A little over a century ago, De Tocqueville ended the first volume of Democracy in America with the flashing paragraph which identified two rising nations destined to become transcendent centers of power. The prescience of that ending was matched by the closing sentence of the second volume: “The nations of our time cannot prevent the conditions of men from becoming equal, but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or wretchedness.” This sentence is more than a frame of the age, even to the hour. It hints at a theory of history; it is a clue to the relation of trends and choices.

Each major trend, holding such momentous alternatives, is itself the cumulative outcome of choices. The main alternatives, likewise, result from the interaction of fresh ideas with tradition, available resources, and potential techniques. Each new choice sets in motion its limited train of consequences, to be worked out in a succession of adaptive changes. In this restricted sense, man is intermittently the captive of his own discoveries. But spontaneity survives amid the accommodating changes launched by earlier acts of creation. Recurrently, as well as originally and fundamentally, ideas are the determinants.

At the beginning of 1948, Italy's first republican constitution went into effect. After exactly a century, the Statuto of 1848 was finally and formally superseded. History will record that the Statuto proved a powerful instrument in the formation of Italian unity and in the development of Italy's freedoms and parliamentary system until 1922, just as it will also be a witness to its rejection and nullification in the course of the subsequent twenty-five years. The new republican constitution represents the first deliberate effort by the Italian people as a whole to guarantee their freedom and common welfare within a constitutional framework.

The influences of many lands are visible in the document. One can see in the rebirth of regionalism the native historical tradition of municipal freedom; the French fear of Caesarism reflected in election of the president by Parliament rather than by the people; British reliance on a balance of power between executive and legislature translated into the almost unlimited executive power of dissolution of the chambers; the time-honored American principle of bicameralism accepted with the creation of two legislative houses of equal power; and the equally famous American doctrine of judicial review tentatively imitated through the establishment of a Constitutional Court. Of Eastern constitutionalism there are only scant traces, the new social and economic rights reflecting rather the general trends of the times than any overt allegiance to the tenets of the Soviet constitution. Indeed, the acceptance of the new has been tempered by a strong restatement of what is valid in the individualistic and liberal traditions of the eighteenth and nineteenth centuries.

The 1910 amendments to the Colombian constitution provided:

Art. 40. In every case of incompatibility between the Constitution and the law the constitutional provisions shall be applied by preference.

Art. 41. To the Supreme Court of Justice is confided the guardianship of the integrity of the Constitution. Consequently, in addition to the powers conferred upon it by this Constitution and the statutes, it shall have the following: To decide definitively as to the enforceability of bills that have been vetoed as unconstitutional by the Government, or as to all laws and decrees accused before it by any citizen as unconstitutional, first hearing the Attorney-General of the Nation.

The first function, “to decide definitively as to the enforceability of bills that have been vetoed as unconstitutional,” was merely a restatement of the plan copied from Ecuador in 1886 and still in use, although it has proved a major disappointment.

Major redefinition of agricultural policy in the United States appears imminent. Appropriate committees in both houses of Congress held exhaustive hearings during 1947 on both the content of agricultural policy (revision of parity, manner of price supports, regulation of marketing, and production control) and the manner of organization of agricultural administration. In its last hours, the Eightieth Congress revised parity and price supports, postponing the effective date to January 1, 1950. But, significantly, Congress could not agree on a reorganization of agricultural administration. There was no lack of proposals. Major farm organizations and the Department of Agriculture presented recommendations, and sweeping measures were introduced by Senator Aiken (and others) and Congressman Hope. But the Hope and Aiken bills were diametrically opposed in a manner reflecting basic divergencies among powerful interests. In part, of course, the failure of the Eightieth Congress to reorganize the administrative framework appears to mark the strategic success of Congressman Hope's efforts to insure the next secretary of agriculture some freedom in the matter. But the failure certainly underlines the controversial nature of the subject; indeed, the manner of administration in agriculture is hardly less controversial than the content of agricultural policy.

The genealogy of the rural electrification idea and the story of its gradual development through the years 1914–36 may have important implications in the study of governmental and social institutions. Up to a comparatively recent date, there have been no generally recognized laws influencing progress, whether as to science, government, or society. Progress has been recognized in the main as a matter of chance, or perhaps as something like a 100-to-1 shot in poker or horse-racing. With science, however, there is noticeable the small beginnings of a workable technique for making progress along predetermined lines. This might have been expected, since in science the items under study are relatively stable as compared with actions in government and society, and are more likely to be uniform when encountered.

