to your company. Remember, though, most HMO's keep costs down by using their own doctors; if you join one, you will usually have to give up using your physician.

Another program increasingly available throughout the country is the PPO or preferred-provider organization. This type of program, usually organized by insurance companies, promises employers lower health-costs by signing contracts with doctors and hospitals with records of being cost-conscious. As an incentive to use these less-costly professionals, your deductible will be eliminated or reduced. Unlikely another of your choice belongs to the PPO Your employer can find out if a PPO exists in your area by asking its present insurer or the local chamber of commerce.

Finally, if your employer reduces its coverage of a hospital stay from 100% to 80% of the costs, check whether there is a limit on the amount you can be required to pay in one year. Many companies limit employee payments to $1,000 to $2,000. Without such a limit, even a short hospital visit could cost thousands of dollars.

A Toast to Doctor Franklin

{Benjamin Franklin}
Benjamin Franklin

Benjamin Franklin's formal education ended with the second grade, but he must now be acknowledged as one of the most erudite men of his age. He liked to be called Doctor Franklin, although he had no medical training. He was given an honorary degree of Master of Arts by Harvard and Yale, and honorary doctorates by St.Andrew and Oxford. It is unfortunate that in our day, an honorary degree has degraded to something colleges give to wealthy alumni, or visiting politicians, or some celebrity who will fill the seats at an otherwise boring commencement ceremony. In Franklin's day, an honorary degree was awarded for significant achievements. It was far more prestigious than an earned degree, which merely signified adequate preparation for potential later achievement.

And then, there is another subtlety of academic jostling. Physicians generally want to be addressed as Doctor, as a way of emphasizing that theirs is the older of the two learned professions. A good many PhDs respond by rejecting the title, as a way of sniffing they have no need to be impostors. In England, moreover, surgeons deliberately renounce the title, for reasons they will have to explain themselves. Franklin turned this credential foolishness on its head. Having gone no further than the second grade, he invented bifocal glasses. He invented the rubber catheter. He founded the first hospital in the country, the Pennsylvania Hospital, and he donated the books for it to create the first medical library in the country. Until the Civil war, that particular library was the largest medical library in America. Franklin wrote extensively about gout, the causes of lead poisoning and the origins of the common cold. By inventing bar soap, it could be claimed he saved more lives from the infectious disease than antibiotics have. It would be hard to find anyone with either an M.D. degree or a Ph.D. degree, then or now, who displayed such impressive scientific medical credentials, without earning -- any credentials at all.

Introductory Remarks: Anti Trust in the Twenty-First Century

Public be damned: testimony on managed care improvement legislation

Your bill, The Managed Care Public Choice and Improvement Act, reflects growing concern about the techniques and effects of HMOs and other forms of so-called managed care. It has been said that managed care stands convicted in the court of public opinion. That's about right, but it may miss the whole point. Let me explain.

Ordinarily, when a commercial product for sale has annoyed and frightened great masses of the public, it is unnecessary, and may even be counterproductive, to pass laws about it. The public will simply stop buying the obnoxious product, and the vendor will then either change his ways or go out of business. The customer is always right, we say, and businesses which do not acknowledge the reality are soon part of history. I'm afraid, however, that health insurance is a different sort of product.

In the first place, it has been given an almost unique income tax advantage. It is tax exempt as a business expense for the employer, it is not taxed as income to the employee, and it is not taxed when you use the insurance. This bizarre feature was created during World War II when we had wage and price controls, and it was never repealed. After the war, the IRS attempted to have the tax shelter repealed, but Congress lacked the political courage to change the law and it persists, now fifty years after the end of the war which was its excuse. This tax feature is the reason that almost everyone tries to have the employer buy it for them since it is about 30% cheaper that way. I buy it for my secretary and it gets the tax dodge, but when I buy it for myself, it does not get the tax credit because I am self-employed, not working for a salary. You might think this obvious unfairness was an accident, but the events of the recent Kennedy-Kassebaum bill prove it was not accidental at all. The K-K bill granted me and other non-salaried people 40% of the salaried exemption and gradually increased it to 80% of the salaried situation in ten years. Even this grudging concession to fairness was qualified by a clause which states even partial exemption is not available to anyone eligible for insurance to be bought through employer plans, I Make the strong surmise that insurance industry lobbyists must have been fluttering around the door of the House-Senate conference committee which enacted it.

So, the customer isn't always right, the customer must take what the employer chooses to give him. Managed care would have been history two years ago except for this tax provision. Now, there exists a second quirk of managed care which helps it persists in spite of public hostility. Public reaction quite naturally supposes that the high-handed and impertinent to save money. I doubt that. There has been enough experience with this matter to demonstrate that the high costs of this intrusive administration eat up most or all of the savings to the employer. The best that can be claimed is the rather weak argument that costs might have been even higher without managed care. Since the larger health insurers are currently before the Pennsylvania Insurance Commissioner requesting a 23% rate increase, it is far from certain just who is cheaper than whom on a five-year basis, regardless of appearances in any singer year.

If managed care doesn't save money, why do it? Weel, the central profit center in health insurance today is "adverse risk selection." If an HMO achieves a mixture of clients who are mostly healthy, its costs will be far less than with a mixture of clients who are sick. Healthy people don't get hassled by managed care; for them, the HMO is just a card in their wallet. The people who are getting hassled are sick, using the system, and generating the costs. Since the insurance company makes a considerable profit if such people get discouraged and choose another insurance, you can see there is actually a financial incentive to be obnoxious. The fact that the public doesn't like it is not a handicap, it is an asset. Therefore, this may be one of those peculiar situations where people like me, who dislike governmental intrusions, began to turn to the government for relief.

On a philosophical level, I am consoled by the fact that it was a government which started this mess, by creating the tax dodge which forces people to surrender their health care choices to their employers. In that sense, the government created this mess, and perhaps only the government can solve it.

This situation is far more serious than it has been portrayed to be. What the Health Care providers are doing to themselves to combat managed care is, in my opinion, more damaging and likely more permanent than what the HMOs are doing to providers. A central feature of this financial war is the aggressive assault by insurers on hospitals, to force them to reduce prices. In responding to this assault, hospitals have attempted to band together to resist demands for discounts. The usual method is for a nonprofit hospital to create a for-profit subsidiary and then sell it. That leaves a nonprofit shell with a lot of money, and no fixed mission to spend it on. In the Philadelphia region alone, I am aware of for-profit conversions foundations which have as much as $280 million in assets, and it seems likely the aggregate is nearly 4 billion dollars in what was once the community's reserve for charity, teaching, and research. That buffer is now out of the hands of the hospital operating units but remains threatened by potential claims of bondholders of municipal bonds sold for the original purpose of building hospital structures. If managed care finally succeeds in causing a train wreck of the community health delivery system, this reserve is going to be unavailable.

Hospitals are not the only entities which are merging in response to the managed care threat. Indemnity health insurance companies, or insurance with minimal managed care, may be defined in the present environment as providing "generous" health insurance. However, these generous health plans are being driven out of the marketplace by a quirk known as "adverse risk selection." Whatever an employer provides a choice of several health insurance options with fixed dollar employer contributions, it is well recognized that this system will quickly destroy the most generous options. Persons who perceive they will have significant health costs next year will tend to select the most generous plan, thus driving up its premium. On the other hand, people who perceive they will have little or no health costs next year will select the cheapest plan regardless of its benefit provisions, since they see it as buying nothing but a card in the wallet. And with a disproportionate number of clients who make no health claims, the premium of the cheapest plan is driven down even further. The adverse risk selections process will thus send the most generous plan into a "death spiral", and the following year the process will be repeated with the next most generous plan until eventually nothing but managed care is left, the more obnoxious the better from the insurer's point of view. The health benefits provided by Harvard University to its employees experienced this death spiral, in which the most generous plan went from being the most popular choices to having zero clients, in three years after Harvard instituted a fixed contribution system, while the other Boston employer plans showed no such tendency. I imagine that many faculty members of Harvard would claim to believe that healthy people should help share the costs of people who are sick. However, their own behavior seems to show that in fact, they are quite unwilling to pay their own actual costs, once the subsidy by well people are removed.

Hospitals are not the only ones merging. The statewide Blue Shield plan (which pays doctors) is involved in a contested merger with Western Pennsylvania Blue Cross (which pays hospitals), within a resulting combined entity called Highmark. Highmark is requesting a 22% rate increase, reflecting a loss of about $300 million last year by the Western Pennsylvania Blue Cross. Since no similar loss by Blue Shield is known, a concern must be expressed that premium payers in Central and Eastern Pennsylvania will be in effect subsidizing losses in Pittsburgh. This disturbing development can be ultimately traced to the destructive effect on Blue plan indemnity insurance by HMO managed care; the Blues are on the edge of an insurance "death spiral," which they are attempting to stop by engaging in managed care themselves. any number of innocent bystanders are liable to be hurt in the process.

The one legislative charge which would probably correct the whole managed care mess is to extend equal tax exemption for health insurance purchased by individuals. That change is only possible for the United States Congress. It was well on its way toward passage in the Kennedy-Kassebaum bill when it suddenly got limited in a variety of ways. I happened to meet one of the authors of the bill at a social function and asked why it happened. The answer was, "I was afraid I might hurt the insurance companies."

I hope you find these remarks useful. I would happily answer any questions.

Harvard Men Suggest a Cold Place for Yale

{Glacial Deposit}

THE Colonial disputes with Great Britain were settled in 1783, creating great opportunities for the Colonies to resume their disputes with each other. Because of the unfortunate earlier action of the Penn Proprietors in selling land already occupied by Connecticut settlers, the legislatures of Connecticut and Pennsylvania behaved in ways that do them no credit. The situation could easily have led to more armed conflict, and it could even have gone from local war to fragmentation of the nation. So, although New York was close enough to know better, they joined with Massachusetts in offering to consider carving a new state out of Pennsylvania's northeast corner. The proposal was rejected, but the geological idea remains.

The northeast corner was once covered by glacier, and the region remains separated from the rest of Pennsylvania by a "terminal moraine", which is the huge pile of rocks and stones left behind after a glacier recedes. There are thirteen counties of rather desolate woods in this corner, with five or six more counties of moraine. Even today, some upper counties have only five or six thousand residents scattered in little settlements. The whole idea of creating a new state died when people got a chance to walk around and actually look at the region. Although one county is named Wyoming, this was not Wyoming, Fair Wyoming, at all; this was a pile of rocks. Moraines were what the Connecticut settlers were trying to escape.

However, their grandchildren might be unsure. Tremendous deposits of anthracite were soon discovered in the region, and then oil in Bradford County. Present residents of New York City will apparently commute endlessly to escape taxes, so an interstate highway or two would probably quickly make the area into Little Brooklyn.

The central point in all this was beginning to emerge. Since the Constitution was ratified, it simply no longer matters what state you were living in, as long as you can trust the legislature and the courts to be reasonably fair. These two combative legislatures and affiliated courts were once quite obviously behaving in a manner too obscenely partisan to be tolerated. Everybody involved in this mess could see the advantage offered by the ability to appeal to a superior power dominated by the other eleven (now, forty-nine) states. Carving out a separate state was not a compromise, at all. It was a threat, just as unsatisfactory to one combatant as the other.

Although it was clearly time to put aside the grievances and vengeances of a land dispute which had got out of hand, currents of other wild and headstrong ideas continued to swirl into the northeastern corner of Pennsylvania. In April 1786 Ethan Allen himself showed up in this region, wearing full Regimental uniform. He declared he had formed one new state and that with one hundred of his Green Mountain Boys and two hundred riflemen, he could establish another one. There is some reason to suppose Allen was responding to an action of the Susquehanna Company of Connecticut, which had held a meeting the previous September where Oliver Wolcott drafted a constitution for a new state named Westmoreland. William Judd was to be governor, John Franklin lieutenant governor and Ethan Allen was to be in command of the militia. The Assemblies of both Connecticut and Pennsylvania immediately reacted with outrage to renounce the whole State of Westmoreland idea; when John Franklin persisted, he was dragged to Philadelphia and thrown into jail to calm his rebellious spirit. Nevertheless, the point was dramatized that -- even five years after the Decision of Trenton had supposedly settled the matter, and after all sensible neighbors urgently wanted this dispute terminated -- something else needed to be done to strengthen the Articles of Confederation, or preferably replace them entirely.

Litchfield County, Extended (1771-1775)

{Privateers}
Wilkes-Barre

FOR four years, the Connecticut settlers considered the apparently peaceful Wyoming Valley of Pennsylvania to be part of Litchfield County, Connecticut, and its main little town was called Westmoreland (now Wilkes-Barre, although it still has a Westmoreland Club). However, the high-living, non-Quaker sons of William Penn were ill content to let matters remain that way. Their response was to sell large tracts of land in the area, on condition the purchasers would do whatever fighting was needed to conquer and hold it. The main purchasers were Scotch-Irish from Lancaster County, and the main speculators were prominent Philadelphians with names like Francis, Tilghman, Shippen, Allen, Morris, and Biddle. This speculative land sale was to be the source of trouble for decades because it conflicted with titles to the same land issued by the Susquehanna Company.

The predictable trouble surfaced in 1775, with the Second Pennamite War. Under the command of a man named >Plunkett, 700 Pennsylvania soldiers marched to liberate Wyoming and were soundly defeated by the Connecticut soldiery under the command of Zebulon Butler. There might have been further fighting in this expanded war, except for the other eleven colonies applying great pressure on these two colonies fighting each other with potential jeopardy to the united rebellion against British rule. While the Penn family were definitely royalist in their sympathies, their colonial property put them in an awkward position with their Scotch-Irish allies, who were, in all colonies, the main leaders in the revolution. The effect was to isolate the Connecticut invaders, even though they were the victors in the fighting.

Legal Standing

The first obstacle for a lawsuit to jump is the right to use the courts. Although failure to demonstrate injury is one of the commonest ways to clear a court's calendar, insisting that the lawsuit must have some utility has become the very foundation for an impartial body of government to be free to settle disputes between citizens. There are other mechanisms, particularly the Courts of Equity of the young Republic, when there were many occasions when something was obviously wrong, but no statute covered the situation. By the Civil War, the Legislative Branch had more than supplied any deficiency of statute. The State of Delaware now has the only surviving Court of Equity, and "standing" now protects the courts from floods of useless lawsuits. However, that leads to the present Court System sometimes blocking a lawsuit, simply because the cause of the complaint is too broad, and requires special strategies to proceed. At the least, it requires a description of how an entire profession has been barred from its customary role, by an accident within the Judicial System.

History of the Matter. In the District Court of Maricopa County, the State of Arizona successfully sued the Maricopa Medical Society as antitrust for its prohibition from Medical Society Membership, any member who charged an indigent patient substantially greater than a fee published by The Society. This action was described as a per se violation of federal antitrust law, and without any trial of the facts was appealed successively to the U.S. Supreme Court. Two Arizona Justices recused themselves, and again without trial of the original summary judgment, was upheld by a 4-3 decision which still stands as National Law.

Subsequent Consequences. In Medical Circles, the Maricopa case is described as "dethronement of the doctors from control of the medical system" and "their replacement by non-physicians". For example, in 1948 the Nation's First Hospital (The Pennsylvania Hospital in Philadelphia) had two administrators, the Administrator and his secretary. Today, the same building which housed 200 patients in 1948 is entirely filled with puzzled administrators. The transition from physician control to something more legal has required insurance redesign which is still an expensive mess. After fifty years of trying, the pharmacy system is still cumbersome, the nursing schools have been upended, and the greatly enlarged billing system is still undecipherable. Meanwhile, physicians are quitting in their fifties because of the welter of unnecessary paperwork which keeps them from doing what they were trained to do, an occasional old nurse still defiantly wears a nursing cap, while cafeteria workers fumble at new-fangled uniforms. Everything has been unnecessarily changed, concealing the fact that it did not need to be changed. Meanwhile, those who took these supervisions in their stride are retiring early. Doctors used to marry their nurses; you now seldom hear of that. Salaries, which used to be zero, are now in six figures. Everybody complains; no one does what he was trained to do, especially the trustees. It once was the function of trustees to oversee funding requests of the doctors and get the money when needed; nowadays they rubberstamp the plans of administrators. There are simply hundreds of computers; no one reads their output. The disappearance of thirty common diseases (tuberculosis, syphilis, polio, rheumatic fever, etc.) is what keeps the system from collapsing. I received a salary of zero for four years, my grandson makes $53,000 a year of what is surely government money for much less medical work, much more red tape. If you don't believe these tales, I will be happy to call these people as witnesses. No doubt, witnesses for the other side will be happy to testify as well, and you can decide for yourself.

Repairing the damage. It took two thousand years to design the old system, but only fifty years to bring many hospitals to mergers, two medical schools to near collapse in Philadelphia alone. The Rs are fighting with the Ds over God knows what. All this mess cannot be repaired quickly, but it wouldn't hurt to get started. The Health Savings Account would be a better place to begin. Since remanding Maricopa for full trial would only be a beginning without much repair, it's little enough to ask as a beginning. The goal, well beyond my own sunset, would be to put the doctors back in charge and then waiting for fifty years. At least, stop getting in their road, since it is only fifty years since they stopped being the most admired profession on earth.

John Rutledge and Judicial Powers

{John Rutledge}
John Rutledge

The perfectionists at the Constitutional Convention took so much time establishing a careful foundation, that by the time it was necessary to adjourn, several vital matters had to be completed in haste. For example, designing the election of the President was a notorious casualty of careless drafting, and the election of 1800 was to be its near-tragic outcome. It proved necessary to pass the Twelfth Amendment to get things even approximately right. If Rutledge and his committee had not bullied ahead with a long list of tedious details during the July 4, 1787 recess, the hastiness of the Convention's September adjournment might have left many other matters in a similarly impossible jumble. Apparently, Rutledge, a lawyer graduated from the London Inns of Court, had sat by in fuming frustration as one essential matter after another was dumped on his "Committee of Postponed Parts". While the other delegates finally took a much-needed breather at the July 4 recess, Rutledge convened his committee and pushed through a considerable amount of the "boilerplate" which any good lawyer could see was essential, but the dominant soldiers and politicians of the Convention were afraid to decide. As matters turned out, Rutledge had it mostly right, and many of his points were never even voted upon. Unfortunately, when he later tried to do the same thing a second time, he slipped in some egregiously pro-slavery provisions, and the politicians slapped him down. Nevertheless, the proposed Constitution emerged with only a forgivable number of errors, an adequate legal system, and a framework on which John Marshall was later able to build a really outstanding judicial system. To some extent, the Delegates appeared to recognize they were covering up for the inadequacies of James Madison. Not much was made of it in public, but after the adoption of most of the Virginia Plan, and the great compromises of Franklin and Dickinson, Madison won very few of the motions he proposed during the last two months of the Convention. Prior to that time, just about everything he proposed had been adopted. He could not have enjoyed the contrast, very much.

Scholars have declared that the fatal flaw of the Articles of Confederation was that they forced the national government to operate through the intervening agency of the states, whereas the Constitution had a direct connection between "We, the people" and the national government. Nowhere was that truer than in the operation of federal taxes directly on the people, but it was just as significantly true of the Federal Courts. In the case of a vast number of other matters, skipping the involvement of state government may create some efficiency, but that gain is insignificant compared with the loss of sensitivity to local variations. There are indeed times when a national navy or patent system does things which individuals could not possibly do for themselves, but a vastly greater number of other times when personal choice and personal responsibility lead to a better result. It is indeed more efficient in the vast middle ground, to skip the overhead of deciding what is generally best for the whole country, and what to do about countless exceptions. In the case of the federal courts, however, the issues have been pre-selected and enumerated as too broad to leave to state variation. Therefore disputes about them are selectively worth more time and effort to find the right resolution. Seemingly unrelated matters all begin to fall together, which is often a sure sign of using the right approach. Generally speaking, however, there was nothing particularly clever or innovative about Rutledge's work on the Judicial parts of the Constitution. He just got it done.

Leadership and Priesthood

The Divine Right of Kings is not of much use anymore, even to kings. Nevertheless, it reflects a need to define the final authority, the final word, and therefore creeps into the legal system in various ways, even within a pure democracy. Aside from these traces in the most fundamental of laws, a democracy defines the ultimate leader by the slogan, "The Buck stops here." Late at night, pondering his decisions alone, the highest ruler of the State is apt to feel that all his responsibilities are burdens without compensating divine rights. That's not entirely true. He may use his discretion to bend or break the law in the public interest. But if it fails, he may never get a second chance.

{John Marshall}
John Marshall

Start with the example of Euclidian Geometry, where each step is a tightly proven consequence of other steps until you get 'way back to basic fundamentals, called axioms. Axioms are assumptions which have to be made without any proof. The axioms are probably true, but they have to be taken on faith, with the frank acknowledgment that if the axioms are changed, everything dependent on them must also change. The ancient philosophers mostly fell back on God to be the source of axioms, but in modern times it is more customary to rely on "Nature" as the source. During the Eighteenth century Enlightenment period, the "deists" fell back on "Nature's Creator" as a way of saying God without exactly saying it. The deists thus were able to say they believed in God, but only to the extent that He wound up the clock which now runs by itself. If you frankly haven't any idea where these axioms came from, you attribute them to one or the other of these concepts and go on with practical business. Just to take no chances on leaving a gap, a populace which universally believed in God was told that the King was the sole confidante, the sole agent, of God. As things evolved, the King had a divine right which extended to political matters, and the Priesthood was the local authority about matters of morals and spiritual consequence. As priesthood declined in popularity among protestants, Judges assumed the role of deciding "difficult questions", sometimes delegating the role to juries. Kings when they are little princes often get the idea that they are entitled to be capricious, otherwise what good is it to be King? This attitude is sometimes not discouraged when it relates to castles and fancy cars, maybe even to girlfriends. But if it is carried too far there is a danger that arbitrary capricious decisions may seem like a habit, carried over to issues the population has reserved to decide in other ways. When the king does it anyway, he is called an absolute monarch, not always a term of praise, and sometimes the first stage of incipient revolt. Nevertheless, there are inescapably some decisions which must be made, right or wrong, and somebody must make them and take the consequences.

{George Washington}
George Washington

When American Independence was declared, but much more when the Constitution was ratified, it was the first time the former colonists were confronted with living in a system where every citizen was considered equal and sovereign, and nobody else was a contender. A representative Republic provided the practical means for collective expression, and for forty or fifty years the public nursed their fantasy of Every Man a King. Politicians were however soon nibbling at the margins, and the practicalities of running the country did require certain practical concessions. The unexpected growth of the population, from one representative for 30,000 inhabitants to the present 600,000 inhabitants confronted America with a choice it never seemed to accept: a Congressman with 600,000 constituents can never remain in touch with their wishes. But a Congress with 6000 debaters cannot function, either. We have outgrown the original model, but have been unable to devise a satisfactory modification. The sovereignty of the people under such circumstances is much more limited, and the need for arbitrary decisions by the elected monarchs increases. All that remains of control rests in the periodic elections. And the realities of those elections are grim. Political parties dominate the nomination step. Gerrymandering concentrates domination of proportional representation into "safe seats" which permit party control of a majority of the representatives. Incumbency, instead of simply augmenting experience, leads to the electoral power of "name recognition" which all too often is recognition of the name of some relative of the actual candidate. The cost of campaigning among such large population groups greatly magnifies its concentration in parties or interest groups. And the social distance between voter and candidate reaches the point where voters are more easily deceived, by a mountebank. The talent of getting elected has decreasing relation to the talent of governing. Something will be done about these problems, but not necessarily very soon, or very adequately.

So we are reverting back toward sovereignty remote from the people, slowly and only partially we hope. Some of the features of remote sovereignty persist for that reason. We are forced to concede the decisions about atom bombs to the President, about the assassination of terrorists to the security agencies, the currency to the Chairman of the Federal Reserve, and the containment of epidemics to the CDC in Georgia. We delegate such authority to hierarchy in millions of daily ways. A guard was asked whether he would shoot a fellow citizen who was protesting something. His grim answer was, "I will shoot anyone the Sergeant tells me to shoot." It isn't a completely satisfying situation, but it is a variation of what John Marshall called "due process of law". We attempt to limit local discretion by organizing rules for every contingency which would require individual discretion, thus minimizing the chance of a capricious decision. The paradox is that most of this rule by regulation was promoted by the political party of Thomas Jefferson, who was our first experiment in making an instinctive anarchist into our leader. The responsibilities of office made Jefferson retreat in many ways, but it was his cousin John Marshall who knew him intimately and applied the brakes. Marshall, Ellsworth, and Story shared a vision of what the legal system could be, helped ease it into that posture, and then laid out a system of behavior which was at its root, "Honesty is the best policy", the theme of George Washington's Second Inaugural address. Marshall was an absolute ruler of the legal profession and was not above bending its rules to his design. He thought he knew what the Constitution was meant to be, and was determined to make the Judiciary enforce it. What was most distinctive was his insinuation of those principles into daily life, the culture of the nation. After the last vestige of the Federalist political party had disappeared, he intentionally made the American culture a Federalist culture, while seemingly confining his writ to the Federal Judiciary.

Roberts the Second

President George W. Bush nominated John Roberts to be Chief Justice of the U.S. Supreme Court in 2005. Since then, the Chief's administrative changes to the court and the whole court system have been slow but methodical. To the extent the Chief Justice has control of the matter, Roberts has been taking steps which make the Court into a more thoughtful branch of the Federal Government, ultimately making it more powerful. His first step was to reduce the number of cases considered each year, constraining them to conflicts between lower jurisdictions, unless otherwise mandated. This year, the number of cases heard is about eighty, or only half of the previous numbers. The policy lets unconflicting Appellate judgments stand. A second court must disagree with the first one, for the Supreme Court to enter the case.

The so-called Obamacare case, (NFIB v. Sebelius), meets this conflict-between-jurisdictions standard, but is notable for other innovations. The case was nationally broadcast as a live slide show. It heard arguments lasting three days instead of the usual single hour, and of course, it broke new substantive ground in a case of national interest. The decisions will now get more press attention; but this relatively rapid evolution toward a national debating contest, through modified Court procedure, is more important than it looks. It would be saying too much to claim the whole nation now fully understands its Constitution of enumerated powers, but surely the citizens who have only recently learned something about it must number in the millions. Before this case, many law school graduates might have had difficulty describing the design of the federalized system in a plausible dinner-table conversation. It's not yet clear where John Roberts is going, but he is surely trying to bring the public along with him.

During the semi-televised arguments, I was at first impressed with the rapid-fire exchanges between Justices and litigators about the operation of health insurance. Some people are born with high-speed brains and high-speed speech apparatus; no doubt, such people are sought after to represent others in court. But after practicing Medicine for sixty years and writing books about health insurance, I recognized that several rapid-fire responses by the attorneys were confident but off-target. Frankly, if you only have a few minutes but many points to make, and have to say them before someone interrupts, you would almost have to be a circus freak to manage. This is quite unnecessary, no matter how entertaining it may be to other lawyers. There seems no reason why the questions cannot be submitted in writing, sometimes employing experts on the specific points, and allowing enough time without interruption to devise a thoughtful answer. At present, it seems to matter more what the litigating attorney will agree to, than what is the fact. The outcome of cutting a litigant off after he says, "Yes, your honor, but.." is now only to establish whether both sides agree on a point; just why they agree or disagree is not even sought, let alone disregarded. It would seem useful to know Justice Thomas' reasons for abstaining from questions during oral arguments, for a different sort of example. So, it is easy to imagine that John Roberts has some thoughtful goals in modifying Supreme Court traditions, and equally understandable if jurists of this distinction become irritated by suggestions from the peanut gallery. It is thus fitting that we all hold back and first watch where the varsity means to take us. But allowing the public to express an opinion, is not the same as lobbying for it.

The Obamacare Act was about 2600 pages long, and two years after the President signed the bill, more than half of the necessary regulations remain to be written. The Law is "not severable", which is to say individual pieces of it cannot be attacked in court, without potentially upsetting decisions made on other portions. As a consequence, both the good and bad parts could endure for a long time to come. Or, the whole thing could suddenly sink from sight, relatively quickly. If the Justices can tolerate it, this legislation with many "moving parts" could be in the courts for a long time to come. So, Justices will then find the rule Roberts has made, of only accepting conflicts between the jurisdictions, protects their time and patience. But in doing so it will shift most final judgments into the hands of the lower, appellate courts. The legal profession will like this quite a lot. It will be like the gratifying situation said to prevail when a commanding General decides to retire -- everybody down the line could get promoted one notch.

By artfully selecting cases to argue, there were here four points open to the decision. Only two of them eventually had bearing on the final outcome of this case, but the whole issue is not necessarily concluded. The first decision got the most attention, deciding that the penalty for not having health insurance could be read as just a tax, and therefore was legal for Congress to use as a Constitutional basis for making health insurance mandatory, as Roberts declared the "Commerce clause" was not. The distinguishing feature of a Congressional exaction which is "just a tax" appears to be whether it exceeds the expenditure intended; if it exceeds the expenditure it would presumably be punitive. Nothing had seemed more important to the Founding Fathers than to expand the ability of the national government to impose taxes to service war debts. To truncate this wish of George Washington and Robert Morris into a short-cut, "Congress has the right to tax", or conversely to expand its confining language into "Congress has the right to tax in order to make private health insurance compulsory" just points up that the only real purpose of taxes in Washington's day was to wage war, and that the purpose of allowable taxes probably would have been defined if other purposes had been foreseen. Someone could usefully point out that what the Constitution really means is that Congress has the right to tax for "defense and the general welfare", and challenge anyone to argue otherwise. One sees the clever hand of Gouverneur Morris fuzzing up that argument; are we to ignore the fungibility of money and ask whether Congress may spend money on the general welfare only if it is general? How about earmarks, for example, are they all for the general welfare?

However, to turn a blind eye toward interesting issues is apparently a price that must be paid for obtaining the right for the Chief Justice to write the majority opinion, which eventually slips in some language (in legal language, an obiter dictum) to the effect that , of course, you couldn't use the Commerce Clause to do that. Getting Justice Ruth Ginsburg to sign that will eventually sound like the box John Marshall constructed in Marbury v. Madison. If that obiter dictum is as heat-resistant as the opinions of the first Justice Roberts in Franklin Roosevelt's court-packing effort, then the Commerce Clause is likely to be off-limits for a long time. Of course, if Chief Justice Roberts had joined the other four conservatives he would still have been able to write the majority opinion, but in the opposite direction. Except of course for that inevitable political accusation: There you go again, you 5-4 conservatives.

The second decision, in this case, is the sleeper. Congressional managers in charge of writing the bill had finally decided they had no way to cover 40 million uninsured people, except by diverting fifteen million of them into what is acknowledged to be the absolutely worst part of the American medical system, the state Medicaid programs. And because many States Rights advocates were in charge of state Governor's offices, the Congressional bill-writers added what is now a fairly familiar prod to cooperation. That is, if a state refuses to take the extra Medicaid patients, it will lose all federal funds for existing clients of state Medicaid. This sort of coercive provision has become so standard in highway bills and other federal programs operating at the state level, that it was largely unnoticed in the 48 hours the Congress was given to examine 2600 pages of legislative provisions. This, however, is blackmail, said John Roberts, quite unallowable under the defined separation of powers of the Constitution, between the state and federal levels of government. Furthermore, if some state decides to accept the penalty, it could close the existing program for the poor and accept the subsidy for the middle class, thus enhancing their revenues and reducing their obligations to the poor. Congress must now devise new strategies for suggesting federal programs to the states, and probably will do so. But the financial blackmail strategy now has a permanent black eye, with a skeptical public eye on the alert for it. The ironic conclusion of all this comes from the Congressional Budget Office, which predicts we will end up with 30 million uninsured persons, anyway.

What's awkward about this was immediately pointed out by attorney Richard Epstein: it ignores the century-old precedent set by Chief Justice Taft. Writing about a Child Labor law, Taft created a Supreme Court precedent that the Constitutional taxing power of the national government may not be used to implement what cannot be implemented directly. We can now see an example within the borders of a single case, where the Constitutional taxing power provision is used to indicate an otherwise impermissible Obamacare, and a few pages later its use is forbidden in the case of Medicaid in order to accomplish a forbidden coercion. Locating the two issues in the same case decision helps make the distinction between using the taxing power for revenue, and using it to coerce obedience; the distinction grows as the magnitude of the tax grows, particularly after it exceeds the intended government expenditure. What is not emphasized is the basis for Chief Justice Roberts reversing the precedent set by Chief Justice Taft on the same topic a century earlier. He did it with the Obiter dictum, and yet he didn't exactly do it. The four liberal Justices who co-signed the decision are not in a position to dispute it, while the four conservative Justices may not wish to. In either direction, however, the vote of the current Chief Justice appears to be both decisive and subtle.

It remains to be seen whether the 'tax, not commerce' strategy was clever. If the tax approach proves to be durable, it presumably extends to a wide range of legislation since Roosevelt's New Deal. Already, its awkward features have emerged in renaming portions of Obamacare into Chapter 48 of Subtitle D of the Internal Revenue Code of 1986 (!). Any law student who tries to look that up is going to have a frustrating time. But on the other hand, sometimes you win by losing. If it should somehow not be a tax, it has already been excluded from the Commerce Clause, so it has no hook left in the Constitution on which to hang it. There's something in this whole wrangle which resembles the position of Germany and Japan after the Second World War. In spite of losing that war, those two nations seem to have prospered better than England and Russia, who lost their empires but are said to have won the war .

Dark Morning at the Supreme Court

Congress recently extended copyright duration to 99 years if owned by a corporation, or the life of the author plus 50 years if the author retained the rights. Widely referred to as the Sonny Bono law, it was assumed to be a favor from Congressman Bono to the Walt Disney Corporation, whose copyright on Mickey Mouse was nearing expiration. Eldred, a publisher of reprints of old books, took this matter through the courts as an action against John Ashcroft, the Attorney General, to prevent his enforcement of a law which, in their view, violated the intent of the Constitution. Thus, the case of Eldred v. Ashcroft came up for oral argument at the U.S. Supreme Court. Since I was interested in reprinting important books about the dim Philadelphia past and discovered it was now usually impossible to determine who had copyright ownership, I went to Washington to hear arguments which might clarify the best approach to take. And perhaps to take the measure of the people on both sides of the argument.

{supreme court}
Supreme Court

fubar So, the Metroliner to Washington and overnight in a hotel. On the advice of people who knew people involved in Supreme Court matters, I set my alarm for 5 AM, arrived at the Court building at 5:30 AM. It was still pitch dark at that hour, and rather cold. Occasional fine showers would describe the weather. When I arrived, there were already 75 people standing in line. Several policemen kept the line in order, and chatted affably with the standees by way of implying that it wasn't their fault. When it's dark and the line is rather impromptu, some people will try to cheat on the queue, especially since many standees didn't know whether it made a difference or what to do if it did. What to do is to shout at the culprits to get back to the end of the line where they belong, which they mostly do after the policeman shambles over. At 9:30 AM, the line started to move forward. The policemen had been counting, too, and came back to about where I was standing. Sorry, sir, this is all that will be allowed in. What to do? Well, you can stand in another line to be formed, for fifteen-minute tourist visits, first-come, first served. As events unfolded, however, a number of people at the very front of the line had been paid to hold a place for someone else and then someone else didn't show up in time to get in as the line surged forward, so there were a few extra seats and I got one. I didn't dare get out of line to count the people behind me, but it was surely several hundred, forced to end up in the fifteen-minute line. The crowd exchanged a lot of grumbles about all this, mostly with a focus on why don't they allow this to be televised. Why not, indeed.

Inhibiting the behavior of the Justices might be one explanation. Some of them sat there silent as a stone, but many of them interrupted at will, and with acidity. Not only are the counsels at a great disadvantage in trying to make nice to people who will decide their case, they are strictly limited to concise presentation, where a interruption breaks the stream of argument. It becomes very clear that the proceedings are not held primarily for marshaling all arguments -- weak and strong -- on both sides, but rather to summarize the strongest, and give the Justices a chance to ask questions. The Justices and their clerks have presumably already read the full arguments which have been printed and handed in. This really isn't a trial. Public comments ("amicus briefs") must be printed and attached to the main briefs at the time the Court agrees to hear the case ("grants a writ of Certiorari")). Since the Court only agrees to hear a hundred cases a year, it "grants cert" less than 2% of the time. A case is supposed to be ripe for decision, all useful arguments having already been voiced, when the cert is granted.

So, under the present understanding of things, it may not be time to put these oral arguments national television. A more important step might be to find an effective way to publish the briefs on the Internet. Even then, the Court will probably squirm at the idea that they must listen to huge media campaigns, orchestrated to convey the implication that the Justices better yield to public opinion wrapped in the spin of the litigants. Since Walt Disney owns one of the three national television networks, that might not be an impossible development.

To get back to this case, it seems a little strange that copyright protection was deemed important enough to be among the few basic principles in the Constitution. Many have expressed the opinion that patents and copyrights must have originated with Ben Franklin, the only real author, and inventor attending the secret Philadelphia meetings of the Constitutional Convention. For what it is worth, the minutes show it was Madison who proposed the idea, Pinckney who seconded it, but Franklin was the world's expert on keeping his fingerprints off ideas. Most of the members of the Convention, farmers thought they were, were also members of the first Congress under the Constitution, when that Congress set the time of copyright at seventeen years. It is a pity they did not say so in 1787. In the eventual 7-2 Eldred v. Ashcroft decision, Justice Ginsburg chose to define the issue at stake as whether Congress had the right to set the duration of patents and copyrights. Of course, that was always beyond real dispute. But whether anybody ought to set it at 99 years, well beyond any author's lifetime, emphasizing the point by adding 50 years to any author's lifetime introduces fundamental questions of wisdom. One by one, every single Justice found a way to observe that this law was not wise. But rather than stirring up controversy with Congress over the fundamental rights of each branch, the Supreme Court seems to have decided to give a public opinion a chance to force Congress to eat its words.

Although the decision in Eldred is a disappointment to me and my private interests, I can live with it as a concession to public tranquility. But I really don't see why an overflow auditorium could not be provided next to the Court, where people who travel on the Metroliner and stand in the dark and cold for five hours, could at least watch a closed-circuit version of the oral arguments.

Relocation

{Privateers}
Moving Truck

For many decades, at least since the Second World War, the Northeastern part of the country has been losing population. And business, and wealth. In recent years, New Jersey has been the state with the greatest net loss, and the Governor who is making the greatest fuss about it. Statisticians have raised this observation to the level of proven fact, although lots of people are even moving into New Jersey at the same time. This is a net figure, and it remains debatable what sort of person you would want to gain, hate to lose; so it's hard for politicians to be certain whether New Jersey's demographic shifts are currently a good thing or a bad thing.

Take the prison population, for example. Most people in New Jersey would think it was a good thing if the felons all moved to some other state because it would imply less crime and law enforcement costs. But one of the major recent causes of a decline in violent crime seems to be the universal presence of a portable telephone in everyone's pocket. Just let someone yell, "Stick 'em up!" loud enough, and thirty cell phones are apt to emerge, all dialing 911. On the other hand, cell phones are the universal communication vehicle for sales of illicit drugs and other illegal recreations, and the increase in automobile accidents is a serious business for inattentive drivers. Add to this confusion the data that capital punishment is more expensive for the State than incarceration is, and you start to see the near futility of knowing what is best to have more, or less, of.

What the Governor and his Department of Treasury mostly want to know is whether certain taxes end up producing a good net revenue for the State. That is, whether more revenue is produced by raising certain taxes more than others, or whether some taxes are a big component of the Laffer Curve, causing revenue to be lost by driving business, or business owners, out of state, in spite of the immediate revenue gain. The studies which have been done are fairly conclusive that executives tend to be most outraged by property taxes, since they have a hidden effect on the sale price of the house, and the amount of money available for school improvements. At least at present levels, a Governor is better off taking abuse for raising income or sales taxes, even though the apparent tax revenue might be the same as a rise in property taxes. Since property taxes are mostly set by a local municipal government, while sales and income taxes are usually set by state governments, a decision to raise one sort of tax or another can have unexpected consequences, or require obscure manipulations to accomplish.

Some politicians who believe their voting strength does not lie in the middle class, would normally want to hold up property values, not taxes because the data show that higher home prices drive away from the middle class and in certain circumstances are positively attractive to wealthy ones. Higher prices appeal to home sellers, at least up to a point. Wealthier people who are buying houses are likely to have an old one to sell; that's less true of first-time home buyers or people presently renting. Certain issues can even be reduced to rough formulas: a 1% increase in income tax would cause a 1% loss of population, but a 5% loss of people earning more than $125,000. A $10,000 increase in average home prices, on the other hand, causes a net loss of population, but mostly those with lower income. One important feature of tinkering with average home prices and property taxes is that these effects are "durable" -- they do not fade away over time.

{Laffer Curve}
Laffer Curve

New Jersey is financially a bad state to die in, but the decision to move to Delaware, Florida or Texas is often made over a long period of years in advance of actually doing it. It has been hard to compile statistics relating changes in inheritance tax law to net migration of retirees and to present such dry data in an effective manner to counteract the grumblings that rich people are undeserving of tax relief, or dead people are unable to complain. But rich old folks are very likely to own or control businesses, and if you drive them out of state, you may drive away a considerably larger amount of taxation relating to the business in other ways. This is the underlying complaint of Unions about Jobs, Jobs, Jobs; but state revenue also relates to sales taxes of the business, business taxes, employee taxes, real estate taxes on the business property, etc, etc. Sometimes these effects are more noticeable in the region they affect; the huge population growth of the Lehigh Valley in recent years is mainly composed of former New Jersey suburbanites, who formerly earned their income in New York. The taxes of three different states interact, in places like that.

The audience of a group I recently attended contained a great many people who make a living trying to persuade businesses to move into one of the three Quaker states of the Delaware Valley. The side-bar badinage of these people tended to agree that many of the decisions to relocate a business are based on seemingly capricious thinking. The decision to consider relocation to the Delaware Valley is often prompted by such things as the wife of an executive having gone to school on the Main Line. Following that, the professional persuaders move in with data about tax rates, average home prices, and the ranking of local school quality by analysts. Having compiled a short list of places to consider by this process, it all seemingly comes back to the same capriciousness. The wife of the C.E.O. had a roommate at college who still lives in the area. And she says the Philadelphia Flower Show is the best there is. So, fourteen thousand employees soon get a letter, telling them we are going to move.

And, the poor Governor is left out of the real decision-making entirely, except to the degree he recognizes that home property taxes have the largest provable effect on personal relocation. And lowering the corporate income tax has the biggest demonstrable effect on moving businesses. But the largest un-provable effect is dependent on the comparative level of the state's inheritance tax.

Hedge Funds in Delaware

{Trimming the Hedge}
Trimming the Hedge

Some day a shrewd observer of the passing scene will notice the peculiar quality which attracts some businesses to the state of Delaware and coin a catchy phrase like Delaware Attractiveness to describe it in a nutshell. It surely underlies the way major national corporations predominantly incorporate under the laws of Delaware; other states don't like that. It probably accounts for the unusual accumulation of national credit card companies in that little state. Right now, it must be surmised to account for 24% of American hedge funds locating in Delaware. Just what is Delaware Attractiveness?

James Madison, the main author of our national Constitution, disliked taxes and debt and celebrated the ability of taxpayers to move to a different state if their home state raised taxes too high. The right to migrate away acts a discipline on state governments tempted to abuse power. A good example now exists in New Jersey, where one percent of the population pays 42% of the taxes, and that one percent is moving out of New Jersey as fast as it can. Eventually, that same 42% of taxes will be redistributed to those who remain, and something will be done about New Jersey state expenditures.

So conversely, little Delaware once had few corporations and little to lose by lowering corporate taxes. Soon, these low taxes attracted corporations from other states to incorporate in Delaware. When credit cards were invented, they were attracted to Delaware by low taxes, gentle regulation, and fair-minded courts. They were non-polluting businesses who employed a lot of rural labor made available by enhancements in agricultural productivity. One member of the Delaware Chamber of Commerce once mused, if it would attract the right sort of business, any hampering state legislation could be changed over a weekend.

