Thirteen years ago, the American Political Science Association directed its attention to the changing relation between our national government and the states. One of the speakers discerned in the tendency toward aggrandizement of national power, manifestations of the principle that sovereignity, unprovided for in extant forms, seeks to embody itself in new forms. The signal incompetence of the states in dealing with economic questions, together with their mendicant attitude towards the national government, was seen as the cause of the transfer to national authority of control over currency supply, transportation rates and methods, and the seeming disposition to transfer control over all corporations. Other speakers called attention to the great increase of national power under the commerce clause and under the Fourteenth Amendment of the Constitution; and one, in a most thoughtful paper, openly challenged the federal system as established in this country, asserting that it showed disadvantages of increasing magnitude in comparison with a unitary system, and was out of harmony with the general environment of modern industrialism.

The year that is about to close marks the hundredth anniversary of the independence of many of the republics of the American continent. The long struggle which began in 1808, and which did not reach full fruition until the beginning of the third decade of the nineteenth century, possesses all the characteristics of a great epic; marked by a degree of devotion to the ideals of liberty and independence which will ever constitute the great heritage of the people of this continent.

Within these last twelve months we have also seen the republican system of government fully organized in some of the older monarchies of Europe and in the new and independent states established by the Treaty of Versailles. The period that has elapsed is much too short to permit of any adequate estimate of the permanence of the political systems that have been established, or of the manner of their operation. On the other hand, the development of democracy in the republics of America has extended over a period sufficiently long to make possible an inventory of its strength and weakness and some formulation of the requisites for further progress.

On what conditions should the United States enter a world organization for the maintenance of peace? Viewing the question broadly, should not the United States enter world organization upon one condition, namely, that the organization give promise of the utmost achievement in the maintenance of peace? Unless we are prepared to repudiate the avowals of our statesmen and reverse what is perhaps the oldest and most fundamental tradition of our foreign policy, can we consistently insist upon any other condition than this one?

A good deal has been said of late about the “American idea” in international relationships. It has been suggested that the “American idea” was defined in Washington's farewell address, in the Monroe Doctrine, or in America's participation in the peace conferences held at The Hague. It seems evident, however, that this involves a confusion of the idea with its occasional manifestation in action. If there is any one outstanding “American idea” which has inspired our foreign policy from the beginning—any quintessence of principle which may be derived alike from the first neutrality proclamation, the farewell address, Monroe's message, Hay's pronouncement for the open door, or America's participation in the conferences at The Hague—that idea is the maintenance of just and honorable peace.

The present arrangements for the government of the colonial territories taken from Germany and Turkey in the World War, arrangements which may collectively be described as the system of mandates under the League of Nations, may work well or they may work badly. They may persist into an indefinite future, they may come to an abrupt termination and leave nothing of their own kind in their place, or, most probable of all, they may be progressively modified in one way or another with the passage of time and changes of circumstances. But, whatever happens hereafter, the present system is now an accomplished fact, and will necessarily be taken as the basis for any action in the future. The apparent inclination of at least one great power to insist upon all its rights in former German and Turkish territories now under mandate to other powers, and the firmness of the latter in defending their position under the mandate system, indicate, further, that the present system has already created rights, interests, and claims on one side and another which will call for constant consideration and regulation as time goes on.

Formerly political scientists were inclined to criticize the American theory and practice of the separation of powers in the federal and state governments and to commend instead the cabinet or parliamentary form of organization. Thus Walter Bagehot, Sir Henry Maine, Woodrow Wilson, Frank J. Goodnow, along with many others, pointed to the advantages of cabinet or parliamentary government over presidential government as developed in the United States. A consensus of opinion was expressed by Wilson who said, “As at present constituted, the federal government lacks strength because its powers are divided, lacks promptness because its authorities are multiplied, lacks wieldiness because its processes are roundabout, lacks efficiency because its responsibility is indistinct and its action is without competent direction.” At one time the American plan of separation of powers was compared unfavorably with the French system in which governmental powers were divided into two branches—a policy-forming branch or “Politics” and a policy executing branch or “Administration.” On another occasion the tripartite system of the separation of powers was charged with responsibility for much of the political corruption prevalent in American politics. The same theory of separation has often been condemned as requiring too many checks and balances and as involving a do-nothing policy for legislative and executive officers.

