Political theorists have spilt much ink in controversies over “sovereignty,” while probably even more effort has been devoted to discussion of the nature of law. It cannot be said that the result of all this activity has been to produce a body of generally accepted doctrine, or even that it has greatly clarified the field of discussion. On the contrary, misunderstandings and the abuse of terms have contributed greatly to a general fog.

The real issue raised by the pluralists is much more than a question of logic. They challenge the premises of their opponents. They deal largely with the question of the limits of political obligation. With that we are not here concerned. The primary purpose of this article is to search for a meaning of “law” that will at once contribute to the clarification of the question as to the nature of law and aid in the determination of the most helpful legal signification of the term “sovereignty.” The accomplishment of this purpose should aid in settling the incidental questions of the nature of “constitutional law,” the possibility of “nullifying” law, and the status of “international law.”

The two subjects—law and sovereignty—are frequently treated independently, but they are so inter-related as to render such treatment inadequate. A brief examination of the controversy over “sovereignty” will demonstrate how it ultimately resolves itself into a question of the definition of law.

Ever since the inquisitive age in which Voltaire wrote his Philosophic Dictionary, reflection upon the course of human events has caused scholars to persist in the search for a rational interpretation of history. They have not been discouraged by the skepticism of historians who, like Froude, have argued that the address of history must be less to the understanding than to the higher emotions. “A science of history,” according to this historian, “implies that the relation between cause and effect holds in human things as completely as in all others; that the origin of human actions is not to be looked for in mysterious properties of the mind, but in influences which are palpable and ponderable.” Froude believed that “natural causes are liable to be set aside and neutralized by what is called volition,” and that in consequence “the word Science is out of place” in connection with the study of history. If, as Froude intimated, the origin of human actions can be found only in mysterious properties of the mind, the outlook for a rational interpretation of history may well be poor.

The Japanese constitution of 1889 is not, as is frequently assumed, chiefly the product of the labors of Hirobumi Ito and his secretaries who, in 1882–1883, studied constitutional systems in Europe preparatory to drafting the text of the fundamental law which the Emperor had promised in the celebrated rescript of 1881. Discussion of constitutional progress had begun as far back as 1867 and, immediately following the restoration, Meiji statesmen began the task of drafting projects of a constitution. Okubo, Goto, Kido, and Itagaki played leading rôles in urging the adoption of a national charter, and when Okubo and Kido relaxed their efforts, Itagaki initiated a popular campaign. Finally, in 1876, a formal commission of the Genro-in (Senate) was appointed to draft a constitution, while in 1880, its completed project was laid before the Emperor. This draft proposed a form of government having many features of the British parliamentary system.

Professor Hans Kelsen is the leading exponent of the “pure” theory of law, which is attracting a great deal of attention abroad but as yet has received scant notice in the United States. His theory marks the culmination of the tendency toward a strictly legal theory, represented in the writings of K. F. von Gerber, Paul Laband, and Georg Jellinek. This movement aims to eliminate all purely metaphysical postulates—such as the natural law concepts—from legal theory, as well as to free it from the political tint which it so often manifests. It also endeavors to separate the validity of law from dependence on any personal authority.

This attempt to “depersonalize” law is the last stage of a development that began with the passing of absolutism. At that time, ideas of a “general will” and of popular sovereignty—attended by a demand for “a government of laws and not of men” and by the introduction of the principle of separation of powers—made their appearance, only to be supplanted, more recently, by the concept of the Rechtsstaat.

Fascism a World Movement. Fascism is no longer an isolated incident in the individual history of a few countries. It has developed into a universal movement which in its seemingly irresistible surge is comparable to the rising of European liberalism against absolutism after the French Revolution. In one form or another, it covers today more areas and peoples in Europe and elsewhere than are still faithful to constitutional government. Fascism's pattern of political organization presents a variety of shades. One-party-controlled dictatorships rule outright in Italy, Germany, Turkey, and, if Franco wins, also Spain. The so-called “authoritarian” states may be classified as belonging to the one-party or multiple-party type. To the one-party authoritarian group, without genuine representative institutions, adhere at present Austria, Bulgaria, Greece, and Portugal; while Hungary, Rumania, Yugoslavia, Latvia, and Lithuania may be classed together as authoritarian states of the multiple-party type, with a semblance of parliamentary institutions.