{Adlai Stevenson}
Adlai Stevenson

This spirit of the American Liechtenstein attracted 24% of hedge funds to Delaware before most people knew what a hedge fund is. Without delving into the full complexity of the subject, a hedge fund addresses the instability of investing for the long term with short term money. Promising higher returns than mutual funds which can generally be liquidated overnight, a hedge fund locks the investor's money up for several years and hence needs to tell its competitors (and unfortunately also the investor) comparatively little about what it is doing with his money. One hedge fund operator stoutly defended the need to keep others from knowing his positions, illustrating how competitors who knew his positions would destroy him by "front-running", typically by flooding his positions with sell orders about ten minutes before or after the closing bell on the stock market. And, indeed that was a realistic concern since 70% of current stock trading is performed by unattended computers, who can transact huge sales in seconds when they detect unusual patterns of activity. So, when the stock market crashed in 2007-2009, Congressmen were pressured to find scapegoats. Some blamed computerized trading, and some blamed hedge funds. Quite possibly, it was neither one, since hedge funds were comparatively unaffected by the crash, and "programmed" traders made a great deal of money. However, Delaware is discovering that anyone who visibly escapes a nation-wide panic is under suspicion of causing it, and must fight off hostile legislation at least until the full facts emerge. The ability to front-run, and the ability to avoid having it happen to you, constitute a business advantage, an "edge". There may be more to it than that, but other features are cloaked in the secrecy which hedge funds enjoy, so secrecy is the business plan of hedge funds, apparently more tolerantly treated in Delaware than elsewhere. The price which hedge funds pay for their right to secrecy is the limitation imposed on them by the regulators as to who may be their customers. Therefore, an acceptable hedge-fund customer gets defined as a rich sophisticated person, who knows what risks are involved, and can afford to lose his money. Being in a small, closely-knit community where word of mouth is trusted, adds some degree of safety too. Adlai Stevenson once made an observation about trusting such protections:

In the past it was said, a fool and his money are soon parted. But nowadays -- it could happen to anyone.

Fees for Trial Lawyers, Section 1983 Variety

{Abuse}
Abuse

We are indebted to Nicholas D'Alessandro, Jr.,Esq. for opening our eyes to the marvels of "1983 cases". That's lawyer slang for Section 1983, Chapter 21 (Civil Rights), Title 42 (The Public Health and Welfare) of the United States Code. In effect, we are talking about a Reconstruction-era law passed in 1871, to protect ex-slaves from persecution by local Southern governments, "acting under color of law". During the entire first century after its enactment, about 270 lawsuits had been brought under this seemingly unobjectionable law.

Well, last year alone there were over 30,000 cases. The number has been steadily growing in the past twenty years, even though it is commonly believed Reconstruction is a best-forgotten episode in a tragic era of the past. Without significant objection, it is generally accepted that the main stimulus for 1983 cases is the recent (and extraordinary) feature of awarding full compensation for legal costs of the plaintiff. In other nuisance lawsuits, the contingent-fee system awards the lawyer a percentage (usually 33%) of the damages, making it unattractive to pursue minor cases. In a 1983 case, however, a trial lawyer could bill $350 an hour for many hours, while pursuing a case worth $100 in damages. A large proportion of these cases allege a local police officer deprived a citizen of his civil rights in the course of arresting him for a traffic violation.

Taken in the aggregate, awarding billions of dollars in fines against local governments can be imagined to represent a punishment of local taxpayers for not reigning in their police officers. They represent a signal from the federal government that it believes local law enforcement is too vigorous in the pursuit of minor infractions and creates an incentive to be less so. Alumni of the Vietnam War protests and other civil disobedience are probably sympathetic if they ever find themselves on juries in such cases.

In recent years, a growing source of 1983 cases have been related to local zoning laws and regulation. Many citizens claim they have been stripped of their property rights when forbidden to put a filling station in their front yard. Others darkly suspect local officials of taking secret bribes to re-sell the property to Wal-Mart, whenever government confronts the owner with taking his property by right of eminent domain. In cases like this, the sympathetic jurors are likely to be Jeffersonians, with a hunting rifle hanging above their fireplace. Such fiercely independent people, however, are given pause by knowing they must appeal the action of local officials to the federal government, acting under a federal law called Section 1983. The frustration must be intensified by learning the U.S. Supreme Court has declared it will not second-guess a local government by granting a writ of certiorari unless the action "offends our conscience". A careful search of the records of the Third Federal District (our own) fails to discover a single instance when that conscience was offended enough to intervene.

{Supreme Court}
Supreme Court

But, wait. In 2005, the public flamed up. In keeping with past tradition, the Supreme Court again found its conscience was not offended by the exercise of eminent domain by the City of New London, Connecticut. New London is experiencing hard times, potentially made worse by the threatened closure of the nearby submarine base. Accordingly, it seemed in the public interest to condemn some small private properties in order to assemble a large parcel of land for commercial development. Libertarian groups took up the case of Ms. Kelo, a dispossessed small landholder, and carried it to the U. S. Supreme Court, who declared that the eminent domain didn't bother them.

But Kelo v. City of New London did bother a lot of citizens all over the country. Even making allowance for the hostility to the eminent domain which has been growing for decades, and recognizing it is being stirred up by ideological groups, the Supreme Court still had crossed some sort of invisible line. What New London does with its waterfront is of small concern to the rest of the nation, but for the Supreme Court to declare it doesn't really care about such trifles is quite another matter. A man's home has always been referred to as his castle in this country, and title to a great many properties is only completely clear if you acknowledge the power of that gun on the mantelpiece. Add to that the recent extraordinary rise in real estate prices, and you might expect small property holders to be highly resistant to state takings. One must be sympathetic with the dilemma of the judiciary in trying to balance such intense attitudes with the general welfare of the community, particularly a community with floundering economics. But a Supreme Court that can't be bothered with trifles, that don't worry unless you light a fire under them -- had better expect to get fires lit under them.

Fisher on TV

{William Bingham class=}
Governor Chris Christie

As I was rushing out of my office tonight, trying not to be late for a gathering of constituents, I was suddenly confronted by a nice young lady holding a piece of paper, closely followed by a young man with a big professional TV camera. I like to think they were lying in wait for me, but more likely they were haunting the Starbucks across the street.

The question was fired at me, what did I think about Governor Christie using the Supreme Court about gay marriage? I had to admit I don't watch TV all day long, so I hadn't heard about it. Well, do you think it is appropriate for the Governor of a state to sue the Supreme Court? Huh, do you? Caught totally by surprise by a question I don't know much about, I answered, or mumbled, that it seemed to be a lawyer's question, and I'm not a lawyer. I do know that the U.S. Supreme Court will refuse to take a case unless the plaintiff can show he has sustained a personal loss of some sort. But I don't know anything about the New Jersey Supreme Court or its rules, and the whole thing seems to me to be above my pay grade. Or something like that.

If I had had more than ten seconds to think about it, I might have said, "What you really are asking me is Don't you think Christie is a bad, insensitive person?" And my answer to that question if put a little more plainly, would be, "No, I like Governor Christie a lot and I trust a former U.S. Attorney to know the fine points of law better than I do, so I support him."

And if I am wrong, and the real question you are asking me is Am I gay? Then, my answer would be, "No, I'm not gay one bit. But I am inclined to let other people do as they please, as long as it is harmless to others."

And if the hidden question is do I approve of people being gay, I would have to answer that if everybody became gay, it's pretty hard to see how the human race would survive. Now could I ask you a question? Who are you, and who is paying you to ask me slanted questions?

Follow-up, written the next day: The next day's newspaper gave an entirely new slant to this little episode. It seems the decision was made by the Superior Court, not the Supreme Court, and Governor Christie appealed the decision, he did not sue anybody. So the whole interview process was a put-up job, slanting the attention away from a record-breaking court decision to Governor Christie, who was dutifully responding to a Superior Court ruling which overturned a state law. All the rest of it was either intended to shift attention or else to tangle me up in a confused reaction to some events which did not happen at all.

In that case, let me state my central position. Governor Christie is a great guy, who definitely needs to win re-election November 5. And I am running for the role of Assemblyman for the 6th District, prepared to help him in every way I can.

Origins, Causes and Mechanisms: (1): "A Rabble of Dead Money"

Let's start with the pirate era of the Seventeenth century. The Spaniards brought back boatloads of conquered gold, and "pieces of eight" became common international currency. Gold doesn't rust, it was universally attractive, and just biting a coin tested its purity. Since its own ancestry was unprovable, gold facilitated piracy. But its unchallengeable past created a difficulty: if boatloads sank at sea, wealth was mostly gone for good, as was gold-exchanging.

Anonymity was particularly useful in revolutions. Necker the Swiss banker suggested it for the French Revolution, just as Robert Morris had used it to good effect in the American Revolutionary War. Substituting paper gold certificates for the real thing, if a boat was captured or sunk, fresh gold certificates could be issued with the gold in vaults none the worse for it. Morris' partner William Bingham became the richest man in America at age 28 using the system in privateering adventures in the Caribbean. Keeping such a simple system private always had advantages. It had probably made Morris rich as well, while he was busy running finances for the patriotic benefit of his country. With a few embellishments, it allowed the British Empire to conquer the world.

As Walter Bagehot, the editor of The Economist magazine fifty years later, explained things in his book Lombard Street, the gold standard made it possible to conduct fair but profitable trading in Hong Kong, India, and Jamaica, between semi-hostile people who had no reason to trust each other. Furthermore, it was possible to trade pineapples for copper or to conduct wars with nations of vastly different size. The key innovation was to use durable, portable gold as a proxy for anything salable, anywhere in the world, never trusting strangers. The Industrial Revolution was probably a result, rather than a cause, of prosperity, generating revenue which figured in the lives of Jane Austen's ladies just as surely as it put diamonds in Queen Victoria's crown. Adam Smith put it differently: a seller preferred the money to the goods, while the buyer preferred the goods, so both sides were happier after the re-arrangement, whereas England was paid to be a croupier. Sufficient complexity added to finance kept the simple system both private as well as manageable from a single crooked alley in London's "city". It has been claimed no more than fifty people fully understood the concept of gold chips at the center of a trading casino. Probably it was more like a thousand, but pretending it was far too hard to understand was a big factor in success. Charles R. Morris has written the best book about it I think I have ever read. But it is no exception to the golden tradition of mysterious complexity in a title. A Rabble of Dead Money doesn't come close to hinting what it is all about.

The gold standard amounts to balancing billions of dollars on the head of a pin. If a country's total debts are larger than a country's total revenues, it has "inflation". If total revenues are larger than its debts, it has" deflation", once you substitute the real price of gold, for its nominal price. The focus is the balance between the two, not the gross quantities of either because the focus is on probable ability to repay its debts. In a zero-sum game, the imbalance identifies who might get stuck for some debtor's default, except if nobody is stuck, the whole system collapses in a crash, until such time as the losses are redistributed by a prolonged depression. The faster transportation and communication become, the tighter the match between revenue and debt which must be maintained; statistical obscurity greases the wheels, computerized globalization quickly spreads it. Imbalances are sometimes resisted by keeping wages from falling, leading to violent opposition by labor unions to any suggestion of lowering wages, thereby prolonging the pain of repairing deflations by keeping one factor out of balance. These two factors prolong depressions, deliberate inflating eventually makes it worse after temporarily relieving the pain.

The gold standard, organized and administered by the British Empire, allowed individual nations to select whatever industries dominated their economies, but the casino owner always had an advantage. With economies consisting of thousands of products, the negotiator with the best aggregate information could classify hotels or restaurants as exports or imports, because the customers were a mixture of citizens and foreign travelers; they could even shift champagne independently from table wine. Consequently, a "protective" tariff could alternately be called a trivial 5% penalty or a ruinous 95% subsidy in history books, newsmedia or politics. Monetary rules are a zero-sum game, but to a certain degree, they are a component of politics. Britannia ruled the waves.

In the 1929 crash (deflation) the collapse of the system was not exactly anyone's fault, certainly no American's. It was caused by converting prairies to farmland in order to replace wartime food shortages, then ending World War I with a sudden reversal of Ukrainian wheat. If bankers made mistakes, it was the Rothchild family in the Viennese Credit Anstalt Bank . At that time, agriculture was the largest industry in the world, (shrinking to 2% of the workforce today). This helps explain why "slaughtering little piglets" actually helped things somewhat although much ridiculed at the time. It also points today to unemployment caused by computer electronics and artificial intelligence -- as far more menacing than it seems. There is a little hope of reversing the automation process as there was in quickly lowering the price of food in 1930. It's the right idea, but politics won't let you do it.

Similarly, we have been futilely battling for a century to restrain the tendency of banks -- making more loans than there is gold in their bank vaults. The present ratio of 20 dollars in loans for one dollar of "reserves" seems to be very close to the natural un-safe limit. The experience of the Smoot-Hawley "protective" tariff ought to be sufficient warning, but it cuts both ways. There was a war between Congress and the President about this, and the President lost. A five percent tariff seems bearable until you realize that the banking system currently multiplies by 20, to result in a hundred percent effect on the manufacturer. Add the speeded-up "velocity" effect of computerized payment systems, and what appears to some people as harmless is actually totally destructive.

Since so many of these effects are based on overusing features which help a lot of people, things usually get pretty bad before they are fixed. But one man-made cause could be eliminated quickly just by a silver-tongued leader who is honest, (if you can find such a thing). Over and over it must be repeated so a third-grader understands: after a deflationary crash, never try to go back to universal pre-crash currency levels. Wealth has been destroyed, so the economy must rebalance it, in some way, at some rate. We had a wild ride, and we must somehow pay for it. The path forward is literally strewn with attempts to pay off fixed debts with inflated currency. You might get rich by being lucky, but someone else will be impoverished by your effort; so he may thwart it. Inflation caused the problem, but inflation cannot cure it.

The period between world wars taught two other lessons: 1.) The reactions to a crash may do more damage than the crash does. 2.) Winston Churchill's going off the gold standard did so little damage that it raised a question whether the world might get along without gold in the gold standard. Thus setting the stage for substituting the dollar as the international currency at Breton Woods in 1945, and Richard Nixon later going off any currency standard at all in the 1970s, after Charles de Gaulle tried to corner all the gold. After all, if one nation owns all the gold, retaining a gold standard means no one can buy anything.

Cyprus Tests the Limits of Paper Money

{Cyprus Map}
Cyprus Map

Tourists like to banter about their favorite place in the whole world; until recently, mine was Cyprus. It's an eastern Mediterranean island, where it was possible to swim from beaches in the morning, ski in the afternoon, and luxuriate in an inexpensive but posh hotel in the evening. The locals had their ethnic rivalries, but what would tourist care. Since I was last there, apparently Russian and other billionaires discovered the place, and now three local banks are bigger than the GNP of the nation. Like Ireland, Hungary, Iceland, and several other small European nations, this dystrophic growth made it impossible for the government to guarantee the assets of the banks, as the familiar "lender of last resort" because the banks were bigger than the government. Accordingly, the local government was forced to declare a protracted bank holiday, to forestall what was certainly going to turn into a run on the banks as depositors all tried to get out the door at the same time. International stock markets immediately dropped a noticeable number of points, as the whole world suddenly discovered Cyprus wasn't such a nice place to put your money after all. The Russians might possibly be nasty people, but in this matter of bank deposits, people all link arms internationally like brothers.

There have been lots of other bank panics in small nations without much agitation, so what seems to have bothered the markets was the decision of the Central European Bank to tax the depositors 10% to support the system. Christine Lagarde, the head of the International Monetary Fund, said she thought it was a good idea to tax depositors, and that really upset a lot more people. Ms. Lagarde is French, but the IMF which she heads is located a few blocks from the U.S. White House, so the suspicion grew that Mr. Obama might approve of placing a tax on bank deposits, too. As things started to get out of hand, everyone hastily dropped the whole idea, and even the Cypriote Parliament voted against it. There was no time for even the large organizations devoted to managing the news to manage this one. World opinion was instantaneously mobilized, and thunderous in voicing its low opinion of taxing bank deposits, by anyone, anywhere. What was accidentally aroused was the realization that since the World went off the gold standard in 1971, the world's money is backed by nothing at all except a computer notation? Irrevocably taxing it in bank accounts could be done in an hour.

In 1944 the international conference held at Bretton Woods, New Hampshire, agreed that other nations could exchange their currency for American dollars, but only the U.S. dollar could be converted into gold. As long as the U.S. ran a trade surplus, the gold remained undisturbed in Fort Knox. But when other nations began to export their goods in the 1960s, their dollars began to be changed into gold. Gresham's Law took over quickly since when two currencies of unequal value circulate together, the more valuable one will quickly disappear; the shifting balance of trade had made gold more valuable than dollar bills. When President Nixon began to see that Fort Knox was soon going to be emptied, he put a stop to the exchange. He "closed the gold window". At that point, we were all off the gold standard, but nothing much happened. It remained possible to continue to speak of gold as a "barbarous relic", and by implication, any standard like silver or oil or land was also a barbarous relic. But the experience of Cyprus taught the world that everyone did want the value of a currency to be independent of the whims of government, and like the Emperor's suit of clothes, was just waiting for someone to point it out. A system of monetary exchanges, or exchanges of goods and services, really can be run without backing by anything except the word of government. But inflation targeting does need a government to run it, and thus governments have acquired a power over currencies which centuries of experience had taught people not to trust for a moment. North and South American hemispheric trade had been comfortably run without governments for centuries, as long as there were Spanish pieces of eight in actual circulation. But the modern Cyprus government could not run for a week without the trust of depositors, and neither can any other government. Conversely, it is impossible to run an economy without a government to guarantee the international value of money. People don't like that situation, and the threat of chaos in the streets is not much different in any place in the world which does not run a brutal military system. When you reach a point where even the soldiers refuse to be paid with paper money, you are about at the point General George Washington found himself after the Revolution. Robert Morris convinced him it would be possible to base a currency on the credit of the nation, and General Alexander Hamilton had been taught how to run such a thing. The rest of the country didn't understand what that meant, but they did understand that it seemed to work. But it would only work if the people trusted their Constitution, and the government is designed. But then, our government never tried to put a tax on bank deposits. In fact, it took another hundred years before the American public was completely certain you could trust banks even to exist. The good ol' mattress, that's where to keep your money. If it's in gold coins, that is. Paper money might just as well be in a bank because its value is only symbolic of a government promise.


REFERENCES


The Battle of Bretton Woods: John Maynard Keynes, Harry Dexter White, and the Making of a New World Order: Benn Steil: ISBN-13: 978-0691149097 Amazon
Robert Morris: Financier of the American Revolution: Charles Rappleye: ISBN-10: 1416570926 Amazon
Bitter Lemons: Lawrence Durrell: ISBN-13: 978-1604190045 Amazon

Gold Standard Substitutes

{Bretton Woods conference in 1944}
Bretton Woods conference in 1944

Make-shift proposals to address international monetary crises after 2007, particularly confiscation of bank deposits suggested briefly in 2013 for the Mediterranean island of Cyprus, stimulated a search for a better monetary system. A gold standard sufficed for thousands of years, but the Industrial Revolution increased world economies faster than gold metal was discovered, constantly driving prices downward. It became increasingly difficult to manage the rapid growth of debt, as happens in wartime. The crisis which led to the 1944 Bretton Woods Conference was the inability to accommodate the massive national debt rearrangements of the Second World War. With the United States owning two-thirds of the world gold supply, international trade was seriously impaired.

Bretton Woods created the International Monetary Fund and the World Bank, which can be ignored for present purposes. It established the United States dollar as a "reserve currency", alone able to be exchanged for gold. Other nations were allowed to exchange their money for United States dollars. Supplemented at the Bretton Woods conference in 1944 by this gold-standard-once-removed (the U.S. dollar as a "reserve currency"), this expedient only prospered as long as the United States could maintain a positive trade balance. After 1960, the outflow of gold from Fort Knox was relentless, and in 1971 the United States was forced to abandon its buffering between gold and the world's banking systems. After 1971 the world's currencies would supposedly trust their central banks to be "lenders of last resort", but in the financial crises after 2007 many could not sustain that obligation. What they could do was devalue their currency, and even that expedient was blocked by the rules of the eurozone. Put to the test, the European Central Bank became uncertain it wanted the role of lender of last resort. At one time, the gold standard had provided the one backing for a currency which was independent of all governments' temptation to inflate away their debts. The U.S. reserve-currency buffer extended the system for several more decades, but after President Nixon cut the link to gold, the post-1971 system only provided a promise of a government rescue, without the universal ability of governments to live up to the promise. In a sense, governments backed their currency with a mortgage on the nation, and many mortgages were already overextended. For those nations, variants of the gold standard had been replaced by no standard at all. Since governments which had historically been the cause of inflation were now expected to be the source of its restraint, the private sector urgently needed to devise a new system to force the public sector to accept a new and unwelcome role.

Money on a gold standard was formerly both a storehouse of value and a means of exchange. The world supply of gold was unable to keep pace with the world's increasing wealth for more than a century, so prices were driven down, disrupting long term debts. Rising prices were just as bad; what commerce needed was price stability. What was devised for the 1971 disruption was inflation targeting. The Federal Reserve and to some extent the other major central banks, issued or withdrew currency to achieve a 2% inflation rate, thus hoping to maintain stable prices with a 2% growth rate. Skipping over the details of central banking, the Federal Reserve could safely count on the government to promote inflation at almost all times; the need was to restrain it to 2%. Unfortunately, contraction at 2% takes about as long as expansion at 2%, frustrating the hope of the public to have booms last as long as possible and depressions to be over as soon as possible. Periodic episodes of deflation are a problem. From time to time the economy expands its production capacity faster than consumption can grow, and the inevitable resulting panic not only impairs the ability of banks to lend but frightens the public away from borrowing. Without a gold standard, prices then fall even farther and faster than with gold support because money no longer has any intrinsic value. Our problem thus reduces itself to two requirements.

Without a gold or other monetary standard, and seeking to preserve the inflation-targeting system, how can we induce prices not to fall in a depression? And, how can we induce a booming economy not to increase its production capacity beyond what it can consume or sell, so that every boom period stops being followed by an uncontrollable crash? That is, much of the problem of keeping production from falling, is to prevent it from going so high it has to fall. That's not so easy in a democracy; if you stand in the way of making money when making money is easy, you will very likely be voted out of office. Price controls, by the way, have been tried many times; they always fail. The practical problem is thus pressed into the mode of forcing savings into some sort of escrow fund, during boom times. Meanwhile, the practical politician must persuade a suffering public that, once you overbuild capacity, it will probably only wear out at the same 2% rate that it took to grow so big. These are not new sentiments; the public must learn self-restraint during booms, something it has repeatedly resisted.

{Fort Knox}
Fort Knox, KY

Features particularly irritating to the private sector about the Cyprus proposal had several sources, all of them heightened by annoyance that the bureaucracy would immediately try to force the private sector to pay for administrative design blunders. A gold standard permits international trade in defiance of government wishes; a currency without a physical store of value cannot exist without workable rules for international trade. If satisfactory rules cannot be made, voices will demand a return to the gold standard. No one said the Greeks and the Turks should love each other; no one said the Russians must respect private property. What is stated is if workable rules are not forthcoming, private alternatives will arise.

Ben Bernanke is not only the chairman of the U.S. Federal Reserve, but he is also one of the recognized academic experts on managing depression. He has spent his life studying this particular problem and occupies the most powerful position among the group charged with doing something about it. His innovation in the management of a financial crash is QE, quantitative easing. Essentially, this amounts to the creation of a fund managed by the Federal Reserve, generated by purchasing bonds with money created by the Fed. The content, size, and purpose of the fund have varied in the past few years, to the point where it amounts to a gigantic fund at his disposal, as needed, Initially, it injected funds into markets frozen with fear, and successfully unfroze them, making a profit for the Treasury along the way. He next used the fund to manage a gigantic Keynesian effort to stimulate the private economy with a federal fund. While it is possible this stimulus averted some worse disasters, the net effect was not outstanding and is generally regarded as a failure. His current effort, titled QE3, amounts to an enormous effort at what is termed "good bank, bad bank" in financial jargon. Because so many good bonds are undervalued in a recession, it is believed they will return to true market value if the truly bad bonds are removed from the market place. In Victorian days, this was accomplished by bankruptcy, but it is thought to be more humane to buy up and remove them temporarily from the marketplace. The humane approach, of course, has the disadvantage that the bad bonds may reappear later, and some critics say it is only a variant of "kicking the can down the road." It seems to have worked well for the Scandinavians however, and the final verdict cannot yet be issued. For the purposes of the present discussion, the essential point is that a three-trillion dollar discretionary fund has been put in the hands of the most powerful and most knowledgable person involved in international finance. At the moment, the fund contains most of the dubious bonds in circulation, but there are signs that Bernanke plans to replace them with U.S. Treasury bonds, thought to be the safest investment available. He can essentially do anything he pleases with this fund, subject only to the approval of the rest of the Board.

It must have occurred to Bernanke, that this multi-trillion dollar fund of the safest investments on earth would make a highly suitable substitute for gold, if it ever becomes clear that the world needs to return to some tangible commodity to back its currency, or become the new lender of last resort, if we choose to put it that way. Mr. Bernanke essentially needs no one's permission to create this fund, but to use it in some novel way would require the permission of politicians, acting in some way identifiable as the will of the American public. If it should come to that, a few suggested limitations immediately come to mind.

In the first place, one of the main purposes of imposing a gold standard on spendthrift Kings was to keep the King from spending it and substituting his own worthless paper money. Three variants of this threat, inflation, devaluation and confiscation, all amount to the same thing, which would get us back to our present predicament quite quickly, indeed. Mr. Bernanke must realize that our Constitution was written by Founding Fathers who were intensely fearful of entrusting as much power to one person as Mr. Bernanke would likely possess if this idea moved to implementation. To put it bluntly, the first action after it is done should be to surrender the ability to do it. To take another lesson from Constitutional history, it might be remembered that the functions of the Legislative Branch were established in six months, those of the Presidency evolved in the first five years of George Washington's office, and those of the Supreme Court required forty years to evolve. During all of that time, the ability to destroy the Constitution's main purposes had to be shielded from unbelievers, and an apparently unnecessary Bill of Rights had to be appended to reassure the remaining doubters. The main risk to this technical monetary reconfiguration is not monetary, but political.

{Financial Crisis}
Financial Crisis

But there are technical issues, as well. Because they are technical, it is more difficult to depend on wise public opinion, and thus it enhances feasibility when technical issues can be translated into political speech. Because events have demonstrated it is much more difficult to reverse a depression than a bubble, thought should be given to devising ways to use this new vehicle to reverse depression. Obviously, it should be used to unfreeze a frozen market; that's an important lesson from the success of 2009. Furthermore, the revenue from three trillion dollars of bonds is appreciable and should be used to finance tax reductions in a recession. More importantly, it should be withheld from government treasuries to restrain a developing bubble, more or less forcing governments to raise taxes during a bubble. Perhaps standards are necessary for expansion and contraction of the fund itself to supplement the use of the fund's income in those extreme situations. Indeed, to forbid the use of principal for those end-purposes might leverage the effectiveness of changing the fund balance, because it would force larger swings of principal to be adjusted. Most of these considerations come into play when a bubble is being restrained because it is easier to restrain a growing bubble than to repair the damage once it bursts. Restraining a growing bubble is not easy, and picking the right time is still less easy. Better to make most of it automatic, and related to defined market benchmarks. Benchmarks may be inaccurately chosen, but at least something is learned for the next time.

Mr. Bernanke's QE fund is not the only one which could take the place of gold in a new monetary standard. Commodities of various sorts would not be much different from gold and might soften the volatility of the mining supply. Land could be used, or fresh water, or petroleum; perhaps we could divide up the ocean in some way. Among the more attractive candidates would be world index funds of stocks or bonds; bonds seem perhaps more suitable, perhaps not. But at the moment, no one seems to be exploring any substitute monetary standard other than gold or the QE fund. Perhaps the disadvantages of each would cancel out in a basket of all the suggested standards. Perhaps inflation targeting can be improved, and no other benchmark is needed; perhaps international branch banking could cover the requirements. And perhaps it is all an academic exercise, but it would still seem helpful if academia would explore a little further, just in case we need them.

Solutions? : "A Rabble of Dead Money "(2)

World depressions usually change world economics. Even if they don't, they are too complex to be reversed by simply retracing the steps which caused the trouble, particularly if the people in charge misunderstand what is happening. At least, it is much too simple to imagine inflation is a straightforward cure for deflation.

Birth control, Ride-Summoning, and States Rights: Science Shakes All Three Levels of Government

Until the Industrial Revolution, most histories was a story of leadership, usually military leadership. But since then, history has become a story of new ideas, mostly in the form of technical advances. Even wars are now won by new weapons. This essay describes how the three levels of American government are destined to respond to changes in ideas.

The first is BIRTH CONTROL, discovered around 1956, but eventually revolutionizing nation states. One of the cardinal rules of state relations, established at the Congress of Westphalia, was that nation-states would exercise sovereign control within their boundaries, but never attempt to change boundaries or influence national sovereignty within the boundaries of other nation states, except as an act of war. As matters turned out, the greatest violators of this doctrine were women, trying to change and protest the clothing, work habits, freedom to drive automobiles of women within the boundaries of other nation-states, regardless of local custom and laws. Local leaders resisted such violation of local sovereignty, and it is unclear where this is going. The banner they are flying, "human rights" is clearly a challenge to traditional local sovereignty, regardless of the League of Nations and the United Nations, where such ideas had previously to birth control been mere murmurs of discontent.

Bernanke's QE3: A New Titanic, or A New Bretton Woods?

{Ben Bernanke}
Ben Bernanke

Nobody likes to execute a guilty prisoner, but in finance, it is surely true that allowing bad debts to remain unresolved harms the whole economy. It makes little difference whether a bank fails to mark its debts to market, whether debts are "extended", or insolvent institutions are subsidized. Andrew Mellon once advised Herbert Hoover that he should "wring the rottenness out of the system", but that is such poor politics that even Hoover rejected it. In time, the process of "good bank, bad bank" was devised to isolate bad debts into a single institution so the rest of the economy could begin to recover. QE3 is a version of a good bank, bad bank. Unfortunately, the public is easily misled in these matters, so although all three Q's involve the Federal Reserve buying long bonds, QE1 unfroze a frozen financial marketplace (successfully), QE2 meant to stimulate the economy (unsuccessfully), but QE3 seems to have much grander ambitions. So it is unfortunate that three different activities share the same name, and still more unfortunate that name is made so mysterious. Let's forget about the first two, and concentrate on QE3.

The Federal Reserve is well along in a program of buying huge quantities of questionable long bonds and has announced it is going to keep buying huge quantities until either inflation exceeds 2.5% or unemployment falls below 6.5%. That's not exactly the same as buying every bad bond in existence, but it could come to that. Instead of letting the holders of those bonds go bankrupt, the Fed is buying the bonds out of circulation, which could rescue a great many investors. Small businesses do not ordinarily issue bonds, so there is some bias in favor of large businesses and banks, but surely not an intentional bias. The effect is to make the Federal Reserve both a good bank and a bad bank at the same time. The main difference between this and wringing the rottenness out is that bankrupt institutions cannot come back to haunt you, while in the more benign purchase of bonds, you have assumed an obligation to pay them back. When you sell them back you drive the price down and the money disappears. Furthermore, when the price of bonds declines, interest rates will rise and the national debt will increase more rapidly. If the economy cannot withstand higher interest rates, a recession will deepen. You have to get the timing right, and the world is in such a delicate state that it is impossible to get the timing entirely right for everybody. Because interest rates are now essentially zero, they cannot go lower, so investment advisors are increasingly advising clients to sell some bonds while they still can. If that gets out of hand, it could start a panic.

{United States Federal Reserve}
United States Federal Reserve

However, the United States Federal Reserve is not an investor, it controls the currency and can print unlimited amounts of it. There is nothing which can force it to sell its bond holdings, ever. Without going into the details of the Bretton Woods Treaty, the tie to gold was eliminated nearly fifty years ago. Meanwhile, its bonds are paying interest, which at the moment it is returning to the U.S. Treasury to reduce the national debt. It can reduce this outflow more or less at will, and it can increase it by raising interest rates (ie by selling bonds, as described). With a few extra steps, this enormous pot of debt could become the basis for an international currency reserve. At the least, it could bring a halt to an international currency war. If it chooses, it can decide to wait as long as fifteen or twenty years for economic demand to recover from a century of overleveraging, and then pay it back by letting the bonds reach maturity. But there is at least one big flaw in this dream.

At some point, the bond market may decide to take the bull by the horns and raise rates before the Federal Reserve wishes to. Political appointees come and go, and the bond market could easily decide that a misjudgment has been made by somebody. It could easily happen that public apprehension could grow that something doesn't smell right. In that climate, a few heavy sales could trigger a panic. And then everyone will try to get out the door at the same time.

Declaration of Independence

zzzbill of Rights

This topic is complete; blogs edited, sequence adjusted. It may need a section on slavery, and more bridging.

xxxMonetary issues in the Constitution

Click Here to Go On to Ratification, Bill of Rights and Other Amendments

Deficits Don't Matter When Your Party Is In Power

{CBO February 2013 cover}
CBO February 2013 cover

The cacophony that is the economic debate: Paul Krugman reports today (March 11, 2013 in the New York Times Op Ed) that the February 2013 CBO report shows that America's deficits don't matter.

One of his points is that automatic stabilizers did their job: people lost their jobs -> unemployment payments went up -> the pain of the recession was lessened ... and as things improve, government expenditures will go down (are currently going down, in fact).

This is the basic macroeconomics one learns in college, but looking at the CBO's summary I have a hard time thinking our deficit situation is not a continuing problem. The bottom two graphs are hopeful, but the top graph does not inspire confidence. I didn't read the entire report and maybe Krugman did, but the graphs presumably are what the CBO thought summarized their findings.

Funny that Krugman and Cheney have both told us that deficits don't matter. I think maybe deficits don't matter when your party is in power.

Economics of the Oct. 4th, 1779 Attack on Fort Wilson

{Fort Wilson}
Fort Wilson

From time to time new essays appear, arguing the dynamics of the Fort Wilson episode of mortal gunfire between factions of the Revolutionary cause. The event is an important one, primarily because it involved several men who later were Delegates to the Constitutional Convention. It thus casts light on the economic attitudes of leaders in the effort to revise the constitutional rules for property which emerged eight years later, in 1787. It seems entirely fair to suppose that men whose lives were threatened by armed conflict with their comrades had retained a vivid memory of it.

In the first place, what became an armed conflict over inflation and food shortages was a dispute which lasted more than six months, and had the outlines of an organized conflict between two parties, the Republicans and the Constitutionalists, which also had the character of class warfare between the merchant class and the yeomanry of the city. And although the economic issues involved in this conflict have been recurrent over a period of two hundred years, they are not exactly settled in the minds of the two parties. It is not too much to suppose that a representative group of present-day Democrats and Republicans would divide into majorities who favor or oppose price controls, and who are made up of two social groups who style themselves Upper Class and Middle Class.

The most recent analysis of Fort Wilson was written by John K. Alexander in October 1974 in the William and Mary Quarterly and it is quite a detailed examination of the subject. Although the Pennsylvania militia did much of the fighting and introduced the extraneous issue of patriotic military service, they were escalating the anger of what probably started as reasoned economic debate. Food scarcities appeared on every side and were severe, prices were skyrocketing. It seemed entirely reasonable to this faction that merchants were raising their prices deliberately, taking advantage of food shortages, and that it was the responsibility of government to side with consumers to hold prices down with price controls. The merchant class calling themselves Republicans were led by Benjamin Rush, who grew concerned that the more numerous common people would use their majority power to injure the interests of the merchants. In the eyes of the consumer class, it is merchants who mainly set prices, and thus merchants must be restrained by government. Their viewpoint was augmented by the writings of John Locke, who had urged that the common people have a right to take arms when government fails them.

Almost any modern economist would reflexly assume that the problem underlying this agitation was inflation, generally styled "paper money" by the politicians of that time. If too much money is in circulation, prices will go up. If price controls are imposed in that situation, goods will disappear from merchants' shelves, black markets will appear, and with people starving, riots will break out. Academic economists should not jump to the conclusion that this is obvious, however. Prices are normally set by the sellers, held in check by consumers refusing to buy at unfairly high prices. When inflation takes place, it does so in hidden places away from public view. The treasury issues paper money, or reduces the gold content of coins, or the Federal Reserve issues bonds, more or less unseen by the public. Prices rise but for a while, the public assumes they are rising in the traditional way, by merchants raising their prices. The public is often slow to believe that a new dynamic is affecting prices because they want to believe they still have the power to reduce prices by verbal abuse of the merchants; it doesn't work. By the time the public realizes things are serious, things are mostly getting out of hand. Starvation is now a real thing, and the discovery of hoarding by merchants who will not sell at the old prices only heightens their conviction that sharp dealing is responsible for their pain. When they finally become convinced that their government is the enemy in this matter, it becomes time to distrust government officers, and maybe to burn a few buildings. The better-educated class is generally the more affluent class, with more reserves to protect them longer from the pain which the lower classes are experiencing.

On the other hand, if you are Robert Morris trapped in Wilson's red brick house, with bullets whistling past your ears, you also forget about economic theory and consider how you can save your own life, liberty, and pursuit of happiness. As the immediate danger subsides, you ask how situations like this can be avoided. And while it cannot be claimed that America has cured itself of inflation, much stronger controls are now in place, and many more of the public understand where the fault lies. If paper money inflation ever gets seriously out of hand as it did in Germany, Austria, China, and Zimbabwe -- the public will tolerate almost anything else to avoid it, for as long as a century afterward. But not indefinitely, as long cycles of history unfortunately demonstrate.


REFERENCES


The William and Mary Quarterly Oct,1974 Vol. XXXI No. 4 Page 589 John K. Alexander Amazon

Tax References in the 1787 Constitution

{top quote}

Article 1,

Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

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

Section. 7.
All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills.

Section. 9.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

{bottom quote}
Tax References in the 1787 Constitution

Paper Money

The Constitution does not prohibit paper money, as a glance inside almost any wallet will demonstrate. Although counterfeiting was a common problem in early America because of the primitive state of 18th-century printing, and the problems of inflation were commonly confused with the use of paper money, the Colonial merchant class mostly knew better. Paper money was a term of art for inflation, mostly evidenced by shortages and price controls, escalating prices and hoarding of goods. The Nobel economist Milton Friedman was succinct: "Always and everywhere, inflation is a monetary problem." Friedman was cute and brief, but he might have been slightly more clear. Governments control the money supply, mostly by borrowing to delay paying for their own spending. Inflation is not caused by paper money, or banks, or price controls. It is caused by governments spending borrowed money, thus increasing the money supply faster than the goods money can buy.

{Alexander Hamilton}
Alexander Hamilton
On the other hand, a moderate amount of borrowing can sometimes be useful. A growing business will speak of leveraging its capital, taking a small risk in order to enlarge itself. Within a few months of ratification of the Constitution, Alexander Hamilton was shocking the conservative farmers by intoning, "A national debt, if it is not too large, is a national treasure." A time-honored way to convince a nation of farmers has been to point out how wise it is for a farmer to borrow money for seed and fertilizer in the spring, followed by paying the debt back at harvest time. The secret of running a government successfully is to keep increasing the money supply, but gradually enough to prevent things from getting out of hand. In a mature economy, that's about 2% growth per annum; in a flourishing developing country, it is about 9%. In a world war it is 25%; much too much, but better than, than lose the war. With the crude measurement tools available even in the computer age, it isn't easy, but Robert Morris managed to do it. By the end of eight years of war in the wilderness, even he had used up his supply of tricks. But here he was, the acting host of the Constitutional Convention in his home town, quietly making deals and running off to run his business, three blocks from Independence Hall. If not the richest man in America, Morris was certainly close to it. His guiding star was a mysterious concept he called Credit.

America may not have had any hard money, and many people were having a difficult financial time of it, but in Morris's view, America was rich. America had rivers and forests, farms and factories, immigrants pouring in, and a prosperous energetic people already here. Even today, it is impossible to estimate what all that is worth, especially during periodic bank panics when everything seems worth a great deal less. A creditor wants to get his money back, so he will only loan appreciably less than he thinks the collateral is worth; a nation's real worth is therefore considerably greater than creditors collectively will lend. The creditors, unfortunately, don't really know what the nation is worth, either, and they have learned not to believe a word of what a debtor tells them. A nation's credit is estimated by the creditor community, and the one thing they know for certain is whether the nation has a history of paying its bills. A debtor may walk around in rags, or his wife may wear diamonds. The lender ignores all that; the question is does he pay his bills, promptly and in full. If he does that, he will have credit, and if he doesn't, he hasn't a dime of credit. What's America worth, according to that standard? About twice what the creditor is willing to lend him, and even that is a guess. It's why shop owners drive Cadillacs and investment bankers marry movie stars; and recently, why everyone had an inflated mortgage. Finally, it's why Alexander Hamilton wanted to buy up the war debts of the state governments, and pay off the worthless Continental currency. William Bingham may well have got rich speculating on Continental currency, but who cares. It's a cost of doing business, ultimately designed to assure you of ample credit.

Under the circumstances, it is sometimes difficult to understand why Morris was so moderate in his demands for clauses in the Constitution. He certainly did insist on the federal unlimited taxing power, which did in effect pledge the entire credit of the United States in the repayment of its debts, right down to the last shoe-button. And he was thwarted in even his own ability to make the four (Pennsylvania, North America, First and Second) national banks permanent. In general, however, Morris and Hamilton relied on the private sector and on legislation, rather than seek the sovereign level of federal power in the Constitutional Convention. When you recall those bullets whizzing around at Fort Wilson and at Yorktown, this level of self-restraint is rather remarkable.

Penman of the Constitution

{Gouverneur Morris}
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.

{top quote}
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. {bottom quote}
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}
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.


REFERENCES


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

Morris at the Constitutional Convention

{Constitutional Convention 1787}
Constitutional Convention 1787

TRUE, George Washington was the presiding officer of the Constitutional Convention. But Pennsylvania was the host delegation, so the role of presiding host should have fallen to Benjamin Franklin, the President of Pennsylvania. However, Franklin was getting elderly and turned the job over to Robert Morris, who among other things was rich enough to host some necessary parties. The rules of decorum at that time thus kept Washington and Morris out of the floor debates. The proceedings were, in any event, kept the secret, so occasional frowns or encouraging smiles are not recorded for history.

But Morris had been an active debater in the Assembly and other meetings, so he knew enough to line up a consensus in advance for the matters he thought were essential. Obviously, Morris was strongly in favor of giving the national government power to levy taxes for defense purposes, and Washington whose troops had suffered severely from the inability of the Continental Congress to pay them also regarded this taxing power as the central reason for changing the rules. By making it the central argument for holding the convention at all, Washington, Franklin, and Morris had made taxation power a foregone conclusion. And by giving them what they wanted from the outset, the rest of the convention was in a position to do almost anything else it wanted without open comment from the Titans. The sense of this trade-off was captured by Gouverneur Morris, the editor of the Constitution, in Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;
This formulation had the effect of greatly empowering James Madison, the only participant who had studied the inside details intensively and cared about every comma. It also encourages the military to believe that federal taxation was mainly their entitlement, whereas those whose main goals are defined as "the general Welfare" tend to regard defense spending as an unnecessary deduction from their share.

{Constitutional Convention 1787}
Pawn Broker Sign

Most of the convention delegates had experience with state legislatures, and Franklin and Morris had spent decades struggling with the weaknesses of legislators. A wink or a quip in a tavern was as good as an hour's speech for reminding the delegates what they already knew about human nature. What was designed as a dual system of powers of taxation, with federal oversight of balanced state budgets combined with federal power to tax on its own in emergencies or unforeseen situations. Since the members of the first few congresses after 1789 were largely the same people as the members of the constitutional convention, many details of this balance were worked out over a few following years. State powers to tax and borrow were tightly constrained, only the federal government could tax and borrow without limit. Since government borrowing is merely the power to defer taxes until later, the borrower of last resort was the U.S. Congress, alone empowered to encumber the wealth of the whole nation in a federal pawn shop window called the funded National Debt. For almost two centuries, this pawn shop window seemed able to support any imaginable expense. Today, we monitor this as the ratio of national debt to Gross Domestic Product (GDP), and we now have a clearer idea what level of that ratio flirts with hopeless inability to pay the federal government's debt. The experts say it's close to a 60% ratio, and unfortunately, almost every nation on earth now exceeds that limit. The system continues to lack an unchallenged definition of its limit, but the system is nevertheless still Morris's system, wrapped in a mountain of descriptive detail by Alexander Hamilton. If a nation borrows more than that and clearly will never repay it, that nation is to some degree a slave to its creditors, with war its only hope if creditors are unrelenting. Perhaps another way to refine the thought is to say that if the nation wishes to mortgage everything it owns down to the last shoe button, the creditors will only accept additional debt if it is proposed by someone with the power to pawn the last shoe button. To foreigners, the proof of who has what power is much more certain if written down. Morris's protege Alexander Hamilton went even further: "credit" is established when creditors can see that somebody is in the habit of getting the nation's bills paid, and "credit" is injured whenever anyone in charge, welches.