Article 16 of the Declaration of the Rights of Man and the Citizen, prefixed to the French Constitution of 1791, reads as follows: “Every society in which a guarantee of rights is not assured nor a separation of powers determined does not have a constitution.” Without question the men of 1789 had come under the influence of Montesquieu as well as of John Locke. It is true that a separation of powers is to be found in the Two Treatises of Government; but that doctrine is set out in bolder relief and more sharply defined by Montesquieu than by Locke. However, the men of 1789 took only one half the teachings of Montesquieu; the other half they rejected. The exclusive, oligarchical, tyrannical spirit of the corporations of the ancient régime, the abuse of the principle of aristocracy—privileges without services, as Taine puts it—the growth of the spirit of equality as a result of the industrial revolution, all set men stoutly against a “corporative” (in contrast with a pulverized) structure of society. Rousseau, Turgot and the Physiocrats demanded a leveling of hierarchized society: the mountains must be brought low, the valleys filled up and a highway made for the plain man to walk thereon. It was only with the Restoration that the value of an aristocratic element—from Montesquieu's point of view a corporative element—came into prominence. It was widely discussed during that period, and Montesquieu was the authority of the day.

Writing in 1919, Mr. W. F. Willoughby declared that “at the present time few reforms of government in the United States are more urgent than that of the reorganization of the administrative services of our state governments, so as to put them upon the integrated or departmental basis.” This need for state administrative reorganization is now generally recognized, not only by political scientists and students of administration, but also by public officials and practical administrators. This is indicated by the large number of governors who, in public messages, have urged upon their legislatures the adoption of measures of administrative reform; by the investigations and reports of efficiency and economy commissions or similar bodies created in many states; and by the laws actually passed providing for administrative reorganization in Illinois, Idaho, Nebraska, Ohio, Washington, Massachusetts, and other states.

A movement of this character naturally follows the line of least resistance, and consequently the changes in administrative organization heretofore made have been through statutory enactment rather than through constitutional revision. Inasmuch as, in most states, a faulty organization of the administration is stereotyped in the constitution, thoroughgoing reorganization by mere statutory enactment is practically impossible. The constitutional difficulties which impede the movement for administrative reorganization should warn us against the insertion in the organic law of detailed administrative provisions.

Important changes in the direction and conduct of British foreign policy have been taking place before our very eyes. The long traditions and the omnipotence of Downing Street in diplomatic affairs have received a challenge; for today the self-governing dominions and India are taking a new part in British foreign policy and are requiring for themselves a larger share in decisions of imperial importance. Not content with such claim to partnership in foreign affairs Canada has received the right to separate diplomatic representation at Washington; and soon we may welcome a Canadian minister, who at the British embassy will rank second only to the ambassador himself. Furthermore in view of recent events as to Ireland it is by no means impossible that, as the Irish Free State takes up its new position as a dominion, an Irish minister from Dublin may present his legal credentials at our department of state. India also has a new government in the making; and as she travels toward dominion status her importance in foreign affairs is growing year by year.

An extensive reorganization of administrative offices in Ohio was accomplished by a law enacted in April, 1921, and in effect July 1st, 1921. That reorganization is taken as the central point of this discussion, not because persons outside of Ohio are interested in details of Ohio government, but because the Ohio reorganization is one of the latest of such schemes to be put into effect and because it has been considered to exemplify relatively well the principles which our leading administrative reformers wish to see applied in our state executive departments. There is nothing of more practical importance in this connection than to examine carefully the principles upon which these reorganizations are supposed to be based. The editor of the National Municipal Review pronounces the Ohio reorganization to be “a big advance in popular government;” and Dr. W. F. Dodd, one of our leading experts in state government, says that the Ohio reorganization “is perhaps the most effective yet planned in this country, except for the fact of the constitutional limitation of the governor's term” to two years. This paper will sketch, as briefly as possible, and at certain points roughly judge, the changes made by the Ohio reorganization act of 1921, and then try briefly to indicate my general attitude towards the objects and policies of such a reorganization.

Our government maintains a large and expensive foreign service. The business interests of the country recognize the value of adequate representation abroad and support vigorously measures intended to improve and expand this field. For the fiscal year 1922–23 Congress has increased the appropriations for this branch of the public service while cutting down almost all domestic expenditures.

Our service in the foreign field has only one rival in its completeness and effectiveness, and that naturally is Great Britain's. Before the war comparison was often made with Germany, France, Japan and other nations, and critics could point to individual excellencies in all of these; but they in turn were generous in praise of our service and generally accorded it first rank, especially on its promotional side. The one outstanding weakness of this service at the present time is its lack of unity, resulting in duplicate activities, rivalries, uncertainties to those using the service and needless expense to the taxpayers.