As 1937 brings into sharp focus the New Deal critique of the judiciary, the phrase “economic predilection” becomes a slogan rather than a subtle juristic evaluation. The famed dictum of Justice Holmes that there is an inarticulate major premise upon which major constitutional issues are decided was necessarily made an issue in government by an Administration whose program is primarily economic. An Administration dedicated to war as governmental policy might similarly inveigh against “pacifistic propensity” in the judiciary. In the midst of the heat and controversy as to whether the integrity of the judiciary is impaired by a charge that judges adjudicate constitutional issues upon the basis of “economic predilection,” it seems desirable to inquire into the possibility of formulating a disciplined judicial economics, to the end that there may be a realistic, tempered instrument for solving the major judicial questions of our time. The more sensitive jurists have expatiated upon the intuitive and subconscious aspects of judicial decision, but beyond stating that such factors exist they have, on the whole, continued to articulate their judicial reasonings in conventional legalistic form. Legal tradition is usually successful in throwing the balance in favor of the seeming where the seeming and the actual are in conflict. What exceptions there have been have been of inestimable benefit to the law. They have brought wisdom, beauty, and strength to an ancient, oft-times sadly thread-bare, technique. An example is the approach to law exemplified by the method of Mr. Brandeis both as advocate and justice.

Under terms of the Treaty of 1921 between Great Britain and Ireland, it was agreed that: “Ireland shall have the same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa, with a Parliament having powers to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament, and shall be styled and known as the Irish Free State.” The status of the Irish Free State was further defined by this language: “Subject to the provisions hereinafter set out, the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State.” The Imperial Government gave this treaty the force of law by the Irish Free State (Agreement) Act of March 31, 1922. To implement the treaty, Dáil Eireann, sitting as a constituent assembly, enacted a constitution for the Irish Free State in 1922. This constitution declared: “The Irish Free State (otherwise hereinafter called or sometimes called Saorstát Eireann) is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.” It was given the force of law by the Imperial Government in the Irish Free State Constitution Act of December 5, 1922.

Some Illustrations of Militant Democracy. Before a more systematic account of anti-fascist legislation in Europe is undertaken, recent developments in several countries may be reviewed as illustrating what militant democracy can achieve against subversive extremism when the will to survive is coupled with appropriate measures for combatting fascist techniques.

1. Finland: From the start, the Finnish Republic was particularly exposed to radicalism both from left and right. The newly established state was wholly devoid of previous experience in self-government, shaken by violent nationalism, bordered by bolshevik Russia, yet within the orbit of German imperialism; no other country seemed more predestined to go fascist. Yet Finland staved off fascism as well as bolshevism. At first, the political situation was not unlike that of the Weimar Republic in the years of disintegration. The Communist party, declared illegal by the High Tribunal as early as 1925, reconstituted itself and, in 1929, obtained a large representation in the Riksdag, thereby blocking any constitutional reform. Under the decidedly extra-constitutional pressure of the nationalist and semi-fascist movement of the Lapuans, the Communists were so intimidated that nationalists, and progressives (bourgeois liberals), against the opposition of the social Democrats, were able to carry the constitutional reforms which not only strengthened the position of the government but also eventually barred subversive parties—meaning, at that time, the Communists—from national and communal representation.

The system of government set up under the Irish constitution of 1922 was of the parliamentary type. Provision was made for an Executive Council, some members of which were responsible to Dáil Eireann. The actual working executive was the president of the Executive Council. The old constitution also contemplated a group of expert ministers who should be heads of departments, but who should not share in the collective responsibility of the Executive Council to the Dáil. The appointment of such a group of “extern” ministers was not made mandatory. In the first Dáil, three extern ministers were appointed, and in the second Dáil a fourth was added. This constitutional arrangement, the inspiration for which was derived from the Swiss executive, did not last long. The extern ministers were, as a matter of fact, active politicians; they were not appointed on the basis of merit in heading the specific departments; in 1927, an amendment was adopted which practically abolished extern ministries; and the Free State has since proceeded on the general plan of a cabinet collectively responsible to the Dáil.

