Frank J. Goodnow, one of the founders and the first president of the American Political Science Association, predicted many years ago that the era of constitutional controversies, when most of the great national legal and political issues in the United States centered around the interpretation of the provisions of the Constitution, would gradually be replaced by an era when the foremost issues of the time would be concerned with the scope, efficacy, and significance of administrative law and procedure. Issues of constitutional construction, however, have a tendency to persist in the operation of the American federal system of government. And the effort to reorganize the federal judicial system in 1937 aroused a new interest in constitutional history, principles, and theories. But it is true, nevertheless, that one of the matters of major importance today in the internal affairs of government is concerned with the development of administrative practices and techniques, as well as with the adaptation of administrative' legislation and adjudication to constitutional theories and principles.

For many years, administrative law and procedure grew in Anglo-Saxon countries without any special consideration being given to its development. Albert V. Dicey's insistence that there was no such thing as the French droit administratif in England seemed to satisfy the lawyers and publicists, and it was taken for granted in Anglo-American countries that there were no real issues or legal problems involved in the administrative process differing from the ordinary features of the application of the common law ideas of the administration of justice and of the supremacy of the law. The pioneer work of Goodnow, Ernst Freund, and others made only slight impressions on the legal profession, but gradually prepared the way for a new type of instruction and the consideration of problems in public administration and in public law.

With the advent of “total war” in Europe, America was shocked into a realization of the inadequacy of her defense measures in the event of becoming involved. While ideas conflicted sharply as to what our attitude toward the war should be, most schools of thought united in urging increased preparedness, and Congress appropriated staggering sums for defense. But the realization likewise came that preparedness involves more than mere appropriations—it takes time, and men, and materials, and industrial plants, and above all, coördination, in order to maintain defenses ample by modern standards. So as we contemplate the possibility of war, the spotlight focuses on our industrial system as perhaps the most important single factor in defense.

The entrance of this country into the last war found us similarly unprepared, from both a military and an industrial standpoint, and it was almost a year before the industries of the nation were meeting the tremendous demands thrust upon them, with production just reaching its peak at the time of the Armistice.

Thoughtful men cannot long be associated with government without beginning to ask questions, both as to the technique of administration and the underlying policies with which these techniques must reckon. It is good, therefore, that those in the government service who are most interested in public administration should meet from time to time with the professors and publicists who also are interested. I wish to do my part, therefore, in helping in the baptismal ceremonies for this new society which has in it so much promise. To the non-governmental members of the society I wish to pass on the observation which my father made when he came as Secretary of Agriculture to Washington in 1921. Leaving Iowa, he shared to some extent the widespread public opinion that government servants are both clock-watchers and chair-warmers. Within a few months he had completely changed his ideas and told me that he would like to bring some government men back with him into business because they were so exceedingly clear-thinking and efficient.

While we in the United States have not as yet so completely recognized public service as a career as they have in England or France, and while there is undoubtedly great room for improvement, I am nevertheless convinced that nowhere in the world will you find a better group of earnest, hard-working, efficient men and women than those who are engaged in American public service, whether it be on the local or the national level. Of course, by taking thought they can improve their service, and that, I take it, is the object of this organization.

A devastating war crisis is forcing government officials and political scientists to re-examine the efforts of the United States in 1917 and 1918 to adjust a peace-time democratic governmental establishment to the efficient conduct of war activities. That experience, until recently deemed an aberration in American history, is immediately relevant to the current program of national defense. Certain of the vital political problems of the war years are discussed in the following pages for the light which they shed on the present crisis. The discussion centers around the creation and control of emergency agencies for the performance of war functions. A prominent characteristic of governmental behavior was competition for power between the President and Congress, with victory usually in the hands of the President. Closely allied characteristics were the steady growth in the centralization of power as experience in the handling of war preparations was developed, and a progressive decline in the unwillingness of Congress to permit drastic interference with rights of liberty and property. The records show a tremendous amount of initial chaos. Superficially, at least, it seems that the experience of the war years has not yet been absorbed by those now responsible for the conduct of the government and that, whether or not it is necessary, much of the fumbling of 1917 and 1918 is now in process of repetition.