In this period during which all political institutions are being tested as never before by the searching criticism of an awakened world and by application to the well-nigh insoluble problems left by the World War, the constitutions which have been developed by the post-war states of Europe possess a peculiar interest to the student of public affairs. They are the results of the conscious effort of the statesmen of these new commonwealths to combine with the historic institutions of their own lands those features of the public law and the political practises of the older democracies which experience has proven to be workable, to be conducive of good government, and to make possible a more or less popular control over affairs of state. The product of a season when democracy is the fashion, all of these instruments are filled with rules and phrases which have a familiar ring in American ears, despite a more than occasional Gallic or native accent.

The work of the court last term is chiefly notable for its amplification of certain important results of the preceding term. Thus, the final objection to the validity of the Eighteenth Amendment was refuted; the last great question touching the meaning of the word “income” in the Sixteenth Amendment was answered; the emergency powers of government in war time were brought into contact with more usual sources of public authority—this in the rent law cases; and some minor phases of the problem of freedom of speech and press were disposed of. However, in two cases, both of much interest to the political scientist, somewhat novel questions of national power were raised; and in neither was a certainly final solution offered. Questions of state power were again of decidedly subordinate significance and interest.

During the past few years there have been numerous proposals to repeal and to modify the direct primary laws, and many changes have been made. In the opinion of those who consider the direct primary one of the leading political reforms of the present century, this activity is due to the machinations of the routed politicians conspiring to restore their power; in the opinion of others, less confident of the merits of the direct primary, it is the natural outcome of the defects which have appeared in the operation of this system. An examination of the more important changes proposed and of those made since 1918, may serve to throw some light on the situation at the present time.

Lack of space prevents the presentation in detail of the proposals for modifications of the direct primary laws which have appeared in the legislatures within the last three years. Of course the mere fact that a certain change was presented in the form of a bill furnished no indication of public opinion, nor of legislative opinion, nor of the strength of the advocates of the change. It is true, however, that several of the measures enacted were passed after one or more defeats.

Beginning on March 4, 1921, the Republican party, for the first time in ten years, was in complete control of the executive and both branches of Congress. Entirely apart from the issues of party politics, its régime promised to be interesting. Campaign pledges had been made that legislation would be speedily passed relieving the country of the ill effects of what President Harding called “war's involvements;” economy and efficiency were to be secured; more business in government and less government in business were among the promises, and the reorganization of the administration, long talked of, was to be achieved. There were, moreover, two significant possibilities from the standpoint of party government. During the campaign, Mr. Harding said that “government is a simple thing,” and that, if he was elected President, Congress would be allowed to play its proper part under the Constitution.

The central point of interest in the work of the court the past term is supplied by the large attention given to the question of the rights and duties of labor under the law. The problem is approached repeatedly, both from the side of the state's police power and that of national power, and in the field of statutory as well as that of constitutional construction. Important results were also reached in interpretation of the “commerce” clause, both in its aspect as a source of national power and in its aspect—because of the doctrine of the exclusiveness of the power of Congress—as a restriction on the states; but especially in the latter aspect. However, the most interesting single decision of the term for students of constitutional theory and of government was one dealing with the national power of taxation.

The “self-incrimination” clause of the Fifth Amendment was brought forward in five cases, in three of which it was attended by the “search and seizure” provisions of the Fourth Amendment. The most important of these cases was Gouled v. the United States, in which the court was asked to pass upon the admissibility in evidence, first, of a paper obtained surreptitiously by officers of the government from the office of the accused; and secondly, of papers, described to be of “evidential value only,” which were taken from the office of accused under a search warrant. The court, declaring that the constitutional provisions involved must receive “a liberal construction, so as to prevent stealthy encroachment upon ‥‥ the rights secured by them,” held that the government had no right to the possession of any of these papers nor to the use of them as evidence. At the same time, it was held that if the government had had the right to seize the papers in question, for instance, as so much contraband property, and had done so under a warrant sufficient in form, “then it would have been competent to use them to prove any crime against accused as to which they constituted relevant evidence.”

Legal history teaches two doctrines, which seem at first glance diametrically opposed to each other, with reference to the current agitation concerning the dangers of federal encroachment. First, that the agitation, in so far as it is called out by a temporary accidental state of affairs due to the war, is ephemeral. On the other hand, the essential facts involved are of a type that are always with us. In other words, federal encroachment, when stripped of the mask and guise that temporarily makes it seem dreadful, is a perfectly natural phenomenon quite familiar to students of Anglo-American law, and, for that matter, of other legal systems.