In recent years, many scientific inquiries have been quite adequately financed, and coöperation on a national and international basis between thousands of researchers operating in the same or related fields, with full and free publication, has become a rule of the game. Note the strategy developed for the attack first on tuberculosis, and now in formation on the much more complex cancer problem. Yet these campaigns must be considered child's play compared with what is happening in the field of atomic fission. While it is true that in science team-play has become more and more the practice, notably in the medical field, the lone worker still persists in the academic world, where it is held that organization, especially in times of peace, means regimentation.

Since our Association was founded more than forty years ago, many things have happened under the head of political science. Men and women as political animals have supplied scholars with new data sufficient in volume and variety to satisfy the most exacting minds in the profession. At our annual sessions, numerous learned papers have been read and discussed. At our universities, new courses of studies have flowered luxuriantly. From the workshops of the guild, books and articles have poured forth in a copious stream. Several of our members have achieved distinction, indeed renown, in the public services; while, as far as I can discover, none has been sent to prison under the presidential decree of 1947 against that type of lawful dissent stigmatized as subversive activity. As if in testimony to our good works, it should be added that the amount of money now laid out per annum for political science is many times the sum expended long ago when we were young.

It might seem, then, an act of temerity even to suggest that anything under the sun has been neglected or less than perfectly disposed of in our golden age, our best of promised lands. Undoubtedly it is temerarious for one like myself, with eyes full of beams, to raise questions about stray motes in the eyes of members who may be properly satisfied with their accomplishments. Yet, on the other hand, there is some authority in our tradition and methodology, no less than in the practice of free enterprise, for occasional surveys or audits designed to find out whether in fact our liabilities are fully covered by assets, fixed and liquid.

When the European Advisory Commission in London debated the zonal division of Germany, the original understanding was that the allied zones of occupation should not disturb existing administrative regions more than was absolutely necessary. Nevertheless, a considerable redrawing of provincial and Laender borders took place, partly in order to prevent a Land from administering territory in more than one zone of occupation, partly in the interest of administrative simplification. The present division of Germany into “independent” Laender and autonomous provinces is, therefore, not a repetition of the pre-1871 set-up, but a new and often simpler form of organization.

Under the Weimar Republic, these states had their own constitutions. However, the powers of the Reich government were so overwhelming and the scope of their “enumerated” functions so all-embracing, that relatively small scope was left to the Laender governments. The present situation is radically different.

Since there exists philosophy, there exists the attempt to bring it in relation with politics; and this attempt has succeeded in so far as it is today recognized to the degree of a truism that political theory and that part of philosophy we call ethics are closely connected with each other. But it seems strange to assume—and this essay tries to verify this assumption—that there exists an external parallelism, and perhaps also an inner relationship, between politics and other parts of philosophy such as epistemology, that is, theory of knowledge, and theory of values. It is just within these two theories that the antagonism between philosophical absolutism and relativism has its seat; and this antagonism seems to be in many respects analogous to the fundamental opposition between autocracy and democracy as the representatives of political absolutism on the one hand and political relativism on the other.

I

Philosophical absolutism is the metaphysical view that there is an absolute reality, i.e., a reality that exists independently of human knowledge. Hence its existence is objective and unlimited in, or beyond, space and time, to which human knowledge is restricted. Philosophical relativism, on the other hand, advocates the empirical doctrine that reality exists only within human knowledge, and that, as the object of knowledge, reality is relative to the knowing subject. The absolute, the thing in itself, is beyond human experience; it is inaccessible to human knowledge and therefore unknowable.

To the assumption of absolute existence corresponds the possibility of absolute truth and absolute values, denied by philosophical relativism, which recognizes only relative truth and relative values.

In the times of George Washington and Thomas Jefferson, there were no world problems, and there never had been; nor were any anticipated. But today the range of subject-matter dealt with in international conferences and treaties and by the United Nations, its commissions and the specialized agencies, is almost as all-inclusive as the domestic legislation of any nation, and the problems in some respects are even more complicated. Mankind did not plan it that way. Science and technology have given new meaning to the Chinese proverb, “All people are your relatives; therefore expect troubles from them.”

The greatest evils that afflict and threaten mankind spring from political conflict. The lag of the social sciences behind the physical and biological sciences is in part responsible for these unprecedented problems and for two indescribable world wars in a generation. The fear of other's bombs and ideas has led many nations to enter political struggles that had developed into a state of war in distant regions, impoverishing the whole human race and squandering the patrimony of the world's unborn generations. And the fear of more horrendous wars is strongest among those best equipped to wage them.

The casual student of Western political history encounters sovereignty in a number of guises. In the stage of absolute monarchy, it was a personal endowment of princes; in the stage of democracy, it seems to be a collective endowment of the “nation” or the “people.” In the latter period, moreover, a definition of law as the command of a sovereign becomes increasingly popular.