The legal status of political parties in the United States is far from being clearly defined. On the one hand, we do not have a mass of legislation and court decisions clearly constituting the political party as a branch of the government, as in the leading fascist countries of Europe; and, on the other hand, we do not have a situation similar to that of Great Britain or France, where political parties are practically unregulated except for laws designed to control subversive groups. To gain a concept of the legal position of American political parties, a great deal of legislation which differs widely in many particulars among the forty-eight states must be surveyed, and certain categories of common and public law must be explored. Even when the many branches of the law that seem to impinge upon the subject have been brought into view, the legal position of our political parties still seems elusive and indefinite. Yet the subject is one of considerable practical importance, since the near future is likely to bring insistent demands for new and more drastic regulation of political parties. A consideration of the rights of American political parties, and the scope of the powers of the legislature to interfere with parties in the public interest, therefore seems appropriate at the present time.

French constitutional theory, on the basis of extensive national experience, distinguishes between revolutions from below—elementary ground-swells among the masses which sweep irresistibly over the nation and destroy all constitutional obstacles—on the one hand, and revolutions from above, by coup d'état of a constituted organ, either a legislative body or a governmental agency, on the other hand. In the latter case, an effort is made to connect the new régime with the preceding order by what constitutional ropes, or even threads, are still available. This habit has created, in spite of frequent upheavals in the first half of French constitutional life since 1789, a strong sense of constitutional tradition and legal conservatism.

The events of July, 1940, may amount to a full-fledged revolution, but not a revolution in the common sense of the word, that is, a ground-swell rising from below. When France adopted the authoritarian form of government, no fascist mass party, today the indispensable prerequisite of popular upheavals, was in existence. It was a coup d'état from above, a deliberate act of the defeated military leaders and their political advisers—in short, a skillfully engineered political stratagem. The politicians among the group must have been well aware of the character of the Constitution as the supreme law of the land, capable of being abrogated only by a legislative act of equal rank.

The authors of the Constitution of the United States regarded it as a triumph for the human spirit in America that a new form of government could be established by the process of discussion, deliberation, and popular action, as distinguished from the age-long processes of violence. Looking backward from their time and forward into our own, we may say that they were justified in their celebration.

With reference to a far less momentous occurrence, this modest occasion, we may properly regard as a triumph for the same spirit a voluntary action of public officials and interested citizens looking to the resolute and continuous improvement of the public services. It is this action, the establishment of a Society for Public Administration, that we are ratifying and approving today. These officials and these citizens are no hirelings of a despotic power, taking orders from above. They are not seeking the aggrandizement of a class, bent on exploiting and holding down a subject people. They are not concerned primarily with emoluments, promotions, and honors as such. On the contrary, they are proposing to search their own hearts and minds, to study ways and means of making more efficient and economical the services rendered by government to the people. They do not wish to diminish either civil liberties or individual responsibilities in society. On the contrary, they cherish these eternal values and intend to discover and develop schemes and methods of administration deliberately adapted to the perpetuation of these precious elements in the American heritage.

Political parties that cannot meet the requirements set up by statute for participation in the direct primary, or for the holding of legal conventions, are authorized in most states to choose their candidates by an alternative method. The statutory provisions on this matter vary widely. Some states follow a liberal policy, making it relatively easy for small parties to get a place on the ballot with their candidates' names identified by the party name or emblem. A few states follow a different policy, and make it difficult for small parties to put forward their candidates and allow no distinction upon the ballot between independent candidates and the candidates of small parties.

The forty-eight states may be divided into several classes as respects their statutory provisions for the nomination of candidates by new political parties and small parties which cannot meet the statutory definition of a political party:

1. States prescribing no minimum size for a political party to participate in the favored method of nomination, whether convention or direct primary—six states. In these states, new and small parties are in the most favored position. In the matter of nominating candidates and gaining a place on the general election ballot, they are accorded equal treatment with parties of long standing and substantial size.

In the World War period and after, the use of extraordinary powers by the executive for legislative purposes became so widespread in Europe that constitutional theorists began to find it convenient to give up the doctrine of legislative supremacy. The constitutional basis for these extraordinary powers has been found in one of two ways: either the parliament may authorize the government to exercise certain legislative functions by way of delegation, or certain provisions in the constitution may be interpreted as giving the executive the right under certain circumstances not only to take specific administrative steps, but also to issue rules of a more general character. In either case, the question invariably arises as to how far the delegation of power may go, or as to the degree to which alleged constitutional emergency provisions may be used to supersede parliamentary legislation.