In the one-party states, of which the U.S.S.R., Germany, and Italy may be taken as the best examples, the definition of relationships between the party and the state has presented a major problem of constitutional theory. No two of these states have solved the problem in the same way. The C.P.S.U., engineering the dictatorship of the proletariat, depends upon methods which are constitutionally indirect. Only in the Commission for Soviet Control is there a constitutionalized inter-relationship between the mechanisms of the party and the state; for the rest, the party relies upon its political discipline over the public personnel. Indirect reference to the Communist party is contained in the new Soviet constitution, in the guarantee to citizens of the right of “uniting in the Communist party of the U.S.S.R.,” and in the incorporation of the hammer and sickle and the slogan of the party into the emblem of the state. On the other hand, the Nazi régime in Germany prohibited the formation of other parties than the N.S.D.A.P. by the law of July 14, 1933, and, by the law of December 1, 1933, proclaimed the formal union of the party and the state.

The British Unemployment Assistance Act of 1934 is unquestionably the most important legislative innovation in the field of public poor relief since the passage of the Elizabethan poor laws. It represents the final fruition of the movement for the “break-up” of the old poor law system, for by its provision the “break-up” is made virtually complete. In sweeping terms, it adopts the principle of national responsibility for the care of the nation's ablebodied poor, and establishes for the administration of the duties thereby thrust upon the national government a vast new machinery directly operated from Whitehall. Local responsibility for a major portion of a basic governmental function is thus completely wiped out, and the old poor law stands stripped of its essential substance and significance, a mere shell of the former system out of which grew the modern institutions of English local government.

Crises in political synthesis are not without precedent. They must have occurred from time to time since the emergence of coherent political society. Indeed, any sharp divergence between commonly accepted ethical standards and temporal conditions is likely to produce a crisis in régimes. The last great debate in the West on the destiny of politics occurred in the later years of the eighteenth and the early part of the nineteenth centuries. The issue was formulated in terms of the basis of authority, just as it is at the present time. At that time, liberalism, with its uncertain conception of political organization, faced the old and tried historical authorities founded on the feudal and the divine conceptions of earthly power. Such men as Edmund Burke, von Haller, and the thinkers of the German historical school fought their losing battle against the tides in liberalism which seemed to them most pernicious. The new capitalism gathered into its fold the hunger for liberty and for the destruction of the arbitrary in government, but our crisis today rests on the fact that this capitalism and its multitudinous social implications are, in the minds of many, becoming unequal to the task of running the world as it is.

Almost from the creation of the League of Nations, there have been proposals for its reform; a few amendments to the Covenant have actually been adopted. Discontent with the League's achievements in the recent dispute between Japan and China and that between Italy and Ethiopia have of late brought the discussion to a head, and have led to official action by the League itself. According to the British Foreign Minister, in a speech before the Assembly on September 25, 1936:

The underlying motive for the work on which we are now engaged, of examining the Covenant and the procedure of its application, is the recent failure of the collective action of the Members of the League to achieve the prime object for which it was undertaken.

And M. Litvinoff, speaking three days later, asserted that the question

did not arise in any academic way, but was brought into existence and imposed upon us, both by the unhappy outcome of the Italo-Ethiopian conflict and by the whole course of the political events of recent years.

At the meeting of the Council on June 26, 1936, the Chilean delegate proposed that a study of the reform of the Covenant be undertaken; and he proposed it likewise at the 16th Ordinary Session of the Assembly, in July, 1936. Discussion at this session did not reveal much enthusiasm for reform.

The liberty of any given citizen is inhibited by four great enemies. The first enemy is outer—the inhibition of the liberty of one by the liberty of others. The other three are inner enemies—illness, poverty, ignorance. The outer enemy is commonplace to political scientists. And so it is this inner triumvirate against freedom which I wish first and mainly to discuss. Worst of the three is ignorance.

Pure liberty would consist simply in doing what one wants to do. Illness is enemy to this ideal not merely because illness weakens wants, but also because it aborts the very formation of virile wants. Poverty is enemy not only because it stunts the growth of healthy wants, but because it circumvents efficacy of efforts to fulfill any and all wants. Ignorance, however, is worst of the three, not only because it fortifies the other enemies, inner and outer, but because it also converts such regulation of elemental wants as is made inevitable by civilization into the psychological poison of aggression and thereby estops fructifying sublimation of the crasser forms of freedom.