Competition for the Hospital, Rehab Center, and Nursing Home

{Privateers}
Milton Friedman

Price Restraint by Competitors. Milton Friedman once devoted his Nobel Laureate speech to creating new price competition for doctors by removing their licensing requirement; naturally, many physicians were outraged. It seemed to them we saw plenty of competition between individual practitioners. Competition between Homeopaths and Allopathic physicians had a history of unspeakable viciousness in the Nineteenth century; it could not have been of benefit to the public. Competition between Optometrists and Ophthalmologists has created unanswerable quandaries about specialization without a preceding general medical background, about the limitations inherent in a superspecialized lifetime, and the conflict of interest between giving advice and profiting from products which implement the advice. On the whole, it takes one to know one, and the Hippocratic tradition of peer pressure may have been as far as surveillance can usefully go. Lately, however, the herding of solo practitioners into group practices (by insurance) may require some reconsideration of heightened issues of organized fee splitting, cross-subsidy, and the loss of personal responsibility. Universal government involvement in reimbursement will surely unbalance these old issues, and it would probably be wise for the government to hold back until we can see if its heightened interest in cost control improves matters, or worsens them.

Turning matters over to the trial bar, however, commercializes the motives of the investigator and provokes defensive medical behavior which is just as expensive as any negligence left in a practitioner after a decade of education. Healthcare institutions with business departments moreover have the uncomfortable incentive to use the price of hospital malpractice insurance as a major metric, thus exaggerating the role of plaintiff lawyers in escalating unwarranted defensive behavior within the institution. For a century we have observed more expensive institutions destroying less expensive ones, always using other descriptions of the process. Horizontal integration could be forgiven when more expensive hospitals shouldered heavy burdens of indigent care, but the 20th Century transfer of indigent care to the government also transferred much of the credit for it. Research is also mainly a governmental transfer of funds rather than a payment, with administrative costs a local bonus to be enjoyed rather than deplored. These disloyal viewpoints justify the proposal that more competition for healthcare institutions would be beneficial, at the fortuitous time that escalated construction costs discourage government funding of it, while private borrowing costs are essentially zero.

Teaching hospitals are unchallengeable the best place for delivering tertiary care, and must not be injured by mere reformist ideas. However, this function is probably underfunded at present, subsidized by inflated costs for so-called bread and butter medical care, transferred by cost shifting. Considerable cost savings are possible if this system is brought more in line with its true costs, but it must be done carefully. Having said that, it is surely true that much of the care delivered in tertiary institutions could be capably performed in less expensive institutions.

The Central Locus of Healthcare. When I started medicine, which was fifteen years before there was a Medicare, the doctors of Philadelphia tended to have their offices on Spruce Street. It was like, and it looked like, Harley Street in London. In time, doctors moved their offices to the campus of a nearby hospital, where they now can be found, using the parking lot and the laboratories, and seeing each other at lunch in the hospital cafeteria. I now propose that this hospital locus no longer serves, and should be moved.

Thirty major diseases have disappeared since this was entirely appropriate, and patients are a great deal older. The hospitals charge inordinately for sharing a bed in a room with a stranger; the last time I was a patient, no one gave me a bath or a back rub. All the nurses wore signs because you couldn't tell them from dieticians. The hospital is now threatened with fines if a patient is judged to have stayed in bed too long. On the other hand, if he goes home too soon and has to return, the hospital is also fined. The doctors tend to make rounds at 6 AM, because later than that the commuting traffic is horrendous. A profession of hospitalists has grown up because it isn't worth a doctor's time to come to town to see one or two patients. The whole medical complex is in the wrong place, driven there by third-party reimbursement.

I can't say what things are like in other cities, but in Philadelphia, there are at least fifty retirement villages scattered in the suburbs, filled with old folks. They all have infirmaries, most of them have drug stores and collection stations for blood tests. For the most part, what they don't have our doctors, x-ray machines and operating rooms. What they have in great abundance are sick old folks who need a lot of attention. I see no reason why the young folks with SUVs can't visit the doctors if doctors had their offices there, and x-ray machines will appear if there is a call for them by doctors practicing nearby. This complex probably needs a full-time ambulance or jitney to take people to the hospital for a one-day surgery, but after that, they can stay in the retirement village infirmary as long as they like. Imagine that; no one will find you for staying a month too long, in the judgment of a utilization clerk. Furthermore, it's all voluntary. Other places don't need to do it if they don't want to.

Robert Morris, Financial Virtuoso

For reader convenience, we here divide Robert Morris' financial rescue of wartime America into two parts before and after 1780, because he had two episodes of being officially in charge. The first immediately followed the Battle of Fort Wilson when chaos and worthless paper money required a strong hand; it will be described next. The second episode followed the later near-revolt of the Continental Army but has already been outlined. Here, Morris was recalled to the office with chaos erupting at the end of the war came in sight and everyone was reluctant to fight battles for no military purpose. At the same time British, French and American politicians connived for victory in a war each had failed to win militarily. For simplicity, time sequences have been distorted a bit, concentrating the creation of modern banking into the second episode, where failure to coordinate banking with taxation ultimately led to the Constitutional Convention in 1787. Chronology has been sacrificed to enhance clarity. It is now time to return to the brilliant expedients Morris employed after he took charge following the Fort Wilson shocker, omitting some of the banking details already described.

What helped the first crisis most was the ready availability of a financial genius to turn around a crisis, when just about everyone else was at a total loss. Robert Morris had made his fortune, probably the richest man on the continent, and nursed the grievance of crowd abuse at the Battle of Fort Wilson. He had some novel concepts to test; it is not too much to say he showed them off, particularly since they displayed a man in charge with prodigious energy, applying a financial virtuosity of seemingly unlimited ideas. No one else came close to Morris in stature, and he must be forgiven for flaunting it a little.

{Robert Morris}
Robert Morris

At the climactic moment, however, Morris played coy. He was not so sure he would accept the office of Financier, a term newly invented for the occasion. Accepting Ben Franklin's cynical assessment of the future, he wanted everyone to be clear: he was not going to give up his private partnerships. And he insisted on his right to hire and fire anyone at all within the government bureaucracy who was concerned with public money. He accepted responsibility for new debts of the government, but not for old debts incurred before he took office. He would furthermore delay taking the oath of office for a few months. These conditions naturally generated wild opposition in Congress; Morris was serene, and Congress finally had to agree. Most of these terms had some obvious purpose while making no secret of his distrust of Congressmen. In fact, the opposition might well have hardened its position if the purpose of delaying the oath had been fully expressed. Morris wanted to delay becoming a federal officer in order to delay resigning from the Pennsylvania Assembly. During the interval, he applied similar power tactics to the Legislature, ending up simultaneously in charge of both state finances and federal.

{Yorktown: Oct. 19, 1781}
Yorktown: Oct. 19, 1781

That purpose was soon to emerge, as just one instance of many tough tactics. Inflation tossed and turned the finances of everyone, so Morris would buy with one currency and sell with another, taking advantage of brief fluctuations, then quickly reverse the currency transaction when advantages shifted. He arranged with the French and Spanish ministers to keep their loans and foreign aid in separate accounts, applied the same techniques with state accounts, and even between near and distant counties within Pennsylvania. He thus had a choice between many currency values at any one moment. His far-flung commercial network supplied him with more precise information than his counterparties could get, and usually more quickly, so his trading activities were usually profitable. One rather extreme example was the arrangement with Benjamin Franklin in Paris; Morris would write checks to Franklin in one currency and Franklin would write identical deposits back to him on the same day but a different currency. He thus extended ancient practices among international merchants, carrying them over to government operations, which had the effect of creating a modern currency exchange. To outsiders, however, particularly his political enemies in Massachusetts and Virginia, it looked fishy. To modern observers, the astonishing thing was his ability to keep such complexity in his head. The political class which even today sees it as natural that governments might want to manipulate currency as they please might describe Morris strategies as dubious. Those who believe the market price is usually the true price however, must applaud this strategy for forcing manipulated prices back to market levels. Since here has rested the central dispute in American politics for two centuries, Morris must be credited with inventing even that dispute. One would normally suppose that doubling the silver price of American currency in two months would vindicate his trading strategy; but it has not always done so, suggesting the nature of the questioning has been more ideological than economic.

Within days of assuming office, the "legal tender" laws were repealed, stripping government of the ability to force its citizens to accept the worthless currency, impose rationing and price controls, and otherwise assume the mantel of "sovereignty". Like a miracle, food began to reappear in the Philadelphia marketplace at a lower price, and confidence in the competence of government began to return. To whatever degree the British ministry had been deliberately stalling the peace talks in the hope of American collapse, this incentive was dissipated.

The list of financial innovations which Morris produced in a remarkably short time, is seemingly endless. He next became central in the creation of the first American bank of the modern sort, the Bank of North America. And somewhere in that welter of activity appears to be the recognition of the so-called yield curve. Loans for a few weeks or months command a much lower interest rate than long-term loans; in the colonial period, almost all loans were for six months or less. Morris seems to have realized early that great profitability could be achieved by merging a sequence of several short loans into one long one. He thus devised a number of strategies which had the general effect of linking short loans together. Using the remittance for a transatlantic cargo in one direction as payment for the return cargo on the same ship was an early example. Once you grasped the idea and did it deliberately, long sequences of linked loans began to suggest themselves. Just to complete the thought, it might be noticed that present-day globalization reverses the process, with shorter-term loans for components substituting for longer-term loans for the entire assembled product. With lower interest rates, competitive prices can be reduced, unless a choice is made to increase profits.

There's one last issue in Robert Morris folklore: Did he finance the whole Revolution out of his own pocket? The answer is surely no because Beaumarchais ended up spending much more than any other individual, however involuntarily. The degree to which hard currency originated with the French, Spanish and American governments is a little unclear, and war damages are impossible to appraise. There were moments when Morris did personally finance major cash shortages, adding the considerable advantage of speeding up what could be a cumbersome process of budgeting, committee consideration, disputes, and hesitation. Where it was feasible, he sought restitution. Every bureaucrat has experienced delays and obstructions he dreams of eliminating by simply paying for it himself; Morris had the advantage that within reason, he could afford it.

As a very rich man, his more important personal contribution was his pledge to make good if the Treasury defaulted. Creditors generally preferred his credit to that of the government; his pledge was to pay if the government could not. His "Morris Notes" were not paying, but rather reinsuring government debts, in modern terms offering a Credit Default Swap. If we lost the war and our debts defaulted, Morris would have lost everything he had. But short of that, his pledge would result in much smaller losses. The public couldn't be expected to understand all that, so some simplified explanations were understandable. There were probably a number of similar examples, but near the end of the war, there was a particularly clear one. The Continental Army was very close to revolt when it looked as though Congress would disband the soldiers without paying them; there was no money but unpaid demobilization would likely send rioting soldiers through the countryside. Morris came forward with a million dollars of his own money and saved the day. Washington was forced to make emotional speeches appealing to the patriotism of the troops, but with most of the army barefoot, that was not certain to hold them back. Under those circumstances, to come forward later like Arthur Lee and remind everyone that Morris had once refused to sign the Declaration of Independence, was ingratitude of the meanest sort.

The accusation made after the war was that he profited from government losses, but there has never been evidence of that. His position was that he came out about even. Unspoken in these quarrels was the plain fact that until he got involved in the post-war real estate boom, he didn't need to cheat. Probably didn't even have time for it.

The Revolutionary War continued for two years after Morris took office for the second time, so war losses continued in spite of improved financial management. Both the French Government and the American one were at the edge of bankruptcy. Britain was also in political chaos, but it was only small consolation that Parliament had granted Independence to the Colonies when King George III remained adamant that it wasn't going to happen to his colonies. Strengthened by the British defeat of the French Caribbean fleet, the capitulation by the Spanish about Gibraltar, and great uncertainty about the Crimea and India -- almost anything was possible. Eventually, matters began deteriorating again. The British even then had the financial strength to hold out much longer, but obvious neglect of other opportunities eventually wore them down. Morris seemed to be winning, just by not losing.

In the midst of such anarchy, Morris had to admit his greatest failure as the Financier but was already formulating his plan for setting things on their feet. The Revolutionary War as seen by a financier had either been won by the British system of taxation or else lost by the American and French lack of such a system. It was irrelevant whether the War was described as a defeat for Britain or a victory for America; in Morris' view, the British had a good system and we had a poor one. No nation can finance a major war out of current receipts; you have to borrow. Your security for loans is the economy of your nation. Even if your illiquid assets are adequate for the war, the banking markets regard your ability to pay cash for the interest on the loan as their only reliable test of your solvency. That is, a nation at war must have the ability to keep the bankers happy with regular interest payments. For that, a nation had to have a proven system of reliable taxation. Britain had it, and the American/French alliance didn't. Franklin's masterful diplomacy was just lucky enough to achieve generous terms, but that wasn't good enough, we had to have a Federal tax system to survive and thrive. And to achieve that, we had to have a new Constitution. Never mind that resentment about British taxes got us into this mess. Never mind the chaos attending the Treaty of Paris. Never mind the war-weariness, bitterness, and destitution of the troops. Never mind that Morris was now about to embark on one of the most mind-boggling real estate ventures in history, was going to go to debtor's prison, was going to engage in millions and millions of dollars of borrowing and restitution. Never mind. We needed a new Constitution, and we were going to get it. Think big.

Morris Defends Banks From the Bank-Haters

{Robert Morris}
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.

{The City Tavern}
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}
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.

Fighting About Taxes So Soon?

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

{top quote}

Article 1,

Section 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;
. . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

. . . .

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

. . . .

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

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

The Constitution, on Direct Taxes

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

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

{George Mason}
George Mason

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

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

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

Intrigues, At the Highest Levels

{Alexander Hamilton and James Madison}
Alexander Hamilton and James Madison

EVOLVING scholarship now suggests the ideas and driving vigor behind the Constitution were mainly Washington's, with young Madison mainly his leg man. Young Alexander Hamilton was a second devoted agent of Washington, easily recruited after his earlier relationship as the General's chief aide and assistant during the Revolution. These three made things happen. Madison seems to have begun the relationship absorbed with advancing his place in the Virginia dream of the Potomac River: future gateway to the West and main highway of the nation. Hamilton was ambitious as well, perceiving early where the Industrial Revolution was likely to take America. He was not landed gentry. He had aristocratic ambitions, but they grew out of an orphaned boyhood spent in a Caribbean counting-house; above all, Hamilton was a risk taker and a climber. As we now know the different paths they eventually took, we see they were very different. But at the beginnings of the Constitution, they were both Washington's boys, following Washington's orders, advancing his vision.

The Potomac vision was just between Madison and the General until Hamilton eventually put it into a deal, traded for the location of the national capital, at a famous dinner party in New York hosted by Tomas Jefferson. In the meantime, the two younger men advanced Washington's long-range goals in different areas and different parts of the country. Throughout the early years, Washington maintained his natural aloof dignity. A better idea of what he was seeking emerges from how he acted. Start with his being aroused from plantation retirement by Shay's Rebellion.

{Daniel Shay}
Daniel Shay

Daniel Shay was a leader of 1200 rebellious farmers in central Massachusetts who in 1786 stirred up concern about chaotic government by making it worse, surrounding the debtor's courthouse in Springfield Mass. and threatening to raid the local armory to overthrow the Massachusetts government. Shay's rebellion was eventually put down but only after two years of fighting which thoroughly frightened local citizens. The rest of the country had some sympathy with a former captain in the Revolutionary War who lost his property because of currency shortages very similar to the ones that started the Revolution. Regardless of earlier rights and wrongs, the public now demanded a government which could maintain law and order. Washington was particularly upset by Shay's Rebellion because of its resemblance to the earlier revolt of the Pennsylvania Line. He continued to be blistered by the Continental Congress' inability to raise troops and pay them, inflicting hardships on the patriots Congress had once begged to protect them. Washington wrote dozens of letters around the country protesting the sorry situation and privately set about to recruit people like Madison and Hamilton to help. Madison's initial task was to recruit the Virginia Legislature and the Virginia congressional delegation to devise necessary legal provisions that would make this country a fit place to live. Washington's position in public opinion could not be resisted; he almost invariably got what he wanted. But if he could have read a letter written by Thomas Jefferson at the time, he would have had a warning that important people disagreed with him. Said Jefferson:

{top quote}
"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 this person preserves 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." {bottom quote}
Thomas Jefferson, 1787

Let's jump ahead. Washington is now our first president, confronted with our ships and sailors under attack by the Barbary Pirates."Would to Heaven we had a navy to reform those enemies to mankind or crush them into non-existence," Gen. Washington wrote in 1786. The nation built that navy largely because the pirates' hostage-taking and escalating ransom demands became politically unbearable. The ships were built in time, and in one of history's great ironies, it was President Jefferson who gets credit for subduing the pirates on the Shores of Tripoli.

{General Sullivan}
General Sullivan

Throughout Washington's long career it became evident that whenever America developed conflicts in the neighborhood, the enemy's uniform response was to stir up the backwoods Indians to assassinate the settlers. Andrew Jackson is the President who is most famous for responding by confronting whole regions of Indians with the choice of extermination or eviction to lands further west, but Washington was well aware of the realities of the frontier. In response to British-inspired Indian massacres, while he was at Valley Forge, Washington dispatched General Sullivan to march against the Iroquois and exterminate them. There is legitimate doubt the settlers around Wilkes Barre in the Wyoming Valley had any right to be there, but Washington knew that above all else, a leader of a country is expected to protect it.

The most dramatic illustration of Washington's idea of a central government came in the case of the Whiskey Rebellion. When Hamilton persuaded him to impose a tax on whiskey, the corn growing frontiersmen around Pittsburgh started a rebellion against the tax. The old General's reaction was prompt and violent. Riding his horse at the head of 1500 militia, Washington marched across Pennsylvania to put an abrupt end to such ideas of defiance against his new system of proper government. He made a great show of pardoning the intimidated farmers, but he left them with no mistaking that George Washington meant business. And still, there was a warning if he could only see it. Albert Gallatin, who was to be Jefferson's future Secretary of the Treasury and thought the leader in everything economic, was one of the leaders of the Whiskey Rebellion. To see the hand of Jefferson or Madison in this affair is not alarmist.

Washington wanted a strong central government. One that would pay its troops and keep its promises, collect its taxes and defend the coasts. The rest of this mechanical formula called the Constitution was left for Madison to work out. Hamilton persuaded him that a country had to be rich and strong to be able to protect its citizens, so Washington went along with the Bank, and the Report on Manufactures. He agreed with anything Madison proposed in the way of process and balances of power. What Washington wanted of a country were law and order. When Madison eventually started talking like Jefferson, Washington never spoke to him again.

Power of the Purse

{Privateers}
Liberty Bond

In 1917, Congress passed a law, quite possibly not understanding its full implications. From the founding of the republic until that time, Congress had approved the exact amount of each bond issue as enacted, neither more nor less. With the First Liberty Bond Act of 1917, however, Congress began to allow the administration to issue bonds as it pleased, up to some specified debt limit. Periodically since that time, as the amount in circulation approaches the debt limit, Congress raises the limit. No doubt this procedural change seemed like legislative streamlining, making it unnecessary for Congress to interrupt other activities to respond to a debt level which creeps up on its own time schedule. The overall effect of this change was significantly different, however, and probably unintentionally.

If the authorized debt limit is raised by large enough steps, it effectively amounts to Congress turning over debt decisions to the executive branch. Conversely, raising the limit only a small amount soon triggers a repeat request, which by routine becomes so inconsequential that Congress stops paying attention to it. Regardless of the size of the block grant, bulk authorization of blocks of debt results in the power of debt creation shifting toward the President. That was not what the Constitutional Convention intended.

{Founding Fathers}
Founding Fathers

The Founding Fathers remembered taxation as one of the main issues of the revolt from England. Whether by King or President they had no intention of permitting the Executive to tax as he pleased; the issue traced back to the Magna Charta. Nor would they permit unlimited federal borrowing to generate escape hatches which would soon enough transform into higher taxes. Taxes, therefore, must originate in the House of Representatives, and bond issues were approved one by one. Following the 1917 liberalization, it required only fifty years before unrestrained bond limits reached a point where future national debt obligations loomed beyond the easy ability to pay them off. If they were ever pronounced unpayable by the international bond market, interest rates would rise, and eventually, federal bonds would become unsalable. With Greece, Portugal, and Ireland already flirting with bankruptcy, the approaching danger seems quite understandable to the voting public.

{Constitutional Convention}
Constitutional Convention

The issue is constrained by another barrier. The Fourteenth Amendment to the Constitution, Section Four, forbids dishonoring "the validity of the public debt of the United States, authorized by law." Enacted after the Civil War, this Amendment was intended to prevent future states or congresses from reversing the Reconstruction Acts, but it has the additional effect of preventing future Congresses from dishonoring interest and debt repayments on existing debt. The present Congress, therefore, retains the latitude to prohibit the issuance of additional debt but is forbidden from dishonoring existing debt.

This seems like a good principle to re-emphasize, entirely disregarding the merits of the TARP, the Dodd/Frank Act, or Obamacare. Indeed, restating the Constitutional intent for Congress to be chiefly responsible for taxes and debts, seems like a very good thing to do, quite regardless of whether present national debt limits ought to be raised. The 1917 Act was a mistake, probably an unconstitutional one, and should be reversed. Holding conferences in the White House about whether to issue debt raises uncertainty about whose duty it is. The responsibility belongs to the House of Representatives, and should stay there.

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 Representative}
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.

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

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.

{top quote}
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. {bottom quote}
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.

{top quote}
A committee containing inadequate wisdom will seldom be adequately wise. {bottom quote}

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.

National Debt, National Blessing

{Alexander Hamilton}
Alexander Hamilton

In 1789 while arguing for the establishment of a National Bank, Alexander Hamilton made one of the most famous counter-intuitive assertions of his controversial career. "A national debt, if it is not excessive, will be to us a national blessing".

The very suggestion of such an idea enraged Thomas Jefferson and his Calvinist adviser, Albert Gallatin. James Madison, ever the political schemer, immediately recognized a new bargaining chip in his move to relocate the national capital to Virginia. Political parties were promptly invented to mobilize votes on both sides, and the national bank remained a divisive issue for half a century afterward. Neither a borrower nor a lender is; how could anyone, then or now, say the debt was a blessing?

Indeed, that's evidently how the leaders of Singapore, Malaysia, Australia, China, and several other prosperous states still feel about it. While not eliminating taxes, these countries accumulated surpluses and created sovereign-wealth funds. Having paid off the national debt, and still finding a national surplus, what else are you going to do with it?

{Gallatin}
Gallatin

These countries hired investment advisers to buy stock for the funds, evidently feeling American stocks were the safest bet; it's hard to criticize that conclusion. In the present credit crunch, they are investing five and ten billion per transaction in the equity of America's premier investment banks. So far, they only acquire 5 or 10 percent ownership, but then the credit crisis may not be over yet. For them eventually to acquire 51% controlling ownership somewhere is not at all inconceivable. An ominous sign of where that might lead is found in our own captive pension funds. The state employee pension funds have quickly become captive to unions with their own agenda, with the result that the prosperity of the companies in the portfolio could be sacrificed to the benefit of interest groups. And yet, it wouldn't be so hard for America to do the same thing. If Congress had adopted the Bush proposal of three years ago to create an investment fund for Social Security, we ourselves would soon have what amounts to the largest sovereign wealth fund in the world. Could this be a solution to the weakness of the Federal Reserve in controlling the currency with bank debt? Could we somehow create a common world currency based on a common fund of sovereign wealth funds and with that, create a new definition of wealth based on equity rather than debt? The technical answer to the potential corruption issue would probably lie in stripping the voting power from such shares and then submerging them in a world index fund. The United Nations sound of it nevertheless still boggles the mind. Are people who oppose an equity-based world currency going to be forced like Gallatin to eat their own dusty words when the reality of debt-based currency sinks in? How many of the ambassadors of ideas about such suggestions, both pro, and con, would eventually surface as sneaky connivers like Madison, with a hidden side-agenda? After all, in a democracy, everyone is expected to marshal every argument, weak or strong, for his own self-interest.

{Federal Reserve}
Federal Reserve

The loss of banks as a tool for the Federal Reserve would undermine the way the Fed does its job. A deeper reality is that many governments really don't want the job to be done perfectly and independently. The European common currency, the Euro, is already irking the French and other national governments who sometimes hanker to inflate away their debts or deflate their way out of the subsequent inflation. A perfectly automatic currency regulation threatens an important ingredient of the sovereignty of nations, thus the whole concept of nationhood. Somehow, the desire of markets to enhance wealth must come to terms with the desire of governments to re-elect themselves.

It will take more than the present crisis to provide credibility for ideas as wild as substituting equity-based currency for the present debt-based one. Unless someone devises a better-sounding scheme, it seems more likely that financial Jacobins will propose sacrificing the unwelcome intruder. Derivatives, whatever that means, started this mess. Maybe we should make them illegal.

Publius (James Madison) Explains the Proposed Constitution

{Privateers}
Publius (James Madison)

New York's ratification of the Constitution could expect a close vote, so Alexander Hamilton organized the publication of The Federalist Papers to drum up support. He recruited two allies, James Madison and John Jay, to assist under the pen name of "Publius". Federalist # 10 was written by James Madison and is often spoken of as containing the central organizing theme, which is that larger nations are harder to dominate by political parties ("factions"), and hence a single strong Union of thirteen was more stable than a loose confederacy of many small nations. At about the same time, George Clinton was publishing Anti-Federalist Papers under the pen name "Cato", opposing ratification. Clinton argued that small homogeneous nations were less likely to split internally than bigger ones who already had more conflicting viewpoints. Both arguments are somewhat true, of course. Which argument you prefer depends on which kind of splitting you predict. Federalist # 10 has also been read as explaining the absence of political parties in the Constitutional plan, but a careful reading is convincing that Madison was saying political factions were deplorable but inevitable, not that they would never arise. Failure to mention them in the Constitution may have grown out of reluctance to expand debate, or else reluctance to give political parties some status they had not fought for.

Since it would be necessary for the state legislatures to ratify the Constitution, the arguments Madison could use before the vote were necessarily conciliatory, conceivably even somewhat contrived. However, since "Federalism" was settled early in the Convention (Madison's notes put it at June 21), it was the cornerstone around which everything else was built. By the end of the Convention in November, it no longer mattered whether the arguments of Federalist #10 were sincerely Madison's views or not; they had been adopted by the Convention as its own.

Few delegates at the convention needed to argue that a bigger nation was better. The Delegates had usually been selected to improve the Articles of Confederation, not to defend them. In the ratification process that would not be the case. The wisdom of getting bigger had to be confronted and balanced against the increased risk of falling apart. Centuries later, it is not certain why Colonial America then believed the advantages of the union had grown more attractive than the risks. Or why kings were suddenly so undesirable; at the time, all nations had kings. The easiest assumption to make is that discovery of the New World continents was itself the main reason relative risks seemed reversed; cheap land and abundant resources lessen the reasons to envy them. Hard experiences have since tempered the enthusiasm of America for that notion, but a succession of new challenges replaced it. The Industrial Revolution offered new rewards, but also new ways to control them. A century of expanding frontiers repeatedly did the same thing. Industrial power led America to a brief fantasy of Manifest Destiny. The atom bomb provoked mutually assured destruction to restrain it. Even today, the computer revolution presents new opportunities for wealth while supplying electronic remedies for brute power. Madison's theme has adapted and persisted. America has been fairly consistently able to devise sources of new wealth and to match them with new ways of maintaining stability. Usually, the new challenge will require new ways to quiet the disruption it causes. Foreign ideas contain a lot of affection for central controls and are to be treated with suspicion until new immigrants get used to our ideas. Immigration must not overwhelm our power to resist the ideas we abandoned in 1787. The secret formula for resisting dictatorship seems to be no more than a grim determination to resist it, no matter what, combined with the spreading realization that somehow in the past, that grim determination has been all it took.

To repeat: As nations grow larger, they do indeed grow harder to govern and some will look for strong monarchs to control them. But America stumbled on another way. In mild cases, persuasion may be enough; just read some history. Sometimes the persuasion can be sly, even contrived. But ultimately, the frontiersman will defend his cabin by himself, and make his own rules to do it if he must. Well before Madison was on the political stage, after fighting against monarchy for many years, America was having no more monarchy. The mere mention of it made George Washington grow livid. So Madison was really claiming we had here a safe way to enlarge the nation without resorting to tyranny. If we somehow got too big, we could always split apart along older boundaries. When the Civil War showed that approach wasn't nearly as peaceful as we hoped, it was at least preferable to returning to a monarchy. As long as a country firmly believes anything is preferable to monarchy, monarchy won't stand much chance.

Muddle: The War of 1812

{H.G. Callaway}
H.G. Callaway

HOWARD Callaway is an old friend and an expert historian of the War of 1812. This is the two hundredth anniversary of that war, so Howard is in demand as a speaker. At a recent meeting of the Right Angle Club, he gave a fascinating recital of his analysis of the reasons for the war, and its subsequent upheavals in American politics. The audience at the Club stayed well beyond the allotted hour to ask questions and finally had to be sent home by the moderator. We will here try to summarize his views fairly.

American impressions of this war come largely from Henry Adams, who wrote a nine-volume history of it, concluding it was a senseless muddle. Henry Adams however, was the grandson of John Quincy Adams, and the great-grandson of John Adams, both of whom were active participants of the event, its causes, or its consequences. He later killed himself, having displayed fugues of depression in his autobiographical Education of Henry Adams. No matter how serene his writing style, you have to be a little careful about the views of such an involved person. New England hated this war almost universally, not a single Federalist congressman or Senator voted for it, and the Federalist political party essentially dissolved as a consequence of it. New England even considered secession. In particular, maritime New England hated the two-year embargo on European trade which Thomas Jefferson had imposed as a measure short of war. Since Jefferson had stripped the Army down to 3000 soldiers and the Navy down to a single ship -- he didn't have many choices. Great Britain at that time had eight hundred ships in its navy. When it came, the war was mainly supported by the more rural South and West of the nation. It was the war of the "republican" political party of Jefferson and Madison, actively demonstrating that Virginia had defeated the Federalists and now would dominate American politics for decades. Regardless of details, the War of 1812 made it clear that New England was not the central essence of America any longer; the rest of the country would not follow its lead.

{Henry Adams}
Henry Adams

His opponents called it "Mr.Madison's War", and the bad management of it certainly damaged the later reputation of the principal author of the Bill of Rights, perhaps the Constitution. It's pretty hard to maintain the image of a Founding Father when you get us into a war that could not be won and was not even conducted well. Whatever Madison's early skill as a political philosopher, his later execution as its chief officer was a shambles. He was indeed a clever politician, never completely revealing his true beliefs, so it is a question how much he was really in favor of the war, and to what degree he could merely see how the wind was blowing. It might be argued, for example, that a supporter of the constitutional intent that Congress would declare wars, the president would only command them, might well have been yielding reluctantly to his party's clear wishes. Howard does not think so.

There was no time to expand on the evidence, but our speaker is convinced that Madison and the whole "Republican" party were anxious to sever the cultural ties to England and turn the nation to looking Westward. Certainly that was Jefferson's view, and certainly, the nation entered a century of turning its back on Europe, England in particular, becoming in one word, isolationist. That's the sort of grand strategy which might offer coherence to the subsequent Wilson and Franklin Roosevelt reversals of attitudes, which contain a major element of anglophilia.

Quite a lot to think about, considering what a bumbling rout the War seemed to be in 1812.


REFERENCES


Alexander James Dallas: An Exposition of the Causes and Character H.C. Callaway ISBN-13: 978-1906716288 Amazon

States Rights Confront Civil War

{Dr. Randall Miller}
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}
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.

Washington Picks out Madison

Washington had been an outstanding athlete, soldier, and farmer. Travel in the Eighteenth century was hard, but he enjoyed exercise. Disconcertingly, travel after the war reinforced his wartime conviction that something vital was missing. State disunity was if anything worse after the Revolution. More formal organization was needed than just a confederation so big others would leave it alone. By 1787, Washington concluded the state legislatures would not surrender power unless more people insisted on it. Even dire military consequences had not always transformed flight into resolution. In peacetime, the new leadership class would likely scatter because peace attracts mediocrity to office, and mediocrity fights hard to keep its place. That left it up to prominent men in the community, gathered in a Constitutional Convention to suggest a list of advantages of Union, and peaceful ways to maintain it. That's not exactly what is now meant by "We, the People", demanding liberty, but it served at the time.

The French Revolution was soon to demonstrate how unwise it was to look for short-cuts; we needed a republic, not anarchy. Washington was unsure just what else was needed, but he knew a few basic things with certainty. For one thing, we needed a bargain that everyone involved was expected to keep. The amendment would be provided for, but it would be difficult.

Two small sections, Eight and Nine of Article One, list the separations of state and national sovereignties in very sparing language. The states must avoid using their sovereignty to gain the advantage over each other. Defense of the coasts against piracy and a general postal system is a Federal responsibility. As are open borders between the states, both physical and economic, promoting trade to the advantage of everyone. Uniformity of weights and measures, patents and copyrights, currency and coinage, bankruptcy and naturalization rules permit everyone to aspire to wider and easier markets. Uniform rights unite the various subcultures, so a general prohibition was declared of ex post facto laws and suspension of habeas corpus, degrading the currency, injuring the sanctity of contracts (or by implication injuring all the centuries of legal consensus known as the common law). Everyone knew state legislatures had either ignored or flouted these principles; state interference in these particulars was therefore expressly prohibited. Desirable federal powers were stated in a positive way, and limited to what was stated. However, because there remained doubters even after the Constitution was put into action, the Tenth Amendment was soon added to restate the point:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There were plenty of other negative ways to put all this, but the Constitution said no more than necessary. Certain powers were essential for a functioning national government, while some few powers would be destructive if the component states exercised them. The framers might have said but did not say: Look at what has happened among the little countries of Europe; the same thing might also happen to us. As Adam Smith had recently warned, avoid economic discriminations against foreigners which are lumped under the heading of Mercantilism; in other words, avoid the use of government power to favor local businesses against competitors outside the political boundaries who therefore have no local influence. Let several states avoid the expense and nuisance of different coinages, tariffs, licenses, and cartels. The inability to assemble parts of manufactures in different jurisdictions, using different rules and regulations, seemed mainly designed to increase prices for the general mass of consumers for the benefit of a few politically well-placed producers, who should enjoy such advantages only if they earn them. In some ways, these negative arguments had the greatest persuasive force, because almost everyone could think of some injury inflicted by similar laws. In 1787 it was only recently that our whole nation had suffered from the mercantile rules of Great Britain, who was supposedly a partner with the colonies. Exhortations with this sort of specificity were excluded from the document. Private publications like the Federalist Papers could be more explicit because they were not official parts of the agreement, and thus could be more easily reshaped by the courts. Those who today confine Original Intent to specifics are treading on soft ground.

{the Constitutional Convention}
The Constitutional Convention

It was hard to know where to stop with these arguments. A promise was being made that the nation would prosper with expansions of scale, and in fact, it soon did. It was also foreseen that expansion of the right of the federal government to tax would automatically constrict the ability of the states to do so, and in time the state legislatures have been reduced to begging for federal funds. [At the same time, it seems inconceivable that the Constitutional Convention would have condoned the present discordance between the several states in what federal taxes they pay compared with what federal benefits they receive.] The states' inability to levy troops and declare wars has indeed reduced local power to intervene to block hostilities, not of local concern. There have been occasions to fear that plebiscites for personal freedom may have sometimes impaired the nation's ability to defend itself. Local gasoline and cigarette tax wars occasionally spring up to exploit differences in state taxation, but in general, there remains comparatively little mercantilism at a state level. But regional differences have correspondingly grown, along with the sense of local powerlessness to resist it. The Civil War is only the largest example of a general trend of shifting conflicts into those gaps of jurisdiction unimagined by the framers. Section Eight arguments all rode on the rising tide of the Industrial Revolution; they proved in general to depict correct predictions. But they also persuaded 600,000 young men to die, for or against the Union itself.

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.

{top quote}
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. {bottom quote}
{top quote}
Influencing elected colleagues is their life; elections are periodic threats to that career. {bottom quote}

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.

{top quote}
A sincere representative of the people often finds his worst enemies are the leadership of his own party, seeking to control his vote. {bottom quote}
{top quote}
Political families pass these secrets around within the political class, and we become more of an aristocracy than we imagine. {bottom quote}

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}
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.

Designing the Convention

{Turning Colonies into States}
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.

{top quote}
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. {bottom quote}
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.

{top quote}
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. {bottom quote}
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}
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}
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}
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.

Political Effects of Increasing Population

{Washington got down off the platform and debated the Constitution}
Washington got down off the platform and debated the Constitution

The only time George Washington got down off the platform and debated the Constitution, was near the end of the Convention. The topic was the maximum size of Congressional districts. He strongly urged the Convention to limit the size of a district to thirty thousand inhabitants. Since then, the population has grown in both absolute and relative size, so the average Congressional district now contains 600,000 citizens. Madison had contributed the idea that a larger state or district would likely contain more diversity, hence fairness, and it would likely contain more citizens of high intellectual distinction. It seems likely Washington had heard him say that and held a strongly contrary view. Washington seems to have won this argument since, after more than two centuries of steady growth, few today would hold the quality of congressional representation has improved. Or, that over the centuries of experience, larger states have tended to produce more distinguished Senators. Or that dense urban populations have produced unusually brilliant Congressmen. Indeed, there is a defensible position that the rest of the nation has a prejudice against politicians with urban backgrounds, and reach a private determination not to advance their interests. That by itself might conceivably discourage urban politicians from seeking leadership positions, or even notable political positions of any sort. In the long run, perhaps it doesn't matter what the underlying reasons are, what truly matters is the evidence that legitimate urban interests are somehow being injured by our system of governance.

Perhaps a case could be built that this should be so and is, therefore, a product of good governmental design. It can easily be shown that taxes per capita rise steadily with population density, probably secondary to the rising cost of a safe and sanitary environment. Urban centers are the normal place to expect immigrants to concentrate, almost surely as a result of slum creation when previously dominant populations flee to the suburbs. These residents are almost surely fleeing to areas of less crime, lower taxes, and better public education. All three of these issues are products of government, which was presumably designed to enhance their attractiveness.

A case can be made in the other direction, too, although it sounds more like a Medieval walled city being praised. Transportation and defense are easier, and more esoteric enhancements to industry formation like talent clusters and capital formation, are encouraged. Once you get away from subsistence farming, it's easier to feed and water an urban population and take away its trash. All this has a cost of course, which can roughly be summarized as the cost of air conditioning and sanitizing one of Charles Dickens' Victorian smog basins until it looks like Canary Wharf or Rockefeller Center. There is, of course, the unspoken preference for the military heroes who defend us in their spare time. Everyone would prefer to be defended by hunters and fishermen, then by garment workers who normally prefer violin quartets as recreation. Since the threat of war is never quite extinguished, this by itself might explain the political dominance of the outdoorsman. Even the trial lawyer is not an adequate defender of the faith; his bespoke tailoring would be tattered and torn, without the bailiffs standing silently behind him, ready to supply the muscle.

It this a fair assessment of our experience with district size, or equal apportionment of two senators per state in the other body of Congress?

In the first place, the Founding Fathers took little account of political parties. Small states will almost always fear big neighbors and will band together to defend smallness against bigness. John Dickinson put this proposition to James Madison in the most direct of all possible ways, as a political fact of life. As a leading representative of a large state, Madison was stunned to learn for the first time, what small states had always muttered among themselves. Small states are always looking for allies against invaders, and in the intervals between invasions, were on the constant lookout to prevent neighboring large allies from dominating small ones. They are alert to signs that one big neighbor was about to be replaced by a different one. In the beginning, the big states were Virginia, Massachusetts, and Pennsylvania. Today, they are Texas, California and New York. Whatever the shifts in the future, and however torpid the medium-sized states will be, you can be certain that Rhode Island, Delaware, and Vermont will adjust their positions to recognize the shift. This is their game, and they are good at it. Ever since Dickinson collared Madison in the corridor of Independence Hall, they have owned the U.S. Senate, and all the Senate can do for them.

The big states of Texas, California and New York will be as oblivious of the small states as Madison's Virginia once was. They will consider themselves entitled to leadership, and will alternate between swapping power and betraying each other. The much-deplored lack of civility in politics today is mainly a reflection of the present stalemate at this level. Since none of the big states is close to a majority of votes, the present political "action" is on the level of forming coalitions of medium-sized states. When the big states can't win for themselves, they ordinarily pay off the spear-carriers. The Constitution was designed to empower the large states in the House of Representatives, where they have large delegations. At this level, un-anticipated events took place, because local party bosses were able to control the urban political machine at the primary elections. The resulting urban political machines thus had to be dealt with, at the state and national levels. The trade-off which mostly resulted was for the local machines to assist the national party in other states through alliances with other big-city machines, mostly in selecting Presidential candidates. In return, the national organization assists the financial partners of the local machines. The power of labor unions is fast fading in this role, but other beneficiaries would surprise most people. More than a hundred years ago, the Philadelphia political machine invented the system of single-payer graft at the behest of some trolley-car magnates. Growing tired of petty graft from the local tavern owners on their trolley lines, they approached the mayor with the proposal of a single payment of graft in return for the power to assign it in whatever way the political boss chose to do. Ever since that time, utilities have been the main source of urban political funding, currently reaching out to health insurance companies as tame political contributors. Small wonder that health insurance in return has been taking the strange national twists and turns we all read about.

George Mason and Triumvirates

{George Mason}
George Mason

George Mason was George Washington's neighbor in Virginia, a good friend, and an important contributor to the Constitutional Convention, once he got there. There was every reason to think he would be an enthusiastic supporter of the document, but at the end of the Convention, he refused to sign it. Various explanations for his behavior have been offered, but one that might be considered is that he offered a proposal to have the President be replaced by three people, one from the North, one from the South, and one to be drawn from the middle colonies. He was pretty passionate about his idea for a triumvirate, so passionate it rises to the level of a possible explanation for his refusing to sign.

We have not yet been able to define the Power of the Executive; and however moderately some Gentlemen may talk or think upon the subject, I believe there is a general Tendency to a strong Executive and I am inclined to think a strong Executive necessary. If Strong and extensive Power is vested in the Executive, and that Executive consists only of the one Person, the Government will of course degenerate, (for I will call it degeneracy) into a Monarchy-- A Government sop contrary to the Genius of the People, that they will reject even the Appearance of it. I consider the Federal Government as in some Measure dissolved by the Meeting of this Convention. Are there no Dangers to be apprehended from procrastinating the time between the breaking up of this Assembly and the adoption of a new System of Government. I dread the Interval. If it should not be brought to an issue in the Course of the first Year, the Consequences may be fatal. Has not the different Parts of this extensive Government, the several States of which it is composed a Right to expect an equal Participation in the Executive, as the best Means of securing an equal Attention to their Interests. Should an Insurrection, a Rebellion or Invasion happen in New Hampshire naturally ascribe any Delay in defending them to such a Circumstance and so vice versa. If the Executive is vested in three Persons, one chosen from the Northern, one from the middle, and one from the Southern States, will it not contribute to quiet the Minds of the People, and convince them that there will be proper attention paid to their respective Concerns? Will, not three Men so chosen bring with them, into Office, a more perfect and extensive Knowledge of the real Interests of this great Union? Will not such a Model of Appointment be the most effectual means of preventing Cabals and Intrigues between the Legislature and the Candidates for this Office, especially with those Candidates who from their local Situation, near the seat of the Federal Government, will have the greatest Temptations and the greatest Opportunities. Will it not be the most effectual Means of checking and counteracting the aspiring Views of dangerous and ambitious Men, and consequently the best Security for the Stability and Duration of our Government upon the invaluable Principles of Liberty? These Sir, are some of my Motives for preferring an Executive Consisting of three Persons rather than one

{Marc Antony, Lepidus, and Octavius Caesar}
Marc Antony, Lepidus, and Octavius Caesar

The Constitutional Convention has been described as being strongly influenced by the Senate of ancient Rome, and Shakespeare's depiction of it was very popular in the colonies. It, therefore, seems strange that Mason would be so strongly attracted to a form of government which attended the dissolution of the Roman Senate, and the long reign of Emperors which followed it. The first triumvirate lasted only five years and consisted of Julius Caesar, Pompey, and Crassus. With Caesar's move toward the throne, this particular triumvirate did not come out to what would have been the American colonist wishes. The second triumvirate also only lasted five years, consisting of Marc Antony, Lepidus, and Octavius Caesar. Shakespeare tells us in no uncertain terms that did not work out. In both cases, two of the three went to war with each other but first disposed jointly of the third. Mason does not mention the Roman examples, perhaps because they posed inconvenient outcomes. Perhaps this tobacco farmer was not sufficiently learned about Rome, but it is also possible that he was thinking of the three centuries of Roman history where there was a succession of Emperors, mostly bad ones. During that period, Rome was really ruled by many triumvirates with subordinate absolute powers, specifically denominated. Essentially this was an organized aristocracy and it supposedly worked pretty well. And perhaps George Mason just secretly disliked Washington or feared tendencies he was close enough to know about. Or maybe six other things. We certainly can be sure the rest of the convention knew some Roman history, and definitely did not want to see either a King or an Aristocracy. No matter how gentle and persuasive, one of their esteemed colleagues might be about it.

