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.
|
|
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
|
|
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.
|
|
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.
Fisher on Representation Size
|
|
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.
The Escrow subaccount within Health Savings Accounts now stands unveiled for what it is -- a transfer system between plans. It pays for health insurance, usually not for current care but designated for underfunded future care. Regular Health insurance sometimes contains similar communication-and -funds transfer channels, but informal ones, patchwork for adding new features to existing ones, as in adding federal funds to state-controlled Medicaid. We here offer the escrowed Health Savings Account as an individually owned policy, specifically incorporating specific finances of a string of pearls to new ones with independent delivery- system regulations. As long as the pearls are careful, they can have a neutral transfer system, like the state-national one for the rest of the economy. Disputes are regulated by the courts under a common Supreme Court. The Court might be a new medical one, or use the one we already have.
This tripartite system not only conforms to the Constitution but restrains mission creep. That's historically why we have a Bill of Rights, although the document doesn't say so.
If the escrow subaccount is purely a transfer system between Pearls on a String, what is the function of the non-escrow portion? It is to permit each Pearl to fund separately and independently, and to make it easier to keep one Pearl from subsidizing another inadvertently. An argument can be made that New York now subsidizes Mississippi within the Federal Reserve monetary system, but that was for facilitating the approval of the various states -- the states which badly wanted a Federal Reserve would be taxed extra to get it -- but it is uncertain whether the same considerations apply to healthcare. The absence of cross-subsidy may be seen as an advantage in Healthcare, and therefore the issue should be decided by Congress. Perhaps decision could be delayed until the public gets a sense of what it wants after some defined period of experience.
When Health Savings Accounts were first discussed, it was assumed they would be funded by employer contributions, so and so many dollars per month or per quarter per employee. Tax deductibility would be decided once, and probably continue indefinitely for a class of employees or a certain type of employer. Actually, that proves to be the most difficult method to determine, because health insurance is given to the employee as a gift, and therefore has already been made tax-exempt. The potential for double tax exemption is raised, and various strategies could be adopted to simplify the tax status.
The double tax exemption might well be re-examined, but much of its unfairness traces to employer's inequitable tax exemption in the first place, which we have repeatedly suggested Congress equalize. It might be compared with using the income from municipal bonds, also tax exempt and tangled up in the minimum tax provision as well. If the amount of questionable deposits is overall fairly small, the matter can be taken up in a general revision of taxation and passed over for the present.
We have had judges and case law (also called common law) continuously since Roman times, longer than any government has survived. By contrast, "statutory "law usually responds more suddenly to the changing natures of rulers, often seeing military law or anything resembling it, as a temporary expedient for the survival of the state. The two forms of law are frequently suspicious of each other, so if both forms of law coexist, they often link through a Constitution defining their boundaries. Common law usually evolves slowly and coherently, whereas statutory law has less patience with traditions, and becomes based on some variant of force imposed by unrelated kings, emperors, tribunes or legislatures, often resisted by local citizens through compromise or rebellion. Much depends on whether or not there are long periods of stability between episodes of war. English common law traces back to the Norman Conquest of 1066, gaining its present form after notable negotiations with King Arthur, Charlemagne, and Francis Bacon, among many others. It seeks "fundamental" truths, eventually founded on the customs of the people defined in that same Constitution. The first written Constitution of any nation was the American one, And it was the only one to last two hundred years, even though several hundred Constitutions have been tried by numerous other attempted democracies. Generally speaking, constitutions define the boundaries of statutory law but also contain a Bill of Rights. The latter is politely worded to define limits to how a simple majority may learn the will of the public, or beyond which statutory authorities may not go without special forms of extra permission. The heart of American common law lies in the first ten amendments to the Constitution, written by James Madison, and called the Bill of Rights. It might well be stated that it protects minorities from majorities, avoiding armed rebellion, but even hinting at that recourse in the Second Amendment. Madison was chairman of the designated committee of the first Congress, extracting ten of the hundred proposals the committee received from fellow members. This degree of mistrust was certainly a clear sign of coming dissatisfaction with any form of government whatever, by a people who mostly hoped to be left alone.
Originally the "lower counties" of Pennsylvania, and thus one of three Quaker colonies founded by William Penn, Delaware has developed its own set of traditions and history.
Start in Philadelphia, take two days to tour around Delaware Bay. Down the New Jersey side to Cape May, ferry over to Lewes, tour up to Dover and New Castle, visit Winterthur, Longwood Gardens, Brandywine Battlefield and art museum, then back to Philadelphia. Try it!
Millions of eye patients have been asked to read the passage from Franklin's autobiography, "I walked up Market Street, etc." which is commonly printed on eye-test cards. Here's your chance to do it.
In 1751, the Pennsylvania Hospital at 8th and Spruce was 'way out in the country. Now it is in the center of a city, but the area still remains dominated by medical institutions.
Grievances provoking the American Revolutionary War left many Philadelphians unprovoked. Loyalists often fled to Canada, especially Kingston, Ontario. Decades later the flow of dissidents reversed, Canadian anti-royalists taking refuge south of the border.