These various contexts for sovereignty will already have suggested the protean possibilities of the general conception, but the student will have had little difficulty in sensing its generally anti-constitutional influence. Even popular sovereignty, which sounds the least dangerous, has had to be offset by opposing institutions in accounting for the relatively high constitutional morality of the democratic system.

While, therefore, it is not surprising to find sovereignty again (and in a still different guise) when we examine the leading conceptions of American public law, one well may marvel to find it accorded a key position among them. For, strange to say, the sovereignty of the state is widely accepted as the cornerstone of a legal edifice which the lawyers themselves appear to have laid.

In November, 1936, the voters of New York City approved the use of proportional representation for the election of members of the city council by a vote of 923,186 to 555,217, after its opponents had failed by court action to prevent the question from being submitted. By a combination of Democratic delegates from New York City and machine Republicans from upstate, the constitutional convention of 1938 provided the people of the entire state an opportunity to reject decisively an amendment that would have prohibited the use of P.R. in any election in the state. Still another unsuccessful attempt to abolish the system was made in 1940—this time through initiative petition under provision of the New York City charter. With the entry of the United States into the war, no further serious effort at repeal was made until 1947, although dissatisfaction with the results of the councilmanic elections continued to be heard even above the din of war.

How did the forces line up in the intense battle over P.R. in the campaign of 1947? The political parties, of course, had a direct stake in the results of the campaign. On the one side were the Democratic and Republican county organizations urging repeal of P.R., while the American Labor party, the Liberal party, the Communist party, and the Fusion forces worked for retention of the system.

The Eightieth Congress convened under unusual circumstances. The Legislative Reorganization Act of 1946 having just become law, the House and Senate were subjected to the most complete reorganization of recent times. This was due to two things.

First, both parties in each house had to assign de novo every one of their members to the newly established committees. Normally, all members reëlected to Congress are returned to their same committee assignments. Thus the committees on committees are not concerned with giving them committee appointments; some transfers from one committee to a more important one are granted upon request to reëlected members, and promotions are allowed by moving up reëlected members to fill any vacancies on their committees created by defeats or resignations from Congress. This time, the number of committee assignments was curtailed under the law along with a sharp reduction in the number of standing committees. In the House, standing committees were reduced from 48 to 19; in the Senate, from 33 to 15. The shake-up called for a reëxamination of all candidates for every committee berth.

Secondly, party control of the two houses had shifted from the Democrats to the Republicans, and in the face of a Democratic Administration. President Truman acknowledged this latter situation in his State of the Union message when he said: “… The Congress and the President, during the next two years, must work together. It is not unusual in our history that the majority of the Congress represents a party in opposition to the President's party. I am the twentieth President of the United States who, at some time during his term of office, has found his own party to be in the minority in one or both Houses of the Congress. … On some domestic issues,” he continued, “we may, and probably shall, disagree. That in itself is not to be feared.”

Party Organization Undemocratic. Outwardly, Japan is governed by political parties working for democracy through parliamentary action. The presence of four major parties, plus some 1,250 other political groups officially recognized by the nine-member Election Management Commission, offers what appears to be corroborative evidence that Japan follows the line of Western political development.

In practice, this is sheer illusion. The 1,250 parties seem bewilderingly numerous, yet no one but the American is in the least confused. All Japanese realize that the so-called parties are, in reality, nothing more than local subdivisions of major groups, together with a swarm of wholly unimportant minor factions made up of irresponsibles with no actual following. An Oriental will form a group, dignified by a high title, at the drop of a hat. Because the law requires it, and because it satisfies his vanity, the Japanese will register his association (although actually composed of himself, his brother-in-law, and his next door neighbor) as a political party; as such, it will appear on the record as one of the 1,250 organizations. As a matter of fact, it may, and probably will, split into fragments and even disappear before the registrant has returned home; but since no procedure is provided for the erasure of a name from the list, the total snowballs into astronomical figures.

When we consider the problem of governments collaborating through international organizations, we tend to think only in terms of foreign policy and of issues involving conflict among countries. This is, of course, natural since these are the questions uppermost in the news. But there is another side to international collaboration. If international organizations are to be successful in dealing with world problems, the policy organs through which negotiations are conducted and the secretariats which handle the administrative work must be properly organized and administered. Successful international administration depends upon efficient organization and management, much like any governmental or private endeavor depends upon them.

The total number of cases arising under state constitutions this year is substantially larger than last year. The bulk of the increase seems to fall in the area of civil rights, particularly procedural rights, although there is some increased activity in areas of state and local government as well. The cases fall readily into the general pattern followed in last year's survey.