How Could We Improve State Legislatures?

NEARLY every student of government agrees, the state government is the weakest part of the American system. Almost every academic or federal congressman, at least, seems to hold that belief, while almost any lawyer would prefer to have his case in Federal court rather than before a state judge. Although the followers of Thomas Jefferson kept the nation in an uproar for forty years pursuing his notion of government identical with the will of the people, the public opinion he prized nevertheless remains scornful of state government. Such scorn by itself can undermine legislative quality, creating a destructive cycle.

{Small Town}
Small Town

Students of government point to instability and unpredictability as main features of concern about state government. The legal profession values a central principle, called stare decisis: Leave the Law Alone. Stability, or order is desired so highly that dictatorship, corruption, and poverty may be tolerated in order to achieve it. Conversely, an inability to predict what is coming next is highly destabilizing, a sign of amateurism at the controls. Any decision is better than no decision, even a bad decision is better than no decision. The public hesitates to act in the face of indecisive governance, and dynamism drains from the environment. Most of the time it doesn't make much difference what a rule says as long as it is emphatic and prompt. And it's usually the case that bad decisions are quickly reversed. Test it yourself: how much difference does it make whether a one-way street runs East or West? But it would make a considerable difference if almost any street changed Eastward to Westward to Eastward again, several times capriciously. Suppose someone did make a bad mistake: Eastward to Westward and back to Eastward again. Everyone can now see that Westward was a dumb idea, you bonehead. It will be a very long time before anyone tries that, again.

A second general characteristic of state government is the location in a small remote town. The capital of Michigan is in Lansing, not Detroit. In New York, it is in Albany, not New York City, and in Pennsylvania, it moved from Philadelphia to Harrisburg. Even in little Delaware, it is in Dover, in Maryland, it is in Annapolis rather than Baltimore. And so through most of the fifty states, we see the same pattern. No doubt it could be argued: getting away from big-city bosses and political machines is positive, and stretching a network of highways through the open countryside to the new capital is a source of real estate development for the state. But it definitely creates weakness of the governing system to locate it in towns that have little newspaper coverage, no think tanks, few universities, and even poor airports, school systems, museums, and civil society. These are generally one-industry towns, where the children of the bureaucracy all go to school with each other, along with the offspring of lobbyists. Voices in the past have been raised against the development of a ruling class, as might have been seen in Potsdam outside of Berlin and similar political suburbs. But we have just as surely developed a bureaucratic subclass in Bethesda, Maryland and Alexandria, Virginia. No doubt there are many other similar clusters, in other states. Where the children of bureaucrats are clustered in the schools near the Washington Post and the National Journal it can be argued they know the inside game of politics, as well as the children of Boston, know the inside baseball of the Red Sox, and there is a certain value to developing such a political artisan class. But in the vast majority of the country, the dominant problem is that the voters of the state have not the faintest idea of how their state government is functioning. The children of bureaucrats may still learn at the dinner table how to adopt "Yes, Minister" behavior or how to find lifetime bureaucratic jobs with accidentally high fringe benefits. The big flaw is the rest of the state does not realize the smallest part of how prevalent such behavior is in the capital. If the politician who is caught in a scandal is largely unknown to the general public, it is an advantage to the political class. With less notoriety, there is less scandal, possibly even lighter punishment from judges he has been involved in appointing. Rising above this sort of sorry behavior, the quality of legislation is surely diminished when there is diminished fame for doing a good job, diminished scorn for incompetence.

To a certain extent, this pressure for mediocrity is augmented by the reduced importance of the subject material. The federal government is involved in foreign policy and monetary issues Constitutionally forbidden to the state legislature. Even at the bottom of the hierarchy of public notice, the activities of mayors and city councils have a more direct effect of the lives of the local voter than state government does, with importance shaved off at both the top and the bottom. Such activities really can possibly afford to be relegated to some rural small town with nothing to do except play poker and drink in the bar of the local hotel; it's a question which is a cause, which is the effect. The Constitution provides that the Federal government shall be limited to a dozen specified activities, while everything else is governed by the states. Unfortunately, two hundred years of chipping away at the wall separating two governments of limited powers have left the states with little scope to govern anything substantive except the insurance industry. That does not prevent most state governments from considering more than two thousand bills a session, but these are matters of little import, boring, boring.

{Big City}
Big City

The Progressive Movement of the early Twentieth century saw much the same problems, being handled by much the same sort of people; but they over-reacted to it. Like most reform movements, the Progressives wanted to make a big splash and then go home. A century later, it is difficult to assess how outrageously corrupt the Senatorial process may or may not have been at that time in the past. Somehow, the public became convinced the U.S. Senate was a terribly rotten organization because of the terribly rotten selection system for U.S. Senators. Consequently, the Seventeenth Amendment passed with little fanfare, taking the selection process away from "the states" and giving it to a statewide popular election. In states with large urban political machines, this change meant giving the nominating process to big-city bosses, taking it away from the legislatures. That is definitely a distinction without much difference. Most big-city political bosses are content to select obedient hacks for nomination to the legislature, but this is the source of most rotten boroughs, gerrymandering, corruption, and mediocrity. In the areas of rural machine politics, the boss himself is more commonly attracted to the appointive legislative jobs. In New Jersey, the election law prohibits more than small campaign contributions to legislators but permits unlimited contributions to the county boss. Either way, the progressive reform of 1913 has not had much progressive effect. One thing is very certain. When the method of selection of the state's U.S. Senator is left to the legislature, the resulting Senator is pretty certain to be a current member of the Legislature. And in the instant you aspire to be U.S. Senator, it becomes very clear you will greatly enhance your chances if you first run for the legislature. There were once likely to be half a dozen senatorial aspirants within the Legislature at any one time, so there was an appreciable improvement in the quality of the Legislatures. True, there was probably more grand-standing and maybe even vote-swapping in return for assistance on the Senatorial seat selection. But there was also much more attention paid in return to the state's interests, by the U.S. Senate. The state's voice on the national scene was considerably louder. The value of a legislative seat and the later experience it provided were much enhanced by possessing the power of selecting a U.S. Senator.

A measured assessment of the effects of the Seventeenth Amendment is long overdue. My own view is that ripping the selection process away from the state legislatures and substituting a second popularly elected national legislative house, was both an over-reaction and a careless gesture without much improvement. Because vested interests have been created, it is now nearly useless to ask the present Congress to study the matter. We have to hope that some rich private citizen will see the need for a serious study of these issues, and both fund the effort as well as leave it alone. If it gets captured by ideologues, it will require a second study, or maybe even a third.

And finally, we get to Earl Warren. former governor of California, and President Eisenhower's choice for Chief Justice of the Supreme Court of the United States. Eisenhower later once referred to the appointment as the worst decision he ever made. Two decisions are said to have been his pets: Baker v. Carr and Reynolds v. Sims. Prior to these two decisions, it was really only possible to gerrymander Congress and the fifty state Legislatures. The U.S. Senate and the various state Senates were elected by geographic boundaries, and couldn't be gerrymandered. Tracing back to a corridor conversation between John Dickinson and James Madison, Dickinson had caucused with the other small states and was in a position to block almost any Constitutional Provision at the Convention. He used words to the effect of, "Do you want a Constitution, or don't you?" and went on to describe his total unwillingness to allow big states to dominate small ones. Out of this, Ben Franklin cobbled a compromise of a two-house Legislative Branch. To pass, any legislation would require the approval of both houses. The House of Representatives would have proportional representation, while in the Senate each state would have two senators, regardless of its population. Eventually, almost every state Legislative branch followed this pattern, although it was not a provision of the Constitution.

The hidden dissention in 1789 was over slavery, but Dickinson was a shrewd and experienced lawyer. He knew human nature, and the best example of the power of his insight has later emerged as California has become the largest state. Every new insurance design first seeks to conform to California laws, because it's expensive to launch a new project, and you might as well assure yourself of conforming to the rules of the largest market, first. The smallest state, Delaware, was not about to be pushed around like that, even on many unrelated issues. But centuries later, Earl Warren had learned the same lesson in reverse and lunged for it when he became Chief Justice. Using the argument of "equal justice", he forced 49 state Senates to adopt proportional representation, just like the other house in their branch. New Jersey, which I know best, is typical in being forced by this decision to change its Senate from one vote per county to voting by population. The subtlety was that both houses of state legislatures became dominated by big-city machines and hence were capable of being gerrymandered. They thus gained control of the nomination process, and gerrymandering nation-wide has assumed the posture of machine politics dominating the selection of candidates. It's certainly true that in the Pennsylvania legislative process, you can regularly observe party hacks drive up, and vote on the floor in accordance with a little card which the "leadership" hands them as they step on the floor. The beauty part of this is that decades later, most citizens haven't a clue what had happened.

Separation and Balance of Powers

{Robert Morris}
Robert Morris

At first glance, the Articles of the Constitution today seem entirely descriptive, but they originally identified power and, only after protracted debate, the decision where it should best be assigned. The Constitution primarily speaks of separation of powers, not so much balance of powers, as in 19th century British foreign relations. Separating powers weakens them; balancing weakens them further. Sometimes, the original intent was flexibility. The notion of separating Kings from Parliaments, and both of them from the Courts, dates back at least to the Magna Carta. To Americans, a preference for bicameral Legislative branches is most plausibly traceable to the Pennsylvania Legislature in 1787, with Robert Morris doing battle against a headstrong unicameral body. The vertical division of power among federal, state and local lines occasionally provoked difficulties, but mainly eases confusion. Even when separation fails to quiet matters, clearer lines of separation usually prove to be required, not clever methods of balancing. Separating rather than balancing powers has been our preferred system, and for us, it often proves sufficient.

However, short little James Madison had also cast about for resources to bestow on weak states and weak government departments as protection against bullying by big ones. His life displayed an instinctive avoidance of systems requiring the weak to appeal to the strong for protection, only to find they had acquired a new master. He reasoned that state governments are able to modify state laws to the disadvantage of neighbors, and should retain that ability. He employed the concept that sovereignty began with the states and should remain there. Resulting interface friction is now seen in sales taxes at border crossings, or varying income and estate taxes. But all fifty states are restrained from laying unreasonable burdens on their own citizens by the threat those citizens might then move to another state. Although it is counter-intuitive, abusive tax systems collect less tax revenue by raising rates than by leaving them alone. In extreme cases, whole industries shift location. The outcome is that state governments have less scope for legislation that if they had no peers able to retaliate. James Madison has every right to be pleased with state legislatures slowly responding to the reality he created. Not merely that states must match taxes with neighbor states, but that fairness is the best policy.

To return briefly to comparison with the present debates of the European Union, speculate what advantage might be found in taking Madison literally on treating states as sovereign nations. Europe in 2012 struggles with the same problem America faced in 1787, made more difficult by diversity of languages and folklore of national sovereignty, made urgent by the failure of alternatives. The European leaders reasoned it was easier to unify nations piecemeal; start with monetary policy and work out more difficult problems later. That may seem to point to the same final result, but it does not teach the same lesson. Behind this dubious assessment of relative difficulty was the clear determination in Brussels to use a heavy hand with nationalists; pay no attention to referenda, avoid them if possible. A seeming advantage of first unifying monetary policy is that no one seems to understand it, thus transferring power to those who gruffly pretend they do. Unfortunately for this approach, it is the citizens' nation to do with as they please; they will eventually remind you of it. There is consequently little choice but to educate them to the advantages of Madison's self-disciplining systems. Essentially, keep it simple and don't hide the problems. Half the world probably does not believe honesty is the best policy, maybe even half of Europe. But we adhere to it, not because of Washington's Farewell Address, but because it seems to work.

A practical example of cross-border discipline concerns monetary policy itself, in 1913 when the American Federal Reserve system was created. The Governor of the Texas Fed soon decided to lower local interest rates to the advantage of Texas, just as he had always done. Within days, interstate bank deposits and loan originations switched direction, with everyone looking for Texas loans and no one willing to keep deposits in Texas banks; the independence of Texas banking simply vanished. What emerges is a general principle: there exists hidden pressure for inter-state prices to be uniform, despite constant overt pressure to respond to local conditions. Freed of state regulation, trade moves in the international direction. If both forces happen to pull in the same direction all will be well, but if they go in opposite directions the whole state or nation will be made to suffer for it, usually by blocking other features of bilateral trade.

At the moment, corporation taxes provide the sharpest focus for the power of uniform sovereignty. The nation to get the attention of the world was not 1787 America, but 2001 Ireland, historically a bit leftish. The Irish abruptly lowered their corporate taxes to 12.5%, attracting a sudden massive migration of Swedish, German and English corporations to headquarter in Ireland. Since Ireland is primarily agricultural, the new corporations prompted a sudden migration from the countryside to Dublin, thus generating an urban housing boom. When the boom collapsed there was alarmed commentary, but the observers who really noticed were the world's other finance ministers. Although the boom did get out of hand, the finance ministers mostly noticed that lower corporate taxes attracted business to Ireland. In spite of massive national deficits, England has since lowered corporate tax rates from 28% to 26% and proposes to lower them to 24% in 2012. (Including state taxes, the USA imposes a 40% rate). A century of theorizing that corporations are unfairly doubly-taxed had not provoked any comparable gold rush to match the Irish experience. Other nations will soon follow, and ultimately corporate taxes may go to 0%. But finance ministers are mindful of the ensuing Irish housing crash from going too fast, and therefore may take a decade to get to the end of cutting. They will surely cut until corporate taxes are uniform among major trading nations, as they probably should have been for a century. Those who are slow will now be punished for it by the markets. James Madison the main visionary of this theory, deserves a statue in the main square of Europe, right away.

Twenty Five Years at the Center

{https://www.philadelphia-reflections.com/images/congress_hall.jpg}
Congress met in
"Congress Hall" from 1790-1799
First 10 amendments,
the "Bill of Rights," were added here.

Philadelphia was the center of the nation from the time of the First Continental Congress (1775) until the nation's capital was moved to the District of Columbia in 1800. For thirteen of those years (from 1775 until the 1788 inauguration of George Washington as the first President under the Constitution) our governing concept was that of a confederation of sovereign states. The framework of our rules was a little vague at the beginning of that period, eventually becoming explicit when the Articles of Confederation were finally ratified in 1781. Until that rather late moment in the eight-year war, the thirteen rebel colonies governed themselves in a manner similar to thirteen nomadic tribes. Later on, when the Constitution was agreed to in 1787, there was another period of ambiguity until the newer rules actually began to apply. Speaking loosely, for thirteen years the country operated according to the Articles of Confederation. For another twelve years, the United States were absorbed in the task of transition from the Articles to the Constitution of a unified nation.

More discrete episodes in the development of the American Constitution start with the long formative period of English law stretching back to the Magna Charta, with a general trend toward greater authority for individual barons and nobles, and later even to the common English peasant. The Magna Carta began the slow evolution toward the Rule of Law, simply stated as making the king obey his own laws. By the reign of Queen Elizabeth I, the legal profession had evolved considerable sophistication, tending in the direction of the Judges handling the law and the King leading the armed forces, and the Catholic Church supplying many of the rules of everyday conflict. King Henry VIII reduced church control of the courts considerably, but the Anglican church still retained the property and legal authority for decades, slowly giving ground to a King who appointed the Archbishop of Canterbury, who controlled the rest of the church. By the time of the first Queen Elizabeth, the legal profession was headed by the Lord Chancellor, who at that time was Sir Francis Bacon. Somehow, word of Galileo's scientific method traveled to London, and Bacon is credited with converting English Law to English Common Law, essentially grafting the scientific method onto the court system. The system was one of observing what happened and developing a theory about why it turned out that way. Experiments were then applied to test the theory, resulting in the modification of the theory. Decisions were standardized for common forms of dispute, and punishments were varied, with varied outcomes. When the courts were satisfied with a uniform result, the situation was then reduced to codified standard laws, and experimental testing was lessened. Common Law gradually emerged and slowly gathered public respect as a sensible guide to running the country. At that point, judges and kings discovered they had less latitude for capricious or ill-founded decisions; the Rule of Law grew stronger.

By the time of the American Revolution, a number of colonies had developed their own charters and rules, and many customs like the right to a jury trial became accepted rules of society. Many such similarities between colonial rules and the final Constitution have been noticed, and it is traditional to give credit to some of them as having "originated" the later Constitutional provisions. Some of this is strictly factual, some of it may only be conjectural; it probably doesn't seriously matter

Reversing Madison's Scheme

{Senator Lamar Alexander of Tennessee}
Senator Lamar Alexander of Tennessee

Senator Lamar Alexander of Tennessee was once the Governor of Tennessee. He, therefore, faced the eternal problem of finding enough revenue to cover the expenditures of the state government, which quickly runs against a barrier. Local taxes cannot be raised significantly higher than in other states -- before the wealthier inhabitants start moving to some cheaper state. In our current era of the welfare state, the federal government has the option of dumping expensive welfare programs onto state governments, as a local responsibility to pay for. The net effect of this maneuver is to attract poor people to move toward states with generous welfare programs, and rich ones to move away. That is, a disincentive has been created for making welfare programs any good. Politicians obviously do not like to discuss this matter openly, so I will take the personal responsibility for stating that this perverse disincentive is the main reason Medicaid is the absolutely worst medical program in any state, chronically underfunded everywhere. Therefore, when Obamacare dumped 15 million uninsured persons onto the Medicaid rolls, it doomed them to underfunded medical care, as they will soon discover.

{Constitution}
Constitution

Since this situation was created by the Constitution, only amending the Constitution can repair it. However, the U.S. Supreme Court might discover enough elasticity in its penumbras and emanations to permit a few demonstration projects, and this discussion proceeds on that assumption. Senator Alexander proposed the federal government trade financial responsibility for Medicaid to the states, in return for accepting responsibility for K-12 education. Horse-trading of this sort might have some political utility, but for demonstration projects, it is surely better to limit the number of variables in order to reach a firm conclusion, sooner. There is always a danger of unintended consequences from shifts of this magnitude, and the public knows it. Therefore, a swap is always twice as politically dangerous as a single experiment. Some other time, or maybe in some other states, but don't mix them up.

{Medicare program lies in the fact}
Medicare program fact

In policy circles, there is a knee-jerk reaction that moving Medicaid to the federal government would be to create a "single-payer system", which some people favored, anyway. However, the purest form of single payer would include all medical care for everybody, into Medicare for the elderly. The hidden elixir in only moving Medicaid for the poor into the Medicare program lies in the fact that Medicaid already has a means testing; if you only want to improve the care of the poor, it is undesirable to mix them with everybody else. Presumably, by the time this becomes an issue the Democrats will be anxious to undo what they have done, while the Republicans will be inspired to let them cook in their own juice. However, there will be a brief interval in which the central controversy will seem to be one of repealing Obamacare, so an adroit leader might be able to slip a demonstration project through in the uproar.

The issue of attracting immigrants in the course of designing state welfare programs is a general one, not confined to health care. It is not even confined to the state government, as the vexing problems of a porous border illustrate on a national scale. Think tanks need to put the issue on their permanent discussion list, and foreign experiments need to be analyzed as well.

ARCHITECTURE OF GOVERNMENT: (2) COMPROMISE BETWEEN BIG AND LITTLE STATES SETS THE TONE

Because it was widely expected a new Constitution would devise some kind of republic, the convention in Philadelphia began serious deliberations with how the people might choose their representatives in Congress. Congressmen were mostly selected by State Legislatures under the Articles of Confederation, but there was widespread dissatisfaction with State Legislatures. The voting inclinations of chosen congressmen would undoubtedly reflect how they had been chosen, in a two-step process. If the voting franchise is only given to college graduates, congressmen, for the most part, would predictably be college graduates. If women got the vote, in time many members of Congress would be women. And if poor people got the vote, they would surely outnumber rich people, and might even elect representatives who would seize money from the rich to redistribute to the poor. The experience of Fort Wilson eight years earlier was not only on some minds, but several of the former combatants were sitting in Independence Hall as Delegates, three blocks away. Although the amount owed in debt was the same as the amount loaned, the number of individual debtors greatly exceeded the number of individual lenders, Consequently, the debtors might easily confiscate or injure lenders unjustly. That result had taken the form of ruinous paper money inflation in the recent past and was one of the main reasons the Constitutional Convention seemed necessary. Delegates soon took care that when the issue of state powers came up, states were prohibited from issuing paper money, or taking comparable actions like dishonoring debts. Such rules would at least concentrate the power to create inflation into a single body, the national congress. Meanwhile, the voting franchise would be limited to non-slave male citizens who owned property, to exclude recent immigrants who would probably be mostly poor, as well as carpet-baggers who might be imported by the boatload by some foreign power. Meanwhile, amendments to the Constitution must be made difficult to achieve, partly as a symbol that agreements freely made, must be kept. Parenthetically, there have been only two dozen amendments in two hundred years, a majority of which concern expanding the voting franchise, so the Constitutional Framers accurately assessed the difficulty they created. Unfortunately, the most questionable action they took was to award 3/5 of a vote to slaves, which obviously transferred that voting power to their owners. It may be too much to blame the Civil War on this Constitutional provision, but it certainly warped the direction of affairs leading to the war. Although this provision is difficult to justify in retrospect, it reflected an underlying understanding that Delegates were unlikely to vote for measures which injured the interests of substantial numbers of their members, except for binding concessions in return. This slavery provision was the result of a grand three-way compromise, all of whose provisions make historians squirm, but acknowledge that no Constitution would have emerged from the convention without substantial resolution of the various gridlocks. James Madison drove the convention to revolve around the central principle of compromise, which always seems to be necessary for the democratic process, and always somewhat taints it.

In settling the nettlesome issues of the voting franchise, the delegates proceeded to the principle of proportionality. The assumption was that uniform rules of voter franchise would lead to uniformity among all the states, a concept hard to reconcile with States Rights, and particularly hard to reconcile with slavery. If a state had more voters with the stated qualifications for franchise, of course, that state got more congressmen. Or is that necessarily so? Because Virginia had called for the convention, provided the presiding officer in the form of George Washington and the leading scholar of government in James Madison, and most of all because Virginia was the most populous and richest state, Virginia was oblivious to any way of organizing a republican congress except strict proportionality. But John Dickinson of Delaware, the smallest state of all, proceeded to teach Virginia a lesson. Dickinson had been the penman of the Articles of Confederation, was probably the best-educated lawyer in America, and a serious thinker about representative government. He had been Governor of both Pennsylvania and Delaware, probably had a major hand in the separation of the two states, and was a man of substantial wealth and fame. Dickinson is said to have drawn Madison aside and made a strikingly incisive analysis of national mergers, possibly entirely original with himself. If thirteen states are merged, some will be larger than others. Therefore, as long as the biggest remains the biggest, it will have the most votes in Congress. A lawyer of his experience would know that a political component with the most votes will relentlessly seek to warp the laws in its own favor, and will believe that to be an entirely natural thing to do. But the consequence of this situation will be that the smaller states will be perpetually consigned to a fate of seeing the rules warped against them. That's neither fair nor reasonable, and Dickinson wouldn't have it. So, unfortunately, it would be necessary for him to gather the nine votes in the convention (the delegates voted by states, one vote per state) from small states, and defeat the three large states (Virginia, Pennsylvania, Massachusetts) on this particular point: Do you want a Constitution or not? We are told that Madison, who had won almost every vote up to this time, began to lose every vote afterward. This man Dickinson meant what he said, and it became evident that another compromise was going to be necessary. That should please Madison, the great advocate of compromise. We are told that the necessary compromise was here suggested by Benjamin Franklin in a taproom. There would be two houses of Congress, a House of Representatives and a Senate, and legislation would require the approval of both. The House of Representatives would elect members proportional to population, thus favoring big states with big cities, and the Senate would receive two votes per state, regardless of size, thus favoring small states with sparse rural populations. Because it was going to be necessary for the Constitution to seek ratification by the states, the Senators would be appointed by the states, usually the state legislature. This second great compromise has received great acclaim, both for its success and for its ingenuity. Unfortunately, it has two ominous flaws, just beginning to emerge after two centuries.

In the first place, populations grow and shift with time, making equitable bargains lose their fairness. Virginia is now far from the largest state and may come to regret its bargain made under other circumstances. And we have fifty states, not thirteen; most of the newer ones are far larger geographically than the original ones. In time, some or many of the new states may develop large populations as California has done. Hawaii, The Philippines, Puerto Rico, and unknown others might, however, skew the numbers toward smaller states. Since the electoral college is tied to the sum of the two houses of Congress, unexpected results are a possibility. Because the House of Representatives was frozen to 534 members in 1925, the degree to which two votes per state will compensate for proportionality is quite uncertain in the future. Because of our national tendency to wait for something bad to happen before we act to correct a flaw, it seems likely that something disruptive will occur before we consult with mathematicians to devise a floating relationship between the two methods of congressional selection. Meanwhile, it seems like a good topic for dissertations.

The second flaw in the system also arises out of population growth. On the only occasion when George Washington stepped down from the podium to debate a point, he did so to urge that no congressman should represent more than 30,000 constituents. At present, the average congressman represents 600,000 constituents, and the number is constantly growing. Long ago, the House of Representatives recognized that their size was beginning to interfere with the ability to deliberate. Even now, the number of congressmen has grown to a size where crowd management techniques have been applied to member disadvantage, and by their own elected leaders. Since the unfortunate manipulation of members, especially new members, was begun by Henry Clay and Martin VanBuren, it has many more causes than member overcrowding. [For example, the Rules Committee controls the agenda, and the Speaker controls the Rules Committee. Henry Clay's politicization of the Speakership is an offense to the Constitution.] But overcrowding is certainly now at a practical limit, while representation is twenty times more dilute than the Father of our Country thought was wise. Once more, something disastrous will probably have to occur before this situation is addressed by its present beneficiaries, but at least a few scholars should start thinking about it. One suggestion would be to elect sub-congressmen at a ratio of twenty to each of the 534, with assignments to them of duties now performed by Congressional staff.

Finally, it is inadequately perceived that the accumulation of compromises between the interests of the different states, inexorably led to creating the Electoral College, for which there is no visible substitute. It does not mandate casting a winner-takes-all vote of its College Members, but it might as well because it effectively limits one state's maximum voice to the agreed number under a winner-take-all system. Here is reflected the fact that the Constitution is a bargain between the states, almost all of whom achieved some questionable advantages for themselves. But having established a working balance of such advantages, no state is able to discover some new loophole and increase its voting powers with it. Far from being a quaint anachronism, the Electoral College is a keystone which assures that any state which tries to unbalance it, will be confronted by a substantial number of states with something to lose.

ARCHITECTURE OF GOVERNMENT: (3) SEPARATION AND BALANCE OF POWERS

The Founding Fathers were in general heatedly opposed to the idea of a domineering monarchy, but frankly disappointed with the lack of energy displayed by the unicameral Continental Congress under the Articles of Confederation. They were more or less satisfied with the Judiciary and the Common Law, although there had been instances of rebellion against Governor-dominated colonial Judges. James Madison tells us in the Federalist Papers that he was greatly taken with Montesquieu's concept of the division and balancing of powers. Probably as a result of the prodding of Madison, the Constitutional Convention's favored system of readjusting this arrangement was to increase the number of centers of power while setting these centers against each other in order to maintain a balance. A concept which gained popularity at the convention was to attempt to give these centers the power to defend themselves, presumably against other centers competing for the same power. The President thus had veto power over acts of Congress, but Congress had partial power to override the veto. Congress could declare war, but the President as Commander in Chief. The President was given the power to execute the laws, but Congress controlled his purse. The Federal Government had control over international and interstate affairs, but the states had control of almost everything else. Although it took a few years for Chief Justice John Marshall to assert it, the U.S. Supreme Court had the right to declare acts of Congress (and the President) to be invalid because unconstitutional, and the Supreme Court had the underlying right to declare what the Constitution meant. On the other hand, the President appointed the federal Judges, with the consent of the Senate. The Chief Justice conducted impeachment proceedings against the President, the Congress had to agree with the decisions. In subsequent centuries, many little tweaks have been added to this system of governmental components holding each other in check, because it takes time for imbalances of power to be discovered and exploited. The general concept was to encourage centers of power to expand and innovate while counting on internal jealousies to hold this "energy" in check.

It's often difficult to guess in advance whether a check and balance system is truly balanced, but over time it is possible to see instances where it has become unbalanced. For example, it was clearly the original intention of the Constitutional Convention and its Ratifying Legislatures that the national government should have only a limited role in adjudicating boundary disputes between the states, interstate commerce and the like, and fairly expansive powers to regulate international treaties and relations, but hardly anything more. Over a period of time, however, it is clear that the central power has come to brush aside the powers of the states. The high point of the original power of States Rights was probably achieved in 1795 with the Eleventh Amendment. This Amendment, the achievement of Charles Ingersoll of Pennsylvania, forbids a citizen to sue a state in Federal Court. Since that leaves the citizen with only the right to sue a state in its own state courts, state power is clearly expressed in the right of the state to decide whether it wishes to be sued. Ever since that time, however, state power has been steadily diminished, ultimately depriving the state legislatures of their power to select the United States Senators of their states in the Seventeenth Amendment. With this steady loss of state power, it is possible that enough sovereignty has been lost to make it impossible to enforce the Eleventh amendment. This amendment was the product of the Progressive Movement of the late Nineteenth century, which now can possibly be seen to have reached its own reversal point in 2012, with Chief Justice John Roberts' opinion that the Federal Government may not dictate terms of state Medicaid programs through the threat of withholding Federal funds from the programs. It remains to be seen whether this change of direction is temporary, or the beginning of a trend. In any event, here it is demonstrated how the balance of power may be shifted, and long-standing imbalances may be corrected by small internal shifts, operating over long time periods.

Another major shift in power, almost the opposite of what the Founding Fathers passionately intended, is the increase in Presidential power. Although the Revolutionary War was fought about the excessive use of power by the British monarch, as much as about anything, there is now little question that the American President has more power over this nation than the British monarch has over his own. This trend can also be seen to have resulted from a series of small actions, over centuries of time. Many millions of Americans now listen intently to Presidential candidates presenting or refusing to present, "their" policies and programs for the following four years. The Articles of Confederation did not even provide for an executive branch, and the inclusion of one in the first draft of the Constitution was viewed with alarm by many citizens. It is hard to read the Constitution today without concluding that it was the original intent to leave policy to Congress, and implementation of that policy to the executive. Whether the Court will reverse this trend, whether the Congress will rebel against its loss of power, or whether we will continue toward an elected monarchy -- remains to be seen.

At the other extreme, we can see the fiercely defended power of the various components of the Department of Defense to retain their independence. The Air Force had comparatively little difficulty establishing its independence of the Army Air Force, and it can be seen that some of this independence rests on the differing engineering requirements of airplanes, tanks, and submarines, as taught in the service academies. But an argument can be made that the military services would be a stronger military force if they were combined in a single unit of warfare, and undoubtedly it is true that this would be a less expensive arrangement. Despite the unquestioned efficiencies, however, this separation of powers has so little chance of reversal that most congressmen would not consider it worth their time to investigate the merits.

In conclusion, it is not possible to be certain whether separation and balancing of powers is a good way to run a country or not. It is merely the way we have chosen to do things in this country. We are not likely to change it as long as we can boast we have the only durable Union of states the world has devised voluntarily. The strong inclination to continue a system which seems to work is likely to overpower any inclination to criticize it. In spite of the evidence that the system would permit further excursions toward the centralized government, we are committed to resisting. And in spite of evidence from the military forces that drift of this sort can be stopped if there exists the determination to stop it.

ARCHITECTURE OF GOVERNMENT: (4) MAJORITY RULE

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

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

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

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

ARCHITECTURE OF GOVERNMENT: (5) UNIFORMITY

Passenger trains of Europe are often praised as superior to our own. There are some bullet trains that go faster than any American train, and there are examples of trains which arrive more promptly than ours do. Mostly, Europeans have more train traffic than we do, so service is perceived as better. More serious European defects are less easily noticed, however. For example, the width between tracks varies between different nations can vary a great deal, causing a stop to change the wheels as you travel between nations. The disruption at the border between France and Spain is particularly notable, and between former Communist countries and capitalist ones. Even between the Netherlands and certain neighboring countries. Still less noticeable are differences in nuts and bolts, electrical wiring systems, and the threads of screws. If notice is taken, a tourist is offered the explanation that this dates to earlier concerns about invasions, Blitzkrieg and the like. Quaint.

{top quote}
The section on Patents and Copyrights is the only clear example in the Constitution, suggesting uniformity is innately a good thing to encourage. It conflicts with absolute liberty, a little, but it discourages needless individualism when that causes needless friction. {bottom quote}
The United States is not immune to the commercial temptation to repel competition, as everyone who is exasperated by the incompatibility of different home computers to be able to interface with little knobs and gizmos, will recognize. Certain manufacturers seem to make a habit of making the knobs inconsistent between different models of their own manufacture, presumably to discipline any customers who are slow to update. But at least in America, we don't see incompatibilities based on state borders. For that, we can thank the Founding Fathers of the Constitutional Convention.

The only overt passage in a document which seems to express a preference for national standards is the clause creating national patents and copyrights. After all, the Constitution would have to be ratified by state legislatures, who might take offense at being criticized for deliberately inconveniencing the citizens with incompatibilities between local products and imported ones. But the preference for national uniformity was clear enough from this one implicit prohibition of state latitude, combined with liberal quoting of Madison's views of how citizens could discipline despotic state government -- by moving their residence to a more enlightened state. You don't move to Wyoming because of nuts, bolts, and screws, but you can dis-elect your local legislator for doing something the Founding Fathers frowned upon. And, as Mr. Dooley is famous for saying, the Supreme Court reads the newspapers. Corn is corn and eggs are eggs, but the Industrial Revolution provided many more opportunities for sharp behavior of this sort than a rural nation would provide. And by being new and novel at the time, deliberate nonuniformity was easily noticed, and all the more irritating.

Patent Pending

{Constitution}
Constitution

Most of the members of the Constitutional Convention of 1787were also members of the early Senate and Congress during the time when Philadelphia was seat of government. The Constitution had made provision for copyrights and patents "for a limited time", and the early Congresses fixed a reasonable time as seventeen years. A couple of years ago, Congressman Bono sponsored a law, widely supposed to be for the benefit of her constituent Walt Disney extending the time to 99 years. Since the creation of monopolies for a limited time was stated to be for the purpose of encouraging innovation, lawsuits were promptly filed with the contention that 99 years was essentially unlimited, and in any event, would throttle innovation. In the Eldred case, the U.S. Supreme Court reluctantly held that it was up to Congress to decide how long was a limited time, meanwhile expressing its dismay at the earlier Congress which had allowed the time to be so extended by what is widely reported to be a log-rolling contest among lobbyists. The disgust of the Supreme Court was very thinly disguised in its opinion, which quite obviously hoped for Congress to take another look at what it had done.

So now the question arises, of how such a strange provision got to be in the Constitution in the first place. The >members of the convention were mostly farmers and plantation owners, quite recently returned to civilian life after struggling with King George III over governmental intrusion into trade and commerce. Why ever would these people, who were otherwise so parsimonious in their rules and principles, think to intervene in patents and copyrights? It has been suggested that Thomas Jefferson, who was a writer and an inventor, might have been the source of this provision. Unfortunately, Jefferson was three thousand miles away during all of the Constitutional Convention, and was quite dismayed with the completed Constitution when he later returned.

It's a job for some graduate student in American History, looking around for something to write his thesis about. James Madison kept extensive secret diaries of the interior arguments at the Convention, and Benjamin Franklin's Collected works run to over eighty volumes. Surely, among all those scribblings by quill pens, can be found some revealing references to the originator of the bizarre little patent clause. And if it turns out to have been anyone except Ben Franklin, it will be a great surprise. Surely there is a broad hint in the fact that for many years the Franklin Institute essentially was the U.S. Patent Office. Just think for a moment of the value of holding a patent on the invention of electricity. Makes Microsoft seem rather trivial. And as for a comparison with Mickey Mouse, well, really.

ARCHITECTURE OF GOVERNMENT: (6) POLITICAL PARTISANSHIP

{Hamilton and Burr Duel}
Hamilton and Burr Duel

Alexander Hamilton, John Jay, and James Madison collaborated in 85 essays, published in the newspapers to win over New York State to ratify the proposed 1787 Constitution as written (which meant approving it without further amending it). The collected essays are now known as the Federalist Papers , authored under the collective pen name of Publius. They were written in great haste during the period before the New York ratifying convention, so there are signs of lack of coordination between the authors. Most of the articles were written by Madison, so his contributions scarcely paused for thought before going on to another topic.

Madison's paper, now called Federalist No. 10, is thought to be the most famous of the group, possibly the most influential. However, its theme is that wide diversity of opinion in a large republic will neutralize itself and therefore eliminate partisanship. Nothing could be farther from what turned out to be the case, however, since Madison himself was one of the principal actors in the drama which soon and apparently permanently established the dominance of the two-party system. As a further irony, his main opponent was his co-author Hamilton. This change of heart, never satisfactorily explained, was particularly bitter on a personal level. Washington essentially never spoke to Madison again, in spite of the close personal collaboration of the two in engineering the Constitutional Convention, the Bill of Rights, and the cultural characteristics of the republic. Unless someone discovers hidden documents from the time, it is likely we can never be certain whether Madison's change of heart was a result of Jefferson's persuasion or persuasion by events. Some conspiracy theorists have suggested that Madison never believed what he said in No. 10, while other cynics point out that Washington could merely offer him fame, but Jefferson was in a position to make him President. Unfortunately, Madison's subsequent presidency was an undistinguished one, and some have pointed to his switch as early evidence of unreliability. In any event, he did reverse positions from regarding partisanship as the main destroyer of republics to coming very close to proving it in the War of 1812. Perhaps he was merely reading the handwriting on the wall. Partisanship has been a constant feature of the nation ever since the election of 1800, and traces of it can be found much earlier than that.

It remains a possibility that Madison's switch was the result of this bookworm's faulty analysis of the roots of partisanship in a republic. His opinion was necessarily based on criteria other than personal observation. There had been no good models to examine since the fall of the Roman Republic in 44 B.C., and even these historical events had been highly mythologized. The essential activity which nourishes partisanship is vote-swapping. When many different issues are laid before a representative of a district, it is inevitable to value some more than others, even to the point of trading his meaningless votes (meaningless to him, or to his district, or both) for more valuable considerations. Sometimes these considerations can be dismissed as corruption, but most commonly the consideration is personal advancement. The congressman needs the votes of other congressmen to advance in the power structure, and it is usually in the interest of his district for him to advance. Whatever he does in the arena of party politics seldom betrays his district, but often involves betraying some fellow representative. It is in this sense that party politics are "dirty". However, the durability of two-party systems allows personal distinctions to be buried within a party label, thus constraining the main concerns of the district to an absolute minimum of choices. There is no need to debate proportional representation; an unconstrained election process itself forces compromises which drive the party toward the center in order to win. In those nations with splinter parties, it is necessary to bargain and compromise after the election in order to achieve a governing majority, so the bothersome public is shut out from participating in the "deals". The essential decisions in coalition governments are often made by a handful of leaders, many of whom achieved party leadership by highly questionable methods. Without saying one word about political parties, our Constitution drives us to a two-party system.

Madison argues in No. 10 that a multiplicity of competing interests would make it progressively more difficult for political parties to remain stable. It is a reasonable argument, which has been reformulated to mean that durable parties must engineer loyalty to a few broad enduring themes, in order to survive from era to era. Rich versus poor would seem a suitable theme, rendered somewhat unsuitable by America's ideal of the poor immigrant, rising in the scale of things to become a rich immigrant or rich immigrant grandson. In recent years, the argument emerged that we should selectively seek immigrants with talents or wealth, thereby enriching our whole nation. As such refinements of a larger theme appear, parties can change. The D's and the R's have completely switched positions on the tariff, for example, and on federal taxation. A constant state of percolation has not had the effect Madison imagined; partisanship has proved stronger than issues. Paradoxically, as parties shift their ingredients of appeal, they become more alike, and the country comes closer to a dead tie in national elections. National balloting is probably not perfected to the point where it can withstand repeated examples of nearly tied elections, so this tends to stabilize may eventually destabilize itself. Tinkering with the election process is viewed with suspicion by the public. So, in the long view of things, perhaps the Constitution has it right. The best policy about political parties is to have no policy.


REFERENCES


The Federalist Papers: James Madison ISBN-13: 978-1936594405 Amazon

Legislative Branch: Two Chambers or One?

The traditional explanation for the two-chamber arrangement of legislative branches is that John Dickinson once crafted a compromise between the big states and the small-state demand for equality. That's accurate, and it's also true that the two-chamber system in Great Britain balances the power claims of the landed aristocracy with the demands of commoners. But only the Pennsylvania legislature of 1777 seems to have addressed head-on the issue of whether, in general, two were better than one. A central issue is whether the two chambers are selected by two distinctive characteristics, not what the characteristics are. By fighting to have only one chamber, the Pennsylvanians inadvertently demonstrated why unicameralism is unwise; shot themselves in the foot, as it were. Big state, little state, or patricians versus commoners, (or any other system of selection) was scarcely a central issue at all; what was essential was to create two bodies, with internal politics necessarily based on different criteria for leadership scheming. Electing representatives for six years rather than two is a minor distinction but it has a certain effect; after all, electing people for life would make a huge difference. Electing geographically, whether by counties as many states do or by state, is not terribly important in itself. What appears to be important is that one body is elected by the population, the other body geographically, and thus there are two different schemes to achieve power. Such differing political machines will seldom agree on a single pinnacle of power, thus undermining one of the central weaknesses of allowing political parties to exist. Washington believed he could achieve this outcome by making it a mark of disgrace to caucus outside of the voting chamber, probably not recognizing that relief from the temptations of tyranny was already built into the system by happenstance.

{Founding Fathers}
Founding Fathers

Bicameral, two-party legislatures seem to soften many of the objectionable features of political parties. Our founding fathers considered many things, but they never made up their minds about enduring political parties. Factions would, of course, appear with each contentious issue, but the modern idea of parties required experience to cope with, and the founding fathers had little experience. They were realists and pragmatists, but the concept of informal little warring governments within the government was a powerful concept they simply did not address. Part of that was due to the implacable resistance of George Washington to the whole idea; no one wanted to confront him on a topic he was so passionate about. His violent temper was famous, and sometimes it was irrational. He expected every senator and congressman to speak his mind on every subject, assuming an equal role from the day he was sworn in. For a while, it almost worked, largely because so many of the early congressmen had been members of the Constitutional Convention, hand-picked to be able to persuade their states to ratify it. But as elections became more routine it became evident that people who were primarily skillful at getting themselves elected would arrive in Congress, only to demonstrate they were lost, ignorant, or preoccupied. They "needed seasoning", out of which grew the seniority system, tending to substitute duration in office for competence and independence of mind; the main idea of seniority was to hold back raw newcomers, just a little. The vast variety of topics for Congress to consider inevitably demonstrated that many congressmen simply did not care what happened to a great many issues, but cared inordinately much about some others. Thus, the newcomers quickly needed a mechanism for trading their votes for "minor" issues in return for voting support on what they thought were "major" issues. As party leaders began to make an appearance, the leader acquired power through the seniority system, which quickly morphed from friendly advice to newcomers, into the warning phrase: "wait your turn".