It is now fifty years since Woodrow Wilson wrote his brilliant essay on public administration. It is a good essay to reread every so often; there is so much in it that sounds modern, so much that will hold permanently true. “It is getting to be harder to run a constitution than to frame one.” Was this said only yesterday? No, Woodrow Wilson clearly saw the importance of governmental administration half a century ago. “Administration is the most obvious part of government; it is government in action; it is the executive, the operative, the most visible side of government, and is of course as old as government itself.” Yet democracies have badly neglected administrative principles and structural improvements. “Like a lusty child, government with us has expanded in nature and grown great in stature, but has also become awkward in movement. … English and American political history has been a history, not of administrative development, but of legislative oversight—not of progress in governmental organization, but of advance in law-making and political criticism. … We go on criticising when we ought to be creating.”

Congress adjourned on August 21 without enacting any part of the program for administrative reorganization and management of the federal government recommended by the President's Committee on Administrative Management, and endorsed by the President in a message to Congress on January 12. The program was sidetracked until late in the session by the court reform proposal. While no action was taken, all of the major recommendations of the Committee have been incorporated in bills which have been reported out for passage in both houses, and two bills were passed by the House. The other bills are on the calendar for consideration at the next session, and will not have to go through the original committee stage again. Presumably these measures will receive early attention when Congress meets, and it seems probable that a large part of the program will become law.

The invalidation and consequent abandonment of the N.I.R.A. did not bring to an end the trends of which it was, in fact, merely a manifestation rather than a cause. Section 7a had its precursors in the Railway Labor Act of 1926, the Norris Anti-Injunction Act of 1932, and similar state laws, and has been carried over in the National Labor Relations Act. The price maintenance provisions of the codes were the result of years of effort on the part of the American Fair Trade League to legalize resale price maintenance contracts. Today, various state Fair Trade Acts go much farther than the codes dared to go in establishing resale price maintenance even apart from privity of contract. Trade associations have continued their efforts to “rationalize” industry through the collection of statistics on capacity, production, sales, and prices, trusting that the courts will permit this to be done through a more liberal interpretation of the anti-trust laws. Pending further national legislation to be built upon the broader interpretation of the commerce power enunciated in the Labor Relations Act decisions, business efforts to set minimum prices have been carried on under a mantle of state and local legislation. Various trades and professions, desiring to carry forward their efforts to standardize minimum working conditions and professional practices in their fields, have also sought the aid of the states and of their local governments. Consequently, much of the work of the state courts during the year 1936–37 concerned the validity of these undertakings. There was also the normal run of cases in the various fields of state constitutional law. As last year (see this Review, Aug., 1936, pp. 692–712), the decisions will be discussed under the following headings: (1) separation and delegation of powers; (2) inter-governmental relations; (3) individual rights: procedural; (4) individual rights: substantive; and (5) fiscal powers. However, the nature of the material has necessitated a complete rearrangement of the subject-matter within each heading.

In an atmosphere of profound awe of the unprecedented popularity of Franklin D. Roosevelt, the members of the Seventy-fifth Congress convened, on January 5, 1937, for their first session. Many legislators were keenly conscious that their presence in Washington was due largely to that inspired political leadership which had produced tremendous Democratic majorities throughout the nation. With the surviving remnant of opposition benumbed and quiescent, the view was prevalent that the patriotic duty of Congress would be “to have the courage of the President's convictions.”

The increasing use of the government corporation in the conduct of governmental business enterprises is one of the most significant of recent trends in public administration. Indeed, the corporate device represents one answer to the charge that government is so poorly organized and so beset by red tape that public operation of economic enterprise is inevitably sluggish and inefficient. Most notably during the mobilization crisis of 1917 and the depression years following 1929, when speedy and vigorous action was needed, the federal government has relied heavily upon government corporations which could cut through red tape and “get things done.” Also in more normal times, however, particular enterprises somewhat isolated from regular governmental activities have been carried on in corporate form.

Much has been written on Congressional investigations. The theoretical questions connected with them have been explored. Their place in our governmental system has been reasonably well established.

Recent developments give a new perspective. The high point of Congressional investigations, so far as the previous literature was concerned, came in a time of stagnating major party politics. There was an attitude of “stand by” on the part of the Administration; defeatism pervaded the official minority. Conditions in the Senate, however, permitted the dissident Republicans, in combination with the Democrats, to constitute an intermittent majority for purposes of criticism if not of construction. When malfeasance and misfeasance were allowed to creep into administration, meeting little resistance from within, the check had to come from without, and it came in the form of Congressional investigations.