I. GOVERNMENTAL ORGANIZATION

1. State Government. The standing and circumstances necessary to enable a party to secure a decision on the constitutionality of a statute were discussed by the highest courts of four states. In 1947, the Tennessee legislature passed an Anti-Closed Shop Act which was promptly attacked by a union recognized by the NLRB as exclusive bargaining agent in the defendant plant. A county chancery court upheld the statute against arguments that it violated the state and federal constitution. Before the day fixed for hearing on appeal, the union requested that the appeal be dismissed, a request resisted by the employer and the attorney-general. It is clear from the argument on the request that both parties were seeking an adjudication on the federal question from the federal Supreme Court. Evidently, however, the union decided to press the matter to the latter court in a different and more favorable controversy. In this case, since the lower court upheld the constitutionality of the law, the public interest, it was said, would not be impaired by dismissal. From the precedents cited, however, it seems likely that if the lower court decision had been against the law's constitutionality, the Supreme Court would have refused the request. The same court also held that where the defendant has attacked the constitutionality of a statute unsuccessfully in a criminal trial, he many not raise the same questions in a civil case brought against him, even when the prior adjudication was made in an unpublished opinion.

The disintegration of due process of law was somewhat advanced prior to October, 1937, as a result of judicial reversals of opinions on price-fixing and minimum wage legislation. As the process of transformation continued, it took four major forms. They were: (1) the withdrawal of substantive due process as a limitation on social legislation, taxation, rate-making, and regulatory action generally; (2) an expansion of substantive due process in cases involving freedom of expression, assembly, and religion, including rights of labor through the application of new concepts of freedom of speech; (3) the curtailment of procedural due process as a limit on administrative action except in cases involving the deportation of aliens; and (4) the use of procedural due process in such a way as to provide greater protection on the whole to persons accused of crime. This transformation has been accompanied by changed assumptions which accommodate governmental activity.

Thus, on the assumption that so long as one is free to possess the fruits of agricultural production there is no denial of due process of law, the Court has sustained rigid restrictions on the marketing of agricultural products even when retroactively imposed and when the quotas were so applied as to include the wheat produced by a farmer for his domestic consumption. On a further assumption that since Congress has the power to decide the issue of the advantages and disadvantages of holding companies, the Court not only sustained the Public Utility Holding Company Act, but in so doing asserted that the judiciary could not question the propriety of Congress' decision.

Fred M. Vinson took his seat as Chief Justice of the United States at the beginning of the 1946 term; there were no other changes in the personnel of the Court. Mr. Justice Jackson returned to the bench after his year's absence in Nuremberg. Continuing disagreement among the justices was shown by the fact that in twenty-three cases four justices dissented, and in twenty-four cases three dissented. The number of concurring opinions filed remained high.

Although the need for such action had long been apparent in Washington, it was not until 1946 that a federal statute was enacted for the regulation of general lobbying activities. Prior to that year, Congress had, on a number of occasions, investigated lobbying practices, and as a result had enacted measures which reached a limited number of groups engaged in them. The Public Utility Holding Company Act of 1935, the congressional act in 1936 affecting the shipping interests, and the Foreign Agents Registration Act of 1938 were important regulatory measures, but they reached only a few of the groups exerting direct and continuous influence in Washington. The Federal Regulation of Lobbying Act of August 2, 1946, is more general in its coverage; and it has been in force long enough for its effectiveness to be tested.

In this article, it is my purpose (1) to supply a brief historical background for the measure referred to; (2) to examine the statute's provisions; (3) to appraise the objections raised to it; (4) to examine the actual administration of the act and point out the difficulties of enforcement, particularly during its first year; and (5) to offer recommendations for strengthening the law.

Since the promulgation on March 21, 1947, of Executive Order 9835 “prescribing procedures for the administration of an ‘employees’ loyalty program in the executive branch of the government,” there has been widespread discussion concerning the nature of disloyalty, its probable extent in the federal service, and the desirability of the loyalty program.

One point of view, among some members of Congress and elsewhere, is that this loyalty program does not go far enough to meet what is regarded as the serious menace of foreign (that is, Russian) directed or inspired subversives in the government. A sharply contrasting attitude, also voiced by a few Congressmen and by others, is that the menace is exaggerated for various reasons and that the program constitutes a “witch hunt” aimed at liberals generally and a dangerous attack upon civil liberties. Between these two extremes are gradations of opinion accepting the principle of the program but with reservations of varying intensity as to some of its standards and procedures, and with a watchful eye on its operation and on its effect within the federal service and outside.