{Henry Clay}
Henry Clay

Henry Clay, who had watched the system from the Senate, walked into the House of Representatives in 1811 and was elected Speaker on the first day. He quickly transformed the role of Speaker from an impartial umpire of debate and merged the powers of the Speaker with the powers of the Majority Leader. A supposedly independent Majority Leader still exists but is actually acting the role of the party whip. The true majority leader had pushed the nominal one aside, adding the powers of the speaker to his own. The supposedly impartial Rules Committee is merely an enforcer for the will of the majority party leader, rewarding and punishing Congressional colleagues as the Speaker desires. The volume of work relentlessly increased to over twenty thousand bills a year, so the larger House of Representatives was able to develop specialist experts in many fields which the Senate simply did not have the manpower to parcel out. Those who are familiar with the internal politics of large corporations will recognize the devastating threat of switching such a specialist from a field in which years of experience have been invested, into another field specifically chosen as a punishment, to seem unfamiliar or better still detestable. Speakers and Rules Committees which see themselves as impartial umpires do not do such things. But a power-hungry Majority Leader would laugh about it with his cronies. When a convulsive change of membership like the Tea Party suddenly makes an appearance, abusive leadership has a reason to mellow; but the difference between mellowing and biding your time is a small one.

The Senate has its own rules, so arcane and numerous it takes years to learn them. For present purposes, they are unimportant. The crucial thing is they are different from the House rules and tend to promote a different style of leadership. The leadership of the two bodies thus will usually have a clash of interest, and out of that comes restraint of arbitrary power. A phrase much in circulation within the Tea Party congressmen is that "The other party contains our adversaries, but the Senate contains our enemies." George Washington would not be amused, but Madison would be satisfied.

{Boston Tea Party}
Boston Tea Party

The 1777 Pennsylvania Legislature seems to have grasped the idea behind a single Legislative body immediately. The Constitution of the State had been bitterly contested, and one of the main issues was unicameralism. The radicals wanted power for the Legislature, and this was one clear way to enhance it. What the heedless egalitarians did with power once they got it, had a lot to do with persuading the Constitutional Convention ten years later, that John Dickinson's bicameralism had a pretty good idea buried within his Grand Compromise. In retrospect, it can be seen that the victories at Trenton and Saratoga, plus the early successes of the privateer navy, strengthened the other colonies and mostly put moderates in charge; in Pennsylvania however it was the radicals who took over the leadership and started acting on the assumption that radicals were the natural leaders of the rebellion. At least one major cause of this peculiarity was that the British attack was focused on Philadelphia, and moderate forces were forced to flee. While the Continental Congress initially fled to Baltimore as Howe approached Trenton, they briefly returned to Philadelphia until the British were actually on the outskirts of town, and then fled a second time. Because there was general dissatisfaction with Baltimore, this time they went to Lancaster and then across the Susquehanna to the then little town of York. Morris was better prepared than most and had bought the von Stiegal mansion in the Lancaster suburb of Manheim. To the extent it was possible to direct the maritime and financial activities of the Continental Congress from such a distance, he was at least able to do it in moderate comfort. This movement of the Continental Congress may not have caused the radical uprising in Pennsylvania, but it certainly suppressed the moderate forces which would have acted to restrain it.

For practical purposes, The radical legislature got its unicameral wishes and started printing money recklessly, imposing price controls and personal threats against anyone who raised prices. The leaders of the Quakers, with Israel Pemberton ("The King of the Quakers") and several dozen others dumped into oxcarts, were exiled into the Shenandoah Valley of Virginia. James Wilson, obeying a lawyer's duty to defend his clients to the best of his ability, was the target of anger in the streets. A mob of radicals caught the Quakers emerging from the Arch Street meetinghouse and executed two of them. The mob continued a few blocks to James Wilson's house at 3rd and Walnut, and besieged a number of moderates including Robert Morris in the "Battle of Fort Wilson". The moderates were prepared to fight, but the appearance of the First City Troop put an end to the fighting of this revolution within the revolution. To a certain degree, the mob violence seems to have been provoked by food shortages, which were in turn caused by suppression of prices to a level the farmers would not accept. Inflation was raging out of control as the Legislature printed more money and attempted to make farmers accept it by force. A remarkably insightful economist of Philadelphia at the time, Pelatiah Webster, summarized the situation in a few pithy remarks which can scarcely be improved on today. Uncontrolled currency leads to inflation, inflation leads to price controls, and price controls lead to famine. The farmers simply would not sell their abundant crops for such constrained prices, city-dweller starvation notwithstanding. Their action was not violent; they simply withheld goods from the market, waiting for better prices. Price controls were, of course, futile after a very short time. Food riots were the last step before total chaos. Although the fighting stopped, the radicals consolidated their control at the next election, with Robert Morris and others of his sympathizers, turned out of office. After four years of war, things were beginning to fray at the edges.

Political Parties, Absent and Unmentionable

{King George III}
King George III

BECAUSE America had recently revolted to rid itself of King George III, the Constitutional framers of 1787 sought to construct a government forever free from one-man rule. Inefficiency could be accepted but central dictatorial power, never. It is unrealistic however to expect a wind-up toy to keep working forever, and our Constitution creates the same worry. After two centuries, some chinks have appeared.

{Founding Fathers}
Founding Fathers

Political parties existed in 18th Century England and Europe, but the American founding fathers seem not to have worried about them much. Within ten years of Constitutional ratification, however, Thomas Jefferson had created a really partisan party which naturally provoked the creation of its partisan opposite. James Madison was slowly won over to the idea this was inevitable, but George Washington never budged. Although they were once firm friends, when Madison's partisan position became clear to him, Washington essentially never spoke to him again. Andrew Jackson, with the guidance of Martin van Buren, carried the partisan idea much further toward its modern characteristics, but it was the two Roosevelts who most fully tested the U.S. Supreme Court's tolerance for concentrating new powers in the Presidency, and Obama who recognized that the quickest way to strengthen the Presidency was to weaken the Legislative branch.

Dramatic episodes of this history are not central to present concerns, which focuses more on the largely unnoticed accumulations of small changes which bring us to our present position. Wars and economic crises induced several presidents, nearly as many Republicans as Democrats, to encourage migrations of power advantage which never quite returned to baseline after each crisis. Primary among these migrations was the erosion of the original assumption of perfect equality among individual members of Congress. A new member of Congress today may tell his constituents he will represent them ably, but when he arrives for work he is figuratively given an office in the basement and allowed to sit on empty packing cases. This is not accidental; the slights are intentional warnings from the true masters of power to bumptious new egotists, they will get nothing in their new environment unless they earn it. Not a bad idea? This schoolyard bullying is a very bad idea. If your elected representative is less powerful, you are less powerful.

{Houses of Congress}
Houses of Congress

Partisan politics begins with vote-swapping, evolves into a system of concentrating the votes of the members into the hands of party leaders, and ultimately creates the potential for declaring betrayal if the member votes his own mind in defiance of the leader. The rules of the "body" are adopted within moments of the first opening gavel, but they took centuries to evolve and will only significantly change direction on those few occasions when newcomers overpower the old-timers, and only then if some rebel among the old timers takes the considerable trouble to help organize them. In the vast majority of cases, after adoption, the opportunity to change the rules is then effectively lost for two years. Even the Senate, with six-year staggered terms, has argued that it is a "continuing body" and need not reconsider its rules except in the face of a serious uprising on some particular point. Both houses of Congress place great weight on seniority, for the very good purpose of training unfamiliar newcomers in obscure topics, and for the very bad purpose of concentrating power in "safe" districts where party leaders are able to exercise iron control of the nominating process. Those invisible bosses back home in the district, able to control nominations in safe districts, are the real powers in Congress. They indirectly control the offices and chairmanships which accumulate seniority in Congress; anyone who desires to control Congress must control the local political bosses, few of whom ever stand for election to any office if they can avoid it. In most states, the number of safe districts is a function of controlling the gerrymandering process, which takes place every ten years after a census. Therefore, in most states, it is possible to predict the politics of the whole state for a decade, by merely knowing the outcome of the redistricting. The rules for selecting members of the redistricting committee in the state legislatures are quite arcane and almost unbelievably subtle. An inquiring newsman who tries to compile a fifty-state table of the redistricting rules would spend several months doing it, and miss the essential points in a significant number of cases. The newspapers who attempt to pry out the facts of gerrymandering are easily gulled into the misleading belief that a good district is one which is round and compact, leading to a front-page picture showing all districts to be the same physical size. In fact, a good district is one where both parties have a reasonable chance to win, depending for a change, on the quality of their nominee.

So that's how the "Will of Congress" is supposed to work, but the process recently has been far less commendable, and in fact, calls into dispute the whole idea of a balance of power between the three branches of government. We here concentrate on the Health Reform Bill ("Obamacare") and the Financial Reform Bill ("Dodd-Frank"), which send the same procedural message even though they differ widely in their central topic. At the moment, neither of these important pieces of legislation has been fully subject to judicial review, so the U.S. Supreme Court has not yet encumbered itself with stare decisis of its own creation.

{hree  branches of government}
Three branches of government

In both cases, bills of several thousand pages each were first written by persons who if not unknown, are largely unidentified. It is thus not yet possible to determine whether the authors were affiliated with the Executive Branch or the Legislative one; it is not even possible to be sure they were either elected or appointed to their positions. From all appearances, however, they met and organized their work fairly exclusively within the oversight of the Executive Branch. Some weighty members of the majority party in Congress must have had some involvement, but it seems a near certainty that no members of the minority party were included, and even comparatively few members of highly contested districts, the so-called "Blue Dogs" of the majority party. It seems safe to conjecture that a substantial number either represent special interest affiliates or else party faithful from safe districts with seniority. The construction of the massive legislation was conducted in such secrecy that even the sympathetic members of the press were excluded, and it would not be surprising to learn that no person alive had read the whole bill carefully before it was "sent" to Congress. It's fair to surmise that no member of Congress except a few limited members of the power elite of the majority party were allowed to read more than scattered fragments of the pending legislation in time to make meaningful changes.

The next step was probably more carefully managed. No matter who wrote it or what it said, a majority of the relevant committees of both houses of Congress had to sign their names as responsible for approving it. Because of the relatively new phenomenon of live national televising of committee procedure, the nation was treated to the sight of congressmen of both parties howling that they were only given a single day to read several thousand pages of previously secret material -- before being forced to sign approval of it by application of unmentioned pressures enabled by the rules of "the body". When party members in contested districts protested that they would be dis-elected for doing so, it does not take much imagination to surmise that they were offered various appointive offices within the bureaucracy as a consolation. As it turned out, the legislation was only passed narrowly on a straight-party vote, so there can be a considerable possibility of its likely failure if the corruptions of politics had been set aside, with members voting on the merits. Nevertheless, since this degree of political hammering did result in a straight-party vote, it leaves the minority party free to overturn the legislation when it can. The prospect of preventing an overturn in succeeding congresses seems to be premised on "fixing" flaws in the legislation through the issuance of regulations before elections can open the way to overturn of the underlying authorization. Legislative overturn, however, is very likely to encounter filibuster in the Senate, which presently requires 40 votes. Even that conventional pathway is booby-trapped in the case of the Dodd-Frank Law. The Economist magazine of London assigned a reporter to read the entire act, and relates that almost every page of it mandates that the Executive Branch ("The Secretary shall") must take rather vague instructions to write regulations five or ten times as long as the Congressional authorization, giving the specifics of the law. The prospect looms of vast numbers of regulations with the force of law but written by the executive branch, emerging long after the Supreme Court considers the central points, years after the authorizing congressmen have had a chance to read it, and well after the public has rendered final judgment with a presidential election. The underlying principle of this legislation is the hope that it will later seem too disruptive to change a law, even though most of it was never considered by the public or its representatives.

{Bill become a Law}
Bill become a Law

The "regulatory process" takes place entirely within the Executive branch. Congress passes what it terms "enabling" legislation, containing language to the effect that the Cabinet Secretary shall investigate as needed, decide as needed, and implement as needed, such regulations as shall be needed to carry out the "Will" of Congress. Since the regulations for two-thousand-page bills will almost certainly run to twenty thousand pages of regulations with the force of law, the enabling committee of Congress will be confronted with an impossible task of oversight, and thus will offer few objections. The Appropriations Committees of Congress, on the other hand, are charged with reviewing every government program every year and have the power to throttle what they disapprove of, by the simple mechanism of cutting off the program's funds. Members of the coveted Appropriations Committees are appointed by seniority, come from safe districts, and are attracted to the work by the associated ability to bestow plums on their home districts. By the nature of their appointment process, unworried by the folks back home but entirely beholden to the party bosses, they have the latitude to throttle anything the leadership of their party wants to throttle badly enough. The outcome of such take-no-prisoners warfare is not likely to improve the welfare of the nation, and therefore it is rare that partisan politics are allowed to go so far.

The three branches of government have become unbalanced. These bills were almost entirely written outside of the Legislative branch, and the ensuing regulations will be written in the Executive branch. The founding fathers certainly never envisioned that sweeping modification will be made in the medical industry and the financial industry, against the wishes of these industries, and in any event without convincing proof that the public is in favor. This is what is fundamentally wrong about taking such important decisions out of the hands of Congress; it threatens to put the public at odds with its government.

{Justice George Sutherland}
Justice George Sutherland

There is no need to go further than this, harsher words will only inflame the reaction further than necessary to justify a pull-back. And yet, the Supreme Court would do us mercy if it doused these flames; the Supreme Court needs a legal pretext. May we suggest that Justice George Sutherland, who sat on the court seventy years ago, may have sensed the direction of things, short of using a particular word. Justice Sutherland recognized that although it is impractical to waver from the principle that ignorance of the law is no excuse, it is entirely possible for a person of ordinary understanding to read law in its entirety and still be confused as to its intent. He thus created a legal principle that a law may be void if it is too vague to be understood. In particular, a common criminal may be even less able to make a serious analysis. Therefore, at least in criminal cases, a lawyer may well be void for vagueness. In this case, we are not speaking of criminals as defendants or civil cases of alleged damage of one party by a defendant. Here, it is the law itself which gives offense by its vagueness, and Congress which created the vagueness is the defendant. Since we have just gone to considerable length to describe the manner in which Congress is possibly the main victim, this situation may be one of the few remaining ones where a Court of Equity is needed. That is, an obvious wrong needs to be corrected, but no statute seems to cover the matter. The Supreme Court might give some thought to convening itself as a special Court of Equity, on the special point of whether this legislation is void for vagueness.

We indicated earlier that one word was missing in this bill of particulars. That would be needed, to expand the charge to void for intentional vagueness, an assessment which is unflinchingly direct. It suggests that somewhere in at least this year's contentious processes, either the Executive Branch or the officers of the congressional majority party, or both, intended to achieve the latitude of imprecision, that is, to do as it pleased. Anyone who supposes the general run of congressmen voluntarily surrendered such latitude in the Health and Finance legislation, has not been watching much television. Given the present vast quantity of annually proposed legislation, roughly 25,000 bills each session, the passage of a small amount of vague legislation might only justify voiding individual laws, whereas an undue amount of it might additionally justify a reprimand. However, engineering laws which are deliberately vague might rise to the level of impeachment.

C14....................Political Parties

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The Virginia Plan

After a long period of dissatisfaction with the Articles of Confederation, and much scheming by Virginians, a convention of the thirteen states was called to meet in Philadelphia in late May 1787. George Washington agreed to attend, which assured the attendance of others, and James Madison tended to the myriad details of getting the Confederation Congress to agree to hold the convention, the thirteen states to appoint notable delegates to it, and the notables themselves to agree to the duty of attending. The long hand of George Washington directed much of the activity, and although he had professed uncertainty about the propriety of his attending, it was universally assumed that he would be the presiding officer. Although Madison had been skillful in stirring up widespread national approval, this was quite obviously a Virginia initiative. Virginia was the largest and richest state in the union, and quite easily fell into the idea that the responsibilities of leadership belonged to Virginia.

{Edmond Randolph}
Edmond Randolph

Travel was uncertain in the Eighteenth century, and the delegates straggled into Philadelphia. Virginia naturally took care to arrive early, and its delegates held a number of informal meetings in various Philadelphia locations. By May 29, 1787, the Virginia delegation had greeted the incoming members from other states, taking care to pass around the notion that Virginia had a plan, or at least a proposal to begin the discussion. We are told that just about every word of the Virginia Plan was written by James Madison, although it was introduced to the Convention by Virginia's Governor, Edmond Randolph. It consisted of fifteen resolves or proposals, phrased as potential amendments to the Articles of Confederation. Since the Articles contained very little description of the details of government except to create a Congress, the proposed amendments were essentially only one amendment: Congress should be bicameral instead of having only one chamber, and the members of one chamber should be elected by the states in numbers proportionate to population size. Since Virginia had the largest population, that was scarcely a surprise, although not invariably a welcome surprise. To some of the small states, Virginia was saying that all our national problems came about because insufficient power had been given to Virginia. But it was a place to begin discussions, and since ten of the thirteen were small states, it was only a matter of time before the smaller states would propose something different. And sure enough, there promptly emerged what was known as the New Jersey Plan, proposing a unicameral Legislature, with an equal number of votes for every state. There were a few other ideas in both plans, but it was immediately apparent that the convention was going to begin with the rules of the Legislature, and would go no further unless small states and large ones could find a way to share power to their mutual satisfaction. With the Articles of Confederation, we had taken a major step toward a single unified nation. But it had not worked, and if the Convention could not find a way to make Union workable, the next step was not going to be a reversion to the Confederation Congress. It was most likely to result in thirteen independent countries, quarreling with each other, and eventually probably going to war with each other about something.

Free Quaker Meetinghouse

{Independence Hall}
Independence Hall

Until this year, there was a Beautiful Mall stretching north from the State House (Independence Hall) to the approaches of the Benjamin Franklin Bridge. Concealing an enormous parking garage underneath it, the surface looked like a several-block lawn lined with flowering trees in the spring, framing the beautiful Eighteenth Century building (just as the mall in Washington leads up to the Washington Monument.)

Stretching from Independence Hall east to the Delaware River is another mall filled with historical buildings like Carpenters Hall , the First Bank(Girard's) and Second Bank (Biddle's), the Old and the New Custom houses, the American Philosophical Society, and others. The eastern mall was the property of the State of Pennsylvania when it was created, but it soon seemed more economical to the frugal rural legislature to turn it over to the federally funded National Park Service, joining the mall stretching northward. Well, somebody got another ton of federal money appropriated, and now we are filling the north mall with buildings which largely hide Independence Hall from the passersby. With just a few more Congressional earmarks, the imposing beauty of the mall will be submerged, but it hasn't quite reached that point yet. There is a perfectly enormous New Visitors Center, containing a couple of auditoriums and a big bookstore. Mostly the concept seems to be to provide a place to get out of the rain if you are an out of town visitor, provide public bathrooms, and a place to get a hot dog. At least the visitors center is red brick, and arched, with white woodwork. At the far northern end is an overwhelming stark granite block of a building, which will open July 4, 2003. It is a Constitution Center, claimed to be an interactive museum, and we shall see what we shall see. The looming monolith overwhelms and blocks the view to Independence Hall, and it better be good, when the insides get finished.

{Free Quaker Meeting}
Free Quaker Meeting

If Independence Hall, which after all is a block long, is overwhelmed by the new constructions, the Free Quaker Meeting is totally hidden. This perfectly charming Eighteenths Century Quaker meetinghouse is just across Fifth Street from Benjamin Franklin's Grave, and just across Arch Street from the Constitution thing, completely in its shadow. Charles E. Peterson designed the restoration of the building, which had been added to and detracted from, over the years, but you can be sure its interior is now both beautiful and authentic. Before you go in, notice the inscription on the plaque under the northern eaves:

By General Subscription for the FREE QUAKERS. Erected in the Year of OUR LORD 1783 and of the EMPIRE 8.

The Quakers who built this building seem to have thought they were part of a new empire, but that implies an emperor, and of course, one was never created. Three years after the dedication of this building the Constitutional Convention met in the same Independence Hall, and our national form of government was somewhat strengthened from the Articles of Confederation also written here. Benjamin Franklin had a hand in both documents, but the first one was mainly composed by John Dickinson, and the second one by James Madison. If you go into the Free Quaker building, it seems to be a single large room with an interior balcony, and a couple of small staircases in the back leading down to what would presumably be restrooms. As a matter of fact, the Park Service extended the basement to include kitchen and dining room, and several offices for themselves which are a surprise if you are allowed to go down to see them.

{History of Free Quaker}
History of Free Quakers

Charlie Peterson wrote a book about the restoration, but the main book about the spiritual history of this group was written by Charles Wetherill. Quakers, as everyone ought to know, are pacifists. The American Revolution put a number of them in a quandary because they agreed that Great Britain was injuring their rights by denying them a representative in the Parliament which ruled them but resorting to violence was another matter entirely. Eventually, a group did break away from the main Quaker church to fight for independence. They were prompt "readout of the meeting", the equivalent of being excommunicated, not allowed to worship in the regular meeting houses they had helped finance or to be buried in the church graveyards. Samuel Wetherill was one of the leaders of this group, just as his descendants are the most active today in the surviving historical society. Samuel created quite a furor, demanding to use the Orthodox meeting house and burial grounds. He was, in his own view, just as much a Quaker as the others since no doctrine is absolutely fixed in that religion, and was freely entitled to speak his mind to persuade others of the rightness of his sincere positions. The main body of Quakers would have none of it, and the Free Quakers were firmly expelled, forced to hold a public subscription and build their own meeting house. Wetherill of course personally knew every one of the members who expelled him, and there may be some truth to his loud, pointed and unchallenged contention that the true division was not between pacifists and fighters, but between Tories and advocates of Independence. Whatever the truth of these accusations, it does seem in retrospect that the split was fairly divided between wealthy established merchants, and small shopkeepers and artisans. Quite a few now-famous names appear on the rolls of the Free Quakers, like Timothy Matlack the actual Scribe of the Declaration of Independence document, Biddles, Lippincott, John Bartram,Crispins, Kembles, Trippes, and Wetherills. When the meeting had dwindled down in 1830 to two lone parishioners, one was a Wetherill, and the other was Betsy Ross, herself.

A comment is submitted by a reader:

I think your description of the Free Quakers oversimplifies their origins. It is true that Samuel Wetherill was disowned by Friends for his military activities. However, other Free Quaker leaders were bounced -- often years before the Revolution -- for other reasons. Timothy Matlack, for not paying his debts. Betsy Ross, for an improper marriage. Christopher Marshall, for counterfeiting. I haven't traced everyone listed as a member in the (1907?) Stackhouse history of the Free Quakers. But I did search in Quaker records for perhaps a dozen and found no records that people with those names had ever been Quakers. I think it would be more accurate to say of the Free Quakers that the Revolution drew together people of many different types and that when some of those people had things in common -- such as Quaker background -- they united around those things. (Posted by Mark E. Dixon )

C12..........The Convention and Its Product

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C13.............Balance at Last

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North of Market

{Free Quaker Meeting House}
Free Quaker Meeting House

In their 1956 book "Philadelphia Scapple", Harold Donaldson Eberlein and Mrs. Henry Cadwalader give an interesting description of the evolution of the term "North of Market". In the early days of the city, almost all of the town was South of Market Street. In fact, an early 18th Century visitor once wrote that he always brought a fowling piece when he visited Philadelphia because the duck hunting was so good at the pond located at what is now 5th and Market.

When the Quaker meeting house was built at 4th and Arch Streets, many of the more important Quaker families thought it was important to build their houses nearby. In that way, Arch Street developed the reputation of being a Quaker Street. So the original meaning of the North of Market term was the Quaker ghetto. Quaker families continued to spread West along Arch Street or nearby, and this accounts for the location of the Friends Center at 15th and Cherry and related local activities. When the Free Quaker were evicted from the meeting at 4th and Arch because of their activities during the Revolution, they built their own meeting at -- 5th and Arch.

{Chinese Wall}
Chinese wall

During the Civil War, a number of people made fortunes that socially upscale people over in the Rittenhouse Square area considered disreputable, so elaborate but ostracized mansions marched due North up Broad Street, where they can still be observed as stranded whales in the slums, leaders without followers. The show houses of manufacturers of shoddy war goods soon gave the meaning of parvenu to the term North of Market.

And then, the Pennsylvania Railroad ran an elevated brick structure from 30th Street to City Hall Plaza, the so-called Chinese Wall. For nearly a century this ugly looming structure on Pennsylvania Boulevard, now John Kennedy Boulevard, with its smoky engines above, and dark dripping tunnels at street level, sliced the town in half and made it very unattractive to build or to live, North of Market. The Spring Garden area had some pretty large and expensive houses, but it was cut off by the railroad trestle and has only recently started to revive. It helped a lot to tear down the Chinese Wall, but that was fifty years ago, and the area has taken a long time to recover from the earlier diversion of social flow to the South of it. And, psychologically, North of Market will take even longer to recover from the implication of -- industrial slum.

{center}
center

Meanwhile, of course, Oriental immigration settled along Arch Street at 9th to 12th Streets, and we now have our Chinatown there, complete with street signs in oriental lettering. In effect, we have a real Chinese Wall, a social one. Just what will happen to this group is unclear, since it is readily observable that they like to cluster together, unlike the East Indian immigrants, who head for the suburbs as fast as they can. Since the Chinese colony is physically blocked on all sides by the Vine Street Expressway, the Convention Center, and the Ben Franklin Bridge, it is hard to know where they will flow if the group gets much larger. The depressed Vine Street crosstown expressway makes a definitive border for downtown, and the contrast between the two sides of this expressway is striking. On one side is Camelot, and on the other side, almost nothing is being built. The future of North of Market, at the moment, is a little unclear.

The Revolutionary Origins of The Methodist Church

{Methodist Church}
Methodist Church

There were no signers of the Declaration of Independence who were official Methodists, for the simple reason the Methodist Church was not created until 1784 when John Wesley, secretly ordained its first ministers. However, there is room to believe the movements eventually creating the Methodist Church played a central role in American agitation for independence.

The origins are a little confusing. John and Charles Wesley were both priests in the Church of England, and John famously declared, "I will live and die an Anglican." While at Oxford, they founded a bible and ethical study society which came to be called the Holy Club, and because of systematic thoroughness were familiarly known as Methodists. A systematic study of the Bible in small class groups was a central feature. There was no dissatisfaction with, or rebellion from, the Church of England. Missionary zeal was a second early feature of the group, and some early missionaries like Bishop Francis Asbury were especially active in the American colonies. When Asbury came to America there were 1200 adherents of the general concepts, and when he died there were a quarter of a million formal members of the church. This rapid growth soon became its main problem, because the Anglican Church simply could not supply enough priests, and so the local congregations demanded the right to ordain their own ministers. Wesley agreed but did it secretly. America was a long way from England, and the idea of a local church, independent of England, soon made its appearance, particularly as local practices began to diverge from the Anglican ones.

Missionary zeal soon evolved into a more exhortational evangelism. In Pennsylvania Quaker country, restlessness with Quaker silence produced a reaction of joyous outcry during religious meetings, creating the description "shouting Methodists". Hymn singing was important as a result of Charles Wesley's influence and many Methodist hymns have been adopted by other Protestant denominations. Drunkenness was a major problem in the colonies, and anti-drunkenness or temperance, was the main feature of Methodist attention. A century later, Methodist ministers were to found the Salvation Army, which embodies many of the principles of evangelical, hymn singing anti-drunkenness crusading.

{Charles Wesley}
Charles Wesley

From its earliest days, Methodism welcomed blacks into membership, although a segregationist strain to it ultimately caused trouble. A central figure in the configuration of the early Methodist Church was John Newton, the captain of a slave ship. After nearly perishing in a storm, Newton attributed his rescue to God's intervention, writing the famous hymn, Amazing Grace. He spent the rest of his life in evangelical activities, with particular emphasis on black people.

Although his American visit preceded the formation of the Church, George Whitefield the evangelical preacher played a major role in preparing the Colonial Philadelphia populace for the concepts of Methodism. He attracted great crowds to his sermons, and Benjamin Franklin describes in his autobiography the great impact Whitefield had on him. Now, as it happened, the German Reform church had started but was unable to complete a church building at 235 North 4th Street, which was sold at auction to members of the local Methodist Society. This church building, started in 1763, purchased in 1767, and completed in 1769, can fairly claim to be the oldest Methodist Church building in continuous service in the world, although the dates of these things are pretty confusing for a church officially created in 1784. Just to make things more difficult to understand, Barratt's Chapel, ten miles south of Dover, Delaware, was completed in 1784 on land donated in 1780. If you say it slowly, you can see that it is possible to describe Barratt's Chapel as the oldest house of worship built by and for Methodists. John Wesley's chapel, on City Road, London, is however still the mother church, so to speak. St. George's Church in Philadelphia is notable for ordaining the first black minister, Richard Allen, who had been born a slave of Benjamin Chew (the Chief Justice, whose house was Cliveden, the scene of the Battle of Germantown). Allen was obviously a remarkable person, who bought his own freedom by working as a shoemaker, and who later drove wagons from Rehoboth, Delaware to Valley Forge during the Revolution. (Allen had actually been sold by Chew to Stockley Sturgis, a Delaware plantation owner, who is the one who remorsefully sold him his freedom). Allen often preached five times a day, built up a huge following in the black community, and broke off to form the African Methodist Episcopal Church. The first Church was Bethel, replaced several times at 6th Lombard Streets, but there are now many others across the country.

Visitors from New Jersey, crossing the Benjamin Franklin Bridge, will be able to see the top half of St. George's Church as they descend into Philadelphia. At Christmastime, the windows are lit with real candles, and the interior is a beautifully simple white room. It now has less than a hundred members, but houses the genealogy and other church records for a wide area, and is very popular with people doing research. The bishop's chair dates from Bishop Asbury. Barratt's Chapel is smaller and simpler, but the highway makes a wide swing around it and its burial ground, so it remains a prominent feature of the area around Frederica. It takes several minutes to drive around it, even at high speed, on the way to the Delaware beaches. Wesley College is not far away. Stockley (currently pronounced Stoakly) is commemorated as the name of a small town on the highway, twenty miles south of here.

A Change of Era

A maxim of the book-editor trade is "Deviate from chronology at your peril." Two events may have little to do with each other, but it always remains possible to show the earlier event had somehow affected the later one. An editor may know little about a topic, but he knows that much.

Dean Donald Kagan

In 2011, I was privileged to be a tuition-paying student at one of Yale's Directed Studies Courses. An invention of former Dean Donald Kagan, the DS courses take an important era in history and apply three conventional faculty disciplines to it at once: Philosophy, History, and Literature. For the undergraduates, courses range in chronology from Ancient Greek to the Enlightenment; so far, the alumni just get the Greeks. Judging only from the course in Ancient Greek, the unspoken thesis soon emerged that a major era experiences permanent changes in history, philosophy, and literature, but the connection between the three is often loose, requiring some pondering to make the connections firm. Aeschylus does have a connection with Plato, and Aristotle with Thucydides but it remains unclear why the connection exists. Furthermore, you can lump these things or split them; Ancient Greece fits naturally with the Roman Empire, but it can also stand alone. Therefore, although the Yale faculty tends to lump the American Revolution with The Enlightenment, a consideration of the life and times of Robert Morris, Jr. fits naturally with both the Enlightenment and the American Era, because the American part of the Enlightenment bifurcates abruptly when Morris stood in debate with William Findlay in the Pennsylvania State House in 1798 -- and lost.

Robert Morris

Morris was the richest man in America or close to it, the unofficial President of the United States in its darkest hours, the most brilliant non-academic innovator in Western Finance, the leader of American high society, the only man beside Roger Sherman to sign the Declaration of Independence, the Articles of Confederation, and the Constitution. Morris did not realize it but he was within a few months of going to jail for three years, then spending his final five years in secluded disgrace. Robert Morris was not accustomed to closing arguments, but he lost this one, concerning the wisdom of renewing the charter of the Bank of North America, the first real bank of the country. He lost an argument he should have won easily. In retrospect, the new modern American Era was beginning, and he was apparently on the wrong side of it. Politically, that is. Speaking purely of banking and finance, he was a century ahead of his time.

{Ancient Greek Gods}
Ancient Greek Gods

It seemed to me and my alumni classmates that the idea of examining a historical period like the ancient Greek one in the light of three different academic disciplines, gradually assumed considerable merit. The philosophy department examined beliefs which underlay action, and the history department described what those actions turned out to mean inhuman affairs. But the literature department came far closer than either of the other two, to imparting to a reader just what it was like to be an ancient Greek. Professor Kagan seems to have a really good idea here, although it must be resource-expensive to develop, academically. Three departments of Academia have to come to some sort of agreement about the whole synthesis, an agreement which surely must not have been present at the start. It must be a process highly similar to a medical school teaching about a disease, with coordinated input from pathologists, surgeons, and internists. A nice idea, but terribly labor-intensive of labor of the highest quality. Book editors would say it is safer to stick with chronology as an organizing principle if you plan to do a lot of organizing. Nevertheless, I must express my gratitude to Yale for allowing me to be a spectator at an experiment conducted by masters of the thinking trade. Its results must be judged by standards other than the usual ones.

The Silas Deane Affair

..

Richard Henry Lee: A Pennsylvania Viewpoint

{Patrick Henry}
Patrick Henry

Although Colonial Massachusetts was combative and outspoken in its demands for liberty, somehow, pacifist Quaker Pennsylvania still got along with Bostonians reasonably well. It was Virginia that was always in Pennsylvania's face, proud, loud and defiant. Patrick Henry was certainly one of Virginia's leaders, but most of the time it was the residents of Westmoreland County VA who wrangled with Pennsylvania, people with names like Washington and Lee. Some of this animosity had to do with competition for access to the Ohio territory through Pittsburgh, some of it was a strong difference in attitude toward the Indians, whom the Quakers sought to treat as equals. Eventually, there was a division over slavery. Arthur Lee had attended Eton College no less and was often the agent who acted out the repeated efforts to stir Pennsylvania from its torpor about rebellion against England. But very likely it was his brother Richard Henry Lee who schemed the most.

{Richard Henry Lee}
Richard Henry Lee

Richard Henry Lee was the author of the Westmoreland County Resolution of 1765, which essentially proclaimed to the neighbors that anyone who cooperated with the Stamp Act was going to be sorry about it. It was the same Richard Henry Lee who introduced the Virginia Resolution of June 1776, declaring that:

Americans are and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

Hotheads of Virginia and Massachusetts formed a political group at the Continental Congress, usually referred to as the Eastern Party. The leadership of a Moderate Party was less clearly defined, but Benjamin Franklin, John Dickinson, and Robert Morris probably qualified. It was almost pre-destined that Morris and Franklin would have trouble with the Lee brothers, especially when Arthur was the spokesman and Richard Henry the ringleader. Like cats and dogs, they seemed to have been some sort of genetic antagonism; topics under dispute tended to vary. No doubt, Robert Morris' enormous wealth and the ease with which he accumulated, even more, irritated the Virginia gentry whose tobacco farms were starting to exhaust their topsoil. For his part, Morris was not likely to be deferential, merely to their ancestry. Morris did sign the Declaration of Independence a month late, but under the circumstances, he could no longer vote for it; Richard Henry Lee had written the Virginia Resolution which glorified the very crux of it. A Secret Committee was soon formed to obtain arms and gunpowder, including Morris and Franklin; Richard Henry Lee saw to it that his brother Arthur was added. When Arthur was sent to watch out for Morris' agent Silas Deane in Paris, Arthur got sent along to stand guard, stirring up endless trouble with Foreign Minister Vergennes. When the Lees finally caught on to the system of sending American products to France on ships that would return with gunpowder, they wanted Franklin removed, Robert Morris' brother Thomas removed, and another Lee brother William added to the group in charge of exchanging goods with the Frenchman Beaumarchais, who was a particular Lee favorite. When Beaumarchais indicated a strong preference for tobacco as the product most in demand in France, it must have set off bells in Richard Henry Lee's head. The Lee home region of Westmoreland County in Virginia dominated the tobacco trade. But Robert Morris was himself a second generation tobacco trader; the Lees had little new to teach him about tobacco. Time and again, Morris defeated the Lee brothers in some such petty quarrels. Gradually, the Lees lost credibility, particularly after scholars began to discover evidence that when the Stamp Act was enacted, Richard Henry Lee had applied for the job of a local agent, and had been rejected.

The Lees were not always in the wrong. Thomas Morris was indeed a hopeless alcoholic and an extreme embarrassment to Robert. But a more fraternal relationship might have led to Lee helping Morris ease Thomas out while concealing his indiscretions; he could have made a friend of Robert Morris for life. Morris was certainly willing to play this game; he praised Arthur Lee in public for his assistance in monitoring the secret committee, a description which at this distance is simply hilarious. John Adams in Paris might be forgiven for taking Puritanical offense at Ben Franklin's exuberant Parisian high life. It is likely the Virginia Cavaliers looked at dalliance through the same lens as the Adams family, disliking Franklin and Morris for having a jolly time, and worse still being acclaimed for it.

Pennsylvania's First Industrial Revolution

{William Bingham class=}
David Thomas

We tend to think of 1776 as the beginning of American history, but in fact, the region around Easton was settled a hundred-forty years before 1776, and the forests were pretty well lumbered out. The backwoods lumbermen around the junction of the Lehigh and Delaware Rivers were about to move further west when Washington crossed Delaware and fought the battle of Trenton. This region nevertheless had three essential ingredients for becoming the "Arsenal of the Revolution": It was close to the war zone but protected by mountains, it had a network of rivers, and it had coal. The hard coal of Anthracite had the problem it was slow to catch fire, and iron making in the region didn't really get started big-time until a Welsh iron maker named David Thomas discovered that anthracite for iron making would work if the air blast was pre-heated before introducing it into a "blast" furnace. A local iron maker traveled to England to license the patent from Thomas, whereupon Thomas' wife persuaded her husband to move to Pennsylvania. Blast furnaces only got started into production by 1840, but by 1870 there were 55 furnaces along the Lehigh Canal. For thirty years this was America's greatest iron-producing region. In fact, Bethlehem Steel only closed its last plant in 1995.

{William Bingham class=}
Canal Boat

When iron-making got started, the local industrial revolution really took off, but the more fundamental step was to dig canals to transport the coal to other regions. Canals were the dominant form of transportation for only thirty years until railroads took over, and the entire Northeast of the nation was laced with canals. Curiously, the South had relatively few canals, so their industrialization was too late for canals, and too early for railroads, to help much in the Civil War. The Erie Canal was the big winner, but Pennsylvania had many networks of canals in competition, leading to the Ohio and Mississippi Rivers, whereas the Erie Canal was more headed toward the Great Lakes and Chicago. Eventually, J.P. Morgan put an end to this race by financing the Pennsylvania Railroad and moving the steel industry to Pittsburgh, where bituminous coal was the fuel of choice. This industrial rivalry was at the heart of the enduring rivalry of Philadelphia and Pittsburgh, as well as the commercial rivalry between New York and Philadelphia. It was more or less the end of the flourishing economy of the "Reach" including Easton, Bethlehem, and Allentown. A reach is a geographic unit sort of bigger than a county, in local parlance. But you might as well include the city of Reading, which concentrated more on railroads and commerce with the Dutch Country. Out of danger from the British Fleet on the ocean, but close enough for war, the "reach" was more or less the forerunner of the Ho Chi Minh Trail in Vietnam in several later wars. The Lehigh Canal stretched from Easton to Mauch Chunk (now Jim Thorpe), the so-called Switzerland of Pennsylvania, only a mile or two West of the Northeast Extension of the Pennsylvania Turnpike.

{William Bingham class=}
Blue Mountain

The Allegheny Mountains stretch across the State of Pennsylvania, and the most easterly of these mountains is locally called "Blue" mountain because of its hazy appearance from the East when seen across a lush and prosperous coastal plain. It represents the farthest extent of the several glaciers in the region, and the two sides of it present quite a sociological contrast. The Pennsylvania Dutch found themselves on the richest farming land in the world, whereas the inhabitants of the other side of the mountain had to subsist on pebbles. The mountain levels down at the Delaware River, so the Dutch farmers and the late immigrants from Central Europe mixed, in the time and region of industrial prosperity. Gradually, the miners and the steelworkers began to drift away, but the Pennsylvania Germans tended to remain where they had been before all the fuss. So the Kutztown Fair is full of Seven Sweets and Seven Sours, the farmhouses are large and ample, and mostly remain the way they were, too. You have little trouble finding a twang of Pennsylvania Dutch accents. But Bucks County in Pennsylvania was cut in half by the glacier, and north of the borderline, you can see lots of pickup trucks with gun racks behind the driver. Everything is amicable, you understand, but for some reason, the tax revenues of the two halves of the County are forbidden to be transferred, even within the same county. Better that way.

{Privateers}
Lehigh Marker

The Lehigh River runs along the North side of Blue Mountain, and trickles down to join the Delaware at the town of Easton. There were only 11 houses in the town in 1776, and now you can see several miles of formerly elegant early Nineteenth century townhouses. At the point where the two rivers join, a lovely little park has been built to celebrate the high point of Colonial canal-making. Hugh Moore, the founder of the Dixie Cup Company is responsible for this historic memory, well worth a trip to see. If you have called ahead for reservations, you can have a genuine canal boat ride, pulled by two genuine mules. When you hear that the boat captain and his family used to live on the boat (Poppa steered, Momma, cooked, and the children tended the mules), it seems small and cramped. But when you climb aboard, you find it holds a hundred people for dinner with plates in their laps. The food is partly Polish, partly Hungarian and partly other things Central European. And the captain plays guitar and fiddle, singing old songs he mostly composed himself. Surprisingly, no Stephen Foster, who held forth about four hundred miles to the West, until he drank himself to death at Bellevue Hospital in New York. Foster was a member of a rival tribe of canal boaters, the ones who traveled down to Pittsburgh via the Erie Canal. Along the Reach, you hear about three canals, the Lehigh, Delaware, and Morris. The first two are obvious enough since they and the railroads which subsequently followed ran along the banks of two rivers joined. The Morris was Robert Morris, at one time the richest man in America, who bought Morrisville across from Trenton on the speculation he could persuade his friends to put the Nation's Capital there. It didn't work out, so he bought and went broke with the District of Columbia. Anyway, the Morris canal went on to New York harbor, where it prospered mightily shipping iron to New York, and iron for the rolling mills of Boston. The Morris Canal went over the Delaware River on a bridge that carried an aqueduct, over to Philipsburg; and then across the wasp waist of New Jersey.

Two-Party Ideologies

{Privateers}
Together

Although they try to be subtle about it, the American political parties reverse their positions fairly often on issues. Indeed, there are several times when parties reversed positions with symmetry, each taking what was formerly the other party's position. For example, the Republican Party stood in defense of protective tariffs throughout the last half of the 19th century, while in the 21st century Democrats now take the pro-tariff position, and it is Republicans who hate it. If you look for the ideological center of the parties, it is not to be found in tariffs. Nor in taxes; the Federalists, effectively predecessors of the present Republican Party largely based their whole party on rewriting the Constitution to enable the Federal government to levy taxes. But more recently it might be fair to observe they allowed George Bush (41) to lose his 1992 presidential re-election campaign because he abandoned the "No new taxes" pledge. Twenty years later, the Tea Party is still on the warpath about holding taxes down. The difference between this Tea Party and the original (Boston)one is that now the Tea Party is in the hands of rock-ribbed conservatives instead of rowdy rebels.