In France, no constitutional emergency power is provided in the “organic” laws of 1875 which could give a starting point for independent rule-making activity. A law of April 3, 1878, defined very closely the conditions under which a state of siege may be declared and surrounded such a declaration with elaborate provisions for parliamentary supervision. It is apparent that this statute does not allow the government to decree rules of a general character.

The political groups in the Kizoku-in, or House of Peers, are of more importance than the scant attention paid them by both native and foreign students of Japanese government implies. In fact, one of the six groups habitually controls the House, which, in turn, is one of the strongest national second chambers existing today. As a result, the Kenkyū-kai, or Study Association, commands steady, the other groups intermittent, patronage in the form of appointments to cabinet or sub-cabinet positions and concessions to their legislative wishes. The political groups in the House of Peers became a concern of Japanese statesmen shortly after the organization of the Diet in 1890; they are today debated in relation to the proposals for legislative reform which have been repeatedly urged since 1932. Although but minor wheels in the mechanism, some knowledge of their place and function is essential to an adequate understanding of the operation of the complicated Japanese political machine.

The history, organization, and influence of these groups is not easy to determine; the scarcity of reliable sources, even in Japanese, makes doubly confusing the large number of diverse yet meaningless group titles which have been employed since 1890.

In the literature of law, there has been comparatively little discussion as to the nature of political representation. A representative democracy has been defined as “a form of government where the powers of the sovereignty are delegated to a body of men, elected from time to time, who exercise them for the benefit of the whole nation.” And a representative form of government has been defined as “a government conducted and constituted by the agency of delegates, or deputies, chosen by the people.”

Judge Thomas M. Cooley, speaking for the Michigan supreme court, said: “A representative is one chosen by a principal to exercise for him a power or perform for him a trust. In that sense, the mayor of a city is a representative for some purposes, the members of the common council for others, and the members of the board of education for still others … the right to be represented implies a right, not merely to name the person, but also to designate the trust that shall be confided to him.” On this basis, it was held that a board of park commissioners established by the state legislature with certain powers, and recognized by the common council of the city, could not be vested afterwards by the legislature with additional powers previously exercised by the council.

Somewhat similar is the position of an English judge as to the authority of a representative in a legal proceeding. “A solicitor is the representative of his client, but counsel is not, for counsel has the whole conduct of the case, and can act even against the instructions of his client.” It was accordingly held that a solicitor is a representative within S. 17(4) Bankry Act, 1883, and must be “authorized in writing” to entitle him to question a debtor at a public hearing.

Fearful of a committee appointed by the House of Commons to investigate the current tendencies towards atheism and profaneness, Hobbes in 1666 burned some of his private papers. The Great Plague and the Great Fire of London had just occurred. While many Englishmen were prone to blame the fire on those whom they considered the “treacherous Catholics,” they tended to regard the plague as obviously an act of God. The House of Commons shared this widespread attitude and, desirous of ridding the country of the causes of the divine displeasure, named several persons whose wickedness might be the occasion of the display of God's wrath against the English people. The House included Hobbes in the list and specifically mentioned his Leviathan. Moreover, some bishops of the Church of England, at about the same time, suggested that it might be well to burn Hobbes as a heretic. Nothing came of the parliamentary investigation; indeed, the investigation seems not to have been begun. And no fires were lighted except that in which Hobbes saw fit, as has been said, to burn some of his private papers.

It is interesting to conjecture, however, what the name of Hobbes would mean in the history of ideas if his works had happened all to perish in 1666 and we, then, had to judge him through the literature which his works provoked. The word provoked may here be used advisedly. For an amazing number of hostile writings against Hobbes were printed during his life-time and immediately after his death.

