George R. Fisher, III, M.D.

Obituary

George R. Fisher, III, M.D.

Age: 97 of Philadelphia, formerly of Haddonfield Dr George Fisher III

Dr. George Ross Fisher of Philadelphia died on March 9, 2023, surrounded by his loving family.

Born in 1925 in Erie, Pennsylvania, to two teachers, George and Margaret Fisher, he grew up in Pittsburgh, later attending The Lawrenceville School and Yale University (graduating early because of the war). He was very proud of the fact that he was the only person who ever graduated from Yale with a Bachelor of Science in English Literature. He attended Columbia University’s College of Physicians and Surgeons where he met the love of his life, fellow medical student, and future renowned Philadelphia radiologist Mary Stuart Blakely. While dating, they entertained themselves by dressing up in evening attire and crashing fancy Manhattan weddings. They married in 1950 and were each other’s true loves, mutual admirers, and life partners until Mary Stuart passed away in 2006. A Columbia faculty member wrote of him, “This young man’s personality is way off the beaten track, and cannot be evaluated by the customary methods.”

After training at the Pennsylvania Hospital in Philadelphia where he was Chief Resident in Medicine, and spending a year at the NIH, he opened a practice in Endocrinology on Spruce Street where he practiced for sixty years. He also consulted regularly for the employees of Strawbridge and Clothier as well as the Hospital for the Mentally Retarded at Stockley, Delaware. He was beloved by his patients, his guiding philosophy being the adage, “Listen to your patient – he’s telling you his diagnosis.” His patients also told him their stories which gave him an education in all things Philadelphia, the city he passionately loved and which he went on to chronicle in this online blog. Many of these blogs were adapted into a history-oriented tour book, Philadelphia Revelations: Twenty Tours of the Delaware Valley.

He was a true Renaissance Man, interested in everything and everyone, remembering everything he read or heard in complete detail, and endowed with a penetrating intellect which cut to the heart of whatever was being discussed, whether it be medicine, history, literature, economics, investments, politics, science or even lawn care for his home in Haddonfield, NJ where he and his wife raised their four children. He was an “early adopter.” Memories of his children from the 1960s include being taken to visit his colleagues working on the UNIVAC computer at Penn; the air-mail version of the London Economist on the dining room table; and his work on developing a proprietary medical office software using Fortran. His dedication to patients and to his profession extended to his many years representing Pennsylvania to the American Medical Association.

After retiring from his practice in 2003, he started his pioneering “just-in-time” Ross & Perry publishing company, which printed more than 300 new and reprint titles, ranging from Flight Manual for the SR-71 Blackbird Spy Plane (his best seller!) to Terse Verse, a collection of a hundred mostly humorous haikus. He authored four books. In 2013 at age 88, he ran as a Republican for New Jersey Assemblyman for the 6th district (he lost).

A gregarious extrovert, he loved meeting his fellow Philadelphians well into his nineties at the Shakespeare Society, the Global Interdependence Center, the College of Physicians, the Right Angle Club, the Union League, the Haddonfield 65 Club, and the Franklin Inn. He faithfully attended Quaker Meeting in Haddonfield NJ for over 60 years. Later in life he was fortunate to be joined in his life, travels, and adventures by his dear friend Dr. Janice Gordon.

He passed away peacefully, held in the Light and surrounded by his family as they sang to him and read aloud the love letters that he and his wife penned throughout their courtship. In addition to his children – George, Miriam, Margaret, and Stuart – he leaves his three children-in-law, eight grandchildren, three great-grandchildren, and his younger brother, John.

A memorial service, followed by a reception, will be held at the Friends Meeting in Haddonfield New Jersey on April 1 at one in the afternoon. Memorial contributions may be sent to Haddonfield Friends Meeting, 47 Friends Avenue, Haddonfield, NJ 08033.

Repairing Constitutional Defects

James Madison

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

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

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

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

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

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

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

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

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

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

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

Steep Yield Curve: A Useful Subsidy?

The steepness of the federal interest rate curve -- ten-year treasury bonds pay more interest than three-month treasury bills, and the rate for intermediate time intervals slopes gradually from one to the other -- is a function of the Federal Reserve; the slope of this curve concisely describes current Fed policy. The Federal Reserve controls the money supply by raising or lowering short-term rates, which "affects the slope at the short end", and mainly in this way restrains or encourages inflation, or alters the exchange value of American currency. For the most part, long term rates are set by the public bond market. Once in a while, the Federal Reserve does buy or sell long-term treasury bonds to modify long-term rates in the economy. By affecting rates at either end, the result is some kind of change in the slope of the curve.