On the question of how many parties to have, there is fairly uniform agreement that two is best. Third parties, or splinter parties, do appear from time to time but in retrospect can mostly be viewed as steps in repositioning one or both major parties. Our system of nomination depends on the utterly pragmatic question, "Can he win?", and cheerfully dumps some candidate the leadership really likes best if he seemingly can't win. The stability of our seemingly haphazard system emerges from two eventual choices, each chosen because shrewd analysts think they have the best chance with the public. The Constitution's authors hoped there would never be any political parties, but it is arguable that the remarkable stability of our government depends on them. More ideological leadership in other countries has led to many more political parties, each held by a tighter leash. The result has surprisingly been much less stability, because each splinter party is led by someone who imagines himself a Spartan at Thermopylae, determined to and usually successful at, dying for his cause. To those less cerebral about politics, one final pragmatic argument is offered: In our two-party system, the deals are made before the election, and the public is asked to choose between two best-effort products. In a multi-party system, the deals are made after the election, often requiring several efforts to get a workable coalition. And, having already voted, the public has surrendered its control over the composition of the deal.

Larger Clubs

The Racquet Club

Philadelphia has dozens -- perhaps hundreds -- of clubs, societies, associations and organizations. Many owe their formation to the Sunday Blue Laws, which once made it illegal to obtain liquor on Sunday except on the premises of a private club. Some clubs were formed around the tradition that the stock exchanges (hence, the banks and brokerage houses) were open for business on Saturday mornings, leaving the financial community available for a long lunch, a drink afterward and a free afternoon in town. But primarily, Philadelphia already had a long tradition of fraternal and volunteer associations. Benjamin Franklin helped found a great many juntos, associations and volunteer groups for some civic purpose. Although he was not a Quaker, Franklin was in the Quaker tradition of forming voluntary committees and groups to get some particular job accomplished. In Quaker circles, aimless griping and complaining are not tolerated; if you have a "concern", you propose a solution which a committee can put into action, and you will probably be expected to be its chairman. The Quakers even had to devise a formula for "laying down" a committee when its purpose was completed, since, after a while, the original purpose of the club may disappear, but habit and good fellowship cause it to continue as a social club. A good example is a certain club which was originally founded for life-saving on the river, but now continues as an ice-skating club on the Main Line.

Anyway, clubs continue to be a center of Philadelphia life at the present time, often with founding traditions that are a little unclear to many of the members. It isn't as true as it was when the Sunday Blue laws were effective, or before the restaurant revolution overtook us, but to live in Philadelphia without being active in several clubs is to feel that nothing ever happens in this town, while your neighbors at the same time are so busy going to their clubs they never think to invite you. Or perhaps fear that since everyone goes to so many, you might feel pestered if they invited you to join.

{Union League of Philadelphia}
Union League of Philadelphia

There does exist a different sort of club entirely, however. The big-city in-town social club was started as a place to stay when transportation to the suburbs was tiresome, and large clusters of people had townhouses near the business district. A place to stay when your wife is visiting her relatives. A place for the local bachelors to congregate. A place where the CEOs can congregate fraternally, avoiding the isolation at work that comes from being the boss. A place where lawyers can have a long lunch while they wait for the phone to ring with the big case they can retire on. A place to loaf, play pool, get a haircut, get your shoes shined, play a game of squash. Or get a drink and a decent meal in comfortable surroundings. Jeff McFadden, the director of the Union League, describes these clubs as "day camps for adults".

Such clubs have had a hard time in recent decades. The ten-story Manufacturers and Bankers Club is now an office building, the prestigious Rittenhouse Club is shuttered, along with the Commerce Club, the Locust Club, and a dozen others. The most prestigious of all, the Philadelphia Club is in a decrepit neighborhood next to Broad Street, which it hopes will soon revive and make wrenching decisions unnecessary for the club. The interior is as close to an English city club as you could find, with immensely valuable paintings and furniture, creaking stairs and quaint bathrooms. You're not likely to find more than five members at lunch these days, but the food is excellent, the service superb, and the posted waiting list for membership quite comfortably long. The posted names tend to be a list of the cream of society, but most of them live thirty miles away. It's no longer possible to stay there overnight.

The Acorn Club

The Acorn Club is for women, quite frequently women whose husbands are members of the Philadelphia Club. If ever there were some political move to force the two clubs to abandon the men-only and women-only rules, a merger of the two would allow them to continue exactly as before as a single club with two facilities. The Acorn Club is just up Locust Street from the Academy of Music, and that is surely no accident. The place is immaculate, elegant, quiet, extremely well managed.

Around the corner on 16th Street is the architect Horace Trumbauer's turn-of-the-last-century Racquet Club. In some other city, it might be called the Athletic Club, which makes it more attractive to younger members than the other clubs, where billboards would be the extent of the exercise. Indoor swimming pools and gymnasia are extremely heavy and thus require expensive steel supports. This club not only has a pool, but it also has squash courts (both old-rule and new-rule), racquets courts (the thirty-foot walls are polished slate), and one of the five court tennis courts still in existence in the country. Court tennis is a strange game, of which it is said that "if you know the rules and own your own racquet, you are one of the top ten in the country". But the game originated in the Twelfth Century and was what people meant by "tennis" until 1878, when a game is known as "lawn tennis" was invented and took the world by storm. One of the other five court tennis courts is a few miles from the location of the hydrogen bomb factory on the Savannah River, eighty miles from Charleston. The DuPont Company put it there, and the location is no accident. > is having a hard time filling its space with members, but it would be so appallingly expensive to replace even a part of it, that superhuman efforts are justified to preserve it.

The Union League at Broad and Samson Streets, is the one outstanding exception to the decline of the center city men's club. When I joined it long ago, the strictest of rules prohibited women from any area except the women's dining room in the basement. I still remember the chairman of the admission committee, seated at the end of a long long table of gentlemen in the semi-darkness, intoning to me. "I'm going to ask you a question. And because I don't want any misunderstanding, I'm going to ask you twice. The question is, have you ever, even once, in any national, state or local election -- even once -- ever voted anything except straight Republican? Let me repeat, have you ever, even once. . . ?"

Well, the League lets in Democrats these days, and even quite a few women. But what has transformed the League from a declining relic into a thriving center of the Philadelphia social scene has been management. The League owns its own new parking garage across Samson Street from the side door, which is itself an innovation with a canopy. The dingy old members overnight rooms have been transformed into a four-star hotel, with concierge. The old steam rooms are now a modern exercise facility, and a dozen computers in the "business center" are always occupied. The menu has been upgraded, the service snappy instead of sleepy. The upstairs dining rooms usually have several hundred people for dinner when formerly they were deserted. Several times a year the League has an upscale dinner party for five hundred or so guests, that would be in a class with a reception for the King of England. Nobody any longer asks why they should be a member; they only ask whether they can afford it. Apparently, lots of people can, once they have a reason to.

{Cosmopolitan Club of Philadelphia}
Cosmopolitan Club of Philadelphia

Over in a nearby short narrow street (we hesitate to call it an alley) near the Racquet Club, is the Cosmopolitan Club, for women only, thank you. It's small, probably would have trouble accommodating more than a hundred at a time, but the food and service are great. The real reason for the existence of this club is the wish of professional and working women to have a place to gather and support each other's morale, listen to uplifting speeches, help along with the younger ones and that sort of thing. In some ways, the Cosmopolitan Club is the most typical of all Philadelphia clubs.

American Philosophical Society

{https://www.philadelphia-reflections.com/images/charles_wilson_peale.jpg}
Charles Wilson Peale (1741-1827)
The Artist in His Museum
1822, Oil on canvas
(The Joseph Harrison Jr. Collection)
Courtesy of the
Pennsylvania
Academy of Fine Arts
.

all of the red brick buildings on Independence Square look as though they were part of Independence Hall, but there is one exception. The building facing Fifth Street is Philosophical Hall, one of the four buildings of the American Philosophical Society. Right now, Philosophical Hall is used as a museum. It could be called the first museum in America, but not the oldest, because it had interruptions and different proprietorships. Charles Wilson Peale started his museum of curiosities there and then moved it to the second floor of Independence Hall, where he painted the famous portrait of himself holding up the curtain. In recent years, Philosophical Hall has again become a museum, holding treasures and curiosities belonging to the Philosophical Society itself. The docent is pleased to alternate between calling it America's new oldest museum, and America's oldest new museum. And, yes, the newell post has an Amity Button.

{American Philosophical Society building}
American
Philosophical Society

Patents were established by the Constitution when it was a piece of parchment lying on a table fifty feet away from here, and the early patent office required the submission of a working model of every application for patent. After a while, that got to be a lot of working models lying around, and many of the more interesting ones are on display in the museum. Like the model of Fitch's first steamboat or the gadget Jefferson used, to make simultaneous copies of documents he was writing. That's right near the Gilbert Stuart copy of Washington's portrait, and von Neumann's first algorithm to be stored in his stored program machine, or computer, and Neil Armstrong's speech on the moon, concerning one step for mankind and all. It's a splendid museum, full of the real stuff, in a handsome Georgian building with sparkling immaculate marble staircases.

{https://www.philadelphia-reflections.com/images/fitch.jpg}
John Fitch received a US Patent
for the Steamboat August 26, 1791

In the Eighteenth Century, Natural Philosophy was what we now call science. That's why PhDs get a degree of Doctor of Philosophy when they study chemistry and physics. The idea for forming a scientific society in America apparently originated with John Bartram. As so often happens, the originator couldn't quite get it established and had to call on Ben Franklin that impression of publicity, to get it off the ground. To be fair about it, Franklin was probably the more distinguished scientist of the two. To be even more fair about it, the organization struggled a bit until Thomas Jefferson (that's the one who was President of the United States) gave it a real publicity shove. During the depths of the 1930s depression, one of the members left it several million dollars with the stipulation that the investments should focus on common stock. Since buying stock in 1935 was widely regarded as about the stupidest thing an investor could do, this little episode reinforced a strong impression that membership in the APS is given to people who are very smart, not merely famous. The four buildings, the many fellowships, and the big endowment were largely made possible by this contraries investment decision.

There are eight hundred members, of whom 93 have won Nobel Prizes. Over the years, two hundred members have been awarded Nobel Prizes, but you must remember that the organization existed for 150 years before there was such a prize. Several U.S. Supreme Court justices are members and lots and lots of people who are famous. The docent comments that they look pretty much like everyone else. There's a rumor that Bill Gates turned down the offer of membership, so now we will just see. He's young enough to have several decades' opportunity to reconsider an offer, although the APS might just be old enough to lack interest in any second chances.

Philadelphia in 1976: Legionaire's Disease

{The Yellow Fever}
The Yellow Fever

No other city in America is remembered for an epidemic; Philadelphia is remembered for two of them. The Yellow Fever epidemic, for one, that finished any Philadelphia's hopes for a re-run as the nation's capital. And Legionnaire's Disease, that ruined the 1976 bicentennial celebration. One is a virus disease spread by mosquitoes, the other a bacterial disease spread by water-cooled air conditioners. Neither epidemic was the worst in the world of its kind, neither disease is particularly characteristic of Philadelphia. Both of them particularly affected groups of people who were guests of the city at the time; French refugees from Haiti and attendees at an American Legion convention.

In 1976, dozens of conventions and national celebrations were scheduled to take place in Philadelphia as part of a hoped-for repeat of the hugely successful centennial of a century earlier. Suddenly, an epidemic of respiratory disease of unknown cause struck 231 people within a short time, and 34 of them died. Every known antibiotic was tried, mostly unsuccessfully, although erythromycin seemed to help somewhat. The victims were predominantly male, members of the American Legion of a certain age, somewhat inclined to drink excessively, and staying in the Bellevue Stratford Hotel, one of the last of the grand hotels. Within weeks, it was identified that a new bacterium was evidently the source of the disease, and it was named Legionella pneumophila. Pneumophila means "love of the lungs" just as Philadelphia means "city of brotherly love", but still that foreign name seemed to imply that someone was trying to hang it on us. Eventually, the epidemic went away, but so did all of those out-of-town visitors. The bicentennial was an entertainment flop and a financial disaster.

Since that time, we have learned a little. A blood test was devised, which detected signs of previous Legionella infection. One-third of the residents of Australia who were systematically tested were found to have evidence of previous Legionella infection. A far worse epidemic apparently occurred in the Netherlands, at the flower exhibition. Lots of smaller outbreaks in other cities were eventually recognized and reported. It becomes clear that Legionnaire's disease has been around for a very long time, but because the bacteria are "fastidious", growing poorly on the usual culture media, had been unrecognized. And, although the bacteria were fastidious, they were found in great abundance in the water-cooled air conditioning pipes of the Bellevue Stratford Hotel. Even though the air conditioning was promptly replaced, everybody avoided the hotel and it went bankrupt. When it reopened, 560 rooms had shrunk to 170, and it still struggled. Although there is little question that lots of other water-cooled air conditioning systems were quietly ripped out and replaced, all over the world, the image remains that it was the Bellevue, not its type of plumbing, that was a haunted house. There is even a website devoted to its hauntedness.

Rail Station at Broad and Washington

Washington Avenue was called Prime Street before the Civil War and was an important trans-shipment center for the whole country. Rail traffic, coming down from New York and New England, came through New Jersey on the Camden and (Perth)Amboy RR, disembarked, and ferried over Delaware to the foot of Prime Street/Washington Avenue. Passengers then took horse-drawn cabs up Prime Street to Broad, or else they walked. At that point, travelers bound for further South would enter the imposing Rail terminus of the Philadelphia, Wilmington and Baltimore RR, to re-embark. Philadelphia hotel operators hoped they would stay overnight; Philadelphia merchants hoped they would just transact their business locally, then go back home. Taking nine hours from New York, it was an inefficient transportation method by today's standards, but the Prime Street interruption served local economic purposes, which Chicago keeps in mind, even today.

Sketch map showing the area between Philadelphia and Baltimore
indicating drainage, cities and towns, roads, and railroads.
Consolidated February 5, 1838.

The interruption also worked the other way, inducing Southerners to go no further North with their business, thus strongly contributing to pro-Southern sympathies before the Civil War. Philadelphia was indeed the most northern of the Southern cities until the 1856 Republican convention (at Musical Fund Hall) started to remind other Philadelphians that the anti-slavery Quakers perhaps had a point. Even so, pro-Southern feeling in Philadelphia was wide-spread, even in the early months of the war.

John Brown

For example, in 1859 John Brown's body was brought forth on the PWB railroad, precipitating a pro-Southern riot at the Broad and Prime Station. There was a second riot the following year.

During the Civil War itself, the PWB railroad was a major military transport, carrying military supplies and troops to the battles, and bringing the many wounded troops back home for treatment. Quite a large military hospital was built across Broad Street from the rail station. All in all, the corner of Broad and Prime was a major center of the war, and may well have been one of General Lee's objectives when he launched the invasion that got stopped at Gettysburg.

{https://www.philadelphia-reflections.com/images/b_orr_logo.gif}
B& O Railroad

After the Civil War was over, attention was finally paid to the need for better North-South rail transport along the Eastern Seaboard. Up to that time, European investment had pushed American railroading in an East-West direction. The Baltimore and Ohio were aimed at the Mid-West, while the New York railroads aimed at Chicago and beyond. Local politics in the seaboard cities tended to keep the competitors from linking and thus potentially capturing trade between the manufacturing North and agrarian South.

The Philadelphia, Wilmington, and Baltimore was the key link in the series of mergers which created the dominant Pennsylvania Railroad. Bringing northern traffic in through North Philadelphia to the new 30th Street Station,

{https://www.philadelphia-reflections.com/images/30th_st_station.jpg}
30th Station

and then linking it to the stub of the P, W, BRR, the way was being paved for Ascella Express trains to shoot from Boston to Washington, perhaps eventually to Florida. The side-track from West Philadelphia to Broad and Washington was allowed to wither, and of course, the whole Camden and Amboy RR became scarcely more than a trolley line All that was left as a challenge to the Pennsy was to get past B and O obstructionism in Baltimore. This last step was finally accomplished with the discovery of some legal loopholes related to an existing right of way for a local commuter line in Baltimore, where permission for a branch line was broadly interpreted, and a surprise tunnel dug to link it up to the other parts of the Pennsy. Amtrak passengers nowadays usually move through the Baltimore tunnel systems without noticing them, but occasionally a train breaks down inside the tunnels. Then, they prove to be rather dark and damp as the passengers with their laptops are transferred to another train.

Stephen Girard 1750-1831

{Stephen Girard}
Stephen Girard

Girard was born in Bordeaux, France and never went to school. By the age of 23, he had become a sea captain, like his father and grandfather. By the age of 27, he owned his own ship and was thus launched on a successful career in a very dangerous occupation. Depending on the destination and weather during that era, up to forty percent of sailors were lost at sea on long voyages. From the point of view of the passengers and shippers, when you were selecting a captain you wanted one who had returned unharmed from many voyages. It was irrelevant whether he had been lucky, or diligent, or had learned a lot from his relatives in the trade.

Stephen Girard did start with a handicap, being born blind in one eye. It may have been a personality disorder which drove him to precise, minute instructions to his subordinates in excruciating detail; he might now be called a "control freak" and be disliked for it. For example, he kept a handwritten copy of all letters he wrote, and at his death, there were 14,000 of them, sorted and filed. His wife went insane, and after spending years at the Pennsylvania Hospital, was buried on the grounds. If this is the price of being rich, some might consider remaining poor. During his working years in Philadelphia, he would normally get to the counting-house at 5 AM, go to his bank at noon, and go to work on his 600-acre farm in South Philadelphia after 5 PM. He said he liked farm work the best. The image left behind by this role model, then, was workaholic. Nevertheless, if you wanted to become the richest man in America, here was the pattern to follow.

Girard probably came as close as any rich man in history, to "taking it with him" when he died. His innately compulsive personality, combined with the sure knowledge that his relatives and others would probably try to break his will for their own benefit, led to the construction of a last will and testament that withstood a century of court challenges. It launched remarkable philanthropy for thousands of orphans and organized the whole Delaware Valley into an industrial machine unlike anything else in the country. Although he left the largest estate in the nation's history, that estate continued to accumulate money from his minute instructions to executors, eventually enlarging his vast fortune fifty-fold, a century after his death. In retrospect, Philadelphia might well have slowly declined into obscurity after the nation's capital moved to Washington in 1800. Instead, the coal, canal, railroad and industrial empire of the Philadelphia region became the "arsenal of the North" during the Civil War, and the main wealth generator of the Gilded Age which followed.

Girard's business career can be somewhat oversimplified as consisting of shipping at the base of his early good fortune, followed by banking during the era when banking was poorly understood and usually ineptly managed. He ended his career with an eager and successful embrace of the emerging Industrial Revolution. Throughout all of this, he characteristically took great risks for great profits, through recognizing what others were too timid to accept fully. On many occasions, his risky ventures resulted in very large losses, made acceptable by other risky ventures proving unexpectedly successful. An example would be Girard's Bank. When the Federal Government first started and then abandoned the First National Bank Girard bought up the remnants and made a great private success of banking, where he had little previous experience. He saw the potential of the canals, and later the railroads when others were content to be farmers or country gentlemen. When he was 79 years old, he purchased vast tracts of wilderness containing some outcroppings of coal, because he could foresee a great industrial future for the region. No pain, no gain.

Another way of looking at Girard was as the most prominent French-American citizen of his time. He arrived in Philadelphia at about the same time Benjamin Franklin stepped off another boat, returning from abusive treatment by British officials which finally flipped him for American independence. Franklin recognized that independence from England meant an alliance with France, or else it meant defeat. It is possible to view the American Revolution as an episode of France searching for an American foothold after its expulsion fifteen years earlier in the French and Indian War; trouble between Britain and its colonies might re-open opportunities for France. Girard was extremely friendly with Thomas Jefferson, the most Francophile of founders and early American presidents. When the War of 1812 with Great Britain threatened disaster for the new American state, Girard staked $8 million dollars, his whole fortune, on financing that war. During the entire period from 1776 to the Louisiana Purchase, America was wavering between its gratitude to France and underlying loyalty to the English-speaking community. During that long formative period, Girard the very rich Frenchman was hovering in the background, probably influencing American foreign policy more than is known, even today. But the France that Girard stood for was neither aristocratic of the LaFayette variety nor intellectual of the Robespierre sort. It was France of the French peasant, crabbed, acquisitive, and morose, forever responding to a "hidden hand" of his own self-interest in a way that paradoxically benefited his whole community, and thus would have hugely amused the Scotsman Adam Smith.

Selection of Judges

JUDGE. Mr. Smith, are you trying to show your contempt for this court?
MR. SMITH: Why, no, Mi lord. I'm trying to conceal it.

Whether this exchange ever really took place, most English lawyers believe it did. It could only have happened in an English court because lawyers in other jurisdictions would be afraid of reprisals in later cases before the same judge, if not in this one. Like Naval Captains, judges have a lot of latitudes to be petty, eccentric, incompetent or arbitrary, and not a lot can be done about it, least of all by lawyers who must appear before the same judges month after month. A judge's legal opinion can be appealed and reversed in a higher court, but if a judge just slapped down a smarty lawyer, higher courts would likely look the other way.

{Privateers}
Margaret Thatcher

Both the Judge in the anecdote and Mr. Smith were barristers. Only a barrister may be a judge or even represent a case in court in England. There's the second kind of lawyer called a solicitor, who drafts contracts and wills, arranges divorces, gives legal counsel and whatever, but the English court system is reserved for barristers. To become a barrister, it is necessary to be invited to enroll in what amounts to a boarding school, one of the several Inns of Court which date back to the days of Crusader knights, the Knights Temple. Gradually, the barrister students graduate upward from shabby boarding school quarters, one day actually being invited to have dinner in the main Hall as a reward for good work. In time, they will have their living quarters in one of the Inns, as well as their offices, or Chambers. The Inns turn out to be an elegant place to live, with lawns sweeping down to the Thames River for a greater view than the Houses of Parliament enjoy. On the other side of the Inns is the center of London. It's a great place to live in the company of learned and powerful classmates you have known all your life. It's a monk-hood, all right, but one with elegance. It's a place where it is celebrated to the point where the Mr. Smiths can get away with a devastating response to a classmate who happens to be a judge if they think the point is a just one. The judge knows right well how his discomfort will immediately circulate in Hall, and the brotherhood will somehow protect Mr. Smith. Quids custodies custodies.

{Privateers}
Inns of Court

It was probably inevitable that Margaret Thatcher of humble origins disliked the barrister system and tried to abolish such elitism. But it was probably also inevitable that the English court system enjoyed such prestige that she was defeated. The American system for selecting judges cannot compare with it. Indeed, the problem of judge selection has been a topic of debate in our law schools for a century, a debate that no one ever wins. Either we allow politicians to select judges, and that's obviously bad, or we make them into politicians themselves by electing them, which is even worse. We get some good judges, but we get too much incompetence, too much politics, and too much ideology. We resort to asking the Bar Associations for advice, and that leads to politics with a different set of politicians. This whole problem is insoluble as long as immense power is given to people who then operate largely out of public view, often underpaid because we fear that some might seek the job for its money, and sometimes deliberately undereducated because we fear elitism.

Because justice is mainly a search for acceptable resolution of disputes, religion is usually found at its origins. The decline of established religion makes religious tradition less acceptable as an overt source of impartiality, but religion's techniques still make useful models. America never had an established religion, but even the English system is now far less a priesthood than it used to be; the Common Law was once the exclusive product of the courts and the Church, but now Parliament creates a larger body of Statutory Law. The former system tilted toward the aristocracy, the present one is in danger of tilting toward partisan politics. In a sense, the English Civil War was about discovering that parliaments can be as tyrannical as kings. Two things are almost certainly true: we cannot tolerate a judiciary accountable only to itself, and we cannot tolerate a legislature that both make laws and interprets them, even indirectly through intrusively selecting judges. Judging by results, the English might be a little closer to a proper balance in these difficult matters, than we are.

European Common Currency

{https://www.philadelphia-reflections.com/images/cnoyer.jpg}
Christian Noyer

Philadelphia had the recent pleasure of a visit by Christian Noyer, the Governor of the Banque de France, offering to a Federal Reserve Bank audience a view from inside the Eurosystem's monetary policy. Mr. Noyer was a designer of the Euro, or common currency of Europe. A charming and polished man of education, he brought along a document which hangs in his office, dated June 5, 1779, signed by John Jay on behalf of the Continental Congress, sent to Benjamin Franklin to give to Caron de Beaumarchais. Since Independence Hall is visible from the upper windows of the building where he was speaking, it was a charming touch.

{https://www.philadelphia-reflections.com/images/europeancentralbank.jpg}
European Central Bank

The European financial system consists of one monetary policy, set by the European Central Bank, but twelve (soon to be twenty-five) fiscal policies, set by the various governments. This was once thought to represent a major difference from the American Federal Reserve, but in fact, it hardly matters. Our fifty component states are not permitted to run deficits, but our federal government runs deficits, plenty of them, and it turns out to make little practical difference if a Central Bank must float bonds to pay for a deficit arriving in one envelope or twelve. What matters is the size of the total. From that starting point, the central bank struggles to modify matters to restrain inflation, or combat unemployment. The main tool at the bank's disposal relates to the fact that governments no longer fear to print more money than they can redeem in gold. They print money, all right, but the spigot is now turned down when inflation begins to appear. In theory, at least, inflation is not possible if the central bank is able to maintain this policy. Of course, if money created in the past comes flooding in from abroad or out of mattresses, there might be a problem. Central bankers seem like terribly powerful people until you count up the people they can't control. The first is the politicians who create those deficits.

European politicians believe their constituents prize security above all else, a condition known as socialism. High taxes, high unemployment, and slow economic growth are considered more tolerable in Europe than sacrificing pensions, health care, and other features of the social safety net; out of this come government deficits, then maybe inflation. The central bank is told to make the best of it.

Then, there is the long-term bond market, which in the past responded to a flood of money by reducing the value of outstanding bonds, which results in higher interest rates.

{https://www.philadelphia-reflections.com/images/eurocur.jpg}
Euro

Recently, however, long-term interest rates have failed to rise in response to rising deficits, and speculation abounds as to why that should be so. It creates uneasiness to hear that the finances of the world are simply a "conundrum". And finally, foreigners will flee from an inflated currency, eventually triggering a devaluation. A few years ago, Argentina refused to devalue, but the result was a devastating recession when their foreign trading partners refused to deal with an unrealistic currency.

A government which refuses to respond to these "signals" from the bond market and foreigners, will be forced to take some undesirable actions. In Europe, it is to oppose globalization of the economy, thereby hurting everybody but especially poor nations. And the internal European unemployment is shifted as much as possible onto the backs of immigrants, even migrants from within the European community. Take that far enough, and you get serious threats to world peace. Even within the European community, many of the policies which protect the welfare state will consciously injure their own economic growth. Reform is resisted.

Many needed reforms are obvious to policymakers in Europe, and the American example would often seem to be convincing. But it isn't, because Europeans terrified of losing their welfare state recognize that the American model includes a large amount of contempt for socialism, no matter how otherwise successful it is. The interesting thing has been that the Scandinavian countries have an equally extensive welfare safety net, but have nevertheless prospered by adopting free-market reforms. There are signs that this experience is beginning to convince Europeans it is possible to work their way out of the dilemmas.

After his talk, which avoided mention of many of these concerns in the mind of his audience, Governor Noyer was even more charming in cocktail-party mode, but one thing made his face turn beet red. When asked what the John Jay letter was all about, he had to admit he hadn't the foggiest. It was just something hanging on his wall that seemed appropriate for a trip to Philadelphia.

Charles Peterson and Amity Buttons

{Charles Peterson}
Charles Peterson

Charles Peterson, the famous architectural historian and preservationist, died just before his 98th birthday on August 19, 2004. It is to him we largely owe the redevelopment of Society Hill, and the design of the Independence National Park, as well as a host of restorations from the Adams Mansion of Quincy, Massachusetts, to the early French settlements along the Mississippi. He conceived of many national historic preservation projects, the most notable of which is the Historic American Buildings Survey (HASB) of the Department of the Interior.

The Adams Mansion

While he was most notable for large visions and huge projects, he also had a keen appreciation for fastidious accuracy in small matters, of which the Amity Button would be a vivid example. In the surviving Colonial buildings of Philadelphia, it is common to find a plain ivory coat button nailed to the top of the newel post of the main staircase. There's one in Independence Hall, another in the grand staircase of the Pennsylvania Hospital, and there is one in Charlie Peterson's own home, the one where he was the first Society Hill gentrification pioneer, a house originally built by Stephen Girard around 3rd and Spruce.

The Free Quaker
Meeting House

There is a strong tradition in Philadelphia that these strange buttons are Amity Buttons, nailed there by the Quaker builder at the moment when the new owner had fully settled his construction debt, symbolizing the amity between a willing buyer and a willing seller. Countless visitors to Society Hill have been shown these curious buttons, and it always seems to produce a warm glow of appreciation for the discovery. If you have one of these in your own house, you can be very proud.

Unfortunately, Charlie Peterson couldn't find any evidence for the truth of this fable, and you can be sure he subjected the matter to a totally dedicated search. You might think there would be some notations in the deeds, or in the correspondence of the day, or in the literature of the times. You would think that someone who repeats this tale would be able to relate where he got it, and that would lead to some letters in an attic, and that if you work hard enough, you will find it. But when the button matter came up, Mr. Peterson would suddenly become grim-lipped and sad, and repeat the mantra that there is no evidence to support the story. He even awarded prizes to architectural students for essays on newel posts, banisters, and stair rails, but no student essay ever turned up any authentication of the Amity Button story. Absence of evidence is of course not the same as evidence of absence, so it is remotely possible that the story will someday be vindicated.

Indeed, you have to believe there was something or other to start the story. Victor Failmetzger and his wife, who have a notable reputation for authenticating old house parts, relate that in Colonial Virginia it was common to have hollow newel posts on the stairway, and occasionally to find the deed to the house secreted in one of them. So the search goes on.

In fact, it always seemed likely that Charles Peterson very much wanted to believe the fable was true. But until some evidence turned up, he was going to go to his grave with the declaration that there existed no evidence for it.

Unwritten Lessons For the European Union

{Privateers}
Peace Treaty of Westphalia 1648

Europeans, long accustomed to providing Americans with cultural models, sometimes have a little trouble acknowledging the emerging European Union is based on the American design of 1787 Philadelphia. So perhaps it is tactless to emphasize they might encounter some of the same problems. The success of our design is a good reason to imitate it, and may, in fact, be a chief reason to boast about it. But look at it another way. Since we are uncertain why many provisions work so well, we are reluctant to change them; but the proud Europeans cannot be expected to adopt them for a vague reason like that. The main point is to maintain the right degree of vigilance and flexibility, a difficult measurement to make or to transfer to different circumstances. Our Constitution is more right than wrong, so it was intentionally made hard to change. Technically the Constitution has been amended twenty-seven times. Omitting the Bill of Rights, minor technical changes leave us with only five substantial amendments in two centuries, mostly enlargements of the voting franchise. But notice on top of a small base, we have built a legal structure of 100,000 pages of Federal statutes, almost a million pages of regulations, and at least double that number of state laws. Our legal system has many flaws, but smaller ones are easier to change. The great danger for Europeans lies in taking a similarly huge body of multi-nation statutes, then attempting to cram them into a constitution which by definition has been made hard to change. James Madison was not in a position to see this point. Looking for it in The Federalist Papers is futile because they were written to persuade New York to ratify the Constitution, and contain a moderate amount of slant. Add to all that a recognition that the U.S. Supreme Court makes a hundred little amendments every year. It follows it would be bold indeed to list a handful of examples of what the Europeans should avoid at all costs, or omit at their peril. One point seems undeniable, consolidating a number of former colonies is easier than consolidating sovereign nations. Nations start with more sovereignty, so they individually have more power to lose in a consolidation.

{top quote}
The success of our design is a good reason to imitate it, and may in fact be the chief reason to boast of it. {bottom quote}

The people in power in the individual nations of Europe, and the political factions which elected them don't really want to give up power to a central government in Strasbourg and Brussels. They wouldn't be human if they did. Much the same reluctance inspired our thirteen colonies in the Eighteenth Century, and we circumvented it by excluding state officials from the ratifying conventions. Imagine telling that to the Prime Minister of Great Britain. Having multiple sovereignties breeds jealousies, particularly when the issue is governance. Our ratifying process was rancorous, and echoes of it still reverberate. If transitions are too rapid, even from a bad system to a good one, changes can prove disruptive. For ousted incumbents, all transitions are too rapid. The Europeans additionally have a big problem we didn't have, of multiple languages, so harmony will be slower to arrive -- try to imagine a common market in the Tower of Babel. By lacking multiple languages to rally around, we stumbled into a two-party system, which is actually a big improvement over more-or-less proportional representation by multiple parties. Without having any foresight on the issue, we established a system in which "deals" are made internally and voluntarily, between the extremists within each of the two major parties before the November elections, because by then the central issue has become whether the party might not win with a particular candidate standing on a particular platform. The policy positions of the nominees of both major parties draw closer together, and we don't get a revolution when one of them does win, even by a single hanging chad or questionable mortgage. Unfortunately, the candidates are usually so close to the haphazard process of pre-election compromise that they often consider it less binding than the public does. But by major contrast, in an overtly multi-party system a coalition is formed after the election is over, so the "deals" between splinter parties must also be made after the election is over; voters are completely cut out of the most important decision-making. Splinter parties are an easy recourse for nations with many minorities and are to be avoided at all costs. If a unified nation really cannot be constructed without such recourse, perhaps they would be better off with a King. Since political parties were not mentioned in the American Constitution, this advantage of a two-party system has never been widely debated.

Our experience teaches one more important principle, unwritten in the Constitution. The outstanding message of the American experience from 1787 to 1850, especially the twenty year period after Washington's presidency (and quite unforeseen by the Founding Fathers), is that no party in power can see any merit to the rights of the minority until it has itself spent some time out of power. Nor can any party of complainers and reformers see any merit in prudent caution until it has itself spend some time wielding power. Let's suggest a rule to the Europeans: every political faction is untrustworthy until it has spent two terms in office, and then two terms out of office. It would appear it takes even longer for political parties to mature than it does for governments. We achieved this hat trick by starting out with an Electoral College that didn't work very well, most particularly in the tied election of 1800. Once the Electoral College served its purpose of effecting compromise at the Constitutional Convention, we have largely ignored it as a result of the 1800 fiasco. Perhaps another approach is to change it in stages, considering the Articles of Confederation as a preliminary step to enacting a Constitution, as it were. Unfortunately, most European nations can point to several constitutions in their past, without significant progress toward continental unity. It even seems likely the main problem is not in the Constitution at all, but in wider differences between components at the outset. And a long history of struggles in the past, which we forgot when we crossed the ocean because so few wanted to repeat the stormy voyage.

Maybe even that assessment is too generous to our own history; after all, in 1860 we had our Civil War. You'd certainly hate to think it was essential to have one of those until you reflect that Europe really has had four or five major wars during the past two hundred years. Could it actually be true that a peaceful union leads to further peace? George Washington denounced standing armies, while Dwight Eisenhower warned of the military-industrial complex. Perhaps both of them were warning that war-like behavior leads more quickly to war, by eliminating preliminary steps.


REFERENCES


The Records of the Federal Convention of 1787 Farrand's Records
Chart of the Thirteen Original Colonies American History
U.S. Constitution Legal Encyclopedia

Henry George, Single Tax

{Henry George}
Henry George

Philadelphia was the birthplace of Henry George at 413 South 10th Street between Pine and Lombard, in 1839. The house has been restored to its 1839 condition and serves as the Philadelphia extension of the Henry George School for Social Studies, where you can take a course or two on the economic theories of Henry George, especially the Single Tax. If you do so, you can join the rest of us in pondering whether Henry George was a genius or a nut; he certainly combined some elements of both.

{Henry George House}
Henry George House

Leo Tolstoy no less, felt there was a conspiracy to keep people from knowing about the theories of Henry George, saying, "People do not argue with the teaching of George, they simply do not know it." In 1879 Henry George published a book, "Progress and Poverty which made him so famous he became a candidate for Mayor of New York City. Although he lost the election, he outpolled the third candidate, Theodore Roosevelt. The underlying thesis of his book would probably not find much approval among contemporary economists, who would likely say he was fooled by a cyclic increase in the value of land as an asset class. What he said was there was a remorseless trend of land to increase in value, while the proportion of wealth represented by labor and capital steadily diminished. Nevertheless, it can still be argued that: proceeding from the wrong premise about the causes of poverty, he might have propounded an attractive cure -- the single tax. Henry George asserted that we should stop taxing buildings ("improvements") and place all municipal taxes on land.

There could be something to this. It is uncomfortably true that your taxes go up whenever you build a new building or substantially renovate an old one. The increased taxation of improvements is a disincentive to the building, renovating and improving a property. Placing taxes on the underlying land, by contrast, would create a positive incentive to build something and put the land to use. Evidence can in fact be produced that partial adoption of this principle has caused considerable prosperity in Pittsburgh, notwithstanding that city's recent flirtation with bankruptcy for unrelated reasons. Pittsburgh has shifted the proportion of real estate taxes from structures to underlying land, several times, and each time the change was followed by a demonstrable flurry of real estate development. Philadelphia had no similar flurries at those times, and it is said the contrast was caused by State Law which forbids such "discriminatory" taxation in first-class cities. Pennsylvania has only only one first-class city, Philadelphia, so you don't have to guess which city the Legislature had in mind.

Before we let ourselves get too embittered by dirty politics, we should take a look at Arden, Delaware, which is another nearby town to try the Henry George approach. Arden is a little country suburb of Wilmington which became a summer art colony, with theater groups, especially favoring Shakespeare. Arden, which is Shakespeare-speak (in As You Like It) for the Ardennes Forest in France, applied the Henry George rules to taxing the land not the summer houses of the area. So, go take a look there at the result. More and more houses crowded closer and closer together -- on the same land. There's plenty of open land over the next hill where Arden supporters could drive or even walk in ten minutes, so the Henry George system is quite effective all right. But the effect is not entirely what was intended. Leo Tolstoy is gone, so someone else must unravel this riddle.

Mayors and Limos

{Mayor Richardson Dilworth}
Mayor Richardson Dilworth

A number of prominent figures participated in the downtown revival of Philadelphia after the Second World War, with a surprising amount of jealousy among them. Mayor Richardson Dilworth would have to be mentioned in any list of those leaders, but one who was more admired than loved. Aristocratic and flamboyant, he disdained the little hypocritical dissembling so characteristic of politicians. In fact, he didn't see himself as a politician at all, he was a leader.

Once Dilworth became convinced that Society Hill revival was not only desirable but feasible, he moved there. He purchased two houses next to the Athenaeum on Sixth Street, and in spite of the protest of preservationists that those two houses were particularly fine examples of Federalist style on Washington Square, he had them torn down. Furthermore, in spite of outcries that the house he was building in their place was merely a pseudo-colonial gesture, he constructed a very expensive but extremely comfortable modern house. Those of us who were familiar with the neighborhood were impressed with the courage he displayed in doing this, because the area was just a little dangerous, and almost no one else lived there. You could buy dozens of twenty-room houses in the neighborhood for less than $2000 apiece, and it seemed foolhardy to make such a large personal investment in what might become a stranded gesture. This was described as flaunting his personal wealth because it was not just a fine house, it was possibly going to be a big loss.

Dillworth got away with it. He was seen as courageous, and a leader. Others started moving into the area, mostly rehabilitating old mansions. By the time the house was eventually sold by his estate, his conspicuous consumption turned out to be a profitable investment. Smart.

Dilworth had some practical problems. It wouldn't have been smart politics to have a long black limousine pick him up in the poor neighborhood. The only people who do that are undertakers and the Mafia. On the other hand, the driver of a limousine often doubles as a bodyguard, and a bodyguard wouldn't be a bad idea. Those of us who drove down 6th Street every morning at 8:30 gradually noticed what Dilworth did to solve the problem.

{Frank Rizzo}
Frank Rizzo

Every morning a Yellow Cab could be seen parked outside his door. It always had the same uniformed driver, and on closer inspection, the cab was the cleanest shiny late-model car, painted yellow. It was only six or seven steps from the door of the house to the door of the car, and he was off and gone in a moment.

Other mayors have had quite different styles.Frank Rizzo had his long black car and several like it parked on the sidewalk outside City Hall. His image was that of a poor boy from the neighborhoods who had made it to the top. No matter where he went, Rizzo was leading a parade.

https://www.philadelphia-reflections.com/images/edrendell.jpg
Ed Rendell

Ed Rendell, on the other hand, was playing the role of America's Mayor. His driver would blow the horn, put on the headlights during the day, roar through town, making screeching u-turns right and left. Several times a day he would put on this act, going two blocks from City Hall Annex to the Convention Center, to address an audience of visitors.

Well, mayors and bank presidents are supposed to have limousine service. Anyone else would have to ask whether it was worth all the trouble if instead, you could just catch a cab. Those long cars are surprisingly uncomfortable to ride because the roof is so low you have to crawl on hands and knees to get in a seat. Finding a place to park one of those monsters, or even a wide enough opening next to the curb to let out the back-seat occupant, can be a problem in the center of a city. Even with portable cellular phones, there is a delay after you call for the car when you are ready to leave your appointment. Those who have tried it find that hiring a driver almost always confronts you with a demand to circumvent taxes by paying the driver in unrecorded cash. In South America, where bodyguards are really necessary, the great majority of them flee in terror at the first sign of the underworld. Limos are a pain.

At least in Philadelphia, you can get a fairly clean, fairly new cab with a fairly knowledgeable driver, by simply holding up your hand at any center city street corner. During business hours at least, you can hail a cab in three minutes. That doesn't just happen that way, and the mayor has something to do with it. Cities usually have a Medallion system of cab licensing, and existing cab companies don't want any medallions issued to competitors. In politics, such a situation helps campaign funds considerably. The result is a shortage of cabs, surly drivers, and high prices. Boston is such a town. On the other hand, if medallions are easy to obtain, as they are in Washington DC, the cabs become numerous enough but are shabby dilapidated old vehicles, driven by recent immigrants who don't know the street names. In Philadelphia, we take our good fortune for granted, but we do owe a debt to the city government for managing the supply and demand situation to the point where it mostly would be foolish to have your own car and driver. In this town, every man a king.

As a matter of fact, in Boston it got so bad that Ned Johnson, the richest man in town (he personally owns the Fidelity Mutual Fund Investment Family) got so enraged that he couldn't ever get a cab that he founded his own cab company. It's a very elegant one, although a little expensive. The Boston Coach Company supplies immaculate and impeccable service for a fee. At first, it was only available to Fidelity executives but now has spread out to anyone willing to pay for it, and flourishes in many cities, plus chartered airplanes if you don't like to wait in security lines at airports. You have to admire Johnson for his golden business touch, but in Philadelphia, we can just use cabs.

Shrine of Historical Restoration

{Privateers}
Silas Weir Mitchell

There are only a half-dozen wooden houses in Philadelphia, a consequence of laws passed after a disastrous colonial firestorm. Silas Weir Mitchell wrote a novel called "The Red City", referring to all the red brick houses in Philadelphia, particularly those along the bank of the Delaware River, greeting visitors arriving by sail. People who know about these things say only Dublin, Ireland has more redbrick colonial and Federalist houses still standing. You have to care about these things to preserve them; recently I heard that New Brunswick in New Jersey had a very large patch of Eighteenth Century and Federalist houses still standing fifty years ago. No one seemed to care, so they crumbled.

{Charles Peterson}
Charles Peterson

But Charlie Peterson cared, and Judge Edwin O. Lewis cared, too. Peterson and Lewis are now gone, but these two were the idea men behind the historical restoration of Philadelphia, for which Mayor Dilworth and Senator Joe Clark generally get most credit. The Edwin O. Lewis fountain was recently torn down to make room for a gigantic visitors center, sic transit Gloria Mundi, but he alone had the force of personality, wit, imagination and drive to make Peterson's vision come to pass.

{The Adams Manison}
The Adams Mansion

You are expected to be self-effacing if you work for the Park Service, but Charlie had a way of winning arguments and bringing people around to his visions. He thinks big. Back in the days when the Park Service was strictly a management team for the National Parks in the West, Charlie persuaded the service that if they developed some parks in the Eastern part of the country, there might be more congressmen willing to vote funds for their projects. And that, in essence, was the driving slogan of the restoration of Williamsburg, Virginia, and the Skyline Drive. Lots of very rich people joined into these celebrations of the past, but it was Charlie who gave them the courage to hold their cultural opinions. And that was particularly true of the midwesterners with French names living in Midwestern states with French names, mostly unaware until he told them so, that it was the French coming down from Canada that opened up that region long before Lewis and Clark set out.