“As for democracy, why should we discuss acknowledged madness?” Today numerous clever writers and some serious students are asking the same question that Alcibiades asked some twenty-three centures ago. Yet at the very time when democracy is attacked from all sides, and when Mussolini can speak of trampling on the putrid corpse of liberty, Mussolini himself has the temerity to proclaim that Italian Fascism is the realization of “true democracy.” The Nazis, speaking through Herr Goebbels, present the National Socialist state as “the most ennobled form of a modern democratic state.” And, not to be outdone, Stalin announces that the Soviet constitution of 1936 is “the only constitution that is democratic to the limit.” Two points, then, appear very clear at the outset. First, a theoretical defense of democracy is made more complicated by the unscrupulous license with which the enemies and critics of democracy use the term; and second, “democracy” as a vague, meaningless symbol still has a propaganda value for those who repudiate or disdain any real meaning that the symbol may have.

It is not my purpose to examine in detail the criticisms of democracy, but rather to indicate which of the numerous criticisms are relevant to a discussion of democracy. What is it that is under attack? Is it the basic assumptions of democratic theory, or the machinery of democratic government, or both? To put such a question means, of course, to reopen the old question: What are the essential elements of democratic theory?

Consent is an essential element of democratic theory, but not a distinguishing element. The important test is not whether a major portion of the adult population accepts or approves a government or its policies, but the manner in which this consent is secured. Both Napoleon I and Napoleon III secured the consent of the French people to their imperial dictatorships, and Hitler secured the formal consent of the German people to his puppet parliament and to his own dictatorship. Schuschnigg was about to secure the consent of the Austrian people to the continuance of a non-Nazi, clerical, native dictatorship, but instead Hitler secured the consent of the Austrian people to a Nazi dictatorship.

Writers on public administration place much emphasis upon the possibilities and importance of discovering and applying scientific principles in their field of study. But very few of them have ventured to state the basic premises upon which they seek to build that science. Many of those whose writings imply that major principles have been discovered announce, not premises, but conclusions, which, regardless of their practical merits, can hardly be called anything but opinions. On the other hand, several scholars seek to escape from errors of commission by avoiding the use of such scientific terms as “principles” or “efficiency.” If they go beyond descriptive analyses to advocate particular plans of organization or methods of procedure, they use terms which denote value judgments, thereby admitting by implication that they are expressing mere opinions. In a few published discourses, basic premises are stated and reasoning is developed therefrom. However, most of those premises—or “principles”—are referred to by name only, such as “the principle of leadership”; they are not stated in terms of precise causal relations which can be verified or which can serve adequately as bases for further reasoning.

It may be regarded as unwise to venture a statement of what one considers the basic premises upon which a science of administration may be built. But every body of theory is built upon fundamental assumptions, either expressed or implied. Moreover, a body of theory is complete, and has scientific value, only when the premises are sufficiently clear to permit objective scrutiny and verification. Erroneous hypotheses, stated precisely, may be more scientific than vague or unexpressed assumptions; for only the former will lend themselves to verification. In other words, trial and error is an essential part of scientific method.

During the past year, the state appellate courts have reviewed state legislation with a degree of restraint more marked than in the preceding year. The present attitude of the courts toward the work of legislatures may be in part the result of a change in court personnel. It is also both possible and probable that judges have been impressed by the more tolerant or liberal attitude of the United States Supreme Court. Finally, a few of the judges may have become aware of the fact that the times demand the relinquishment of an assumed judicial “supremacy” and the examination of legislative and administrative action under specific constitutional provisions in the light of social and economic realities. At all events, judicial review in the grand manner has given way to a more vigorous application of technical constitutional requirements. Courts are tending to emphasize procedure rather than substance; review appears to be at once more tolerant and more precise; decisions turn on narrower grounds, premises are less sweeping. When applied to state constitutions, this tendency means something quite different from what it means when applied to the national constitution.

This tendency may perhaps be regarded as charged with possible evil results for the courts. Although state constitutions are, in most cases, so detailed and diverse that no actual diminution of the courts' discretionary powers need result, and although to a successful litigant it makes little difference whether a statute is invalidated for want of due process or for want of a proper title or enacting clause, it is difficult to conceive of many things that will bring the courts more quickly into popular disrepute than an exaggeration of constitutional technicalities.