Because banks make interest payments to depositors near the short-term federal rate, while the same banks charge borrowers at near the public long-term rate, the current slope is the main determinant of bank profits. Banks borrow short and lend long. If Federal Reserve tinkering steepens the curve more than it would be without interference, then bank profits are subsidized. Of course, it works the other way as well; in a banking crisis, yield curves can be steepened to rescue banks from failure, thus potentially sacrificing ideal monetary levels temporarily. For the most part, what is good for the banks is good for the economy; but it remains that bank profits are subsidized much of the time. Artificially widened yield curves either punish savers by lowering interest rates on their savings accounts or else punish borrowers by increasing interest rates on mortgages and other credit. For political reasons, the pain is usually shared among voting blocs. It can be argued this invisible subsidy of banks by the public creates a compensating benefit of economic stability despite occasional bubbles and recessions like the present one. However, the Federal Reserve system has been in operation for almost a century, revealing a long-term bias in favor of inflation, which is a subsidy of debtors by creditors. Present policy deliberately targets a steady rate of 2-3% inflation; the gold market responded to a century of this by raising the price of gold from $17 to $900 an ounce. A 1913 penny has become a dollar (before taxes) you might say. You might also say it took the Federal Reserve less than a century to make the present dollar worth a penny.

If gradual inflation is a consequence, a fair question must arise whether the Federal Reserve is worth its cost. Compared with an inflexible, relentlessly deflationary Gold Standard, yes, it is. Even accepting the monetary crisis as partly created by central banking, the international dominance of the American economy and recent smoothing of banking instability testify to the durable use of the Fed. But another criticism must be faced: In subsidizing depository banks with an artificial yield curve, is the Fed backing the wrong horse for the future? To answer that question, examine two components: With computer technology rapidly advancing, can the Federal Reserve accommodate non-banking competitors to banks? And secondly, international central banking appropriately accommodate globalization? There are, after all, aspects within the 2007-20?? a crisis which suggests -- maybe it can't.

Steady inflation of 1000% per century may well be preferable to 19th Century volatility of 1000% every ten or so years. But a gradual rise of, say, 500% or less each century might be even better. Relentless political pressure on the Federal Reserve has typically been used to explain its slow retreat from truly stable prices, and this defense takes the form of mentioning its dual mission of minimizing unemployment while holding prices as steady as possible. In recent years, European political rhetoric goes further, aspiring to add the right to employment to their fifty-page Bill of Rights; similar utopianism has crept into our own news media. Governments for thousands of years have cheapened their currencies. But while the drift is clear, our own pace is set by the amount of subsidy required to maintain a steep yield curve. As retail banks have struggled to compete with the wholesale investment banks, their increasingly uncompetitive costs require a greater subsidy from the yield curve. It is always going to be more expensive to aggregate deposits for lending purposes than to raise large sums by floating a bond issue. Securitization is here to stay because retail banks have consolidated and savings banks have gone out of business by the thousands; the mortgage industry can no longer survive without substantial amounts of mortgage-backed securities. Nor should it; securitization is a sensible route for importing capital from nations with a trade surplus. Depository banks long ago lost the borrowing business of corporations large enough to float their own bonds; securitization provides a means for smaller borrowers to share the same efficiency. After it has tried everything else, Congress will eventually devise a reasonable regulatory system for derivatives. Except for smoothing the transition to whatever proportion of market share the investment banks can justify, perhaps all of it, the subsidized yield curve impairs efficiency. It would be a mistake to allow some foreign nation to exploit such an opening before we do. The technical problem for all central banks is to devise a suitable alternative method of controlling the currency, other than by targeting inflation with adjustments in interbank lending rates.

Observers led by Martin Wolfe the economist for the Financial Times feel the 2007-20?? financial crisis can be adequately explained by Chinese pegging their currency too low, and could be rectified by persuading the Chinese to float their currency. Regardless of this extreme view, globalization is clearly both a good thing and an inevitable one. Thus some form of discipline must be devised to prevent central banks from destabilizing it for their own advantage. Wolfe proposes the use of a strengthened International Monetary Fund, which is unfortunately apt to project international politics into a process which could be harmed by it. An alternative to be examined might be to pool sovereign wealth funds as a pooled currency reserve, although this system probably could not withstand present extremes between surplus and debtor nations, so getting world acceptance could be protracted. Ultimately, everyone realizes that the real backing for an international finance system is the net worth of the whole world. But the example of Lloyd's of London is a haunting one; no one relishes putting absolutely everything at risk, down to the last shoe button. In the event of a disaster, everyone wishes to hold back some nest egg to use for recovery. Because of the same line of thinking, almost no one would trust foreigners to control more than a limited share of their future.

The future of international monetary relations is thus quite murky, but current pressures would seem to be driving something fundamental to change. When it does, regulating artificially manipulated yield curves had better be kept in mind.

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.

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

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.

ARCHITECTURE OF GOVERNMENT: (6) POLITICAL PARTISANSHIP

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

John Marshall Decides Three Cases

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.

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.

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.

Philadelphia Reflections

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

Obituary

George R. Fisher, III, M.D.

Repairing Constitutional Defects

Steep Yield Curve: A Useful Subsidy?

Fighting About Taxes So Soon?

ARCHITECTURE OF GOVERNMENT: (6) POLITICAL PARTISANSHIP

John Marshall Decides Three Cases