Charlie had an interesting time making the Adams Farmhouse in Quincy Mass . into a part of the national heritage; it's now the Adams Mansion. But it is Society Hill of Philadelphia that collectively got up off its unimaginative back, meanwhile becoming a national monument, and a silent monument to Charlie Peterson. In the Quaker view, the worship of buildings is idolatry. If you go to the right place and knock on the right door, you will find that Charlie had the imagination to take all that junk out of the dumpster, work out the provenance, label, and display exhibits of the architectural history of the area, starting a whole industry of house restorers who now have a template against which to match their un-provenanced dumpster relics. Who but Charlie would have held cocktail receptions to look at the salvaged crockery found in old Philadelphia privies, and even though thoroughly washed up, had the combination of quiet wit and brazenness to make the events a rollicking success. The Architectural Fragments Museum is something you are sure to talk about if you know enough to visit it and providing they will let you in...

No doubt the museum of shutters, nails, and doorknobs had its origin in his mind as a result of creating HABS, the Historic American Building Survey, in Washington thirty years earlier. The first and largest of its kind, this collection of photographs and measured drawings of practically every building in America with historical significance was started by him in 1933 with WPA money and unemployed architectural talent in the great economic depression of that time. It's worth a visit if they will let you in, which is not guaranteed, either. Put that name down Charles E. Peterson, the father of American architectural preservation and restoration.

Billy Penn's Hat

{Billy Penn's hat}
Billy Penn's hat

Philadelphia City Hall was intended to be the tallest building in the world, so there was no reason to suppose anything in Philadelphia would be taller. Gradually, taller buildings in other cities were built, but there grew up a gentleman's agreement that no skyscraper would be built in Philadelphia that was taller than William Penn's hat atop his statue on the tower of City Hall. Planning in the city was organized around this premise, which affects subways and other transportation issues in the city center. Because of assassination fears, a similar tradition in Washington DC was enacted into law, and it must be admitted that the flat skyline of that city looks a little dumb and boring. But Philadelphia neglected to pass a law, and so at the end of the Twentieth Century first one and then half a dozen skyscrapers were built that were twice the height of City Hall, immediately destroying the organizing visual center of the city. Pity.

But there are more serious issues involved. Aesthetics aside, who cares if someone bankrupts himself building an inappropriately tall building, with excessive elevator costs, problems with reinforced foundations, shortage of parking space, and the like? And the answer to that is the new tall building will bankrupt the older office buildings, not itself. Using offers of low, low rents to fill the new building, tenants will be drained from other spaces, and other areas of the city will deteriorate unless there happens to be a general shortage of office space in the region. Carried to an extreme, all of the center city business might be envisioned to reside in one thousand-story building, and the rest of the region would be a desert.

The obvious response would be that no landlord wants to have competition, and new construction is the way a city renews itself, creatively destroying the old to make room for the new. You must not allow the vested landlords to capture the political process with agitation if not bribes. Push things too far in that direction, and you will find that political corruption has destroyed the fabric of the town more effectively than a couple of skyscrapers ever could. Market East has been devastated, it is true. But that's the price of conducting the commerce of the region on the basis of market economics instead of through bureaucracy which masks corrupt politics with high-flown language. Paris is beautiful, but France has 12% unemployment which is closer to 16% if you remember the 30-hour week, the nine-week vacations, and retirement age in the fifties.

And yet, there is certainly a point to be made here. The height limit on new construction must bear some relationship to the regional need for new office space, and not merely rely on beggar-my-neighbor. We're currently hearing about two new projected skyscrapers, one beside 30th Street Station, and the other at 17th and Market/Chestnut. The decision to go or no-go will rest with whether the developers can find "lead" tenants. The corporate officers of these large enterprises are the ones who must be expected to give careful consideration to the best interest of the community because right now they are the ones who control matters. If they neglect their responsibilities, the pressure to pass more zoning laws will prove hard to resist.

C17..........Unresolved Issues

CONTENTS: this is the main body of text

another paragraph

World Finance, Columbus Day 2008

{Prime Minister Gordon Brown}
Prime Minister Gordon Brown

WITH voters watching three weeks before the 2008 American presidential election day, finance ministers and their political masters met to decide a basic question: dare they risk disaster to save the existing system, or play it safe by sacrificing small banks to rescue big ones? That is, guess if the situation is so bad only strong rowers can be allowed in the lifeboat, or whether things are really manageable enough to try to save everybody but at the risk of worse consequences for failure. For example the credit default swap mystery; there are $60 trillion notional value insurance policies in existence to cover $20 trillion of bonds. Is that massive double-counting, or an actual disaster so severe it makes every other consideration trivial? Answer quick, please, the ship looks like it might sink. At first, it seemed strange a Labor government in England would propose saving only the strong until you realize that Prime Minister Brown is protected from his Left, while the Democrats in America want to use a fairness argument to win their election. A Republican lame-duck president must do the deciding, a man who has been shown to be both a tough politician and a fearless gambler; playing things safe is not his style. The Dow Jones average soared a thousand points in a day's trading on the prayer that things were finally under control. But take a look around.

Little Iceland and Switzerland are proud to house some enormous banks. But if those banks approach failure, their homeland treasuries are far too small to bail them out.

On the other hand, little Hungary has a negligible banking system, so Hungarians commonly borrow money from foreign banks. The national currency devalued by half in this crisis, so most Hungarian mortgages doubled in price. Reserve systems based on national governments suddenly look obsolete.

Try another approach. Little Ireland went ahead and guaranteed all deposits in its financial institutions. Money from England and the rest of Europe immediately poured in to enjoy that guarantee, forcing other grumpy nations to match the unwise Irish offer. There's a sense that nations are losing control of their affairs.

Europe consists of 27 nations, of which fifteen are in the Euro zone. There are common currency and a constrained central bank, but can this gaggle of geese possibly agree on concerted action in this crisis? America was once in this situation under the Articles of Confederation, but even after almost losing the Revolutionary War, George Washington was nearly unable to get the colonies to form a union. Even after this experience, the Southern Confederate States later adopted the same system of a central currency without a central government and really did lose their war.

Are we to infer from Prime Minister Brown's attitude toward banks that he might soon suggest ditching little nations in order to save bigger ones?

www.Philadelphia-Reflections.com/blog/1525.htm

Bretton Woods

{The Bretton Woods conference in 1944}
The Bretton Woods conference in 1944

Stripped of its mystery and irrelevant details, the Bretton Woods conference agreed that all nations would make their currency convertible into U.S. dollars, and the U.S. would make its currency convertible into gold. Since World War II had left the United States with the only major working economy, it sold goods to the rest of the world and the rest of the world sent us their money to be converted into dollars; we had a "favorable balance of trade." Somewhere in the 1960s the rest of the world got on its feet, and we began to have an unfavorable balance of trade. After a while, foreigners started converting their dollars (the "reserve" currency) into gold. By 1971, the depletion of gold from Fort Knox became alarming, and the United States stopped converting its currency into gold. From that point onward, all currencies became effectively computer notations, whose value as a medium of exchange was what their government said it was.

Paradoxically, it is hard to see how this system would work without a government in charge of it, although private substitutes would probably soon appear if governments relaxed their monopoly on currency. Since a great many people dislike their governments for one reason or another, they chafe at a system which forces them to keep their governments in order to prevent commercial chaos. For those who do not adequately understand this, governments all stand ready to maintain themselves with force, and many other people dislike that feature even more. Since it took place at the same time, the Vietnam protest movement may have had some relation to this major change in the nation, misunderstood perhaps, but viscerally perceived. In view of President Nixon's central role in all of this, one is even tempted to speculate that his electoral promise of a secret means to end the Vietnam conflict, coupled with the subsequent peaceful surge of China and the financial recycling of Chinese money through Treasury bond purchases, may all have been subjects discussed during his historic trip to China.

However that may be, it is a fact that the Vietnam War ended, the Chinese economy flourished with American help, and the deposit of Chinese money in our economy helped fuel a massive economic bubble, and the weakest links in the chain -- mortgage-backed securities -- were the place the bubble burst. Not much of this could have occurred with a gold standard, and in many circles, this was regarded as proof that gold was a barbarous relic. In retrospect, few would deny we had been leveraging our economy to dangerous heights, for nearly fifty years. In 1996, Alan Greenspan denounced our "irrational exuberance", and yet the bubble did not burst for another twelve years. If we succeed in deleveraging our economy until it reaches 1996 levels, it will be regarded as a remarkable success. But the Chairman of the Federal Reserve at that time described it as a dangerous level. And looking back over the centuries, an indescribable number of kings were dethroned or beheaded because they evaded the rather irrational restraints of a scarce, hence precious, barbarous relic. Balanced against that, a billion Asiatics have been raised out of poverty, and the economy of the world overall would seem opulent to our grandfathers. Somehow, we must find the wit and the self-restraint to solve this problem.


REFERENCES


The Battle of Bretton Woods: John Maynard Keynes, Harry Dexter White, and the Making of a New World Order:z Benn Steil: ISBN-13: 978-0691149097 Amazon

CEO of the World

{https://www.philadelphia-reflections.com/images/georgewbush.jpg}
George W Bush

Christmas, 2005.

My Quaker Friends are comfortable with the firm position that no war can be justified. This sometimes leads to feeling it's unnecessary even to consider the justifications or the mitigating circumstances of any war, since nothing can be said which will lessen their opposition. My Democrat friends seem to have an equally closed mind, one which leads them to emotional denunciations of George Bush which I know cannot be completely reasonable. However, George Bush and I went to the same sort of schools, feel passionate about the same sort of libertarian economics. I like his father very much, even though our association in the same college class was very brief. In short, I want to give this man every benefit of doubt and fairness, even in the face of what I must acknowledge to Quakers and Democrats is a glum recognition of the strength of their strongest argument. I don't like wars, I don't like political spin. But it is important to me to feel I am doing my own thinking, so I resolved to make as good a case for Was I possibly could. After that, perhaps I could take time to see how well I had convinced myself.

{https://www.philadelphia-reflections.com/images/Mapgji.jpg}

We frequently hear that America is the only superpower in the world; our president is the most powerful man alive. I suspect George Bush believes that, too. His formulation is likely to be that he has found himself the Chief Executive, the CEO, of the world. His training and background tell him how to manage a huge enterprise: delegate authority. That is, assign general goals to subordinates. Prior to 1918, an American president would assign foreign affairs to his State Department.

Our involvement in several cataclysmic wars made clear that large portions of the world would not leave us alone, nor respond to the persuasiveness of diplomats, either. Certain governments at certain times, would have to be assigned to the Department of Defense. This technique worked even better than we expected; Germany, Japan, and Italy became our most effective allies.

{https://www.philadelphia-reflections.com/images/Balticstates.jpg}
Baltic States

The rest of the non-American World was turned over to the multi-national corporations. More accurately, perhaps, the multinationals took the rest of the world away from the State Department and proceeded to subdue a great deal of it. South Korea, Taiwan, Malaysia, Singapore, Poland, the Baltic states, Hungary, India, the Czech Republic seemed to do it eagerly, China did it in its own way, and much of the rest did it grudgingly. Russia and mainland China, along with Canada and Mexico, are special cases. Perhaps an interdisciplinary approach needs to be devised for them.

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But by the time the younger Bush President came to power, it had become clear that none of our approaches, diplomatic, military or economic, would make much difference to a large subcivilized part of the world. Africa and vast stretches of Central Asia were just about the same as they were in 1900. Like South America, it looked as though they could be safely ignored -- until the events of September 11 showed that they could not be. Furthermore, it was clear to the American government that this disaffected region not only hated us, but had the capability of making atom bombs, and the oil revenues to finance a very destructive war against civilization. In Texas parlance, it's them or us.

The largely marginalized State Department quite properly responded to the enraged vigilante police action by protesting that you can't intimidate millions of people who essentially have nothing to lose. The diplomatic corps has long been a creature of a handful of universities who were once themselves captured by sit-ins and more recently by tenure.

The Eventual Economy of Excellence

{William Bingham class=}
Samuel Y. Harris

The Right Angle Club was recently visited by two sprightly young ladies who run a historical building reconstruction firm. Sam Harris once ran the firm and built it into the pre-eminent example of its type, with the quirk that he surrounded himself with women. So, after Sam's unfortunate early death, two of the ladies decided to carry on the business. It was a little hard to picture these two young ladies in blue jeans, climbing all over the rafters of old buildings, but they showed plenty of slides of their work, which in the background showed the ladies doing just that.

Historical old St. Peter's Church at 2nd and Pine called the ladies in to consult on why the beautiful old church built in 1764 would develop a dip in its roof, and were soon told that a rafter had rotted underneath the dip. Further investigations showed that all of the rafters were rotted at the point where they joined the top of the walls and had to be replaced or reinforced. It eventually developed that a two-million dollar campaign had to be undertaken to finance the restoration. The details of the problem were the rafters had been made of gumwood, which is now unobtainable, and substitute wood of the same quality had to be identified, located, and transported. The original builder named Smith had also built Carpenter's Hall, so he knew what he was doing; it was just hard to find the same materials. The original construction might have lasted another couple hundred years, except there was a time when the upscale Society Hill neighborhood had largely been abandoned to fruit and vegetable distribution, and the congregation dwindled. To save money, the attic had been insulated to save heating costs. It did that, all right, but unfortunately, it caused moisture to form, and rot to ensue. Bob Linck, a roofing contractor who was sitting near me, commented that it just went to prove an old adage. Eventually, the economy of excellence would emerge and demonstrate its value. If reduced cost is what you want, just build things right, and leave them alone.

Three Forms of Saving; Working Capital, Debt, and Equity. Maybe Four.

Assets Forced into Three Categories

John Maynard Keynes is said to have invented the discipline of macroeconomics about 1930 when he wrote a book "The General Theory of Employment, Interest, and Money". That he was brilliant had been established for decades, that he was invariably correct has been debated. In the final chapter of The General Theoryhe concluded that protracted low-interest rates would ultimately lead to a disappearance of the coupon-clipping rentier class. That is, that money would become so cheap that no one would pay to rent it.

Keynes know he could not predict wars and other shocking events, so he ventured no opinion about the timing of this cataclysm, but it is clear that signs of it are appearing sooner than he expected. The causes of this acceleration are mainly medical, including both a lengthening of longevity and an increase in the cost of achieving it. The best sign of a connection for non-economists lies in the transformation of implicit goals of the rentier class (undesirable) into prolonged retirement (desirable, possibly even unachievable.)

To every economist' surprise, inflation has not yet made an appearance, and inflation itself has made a reverse transformation, from confidently expected, to mysteriously missing from view. Von Hindenburg and Adolph Hitler may yet exchange positions of general esteem. But no matter how hard it tries, it appears as though the Federal Reserve cannot raise interest rates above 2% by inflating the currency. That's both a surprise and a discovery, that economics doesn't work in quite the way we thought.

A recent puzzlement has also arisen in the new instrument called a hedge fund. The purpose of this asset class appears to be to conceal the tax status of these assets until the last possible moment before the sale to a new owner. One may accept the division between "two and ten" as a permissible arrangement between buyer and seller, although it seems rather expensive. But the lock-in period seems to have the purpose of concealing its true nature from the taxman. While it is true that sales of Canadian forests may justify a long investment period, most hedge funds now exceed one year's compulsory lockup, and permit shifting of tax status for long periods of time without any obvious tax-based purpose.

Original Intent and the Miranda Decision

{Ernesto Arturo Miranda}
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.

Fisher on Stuffing Ballot Boxes

{Stuff the Ballot Box}
Stuff the Ballot Box

Shortly before election last year, the papers were full of agitation about passing laws to require voters to identify themselves. That doesn't sound so burdensome, considering how teenagers pester you to get a driver's license when they reach a certain age. But, oh my goodness, it was a terrible thing to ask of voters who are barely able to crawl to the voting place, much too poor to afford a car, and grossly offended by the suggestion that anyone would dare to have such nasty suspicions. So, being new to the candidate business, I asked a few hardened old pros about it. Is there much voter fraud in Camden County? And if so, how is it accomplished?

For some reason, this innocent question was greeted with gales of laughter. When it settled down, two or three suggestions were offered. In the first place, said the old guy on a park bench, tell the poll watchers to be certain the voting machines have been set to zero before any voter uses them. How would requiring a driver's license prevent that kind of thing? It wouldn't; it depends on having poll watchers.

All right, what else? Well, there's the "old fashioned way". What that refers to is waiting until about an hour before the polls close, and there is nobody watching in the polling place because it's dinnertime. When the coast is clear, just take the list of registered voters who haven't yet voted -- and vote them for your party. Pretty smooth, right? And if you would be required to write down the driver's license number for every voter, it's pretty easy to spot deficiencies when the results get challenged. So, maybe requiring some sort of ID would be effective, and wouldn't amount to frisking a citizen. And then, there's a law to mention.

In New Jersey, and maybe elsewhere too, a poll watcher is required to be a resident of his district. So, a little old lady with knitting is unlikely to want to watch the polls in some of the tougher districts. For this, both parties employ "flying squads" of some of the party faithful who look like professional football players. One beep on the cell phone and this squad come flying. Well, my Goodness me.

Written several months later:

Judge Richard Posner, whose writings I have come to admire greatly, was interviewed recently on television. Although he said he had written earlier that he saw nothing wrong with asking voters to identify themselves, he now reverses himself and concludes that voter identification laws prevent more people from voting than they prevent fraud. He bases this opinion on what someone tells him is credible evidence, but I'm afraid I neither believe the evidence nor think it is an important way to think about this issue.

I believe the most important issue is to have the public believe the elections were fair, so we don't get more civil disobedience stirred up by political "contractors", or in spite of heated fanaticism heating up in the last few days of an election. There are numerous examples of candidates who supported a fraudulent election of their opponent, rather than have his own supporters injure the reputation of our procedures. Somebody has to win an election, and the election has to be seen as final. In our system, any close election could probably be reversed by a well-managed recount and reversed again on re-recount. To discover large frauds, even if potentially balanced by improved enfranchisement, is to discredit the election process. And since there are many local polling districts near me which have not had dual poll watchers for twenty years, the suspicion of voter fraud in those districts is quite a natural one. I"m not sure what the issues are, surrounding the credibility of absentee ballots.

All I know is a lot of people are increasingly resorting to them because they distrust the conventional polling places. If that's what it takes to convince people the elections are fair, let's try it out wholesale in some districts where obtaining dual poll watchers has been difficult. Like Chicago, for instance?

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Debt and Corruption: One of Them May Ruin Us, or Save Us

We are going without a metal gold standard, substituting 2% inflation targeting because we don't really know what else to do. And we seem to be getting away with it, although most people don't trust it. And indeed we have the shock of discovering that the Phillips curve (inflation and joblessness balance each other) doesn't work because we just can't get inflation to rise. By the way, this includes Milton Friedman, who blamed it on the Federal Reserve, but that can't be right, either. Don't listen to experts -- no one knows why this is true. I have a solution which hasn't been tried: we could use index funds as a new gold standard. They would be a real currency backing, which would flexibly respond to inflation and deflation. Come back in a century, if you want to find out how that works.

We have too much paper money. That's another way of saying the banks have thirty times as much paper money as they have hard currency (safe) reserves to back it up. We started out with banks making it two to one, two centuries ago, and gradually raised the ratio. No one knows what the right ratio should be, so we push the envelope and watch. One day, it will be too much, but it will then be too late to do anything about it. Thirty to one seems to account for most of our prosperity, but we have several billion of the world's population still living in poverty, but with atom bombs to blackmail the rest of us. So we apparently are going to inflate the bubble until it breaks. Then we will know what the right ratio should have been. Along comes Stephan Moore of the Heritage Foundation, with either the greatest trial balloon in history or else the best idea. Who cares why interest rates are so stubbornly low, just take advantage while that is the case. He suggests we take advantage of stubbornly low rates to have the federal government issue long-term bonds until interest rates rise, possibly paying off our national debts with the profits. And also bankrupting almost everyone whose survival depended on continuing low rates, and will surely oppose the move. At least, the argument may surface the reason the Phillips Curve stopped working.

Along a different line, James Madison was scared to death poor people will outnumber rich people, so in a democracy, poor people will win. They will vote themselves free college, free medical care, free wealth they didn't earn. We will then be tempted to substitute dictators for leaders, sacrificing democracy permanently to have the joys of a dictatorship temporarily. We may try everything else first, but what we need is something which will work, not demagogues, and probably not college professors, either. God help us if we start electing newspaper columnists. Even Ben Franklin learned that much.

Just remember how long we have been tinkering with bankruptcy solutions. Instead of cutting your heart out if you don't repay your creditors, we improved things somewhat by putting defaulted debtors in prison. Morris the billionaire showed George Washington how to strip all personal wealth from the defaulted debtor in exchange for extinguishing their debts; it's called bankruptcy. The banks figure out how many defaults they will have in bulk, and add that charge to the interest rate they legitimately charge substandard risk debtors and illegitimately charge a lesser amount to non-risky debtors. Unfortunately, lots of people have figured out how to cheat on their bookkeeping, and with cell phones, soon tell their friends. Just have the government bail out bad debts, and then tax the rest of the population to pay for it. It's that last step which makes it socialism. In Philadelphia, someone a century ago thought it was a good idea to have a city/county consolidation, with sheriffs sales to pay the bills. Today, hundreds of millions of dollars are skimmed off this arrangement by corrupt politicians, and the current --allegedly non-corrupt-- Mayor is running for re-election on the promise he will absorb this revenue for worthy causes, like education. In most cities in this country, this corruption goes on, because it pays off. We have had this corruption for a century, and keep electing the same people to continue it. Yes, I know we have a drugs problem, but we voted for this scam and the taxicab medallion scam. We need a few more people to get mad, but they soon turn into elected crooks, if the rest of us let experts seem to run things. Our Constitution assumes half of the public are inherently honest and the other half are inherently bad apples, seeing its job is to maintain a balance between the two.

In short, the Supreme Court could easily fix this, by fixing enforcement and penalties. Let's see if they try. Congress could also fix this, but it would be opposed by others in Congress. The overall potential might be to lower consumer and retail interest rates, because bonds average 5% return over the long run, while equities average 10% for the same risk. If stocks and bonds returned an equal amount, as they should, there should be a doubling of effect. Bonds are mostly purchased by insurance companies, forced by state insurance commissioners to limit equity purchases to 10%. Presumably, insurance commissioners are holding down the cost to the state of municipal bonds, so the cost of this subsidy is not visible. But the net effect is to have the municipal taxpayer subsidize the defaulting debtor. The tax exemption of municipal bonds is yet another feature of this subsidy, in this case drawing the federal government into the process.

Simplifying somewhat, raising the permissible insurance commissioner's permissible level of insurance company's purchase rate from 10% to 11% would double the permissible stock purchases by insurance companies. Not enough to pay off the national debt to foreigners, perhaps, but demonstrating the opportunity just waiting for a presidential candidate to exploit in his campaign.

 

389 Blogs

Why Do We Need a Constitution?
George Washington knew we had to do something, if the thirteen colonies were to survive all the problems they had experienced as vassal states. He would lend his name, but only if it showed some signs of success. The indications point to young James Madison of Virginia as the organizer of the Philadelphia Convention, and the student of successful (and unsuccessful) attempts to form a union of several small states attempting to unite into one big one. Witherspoon of Princeton probably made some useful comments. Among other qualifications, to be selected as a delegate, you had to be influential, and apparently somewhat sympathetic with the idea.

THE ENGLISH SETTLEMENTS 1619-1776 (Vol 189)
At first, Europe rushed to settle the new world. King Henry the VIII started it for England, and his daughter Elizabeth pushed it along by piracy and other aggressive methods to steal it away from Spain and the Pope. By 1750 the adjustment between the home country and its colonist empire was coming to a confrontation. On a geographic level it was two cultures separated by 3000 miles of ocean. On an economic level it was Mercantilism versus the Frontier. But politicians dominated the scene of owners versus debtors, aristocrats versus vassals, owners versus slaves. Hardly anyone recognized that the Industrial Revolution was starting to sort things out. The English Settlements

William Penn, Excellent Lawyer, Terrible Businessman
William Penn was the central force in the establishment of a religion, Quakerism, certain central features of the legal system, three colonies of America, and many of the central concepts of Constitutional Law. He leaves us over three thousand documents, but it remains very hard to form a picture of what he was like.

Jury Nullification
William Penn demonstrated one of the most incisive legal minds in England by trapping the British courts in what remains a central unresolved dilemma for the law. He was the defendant in his own case. By the South's way of looking at things, it was a pacifist effort to restrain mindless abolitionism. Meanwhile, both sides calculated it would win if the South decided to fight.

Concessions and Agreements
Most 17th Century colonies were proprietorships, requiring agreements for local autonomy without losing allegiance to the home country. William Penn cleverly expanded the New Jersey document into the intellectual precursor of the U.S. Constitution.

East Jersey's Decline and Fall
Some day, a novelist will make East Jersey famous. There's lots of material there.

Line Dividing East from West Jersey
Although England had owned New Jersey for 17 years, it was unsettled until purchased by Quakers. By 1684 ownership was totally in the hands of two Proprietorships, or corporations, of Quakers. The boundary separating East from West Jersey was a line of 150 boulders from Beach Haven to Trenton. Every land title in the state is based on this survey.

Boundary Disputes
Boundaries between nations were mainly based on effective military occupation until the Treaty of Westphalia in 1648. After that, established boundaries were mainly based on rivers or mountain ridges. In the Eighteenth Century, surveying instruments made other boundaries practical, but the political system added new quirks. The Articles of Confederation were a make-shift adjustment to changing concepts of boundaries.

Bi-state Fishing
When Quakers lined both shores of a river, even a state boundary couldn't interfere with fishing.

State in Schuylkill Fishing Club
Unless you listen to some quibbles from White's in London, the Schuylkill Fishing Club of the State in Schuylkill is the oldest organized men's club in the world. And even if that exception is admitted, it's the oldest men's club in America. It's no secret, but it's very private.

A Brief WILLIAM PENN CHRONOLOGY, 1644-1718
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WILLIAM BLATHWAYT'S DRAFT OF THE CHARTER OF PENNSYLVANIA
William Blathwayt was clerk of the British Board of Trade. His draft of Penn's charter for Pennsylvania was essentially a staff proposal for the King to sign. It conforms to the final charter in all but minor wording [,punctuation, and emphasis marks].

John Head, His Book of Account, 1718-1753
The equivalent of the rosetta stone for colonial commerce had been sitting on George Vaux's shelf for six generations.

Albany Conference 1754

C2.............The Era of French and Indian War 1754-1763
Part of the settlement of the French and Indian War was a "line of demarcation along the Appalachian Trail" beyond which there would be no further westward white settlement on Indian land. It was well-intentioned but mostly an ignored temporary expedient.

The First and Oldest Hospital in America
The history of American medicine is the history of the Pennsylvania Hospital.

Andrew Hamilton (1676-1741)
The original Philadelphia Lawyer, Andrew Hamilton gets confused with Alexander Hamilton, no relation. Judged from his life accomplishments, Andrew was one of the most influential people in pre-Revolutionary America. And associate of Benjamin Franklin.

C3..........The Clouds Darken 1763-1776
The French and Indian War was a colonial expression of the Thirty-year conflict between the French and British. The British wished the colonists would act like colonists, but the colonists wanted to be more than that. The British decided to put down this rebellion.

America in 1767
/>Baron de Kalb was a spy for France in 1767, correctly predicting that growing American strength would create opportunities for France to make trouble for England, there.
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                    <p class= Foreground: Parliament Irks the Colonial Merchants
The Townshend Acts, upsetting trade and hated by Americans, bordered on economic warfare. The British tested tea, stamps and manufactures, but the most effective economic pressure points proved to be paper money and gunpowder. The Americans reacted to all this as second-class citizenship.

Parliament Provokes a Revolution
{https://www.philadelphia-reflections.com/images/Magnacarta2.jpg}King George III personifies what angered the American colonists, but his Ministries acting through Parliament took the actual steps to agitate matters.

A Pennsylvania Farmer in Delaware
John Dickinson achieved national fame in 1773 by publishing twelve letters written earlier denouncing the Townshend Acts. They were published anonymously as Letters From a Pennsylvania Farmer. His farm, curiously, was in Delaware.

Mercantilism Dies Hard
Diplomacy has been described as war by other means. It's possible to regard both war and diplomacy as economics by other means, a general attitude called mercantilism.

The Stamp Tax: Highly Innovative, Much Underestimated

Monetary Causes of the American Revolutionary War
For the only time in our history, the government didn't print enough money, The British found that was just as bad as printing too much,

Greenwich, Where?
A charming little colonial village in the Pine Woods of New Jersey has a long history, few visitors, and nothing reconstructed. It's the real thing.

Pennsylvania: Browbeaten Into Joining a War
America declared Independence on July 4, 1776, but England had decided a year earlier to suppress the rebellion by overwhelming force and announced it six months later. France was then smuggling in gunpowder and guns. But Pacifist Pennsylvania held out until there was a British naval attack in the Delaware River, in May 1776, and a huge army had arrived at New Brunswick in June. The British wanted to confront us with a choice of surrender or subjugation. We picked the third choice the British never considered, to resist until they treated us better.

Poor Richard Plays Hardball
While aristocratic England gave him a public drubbing, Franklin stood silently before them and thought it all over. At that moment, the American decision was made to declare independence.

Franklin Declares Independence a Year Early
Franklin made no secret of his goal of national independence, at least a year before the Continental Congress voted and Thomas Jefferson composed his rather rambling declaration.

Ben Franklin and Brexit

Tom Paine: Rabble-Rousing Quaker?
Tom Paine is the one who mainly set the fires of revolution burning, and Franklin sent him here, got him a job, circulated his pamphlets. In spite of Franklin's sponsorship, Washington would cross the street to avoid Paine, and fellow Quakers would have no part of his violence. His later life showed him to be a rebel without a cause.

Quakers and Idolatry
Early Quakers were so opposed to idolatry, they wouldn"t allow tombstones.

Two Hotheads May Have Destroyed an Empire
Charles Townshend and William Bradford were separated by an ocean, and surely never met. But if any two people can be said to have deliberately provoked the American Revolution, these two must be considered.

Lexington, Concord, and All That
What was the point of declaring independence, when the colonies had already been at war with England for over a year?

George Washington's View of the British Army
Washington's escape from Braddock's defeat may help us understand his future low opinion of the British Army, and possibly suggests a reason for his hating them.

Philadelphia Vaguely Hears About Bunker Hill
Massachusetts and Pennsylvania were far apart in 1775, both in distance and culturally. The Boston revolt was an underground conspiracy, aiming for New England home rule within the British Empire, but after two years and thousands of casualties, there was no turning back, and no hope of victory without the other English colonies. It was the British who jumped the gun and faced all thirteen colonies with a choice of subjugation or fighting for Independence.

Differences of Quaker Opinion
Some Quakers refused to go along with the abolition of slavery. That was particularly true in Newport, RI, the North American point of the triangular slave trade.

Addressing The Proprietors' Dilemma
King Charles II gave Pennsylvania to William Penn on condition he defends the place and fuss with neighboring states about its boundaries. A century later, it proved more than a private citizen could handle.

Philadelphia in October, 1774
In his diary, John Adams tells of leaving Philadelphia at the conclusion of the First Continental Congress

Circular Letter: Boston Committee of Correspondance, May 1774
Paul Revere hand-delivered a circular letter from Boston appealing for Philadelphia participation in a boycott of British goods. This letter had a significant effect on Philadelphia opinion.

Declaration of Rights of the Continental Congress, October 14, 1774
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Quakers Turn Their Backs on Power
During the French and Indian War, the Quakers who ruled Pennsylvania were forced to choose between political power and peaceful principles. They withdrew from power.

What Happened in Philadelphia on July 4, 1776?
There were about 30,000 residents, just a small town, but it was the second largest city in the English-speaking world. Aside from wagons, there were thirty wheeled vehicles. But this is the town where decisions were made.

Changing Taxing without Representation to Revolution for Independence: The British Prohibitory Act of 1775
This is the British Act which nominally started the Revolutionary War. The two Legislative bodies should have known better than to react in haste, but the British Parliament in London and its opponent the Continental Congress in Philadelphia -- started the Revolutionary War. Apparently Lord North issued the Prohibitory Act and Thomas Jefferson responded to it. But maybe a month on Eighteenth Century sailing vessels created a scholarly opportunity between two legislatures that should have been seeking a peaceful reconciliation. Whose idea was it?

Prohibitory Act of the British Parliament
The Prohibitory Act of 1775 by the British parliament banned all manner of trade and commerce with the named thirteen colonies, provided for confiscation of any ships engaged in such commerce, and in a sense was a reply to John Dickinson's Olive Branch offer to make peace with the King but not Parliament. One gathers that John Adams had been expecting war with Great Britain all along, but Dickinson had not. King George III just got mad, and his staff allowed it.

Declaration of Independence: Jefferson's Response to Prohibitory Act
Jefferson's Declaration was a long and flowery response to a terse Monarch's notice that He was in charge. That is, the King brushed aside the attempt to separate him from Parliament, and mostly just replied to colonial effrontery with overwhelming force. The colonials were right to suppose Admiral Howe intended to burn all thirteen colonies to the ground.

C5..................The Revolutionary War in the Mid-Atlantic States 1776-1783
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Whatever Was George III Thinking?
After the loss of his American colonies, George III wrote some rueful but valuable insights.

Caesar Rodney Rides Through the Rain
When it looked as though Delaware was wavering on the Declaration of Independence, Caesar Rodney was summoned to ride through the rain to cast a deciding vote, in spite of advanced cancer of his jaw.

Philadelphia in '76
American RevolutionaryThere were about 30,000 residents, the size of a small town, but it was the second largest city in the English-speaking world. Aside from wagons, there were thirty wheeled vehicles.

The Personalities

George Washington Defends Philadelphia in New Jersey
On a chessboard of geography, the generals must deploy their armies, and anticipate what the other army might do.

The Failed Mid-Atlantic Subjugation, 1776-78
The war was not won by the British attack on the Philadelphia region, nor was it exactly lost there. George Washington resisted the British subjugation of the capital region until the British gave up and went away. In the process, General Howe occupied New York and destroyed the Quaker church in Philadelphia, forcing the defenders to retreat to Valley Forge, occupied the enemy capital of Philadelphia and won over its Tory element, and beat away its retreat across New Jersey to the battle of Monmouth, and finally escaped back to New York, as General Clinton replaced him. It took two years and it had a lot of success. But he lost, and George Washington survived. You have to admit the British gave it a serious try, and the alternative would have been to watch the three Quaker states burn to the ground.

The March of Events

Espionage in the Revolution
Almost everyone in the American Revolution could speak English, so it is not surprising to hear of many spies.

Rebel Hill
Everybody knows Washington's troops retreated to Valley Forge, but not everybody realizes how he got there.

What Is the Purpose of a National Constitution?
The primary purpose of any Constitution is of course survival. Usually, but not invariably, that means avoiding war with a neighbor which will surely beat you. Having stated what ought to be obvious, the framers of a Constitution need to be careful of the reasons which originally caused the new state to be formed, and also need to avoid provisions which would cause trouble by inciting some different type of governance. These features can be enumerated, but are easily forgotten.

Perpetual?
If you get careless with your words, you may have to renounce them. The Articles of Confederation were stated to be perpetual, so maybe the Constitution is impertinent. Maybe someone would say it was treason.

Writing and Ratifying the Articles of Confederation
The Articles of Confederation defined terms of alliance in a largely unexpected war, and were only fully agreed to as the Revolution drew to a close. Peacetime amendment was hampered by wartime oaths of "perpetual" Union, combined unrealistically with a crippling ability of individual states to block reductions of their own power. Nevertheless, many features of the Constitution were anticipated in the Articles.

Articles of Confederation (Complete Text)
The final text of the Articles of Confederation.

Attendees of the Confederation Congress (1781 - 1789)
New blog 2012-08-06 12:48:02 description

Signers of the Articles of Confederation
The signers of America's first constitution, the Articles of Confederation, are less well-known than those of the Constitution or the Declaration of Independence, but they are no less important to our history. Some basic demographic information about these men is presented below.

The Wyoming Massacre of July 3, 1778
As the dominant Indian Tribe in Eastern America, the Iroquois were ruthless in war. Whether egged on by the British or for their own reasons, in 1778 they remorselessly wiped out the Connecticut settlers around Wilkes-Barre.

Wyoming, Fair Wilkes Barre
The city of Wilkes Barre pretty well fills up the Wyoming Valley, transforming a once famous agricultural paradise into a crowded suburb.

Three Revolutions at Once, Maybe Four
Asking the cause of the American Revolutionary War may be a little simplistic; civil wars pop up, all over the place, all the time. The more important question to ask, is why did this American Revolution have such a dramatic effect on the whole world?

Sullivan's March
With Washington beleaguered at Valley Forge, an Indian massacre of the nearby Wyoming Valley was a serious threat from the rear. General Sullivan was sent to exterminate the Iroquois, and proved utterly ruthless.

The Third Pennamite War (1778-1784)
Connecticut and Pennsylvania stopped fighting during the Revolution, but then promptly resumed hostilities. The Decision of Trenton gave the prize to Pennsylvania, whose legislature promptly abused the helpless remaining Connecticut settlers.

Constitutions: So What's So Good About Ours; Why Do Europe's Fail?
The American Constitution was created by a dozen successful men, opposed by a dozen others. Since it was a compromise, its balance may explain its endurance, once the Bill of Rights established minority protections.

Unalienable Rights Before 1776
Lawyers commonly say the Declaration of Independence "informs" the Constitution. But prior informing was performed by William Penn, the Roman Empire, and Hammurabi.

Why Do Nation States Repeatedly Unite and Dis-Unite?
Many nations in history have united, but almost always by military conquest. What is America's secret, that made it an exception?

Inalienable Rights Before the Magna Carta
Human rights of some sort can be traced back to 1800 B.C The question is not whether they are ancient, but who gave them out.

Perils of Sovereignty
A sovereign can act without contradiction. He has a right to be capricious; else, what good is it to be King? Rules were established for this, and all nations agreed to enforce them at the Treaty of Westphalia in 1648. All Europeans soon had kings, but nowadays live in republics, and the people have sovereignty. Should that mean every citizen has a right to be capricious? Once again, William Penn showed what a good lawyer has always been about, for hundreds of years.

Quakerism and the Industrial Revolution
The Industrial Revolution extended over two centuries and was more important than all the wars, governments, and agitations of its time. Quakerism began at the same time, in the same place. Was that only coincidence?.

Tactical, Strategic and Existential Thinking

Addressing the Flaws of Republics
We need some local, not national, think tanks. To understand why, it helps to have been elected to something, yourself.

C6................Reconsidering the Whole Nation 1783-1789
small summary blurb which appears in the little boxes.

Axioms for Nations

Systems of Governance
Systems of governance are strongly influenced -- sometimes -- by underlying changes in the technology of communication and transportation. Education and the Press?

FORCES AT WORK
There are at least three different ways to describe the origins of the American Revolution.

Rise of the Formidable State
The Catholic Church came to dominate Europe and its monarchs. Over a period of 300 years, secular governments became steadily more powerful. In 1648, the so-called Peace of Westphalia established that henceforth Kings would dominate churches. The American Constitution stabilized this upheaval for America in 1787, in its present uniquely American form.

Reconsidering All Our Laws
The legislatures of America were handed a clean slate for statutes by the 1787 Constitution, and thus given the opportunity to review the entirely legal system. It took nearly a century to accomplish and is still proceeding.

John Dickinson, Quaker Hamlet
John Dickinson was the most respected lawyer and politician of his time. He had a lot to do with writing the Declaration of Independence but refused to sign it.

Pennsylvania Likes Private Property Private
The King used to own the whole country. William Penn got us used to the idea that my property is mine, not the King's.

THE FEDERALIST FOUNDERS
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Joseph Priestley, Shaker and Mover
The father of the science of chemistry was also the founder of the Unitarian Church in America.

The Richest Men in America
In ten minutes, you can walk between the Society Hill homes of Robert Morris, William Bingham, Stephan Girard, and Nicholas Biddle.

Personalities Who Wrote the Constitution
Seventy-four men were invited to the 1787 Constitutional Convention in Philadelphia; fifty attended. Fewer than a dozen were known to make a significant contribution, although it is hard to believe Benjamin Franklin and John Adams were as silent as the records seem to depict them.

Restoring the Gold Standard by Levering Judges' Salaries
Advocates of a gold standard may just have found an effective "gotcha".

Grand Union
Grand Union FlagThirteen stars and stripes became the National Flag in 1777, but a rather similar flag was the National flag from 1775-1777. It was also designed by a Philadelphia milliner, Margaret Manny.

The Origin of States Rights, a Rumination
The clamor for States Rights probably began with Virginia's claims for western territories.

On the Subject of Rights
Human rights were mainly a religious issue to the Founding Fathers, demanding a Bill of Rights to signify God's supremacy over legislatures. When John Marshall transformed the Constitution into the capstone of the legal system, constitutionally affirmed rights became a legal trump card for those who feared or opposed the actions of the government. With that difference, it's little different, two hundred years later.

Franklin Endorses the Constitution
e3Benjamin Franklin never revealed his contributions to the formation of the U.S. Constitution, whether victories or defeats. When the final vote had been taken, he urged unanimous support by the delegates, in the following words.

Ben's Little Legacy
The Constitution provides that revenue bills must originate in the House of Representatives. This provision is regularly circumvented, and Congressmen have long forgotten they should tip their caps to Ben Franklin.

IF ALL MEN WERE ANGELS, NO CONSTITUTION WOULD BE NECESSARY
A lot of shrewd thinking went into the checks and balances of the Constitution, some of it in quaint language.

James Madison
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The Revolution is Over, Every Man for Himself
Although his personal wealth in modern equivalents approached that of Bill Gates today, Robert Morris abruptly quit his business after a debate in the Legislature, just to show he had no personal bias. It ruined him, but John Hancock and George Washington did much the same thing. Ben Franklin agreed, but was shrewder about it.

Annapolis Convention
The Annapolis Convention now appears as if its call for a Constitutional Convention was the real intent. But there were legitimate reasons to call for a more germane extension of its original purpose.

George Washington Demands a Better Constitution
George Washington was an athlete, a soldier, and an adventurous leader. It is less appreciated that he constructed that aloof public image of himself, cloaking an activist politician and rather ambitious real estate developer. We got a new Constitution because he wanted a new constitution.

A Gleam in Washington's Eye
Section 8 of Article I of the Constitution contains the enumerated powers of Congress, and Section 9 contains some prohibitions of Congressional power. Taken together, these "powers" constitute the arguments that a Union is superior to a Confederation. In the aggregate, they represent the reasons why we created a Union.

Washington's Circular Letters
During the dismal days of 1782-3, Washington was confronted with the first of many examples of the American tendency to quit a war before it is completely won.

George Washington's Cherry Tree, Revisited
Everybody knows the story of Washington chopping the cherry tree is bunk. But debunking drowns out a greater truth.

George Washington on the Federal Union
On September 17, 1796, George Washington declined another term for President, taking this occasion to urge the cause of Federalism.

The Father of His Country
img In the closing days of the Constitutional Convention, it was agreed that a Bill of Rights would be the first item of business, and all were invited to send bills about what it would contain. The convention received bills by the hundreds, but most of the Constitutional founders were members of its First Congress, so it was reasonable to appoint James Madison as chairman of the committee to pare it down to ten or twelve amendments. In view of the strong opinion that there should be a Bill of Rights (Madison was known to be opposed), and in conformity with the strong hesitation voiced by the Virginians (by far the largest state), to all unnecessary forms of centralized governance, the committee vote was for ten Amendments. The unseen hand of Patrick Henry was heavily felt--Congress should pass no law of any sort unless it was clearly necessary to defend the nation, and tax it sufficiently to conduct a war. Everything else was to be handled by the state legislatures. The bill of Rights was a compromise between hundreds of shouts to that effect and a simple one-line prohibition. That is, it would have been a single sentence if Patrick Henry had his way; it would have contained hundreds of details in another. Virginia was the biggest state and the loudest voice -- do you want a union, or don't you? In the background was John Dickinson, saying the same thing on behalf of the smaller states. Neither Dickinson nor Patrick Henry was on the floor, but theirs were the only two voices that counted. Washington and Hamilton got the bare essence of what they asked for, not a scrap more.

Poor Richard's Wealth
Ben Franklin called himself Poor Richard, and he also was invited to visit five kings. Was he rich, or poor?