Much has been written on the origin, development, and characteristics of representative government; and in recent years there has been a revival of interest in this subject, and a further analysis of the evidence and criticism of views formerly accepted. In this extensive literature, considerable attention has been given to the nature of political representation and representative government, and to the relation between the representative and his constituents, with important differences in the definitions and meanings ascribed to these terms. Many writers have assumed that their views on these matters are the only correct statements; but some of the more recent writers have recognized, to some extent, the need for a closer analysis of the different senses in which these terms may be employed. An examination of different views may be of service in leading to a clearer understanding of the problems involved.

Etymologically, the literal meaning of represent is to “present again,” and from this it has come to mean to appear in place of another. In this secondary sense, a representative has been defined as “an agent, deputy, or substitute, who supplies the place of another or others.”

An examination of the relationship of the Democratic percentages in the various states to the Democratic percentage for the nation as a whole during the past forty years shows that several general patterns are discernible. In the north central and northwestern parts of the United States, one of these patterns may be clearly defined. When the country swings in one direction, the states in this region swing with it, but more strongly than the country as a whole. During the twenties, these states were more decidedly Republican than the nation, but during the thirties they became more strongly Democratic. This tendency to shift from one extreme to another is related to the progressive background of these states of which Wisconsin is typical. “Wisconsin,” “La Follette,” “progressive”—for decades these three terms have been almost indissolubly linked in the minds of politically aware observers of the American scene.

While Wisconsin has followed the Republican standard in presidential elections almost without exception from 1870 to 1932, it has shown progressive leanings. In 1912, Robert La Follette, Sr's. sulking greatly cut down the Progressive vote, but it was still large enough to split the normal Republican strength and throw the electoral vote to Wilson, and in 1924 the state went overwhelmingly for its own favorite son.

Why do some American citizens fail to vote in any election? Why do others limit their voting to contests in which a president is chosen? And of those who vote, why do a controlling number sometimes support candidate B instead of A? Candidate A may be of unquestioned honesty, superior brains, and broader and more significant experience. Any election provides examples of this sort of thing, and any reader can cite other illustrations from his own observation of recent or not so recent elections.

It seems to be generaally agreed that Franklin D. Roosevelt is very unpopular with the wealthier groups in society and that he is held to be a very warm friend of the poor. Indeed, it is sometimes asserted that no president since Jefferson has so divided the voters along economic lines as has Roosevelt. Popular opinion on this subject, as on many others, is likely to be exaggerated. In any case, it is well to check by measurement the idea that the rich are against Roosevelt and the poor are for him. This has been done in some of the sample polls. For instance, Fortune finds that the prosperous present about 15 to 20 per cent more opposition to Roosevelt than is found among the poor. Similarly, the Gallup polls have found over twice as much opposition to Roosevelt among the upper third of the population as among the lower third. Where these surveys of opinion on Roosevelt have been presented by social classes, there has been shown, in accordance with popular opinion, this division between the rich and the poor in their attitude toward Roosevelt. But the percentage difference is not quite so large as might be expected.

This difference between the rich and the poor in attitude toward Roosevelt became accentuated around the middle of his first term. It is interesting to inquire into the extent to which those of the lower income groups voted for Roosevelt in 1932 and in 1936.

The 1938 term of the Supreme Court brought substantial changes in its personnel. Mr. Justice Cardozo died on January 9, 1938. He was succeeded by Mr. Justice Frankfurter, who took office on January 30, 1939. On February 13, 1939, Mr. Justice Brandeis retired, and on April 17 Mr. Justice Douglas was appointed to fill his place. By the end of the term, therefore, four justices appointed by President Roosevelt had taken office. It is too early to appraise the results of these appointments upon the decisions and doctrines of the Court. One statement may be made, however, which throws some light upon the recent trend of judicial decisions. In preparing the present survey of the Court's decisions, some sixty cases were examined, all but one or two of them turning upon constitutional issues. In these sixty-odd cases, Mr. Justice McReynolds and Mr. Justice Butler, the two remaining members of the conservative “old guard,” dissented together twenty-five times. In several instances they were joined in dissent by Mr. Justice Roberts, and once or twice by the Chief Justice. In the main, however, they stood alone against a compact majority of six or seven justices. With the death of Mr. Justice Butler in the fall of 1939, Mr. Justice McReynolds stands like the boy on the burning deck amidst what obviously appears to him to be the imminent destruction of the old constitutional system.