Philadelphia Reflections

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

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Westphalia: Church Politics Adjusts Boundaries, Then Everything Changes
In 1648, the Treaty of Westphalia created the modern nation-state.

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 New Jersey once had a plan (written by William Penn) that worked for creditor-debtor relationships but has been superseded, so size is not the dominant reason for leadership, although it has an edge if the smaller states neglect their own ideas.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.

Originally published: Wednesday, August 28, 2019; most-recently modified: Thursday, August 29, 2019

 

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