Revolt of the Admirals: The Fight for Naval Aviation, 1945-1950
The National Security Act of 1947, intended to unify the separate armed forces services under a single Defense Secretary, failed to settle the deeper issue that divided them: the debate over roles and missions.

Theater Review: Washington and The Tragedy of Julius Caesar
The New England town meeting was based on the ancient Greek model of democracy, but the model for the United States was the Roman Republic. It has been argued that a Republic allows representative government to operate on a wider scale, but there is more to it than that.

Robert Morris: Businessman Father of the Bureaucracy
Only a few days after being appointed Financier, or acting President of the United States before the Constitution, Robert Morris swept away Congressional committees and replaced them with administrative employees.

Robert Morris Has a Mid-Life Crisis
Robert Morris baffled everybody by abruptly abandoning his merchant career at the peak of his power. It remains a puzzling action, but somehow it displays American society's confusion as the Industrial Revolution confronted the last of the Enlightenment.

How Could an Honest Man Go Bankrupt?
By the standards of his day, and for the most part by present-day standards, Robert Morris was a completely honest man.

Last Will and Testment of Robert Morris, Jr.
Here is the last will and testament of the richest man in America -- for most of his life, but not the end of it.

R. Morris, Land Speculator
In 1785, Robert Morris suddenly quit as the biggest banker and shipping merchant in Philadelphia. Maybe in all of America, too.

Robert Morris, Land Speculator
Robert Morris devoted considerable thought to land speculation, long before he got involved in it.

Robert Morris and the Lee Brothers

Real Estate Bubble Traps Robert Morris
His financial affairs were unusually complicated, but the main thing which destroyed Robert Morris was the collapse of a huge real estate bubble.

Fort Wilson: Philadelphia 1779
History was made at 3rd and Walnut, but so far, is unmarked.

Morris Upended by a Nobody
Adjusting to winning the Revolutionary War was almost as painful as losing it would have been. Especially for Robert Morris.

Capitalism Explained

Constitutional Liberty
Robert Morris refused to sign the Declaration of Independence because what he really wanted was Constitutional Liberty. He didn't even mind being a British subject and didn't want a different King. What was this all about?

C7..............Articles of Confederation. Were They Still Adequate?
The Articles of Confederation had plenty of flaws, but complaints about the Articles were not a cause of the Revolution. The Articles were precipitated by Admiral Richard Howe appearing on Staten Island with the largest fleet ever seen in American waters. An Act of the British Parliament justified the punishment of the Continental Congress then in session in Philadelphia, for armed rebellion. Who invoked the Treaty of Westphalia is not certain, but Congress preferred treaty negotiations to being hanged for rebellion. The fleet was resisted by General Washington in New York, then assembled and organized on the plains of Staten Island from 1776 to 1777. Only by March 1, 1781, five years later, the Articles of Confederation were ratified by all 13 colonies, as required. Congress was advised that armed rebellion was punishable by hanging, whereas conflict between two nations was settled by treaty. The lateness of ratification probably related to making them permanent.

Two Friends Create the Articles of Confederation
John Dickinson and Robert Morris were good friends who pushed the Articles of Confederation through to ratification. Both of them had been active critics of Great Britain's treatment of the colonies, but both hesitated to sign the Declaration, and both later relented and fought for Independence. Dickinson's final position is less clear, but it was Morris who first saw the weakness of the Articles, and pressed on for their replacement by the Constitution.

We Won, But Now What?
It's hard to say who won the Revolutionary War, but I guess we did; at least we won our Independence. But can we govern? The Article of Confederation didn't seem adequate, but people wanted more than that, but not much more.

Compromise Outside the Borders of a Debate
.....Break a deadlock by seemingly unrelated trade-offs.

The Articles of Confederation and Perpetual Union (Complete Text)
The full text of the Articles of Confederation.

The Decision of Trenton (1782) Under the Articles of Confederation
Trenton makes the world takes bridgeThe 1782 Decision of Trenton simply awarded the Wyoming Valley to Pennsylvania. Strong suspicions exist that other secret decisions were never made public. Like awarding the Western Reserve of Ohio, to Connecticut.

Northwest Ordinance of July 13, 1787: Articles of Confederation at their Best
The British took over the Northwest Territory from France at the 1763 Treaty of Paris. The United States then acquired it at the second Treaty of Paris, ending the Revolutionary War, in 1783. The Northwest Ordinance of 1787 established rules for governing the Territory, as just about the last act under the Articles of Confederation.

Articles of Confederation: Flaws
Some subtle features make the Constitution a vast improvement over the Articles of Confederation.

Confederation Problems: Great, Small, and Unaddressed
The Articles of Confederation addressed short-term problems. They proved adequate for some long-term problems as well, in others they failed badly.

Old Articles (of Confederation) for Old Europe
The European Union and the American Articles of Confederation share the same problems, with a few extras.

Those Troublesome Lees of Virginia
It's difficult for Pennsylvanians to understand why the Lee family of Virginia made so much trouble for our heroes, Robert Morris, Benjamin Franklin, Gouverneur Morris in particular. Perhaps it was a cultural clash.

Advantages and Disadvantages of Being a Small Country
Remaining a small country has many merits, but one big demerit. Your neighbors are tempted to swallow you up.

Geographical Troubles Underlying Small Nation Unificatons
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C10.....Ratification
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Sources of Revolutionary Populism
A major source of growing populism among the aristocratic founding fathers was the aging of rebel boys into Revolutionary Veterans.

Appealing the Constitution to a Higher Authority
The original intent of the Constitution has as much to do with what the audience thought they heard, as what the Founders meant they were saying. Or possibly, what Gouverneur Morris thought they were saying.

Republics and Modern America

As Others See Us
Perhaps the Europeans are intentionally slow to adopt our form of Constitution.

Adjusting Government Finances with Immigration
People emigrate for many reasons, but the main one is to better themselves, economically.

Grandpa Makes a Gift
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How Does New Jersey State Aid Affect School Districts?
State aid for schools is like health insurance: costs go up faster when you aren't spending your own money. At least, that's what the New Jersey statistics seem to show.

Stress Tests for the European Union
Ending the Cold War in 1989 may have generated an unexpected obstacle to European unification.

Evo-Devo
The Franklin Institute has been making awards for scientific achievement for 188 years, long before the Nobel Prize was invented. The seats are all reserved before the meeting notices are even mailed.

Meritocracies and Modern China

ARCHITECTURE OF GOVERNMENT: (1) ARTICLES OF STRUCTURE
There wasn't much to the Articles of Confederation. The document was more an oath of perpetual allegiance among thirteen tribes who had been attacked by a common enemy. Someone had to have the stature to proclaim it was silly to declare such an arrangement to be perpetual.

Signers and Non-Signers of the Constitution
Seventy delegates were invited to attend the Constitutional Convention, fifty-five attended the sessions, but only thirty-nine signed it. Considering that Rhode Island refused to send delegates, that sounds like a closer vote than it really was. But it was definitely not unanimous.

Constitution-tampering is Unwise
Working paper: The voluntary union of sovereign states is so rare as to stand unique if successful. Since the secret of the U.S. Constitution seems to be its delicate internal balance, tampering with its provisions is to be resisted. That's not strict constructionism, it's fear of disturbing successful equilibrium.

Unconstitutionality of Otherwise Desirable Laws
President James Madison's veto message on Internal Improvements Bill (March 3, 1817) makes a powerful statement about states rights and the limitation of federal powers.

Be Careful What You Wish For
After the Clinton Health Plan of 1993 fizzled, major employers, pushed their employees into managed care. The negative reaction to HMOs was as unambiguous as it was unexpected -- we hate it.

Repairing Constitutional Defects
The concept of an amendable constitution was first devised by William Penn and utilized in his form of government of Pennsylvania. But Federalists at the 1787 Constitutional convention feared amendments would weaken the document's power. The alternative, repeat Conventions in which everything would again be on the table, ultimately seemed even more destabilizing. Amendments are permitted, but discouraged by difficult methodology.

First Amendment: Separation of Church and State
Eleven of the original thirteen colonies had,"established" religions. The separation of church and state by the First Amendment was not a statement of fact, but a worrisome departure from the past, mostly prompted by the behavior of the Virginia Episcopalians. For the Pennsylvania Quakers, disestablishment was a most disheartening event.

Second Amendment: The 28th Infantry Division
Seldom regarded as a warlike state, Pennsylvania has one of only eight reserve divisions of the U.S. Army and the oldest.

Third Amendment and Privacy: The Constitution Wanders
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Abortion
As I recall, our position was likewise greeted by the AMA House of Delegates with great relief, and word quickly circulated in the corridors that Pennsylvania had a position everyone could endorse for the good of the organization.

Constitutionality of the Monetary System
The Constitution fails us when no one is certain what to do about an important issue.

Evolving Constitution
As soon as the 1787 Constitution was ratified, it started to be amended, and enabling statutes began to appear. Regulations are written by the Executive Branch eventually outnumbered the laws written by Congress, but they had the same force of law. Hundreds of Supreme Court decisions modified the original intent, ever so slightly. The direction of drift is often hard to recognize, but there are a few clues.

Private Sector Disciplines Congress
"The bond market won't let you" has disciplined American governments for two hundred years. Robert Morris invented the idea. The nation's first bank was really its first bond fund.

Bill Of Rights
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Revising, Amending, and Skirting The Constitution
If you don't like what The Constitution says, what can you do about it?

Constitution V: The Unforeseeable
The sturdiness of the American Constitution emerges from surveying the way it copes with huge changes which could not possibly have been foreseen.

First Amendment
DESCRIPTION: 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 Government for a redress of grievances.

Second Amendment
DESCRIPTION: A well regulated Militia, being necessary to the security of a free State,the right of the people to keep and bear Arms, shall not be infringed.

Boalsburg
Eight generations of the Boal family have lived in the house in Boalsburg, where you can see five signatures of Presidents of the United States, and the personal possessions of -- you heard me -- Christopher Columbus.

Boston firearms license
The process is reputed to be onerous. Here's what my son went through.

Third Amendment
DESCRIPTION:No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment
New blog 2012-07-31 16:31:15 description The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[2]

Fifth Amendment
New blog 2012-07-31 16:32:42 description The amendment as proposed by Congress in 1789 reads as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment
New blog 2012-07-31 16:33:33 description In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[1]

Seventh Amendment
The amendment as proposed by Congress in 1789 reads as follows: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The Bill of Rights in the National Archives

Eighth Amendment
DESCRIPTION: Excessive bail shall not be required, nor excessive fines imposed, not cruel and unsual punishments inflicted.

Eighth Amendment: Bail
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Ninth Amendment
New blog 2012-07-31 16:36:39 description The amendment as proposed by Congress in 1789 and later ratified as the Ninth Amendment reads as follows: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[1]

Tenth Amendment
DESCRIPTION The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Tenth Amendment: Nothing Up Our Sleeve
Short and sweet, the Tenth Amendment makes it explicit that the several American states gave nothing to the Federal government unless the Constitution spelled it out.

After Thoughts Amendments
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Eleventh Amendment
Since the Bill of Rights doesn't really count as corrections, the Eleventh Amendment is sort of the first attempt to change the Constitution. In retrospect, the purpose seems unclear.

Twelth Amendment
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[a] The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.[1] (Note: This provision was superseded by Sections 1 and 3 of the Twentieth Amendment in 1933.)

Owen Roberts
His old law firm devotes a reception room to his name, but not everyone is pleased with either his writing the documents establishing the Barnes Foundation, or his capitulation to Franklin Roosevelt

Owen Roberts: A Switch in Time
His old law firm devotes a reception room in his name, but not everyone is pleased with his writing the documents establishing the Barnes Foundation, or his capitulation to Franklin Roosevelt's threat to pack the US Supreme Court.

Joseph Story on Politics Under the Constitution
Joseph Story, Justice of the U.S. Supreme Court during the time of Chief Justice Marshall, had something to say about political parties.

Thirteenth Amendment
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.[1]

Fourteenth Amendment
DESCRIPTION: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.[1]

Fifteenth Amendment
DESCRIPTION: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section Two: The Congress shall have power to enforce this article by appropriate legislation.

Sixteenth Amendment
DESCRIPTION: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Seventeenth Amendment
The consequences of this little-noticed amendment should be re-examined.

Eighteenth Amendment
DESCRIPTION: Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Nineteenth Amendment
DESCRIPTION: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.[1]

Twentieth Amendment
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Twenty First Amendment
DESCRIPTION: The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Twenty-Second Amendment
DESCRIPTION: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President,when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President,or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Section 2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

TwentyThird Amendment
The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal in number to the whole numbers of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they should be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Twenty-Fourth Amendment
The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any other State by reason of failure to pay any poll tax or other tax. Section 2: The Congress shall have power to enforce this article by appropriate legislation.

Twenty-Fifth Amendment
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro temporare of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section 4. Whenever the Vice President and a majority of the executive departments or of such other body as Congress may by law provide, transmit to the President pro, temporare of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro temporare of the Senate and Speaker of the House of Representatives his written declaration that the President is unable to perform the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits and the Speaker of the House of Representatives his written declaration that no disability exists, he shall resume his powers and duties of his office unless the Vice President and a majority of either the principal offices of the executive department or of such body as Congress may by law provide, transmit within four days to the President pro temporare of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session,If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Twenty Sixth Amendment
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or be abridged by any state on account of age. Section 2. The Congress shall have the power to enforce this article by appropriate action.

Twenty Seventh Amendment
DESCRIPTION: No law varying the compensation for the services of the Senators and Representatives shall take the effect, until until an election of Representatives shall have intervened.

.......................................Marshall
The American court system changed considerably during its first fifty years; it is arguable that such changes should have been fixed to the Constitution. However, neither scholars nor radicals have persuaded the people that Constitutional changes are much needed. The nation seems to delegate the problem to the early lawyer designers, especially Ellsworth, Marshall, and Story.

C16.......Marshall
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Selection of Constitutional Rights for the Bill of Rights
James Madison tried to preserve the Union by allowing states some latitude in enforcing civil rights. Eventually, we got a Civil War, a weakening of state legislatures, massive black migration to northern cities, and the Civil Rights Act. It's all about slavery is hard to eliminate.

Let's Give the Supreme Court Some Help
It's getting to be time to have an up-or-down vote on the constitutional right to privacy.

Chief Justice John Marshall Enters (Kettledrums and Crashing Cymbals)
John Marshall is known for some ground-breaking decisions, but many of his most influential pronouncements were just side comments with no force of precedent, obiter dicta , as they are called in legal circles. Marshall came to realize that if he told the legal profession what he firmly believed, no lawyer would think it was wise to conflict with the views held by the final level of appeal.

John Marshall's Constitution
New blog 2012-03-06 12:40:48 description

John Marshall Decides Three Cases
Marbury v Madison (1803), Martin v Hunter's Lessee (1816), and McCullough v Maryland (1819) -- these three cases were the ones where John Marshall changed judicial history. Taught in law school as case law, they are more accurately moments of national history.

Unwritten Constitution
The Twenty-second Amendment to the U.S. Constitution serves an excellent purpose, even though the 80th Congress which proposed it may have had quite different motives.

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.

xxxOur Unwritten Constitution
New blog 2012-05-21 16:13:41 description

Void for Vagueness
Ignorance of the law is no excuse, but what about a law that is deliberately vague?

Marshall's Predecessor, Oliver Ellsworth
John Marshall's career sounds like a continuation of the life of Oliver Ellsworth, his predecessor. Together with Associate Justice Joseph Story, Marshall's evangelist, these three Justices transformed the American Court system.

Delaware's Court of Chancery
Georgetown, Delaware is a pretty small town, but it's where the major corporations of the nation plead their case.

Sanctity of Contracts
Article I of the Constitution, states in section10 that "No state shall......pass any law.....impairing the obligation of contracts, or grant any title of nobility." While the Constitution does not precisely say the Congress may not do so, or the President might not, it is definitely omitted from the list of limited federal powers. And it is the enduring expectation of the citizenry that the federal government is no more encouraged to impair the sanctity of contracts than to grant titles of nobility.

The Supreme Court Gets Fed Up With Professors
The interpretation of American law belongs to Judges, not to law schools, and administration of the courts is controlled by the U.S. Supreme Court. Period. What the two subjects have to do with each other was not explained, but Washington DC has a way of circulating rumors. The opinion was a warning.

William Penn, Justice Holmes, and the Inner Light
The hippies of the 1960s can be understood as just one extreme swing of an old, old pendulum.

Commentary
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Philadelphia in 1800
In 1800, the nation's capital moved to the District of Columbia, just as Washington, Jefferson, and Madison had hoped.

Second Mortgages Want to Be First
Banks would not normally take sides between first and second mortgages. However, securitization took the first mortgages away from big banks, so they now have an incentive to seek political favor for second mortgages.

An Industrial Nation, or a Plantation Society?
The founding of America produced patriots, heroes, revolutionaries and other idealists. James Madison was our first modern politician.

Human Rights
Human Rights is a popular term, but not a very clear one.

Terrorists: Mafiosa or Just Nuts?

Fisher on Representation Size
My Legislative district had 224,000 residents, according to the census. If I spent five minutes talking to each one, I wouldn't have time to sleep or eat.

Adrift With The Living Constitution
Sentor Joe SetakWith apologies to any political tricks left unmentioned.

Philadelphia: Charles Dickens Gives an 1842 Viewpoint
Dickens liked Philadelphia a lot, but he was still a little patronizing.

Mark Twain Sees Philadelphia in 1853
On his first visit to Philadelphia, Mark Twain was a very young man.

Philadelphia City-County Consolidation of 1854
Prior to 1854, Philadelphia City was one of twenty-nine political entities within Philadelphia County. After that, it became one big city without suburbs. Growth pressure now reverses toward suburbs without a city. Political boundaries should thus shift inwardly.

Funding the National Debt
Funded debt, otherwise known as Capitalism, was a gift to the nation from Robert Morris, Jr.

Our Federal Reserve : Biddle's Bank (2)
Nicholas Biddle was a cultured gentleman who invented a lot of the structure of modern banking. But he got in Andrew Jackson's road.

National Debt, Presidential Hat Tricks, Shale Gas and Argentina
The Franklin Inn Club discusses Obama's maneuvers in the context of what might have been a better approach.

After the Convention:Hamilton and Madison
Two of the main authors of the Federalist Papers -- and hence of the Constitution -- ultimately proved to be acting on entirely different sets of principles, aiming for widely different goals.

Why Jefferson Hated Banks and Hamilton Loved Them
For centuries, Americans have quarreled about whether banks are good or evil. Some of the arguments are good and bad, but hardly any are new.

Hayek Confronts Keynes
The influence of Austrian economist Friedrich von Hayek is slowly winning out over the views of the English economist Maynard Keynes, even though both of them are dead. Which is worse, inflation or depression?

Alexander Hamilton, Celebrity
Alexander HamiltonHe had the kind of taudry private life and flashy public behavior that Philadelphia will only tolerate in aristocrats, sometimes.

Implicit Powers of the Federal Government
The Constitution strictly limited the number of federal powers, but did not define their boundaries. Intending to be flexible, it opened a permanent loophole.

Lowering the Taxes on Corporations
When Ireland lowered corporate taxes, inviting corporate immigration, and then precipitating an international financial crisis, it drew attention from others. Instead of warning them, it encouraged them to imitate Ireland.

Corporations: Property, but also Immortal Persons
There had been a few stockholder corporations, dating back to the Dutch East India Corporation and the Proprietors of West Jersey. The Industrial Revolution greatly encouraged this business structure, but America got the jump on the rest of the world by some happenstances.

Globalization
Peter Alois, now retired from a career as an international economics envoy for the Department of Commerce, discusses free and fair trade, and other issues related to globalization.

Regulation Precision: Not Entirely a Good Idea

Obamacare's Constitutionality
Obamacare's constitutionality was argued before the U.S. Supreme Court in late March, 2012.

Vote Counting, Past and Future
Voting law changes followed the contested 2000 Presidential election, but U.S. Supreme Court still comes out looking pretty good. Close elections will always cause problems, some of them brand new ones.

Anatomy of an Urban Political Machine
If Philadelphia is typical, here is how urban machine politics works.

American Articles of Confederation, Valuable or Hindrance?
The American Articles of Confederation were devised and then completed in Philadelphia. Correcting their biggest flaws made it easier to accept a sparse Constitution which is hard to amend. But it gave the British a legal way to hang them as rebels.

Constitutional Judicial Branch Clauses
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Tax Legislation--Just A Condominium Squabble
New blog 2017-11-11 02:52:56 description

American Succession
The rules for succession are not spelled out in the American Constitution, but what is implicit was revolutionary. Once again, credit George Washington.


Tammany: Philadelphia's Gift to New York
All the bad things they say about Tammany Hall are somewhat true. William Penn, George Washington, and Aaron Burr can be happy that Tammany Hall is now mostly a New York tradition, its Philadelphia origins long forgotten.

The Civil War
The problem was whether it was possible to surrender enough power to govern, but not too much for survival. Slavery was the ultimate test, and America almost didn't survive. After a hundred and sixty years, nearly half of the country feels it should have won the war, even though no one is still alive who experienced either slavery or the war.

Aftermath: Who Won, the States or the Federal?
The auto and the jet plane changed all the rules of the American Constitution of 1787. Curiously, canals were central to the Peace of Westphalia of 1648, the other great political innovation of modern times.

As Europe Learned: Common Currency Without Common Government Spells Trouble
For many years, many nations shared the Spanish doubloon or "piece of eight" as their common currency. Why the Euro couldn't do the same gets to the basics of what money is supposed to be.

Other Constitutional Issues
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Is It Better to Die in America?
New blog 2016-02-17 21:20:34 description

Mexican Immigration and NAFTA
American RevolutionaryNAFTA was a brilliant innovation by Poppy Bush, but it was perhaps a little too sophisticated.

Paying For College - II
Princeton LogoAs college education strives to be universal, forcing a few prosperous students to subsidize many needy ones becomes unsustainable. Colleges must devise better tuition systems before somebody else does it for them.

Special Education, Special Problems
Until recently, mentally retarded children weren't even considered in school budgets. But in recent decades, they have become one of the biggest challenges.

SEPTA's Long Term Planning
SEPTA is slowly making progress, but it's a struggle, every step of the way.

Ms. Mayor
The current, and long time, Mayor of Haddonfield New Jersey is a lady from Odessa, Texas.

Paying for College I
A service economy needs more education past high school. Soaring college tuition costs imply a supply shortage, and hence we need more colleges. But cheaper ones.

Disappearing Stock Power
The proxy voting power of corporate common stock is disappearing every day, by thousands of shares.

Puritan Boston &amp; Quaker Philadelphia
The University of Pennsylvania Sociology professor E. Digby Baltzell drew attention to the strong persistence of earlier elite influences, using Philadelphia's Quakers and Boston's Puritans as prime examples.

Forming the State of Delaware
In 1632, King Charles I granted to the Maryland proprietor coastal land with a northern border at the 40th parallel. In 1682, his son James the Duke of York evicted the Dutch from the Connecticut River to Cape Henlopen; afterward, his brother King Charles II gave away New Jersey and Pennsylvania, leaving York with New York plus a strip of wilderness from Pennsylvania to Henlopen. York then gifted that southern strip to William Penn before anyone realized there was a sloppy overlap with Maryland of thousands of square miles. Lawsuits are galore.

Thieves of Baghdad
American troops recovered most of the antiquities looted from the Baghdad Museum, tracing many of them through the international black market. The museum turns out to have been secretly a private treasury.

Frank Furness (1):PAFA
An art museum contains a lot of art. It should itself be a work of art if it can be.

Rationing, No Matter What You Call It.
The ethics of healthcare reform concentrate on the ethics of healthcare rationing.

Wood Turning
Tucked underneath the Ben Franklin Bridge, a non-profit museum displays the work of turners, artists mostly working in their garages, a most endearing place to visit when you are near the Constitution Center in Philadelphia. A little hard to get there on one-way streets.

Killer Instinct
A former Marine and carrier pilot reflects on the non-boastful risk-takers who drive themselves toward success, but not for riches, promotions, or power. Many other nations seem to exclude these people, and while many women go wild over them, feminists want to civilize them, at our peril.

Cushman Club for Lonesome Actresses
One of the ancient Camac Street clubs has closed its doors, to become a charitable foundation.

Reservoir on Reservoir Drive
Philadelphia has a wildlife treasure within a mile of City Hall. The birds know all about it, but citizens need to search a little.

Go to Delaware, Elephants?
It's about a 20-minute commute from Delaware to Philadelphia, with a big difference in estate taxes. Moving from New Jersey to Delaware would double that difference.

Frank Furness (2) Rittenhouse Square
There were plenty of rich folks in Philadelphia before the Civil War. But it took the industrial revolution to make possible what we call the Victorian urban mansions.

The Republican Court
An aristocratic court may seem a peculiar place to unite a republic, but the female-dominated social circle of 1790-1800 nevertheless united a new nation. Its definition of who is socially prominent still persists, in SR -- the Social Register.

Selling Entire Towns
Some builders build whole towns without houses and then sell them to custom home builders.

Urban Transportation
The industrial revolution made cities grow, and thus made mass transit desirable. The flight to the suburbs then made mass transit attractive only to urban politicians.

Exercise As Fun
You can't improve muscle strength unless you have some muscles, and you can't improve endurance until you have some strength.

The Trigger and the Cliffhanger
It was inevitable that someone would pull a trigger, and market gossip is now shaking loose who actually did. The cliffhanger to come is the insolvency of Fannie and Freddy.

Reading Books Compared With Computer Viewing
Authors universally compose their work on personal computers. Much more resistance to reading books on computers comes from readers, who dislike the glare of computer monitors on their eyes, the extra cost, and the cumbersomeness, and the trouble to learn how. However, storage is cheaper on servers than libraries, marketing is easier and maybe cheaper online, and technology will inevitably increase the advantages of computers. Right now, computers are ruining the book trade, not sweeping it aside.

Federal Reserve Changes Its Business Model
On March 16, 2008, the Federal Reserve stepped in to stop an impending bank panic. It also changed the rules of the game, rather significantly.

Commercial Academic Think Tank
There are universities and there are think tanks. Philadelphia has at least one commercial consulting firm which combines elements of both.

Chester: To the Dark Tower
The ancient town of Chester struggles to revive..

Quaker Efficiency Expert: Frederick Winslow Taylor 1856-1915
A rich Germantown Quaker boy became the world's symbol of the efficiency expert with a stop-watch, hated by Labor Unions but admired by Lenin and Stalin. He enriched the Midvale Steel Company with his invention of high-speed steel but was fired by Bethlehem Steel for eliminating too many employs. 000..0ees. Peter Drucker placed him in the class of innovators beside Darwin and Freud.

Philosophy Means Science in Philadelphia
At least until he met Madame Helvetius, Benjamin Franklin displayed little interest in moral philosophy. His interest was in science, which was called natural philosophy in the Eighteenth Century. The American Philosophical Society is America's oldest and most prestigious society of scientific scholars. If investing is a science, the APS is good at that, too.

Turtles and Bananas
Snapper soup can be made from snapping turtles, but the historical source of the ingredients has been shipped from the Caribbean.

Rise and Fall of Books
The The Director of America's first library sees books as mainly a 19th Century phenomenon.

Volunteerism Needs a Business Plan
Volunteerism has declined in recent years because of conflicting demands made by gainful employment. The spirit of volunteerism has not diminished, it just needs a different business plan.

Report Identity Theft to the Secret Service
Identity theft is now under the jurisdiction of the U.S. Secret Service.

Pakistan and Democracy
A former resident of Pakistan loves Democracy, but explains why it has been unsuccessful in Pakistan.

South Amboy Explodes
On May 18, 1950, South Amboy, New Jersey blew up, breaking windows of five counties in its neighborhood.

Gettysburg
The strategy of both sides in the Battle of Gettysburg was shaped by the type of weapons in use.

Detroit Makes, Philadelphia Takes
The heap of crushed auto bodies at the foot of Philadelphia's Platt Bridge is an important part of the regional economy.

Securities Trading Across Time Zones
Closing the securities markets for any reason causes disruptions. Patchwork solutions are often devised. But continuous global 24-hour trading is an idea which conflicts with the need for everybody to get some sleep.

The Corinthos Disaster
We hope the 1975 Corinthos disaster proves to be the worst fire in Philadelphia history; it's hard to imagine a bigger one.

SCORE
The Service Corps of Retired Executives has taken a new turn in Philadelphia, primarily serving minority start-ups, a majority of which are founded by black women.

Burlington County, NJ
Burlington County in New Jersey is on the move. This rural county puts the urban ones to shame.

Port of Philadelphia
The Port of Philadelphia has access to six U.S. Senators from its surrounding states, but the price to be paid is endless political wrangling.

Doing Well, Doing Good.
A board member of Rotary International recently ran an Afghanistan relief program and wrote a novel about the Battle of Brandywine. He's a Quaker, lives on a farm, and is chairman of the boards of several organizations.

Google Earth Tour of Franklin Locations
Every place B. Franklin is known to have visited is included in this tour by Bob Florig.

China Bubble
Poor nations don't know how to spend their money, so they save it. When they eventually spend their money it inflates prices and wages and destroys their competitive advantage. To prolong their happy period of prosperity, the Chinese government exported their savings -- and their inflation -- by buying U.S. Treasury bonds. Their inflation became our inflation, our bubbles, and our disrupted banking system.

Onward, Christian Soldiers
Like a fairy godmother, Jane Kroc has dropped a spectacular gift on the poor of North Philadelphia, and the Salvation Army. Opening in 2009.

Not Only to Own, but to Govern
King Charles II apparently recognized that Pennsylvania was ungovernable from London, three thousand miles away, and gave William Penn powers that essentially made him a vassal king.

Freedom, But Not Independence
Very likely, King Charles's advisors warned him of the possibility that colonies might drift away and even become enemies in time. Provisions about immigration policy and foreign relations needed some sort of review by the Crown.

Navigation and Mineral Rights
Since the Delaware Bay and River were shared by colonies, it was essential that the rights to navigate be defined. Later on, the issues became bridges and tolls, fishing and channel deepening.

Money as Political Speech
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Employees Can Try to Force Companies To Ease Burden of Rising Medical Costs
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A Toast to Doctor Franklin
The Franklin Inn annually toasts three doctors. Even though Ben never went past second grade, his medical contributions are the most illustrious of the three. One of the most remarkable men who ever lived.

Introductory Remarks: Anti Trust in the Twenty-First Century

Public be damned: testimony on managed care improvement legislation
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Harvard Men Suggest a Cold Place for Yale
The northeast corner of Pennsylvania was once covered by a glacier.

Litchfield County, Extended (1771-1775)
Connecticut won the Second Pennamite War, occupying Pennsylvania territory for four years. The American Revolution caused the other colonies to put a stop to the fighting.

Legal Standing

John Rutledge and Judicial Powers
History neglects the role of John Rutledge of South Carolina in shaping the Constitution, because of his defense of slavery. Nevertheless, he rose to the moment when left in charge of a committee, to fill in gaps important to judges and lawyers. No matter what else it is, the Constitution is the capstone of our legal system.

Leadership and Priesthood
Kings once had divine rights, nowadays leadership has responsibility.

Roberts the Second
Chief Justice John Roberts seems to be intent on radical changes to the Supreme Court, made in a conservative way.

Dark Morning at the Supreme Court
Shouldn't the Supreme Court televise its hearings?

Relocation
Moving your place of residence has many influences, but property taxes seem to have the biggest influence on business executives decided to move. By contrast, property prices have the biggest influence on the middle class.

Hedge Funds in Delaware
The state of Delaware attracts clusters of businesses for reasons having to do with its legal system; call it Delaware Attractiveness. At the moment, it attracts hedge funds.

Fees for Trial Lawyers, Section 1983 Variety
ABUSESuing your own town is now getting so popular it clogs the courts.

Fisher on TV
They stop you on the street with a movie camera, these days.

Origins, Causes and Mechanisms: (1): "A Rabble of Dead Money"
Stable international banking at first required stable nations, provided in 1648 by the Treaty of Westphalia. For wartime, paper substitutes were devised during the American Revolution by Robert Morris of Philadelphia, utilizing replaceable proxies to continue trading gold despite shipwrecks. Rules for belligerents were later printed by Walter Bagehot in a book called Lombard Street, employing the British Empire as a world-wide chain of safe havens.

Cyprus Tests the Limits of Paper Money

Gold Standard Substitutes
The monetary crisis which continues since 2007 keeps financiers searching for a better monetary system.

Solutions? : "A Rabble of Dead Money "(2)
Economic depression can seldom be cured by just reversing its underlying causes.

Birth control, Ride-Summoning, and States Rights: Science Shakes All Three Levels of Government
For those who doubt science changes history, we present three recent discoveries which predict big political changes.

Bernanke's QE3: A New Titanic, or A New Bretton Woods?
Ben Bernanke is crossing Niagara Falls on a tightrope.

Declaration of Independence
The Declaration of Independence is the document in which the Thirteen Colonies declared themselves independent of the King

zzzbill of Rights
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xxxMonetary issues in the Constitution
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Deficits Don't Matter When Your Party Is In Power
Krugman channels Cheney

Economics of the Oct. 4th, 1779 Attack on Fort Wilson
Inflation and price controls were hot issues in 1779, and continue to be so at the present time.

Tax References in the 1787 Constitution
Where are taxes mentioned by the founders?

Paper Money
Many of the episodes of discord between American revolutionaries and other American revolutionaries was occasioned by what was popularly scorned as "paper money", actually disputes overinflated currency between debtors and creditors. The Constitutional Convention was grimly determined to put an end to this matter.

Penman of the Constitution
The courts have spent a fair amount of time arguing about the meaning of phrases, words and even punctuation in the Constitution. That's what constitutional lawyers think they are paid to do. It seems possible the document survived for centuries, only because its final wording was left to a lawyer who took words seriously, using as few as possible.

Morris at the Constitutional Convention
Robert Morris knew that credit is only extended to someone with a reputation for paying his bills.

Competition for the Hospital, Rehab Center, and Nursing Home
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Robert Morris, Financial Virtuoso
Robert Morris had two episodes of being in charge of the American government, one before and the other after, the class warfare at Fort Wilson. In both cases, he displayed a virtuoso ability to innovate in a novel emergency.

Morris Defends Banks From the Bank-Haters
To understand why lots of people today reflexly hate bankers, it's useful to review the courtroom defense of the man who invented America's first bank, facing ruin if he proved unconvincing.

Fighting About Taxes So Soon?
Americans don't like to pay taxes. Never have. Never will.

Intrigues, At the Highest Levels
..

Power of the Purse
Establishing and revising a national debt limit was a mistake in 1917. Its mistakenness becomes progressively more evident as national debt approaches the point where we could not possibly pay it off, and several foreign countries demonstrate what can then happen.

Population Growth: Constitutional Mathematics
It makes a big difference how many congressmen there are, and how many constituents they have. The problem was addressed in 1792, but it got lost.

National Debt, National Blessing
National surplus is the opposite of national debt. Sounds good, but can it even be contemplated?

Publius (James Madison) Explains the Proposed Constitution
Ten days after the Constitution was signed in Philadelphia, James Madison published Federalist paper # 10, which revealed the central organizing idea to the general public.

Muddle: The War of 1812
The War of 1812 was a muddle, made worse by biased historians like Henry Adams, and politics in upheaval. Howard Calloway may not have the story precisely right, but at least he has a plausible explanation for the episode.

States Rights Confront Civil War
The Constitution took certain defined powers from the states and gave them to the Federal Government. A further steady erosion of states rights began, but the Republican Party gave things a big push during the Civil War.

Washington Picks out Madison
Washington and Madison collaborated closely in promoting a Constitutional Convention. Who enlisted whom into this adventure?

Government Features Under Stress
A major strength of the U.S. Constitution is that it comfortably adjusted to consequences it had not foreseen. Equally important is its ability to encompass developments no one could have foreseen.

Designing the Convention
To understand the original intent of the Constitution, it helps to see it in three parts. The part Washington and Madison devised in 1787 was mostly about structure, the main goal of which was to lay out certain national functions which the federal government could perform without state interference. That's delicate diplomacy because the states had to ratify it.

Political Effects of Increasing Population
The Founding Fathers worried about the effect on a state's politics, particularly depending on relative size compared with other states. What could we tell them about that, after a few hundred years of experience?

George Mason and Triumvirates
George Mason, Washington's neighbor in Virginia, went to the Constitutional convention enthusiastic, but eventually refused to sign it. Maybe he preferred triumvirates.

How Could We Improve State Legislatures?
If state legislatures are as bad as their reputation, we ought to be asking questions. Like, how did they get that reputation, and what can improve it?

Separation and Balance of Powers
The authors of the American Constitution made a little distinction between a separation of powers and a balancing of them, which now seem a two-step process. Separate, then rebalance.

Twenty Five Years at the Center
During the critical formative years, Philadelphia was the center of America.

Reversing Madison's Scheme
Reversing the technique to attract rich people, might drive away poor ones. If that's what you want to do.

ARCHITECTURE OF GOVERNMENT: (2) COMPROMISE BETWEEN BIG AND LITTLE STATES SETS THE TONE
When a set of principles is set before fifty distinguished men of affairs who respect, but most do not know, each other - even they are surprised by what emerges after their experience collides with a simple theory.

ARCHITECTURE OF GOVERNMENT: (3) SEPARATION AND BALANCE OF POWERS
Separation and balance of powers was probably Madison's idea, but it has been irregularly implemented.

ARCHITECTURE OF GOVERNMENT: (4) MAJORITY RULE
For thousands of years, everybody had a simple understanding of majority rule. It seemed so basic and so simple that some felt it was the voice of God. And then the Constitutional Convention had a second look.

ARCHITECTURE OF GOVERNMENT: (5) UNIFORMITY
The section on Patents and Copyrights is the only clear example in the Constitution, suggesting uniformity is innately a good thing to encourage. It conflicts with absolute liberty, a little, but it discourages needless individualism when that causes needless friction.

Patent Pending
The provision for patents is part of the Constitution, and seems a little out of place. The motion was made by James Madison and seconded by Thomas Pinckney. But some of us think it sounds more like the work of Ben Franklin.

ARCHITECTURE OF GOVERNMENT: (6) POLITICAL PARTISANSHIP
Madison proclaimed in Federalist No. 10 that republican government could be designed to eliminate political parties. Unfortunately, he learned better.

Legislative Branch: Two Chambers or One?
The Romans, two thousand, and the Icelanders, one thousand years ago, developed parliaments that served as models for our own Congress. They were unicameral, however. Bicameralism had the model of the British Parliamentary system, but the Aristocratic House of Lords is currently being whittled away. The Pennsylvania Constitution of 1777 seems to have been one of the few to recognize how important the distinction is, and shows why two are better than one. The British better go back to the Thirteenth century and start over.

Political Parties, Absent and Unmentionable
Our Constitution is much praised for exquisitely balancing power between the three branches of government. It would even be an achievement to require two centuries to find a way to unbalance them.

C14....................Political Parties
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The Virginia Plan
Virginia started the idea of a Constitutional Convention, called the meeting for Philadelphia in 1787, got there early and produced the Virginia Plan as the beginning point for deliberations. It was mostly a group of amendments to the Articles of Confederation, and it was mostly the work of James Madison.

Free Quaker Meetinghouse
It's only open a few days each year, but the red brick building at 5th and Arch was the meeting house for those few Quakers, including Betsy Ross, who fought for the Revolution. The Park Service has made a beautiful restoration, which deserves to be seen by more people.

C12..........The Convention and Its Product
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C13.............Balance at Last
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North of Market
This old local expression originally pointed to where the Quakers live on Arch Street, but over the centuries has taken on a lot of less flattering associations.

The Revolutionary Origins of The Methodist Church
The Wesley brothers converted so many Americans to the Anglican church, they couldn't ordain enough ministers. Reluctantly, Americans were allowed to ordain their own ministers. When the Revolution was over, they had drifted into a new Protestant denomination.

A Change of Era
Few historical eras burst upon the world with the suddenness of the American one. It took place in Independence Hall, all right, but even more decisively in 1798 than 1776.

The Silas Deane Affair

Richard Henry Lee: A Pennsylvania Viewpoint
Pennsylvania in 1776 was pacifist, prosperous, and slow to anger. Virginia was hot-headed and quick to anger. For some reason, Westmoreland County VA was the most extreme. Richard Henry Lee was their leader, and always the first to pound the table.

Pennsylvania's First Industrial Revolution
By 1776, a hundred forty years of lumbering had just about exhausted the forests on upper Delaware and Lehigh Rivers. The Revolutionary War then created a use for munitions and iron products in a region which discovered it was on top of Anthracite and connected to the fighting by a network of rivers.

Two-Party Ideologies
It's curious how often the two American political parties have switched positions on the main issues of the day.

Larger Clubs
No longer exclusively all-male (or, occasionally, all-female), the downtown club is changing its role but remains a social center of considerable importance.

American Philosophical Society
/>Charles Wilson Peale started his museum of curiosities here and then moved it to the second floor of Independence Hall, where he painted the famous portrait of himself holding up the curtain.
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                    <p class= Philadelphia in 1976: Legionaire's Disease
Philadelphia's ambitious Bicentennial celebration of the Declaration of Independence was ruined by an epidemic of a new disease that seemed to focus on tourists.

Rail Station at Broad and Washington

Stephen Girard 1750-1831
Stephen Girard was blind in one eye and never went to school. But he was a successful sea captain, then a successful merchant, then a successful banker. In the last year of his life, he grasped the essence of the Industrial Revolution, made a successful plan for the next century, and wrote a truly remarkable will.

Selection of Judges
There is no perfect way to select judges, but the British system of distinguishing barristers from other lawyers has much to recommend it.

European Common Currency
The European central bank has done a good job, but European culture is a little slow.

Charles Peterson and Amity Buttons
Most of our really historic buildings have an ivory button nailed to the newel post, and there is the only word of mouth to explain why. America's most famous preservation architect tried very hard to document some proof but couldn't.

Unwritten Lessons For the European Union
The Europeans, trying to unite 27 countries into one, should study America's problems uniting 13 colonies in 1787. It isn't easy, and it gets harder with increasing the numbers of participating states.

Henry George, Single Tax
The Henry George idea of a single tax still lives on in a school run in his old house on Eleventh Street.

Mayors and Limos
Mayors sometimes want to be noticed riding around, and sometimes want to be invisible. They have been both.

Shrine of Historical Restoration
Charles Peterson sparked the restoration of Society Hill. In the course of fixing old houses the preservationist found a lot of things for a museum of professionally documented old house parts which now set standards for authentic colonial restoration everywhere in the country.

Billy Penn's Hat
There was a gentleman's agreement not to build higher than the top of City Hall, but business is business.

C17..........Unresolved Issues
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World Finance, Columbus Day 2008
Europe's leaders met in Paris, while finance ministers met in Washington over the three-day weekend in October 2008. Should nations chance total collapse to save the whole system, or sacrifice the weak to save the strong? Unfortunately, the source of the answer may not be financial but political.

Bretton Woods
The Bretton Woods conference in 1944 was very simple. The U.S. dollar alone was convertible into gold, but all other currencies were convertible into U.S. dollars. To prevent Fort Knox from being completely depleted of gold, the convertibility of dollars into gold was also soon discontinued. Effectively, all money everywhere was thus just a computer notation, controlled by the U.S.government. Temporarily, the dollar became a reserve currency, supplementing gold. Effectively, we were testing whether we needed a metallic standard at all.

CEO of the World
The State Department must change, because the world has..

The Eventual Economy of Excellence
In the long run, it's cheaper to leave good construction alone.

Three Forms of Saving; Working Capital, Debt, and Equity. Maybe Four.
Macroeconomics has become more complex since Maynard Keynes invented it in the 1920s. But for simplicity of discussion, it continues to have the same three categories of assets.

Original Intent and the Miranda Decision
Right before our eyes, we can watch the Miranda decision migrate away from the original intent.

Fisher on Stuffing Ballot Boxes
I hear, but scarcely can believe, that there is occasional voter fraud.

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Debt and Corruption: One of Them May Ruin Us, or Save Us
It nearly ruined The Merchant of Venice . It ruined Robert Morris and it has ruined lots of nations. It got better for a while, but we are gradually waking up to what may become the greatest financial gamble in history.