Changing Conceptions of
Constitutionalism in the Era of World War II and the Cold War
Constitutionalism is one of the major themes in western political
thought which has occupied a preeminent place in the American political
tradition Whatever else is said about the way Americans manage their
governmental and political affairs, attention is invariably directed to the
peculiarly important role that written constitutions have come to assume in
defining the institutional framework and central purposes and values of the
polity. Like most important political ideas, however, constitutionalism in its
long history has acquired a variety of meanings and significations. The idea of
the constitutional has become as basic to our political thought and discourse
as the idea of the public interest — and as difficult to define For what
is regarded as constitutional by one person or group may seem unconstitutional
or arbitrary to another Nevertheless, though the concept may not readily lend
itself to precise and rigorous application in the analysis of political
behavior, few would deny its importance as a political idea or its validity in
distinguishing between systems of government Efforts to assess the nature,
meaning, and significance of constitutionalism reflect major tendencies in the
political and intellectual life of a society, in addition to providing insight
into one of the central problems of political theory In the early years of the
twentieth century American intellectual life was transformed by a shift of
interest to the social and economic dimension of human affairs Political and
legal scholars, while not a principal source of this transformation, were
nevertheless stimulated by it to adopt a new attitude of critical realism
toward the Constitution and public law Constitutional realism at a minimum
involved description of the actual institutions of government and distribution
of power beyond the formal prescriptions of the Constitution and laws. Often
identified with reform efforts, constitutional realists criticized the judicial
process and the general tendency of traditional constitutionalism to emphasize
restraints on governmental power. They gave special attention, moreover, to the
motivating forces behind constitutional change — an intellectual pursuit
which led them to become cynical and disillusioned about constitutionalism
In the 1930s constitutional realism assumed an even greater degree of
relevance, especially as conservative judicial decisions blocked recovery and
reform measures. Yet it was also in the 1930s that the challenge of European
totalitarianism began to introduce new forces into American intellectual life.
The principal impact among students of law, politics, and government was to
stimulate a reconsideration of traditional constitutionalism. Those who
insisted on the importance of the rule of law spoke with a new immediacy which,
by the end of World War II, made neo-constitutionalism a major ideological
force. In the era of the Cold War neo-constitutionalism continued to have wide
appeal as Americans defined the struggle with the Soviet Union in essentially
political rather than economic terms. Soviet rule like Nazi rule was arbitrary,
coercive, totalitarian — the antithesis of a constitutional state. In
time, however, another shift in perceptions of constitutionalism occurred.
Against the background of the civil rights movement and renewed demands for
social and economic change in the 1960s, realist criticism of
neo-constitutionalism emerged and received further stimulus from the widespread
hostility toward democratic liberalism aroused by American foreign policy. The
angry denunciations of "the system" that have punctuated the rhetoric of
contemporary radicals have been directed not so much to capitalism as to
liberal democratic constitutionalism — the political and legal
foundations of the "vital center" and "mainstream" politics.
As reaction to the static legalism of traditional constitutional theory,
constitutional realism in the Progressive era provided the intellectual basis
for criticism of major principles of public law such as liberty of contract. In
the 1920s there was little interruption in the development of this reform
realist outlook. Targets of progressive constitutional criticism were numerous
— ranging from reformers' old bÍte noir, the Supreme Court
and judicial supremacy, to some of the newer regulatory agencies such as the
Federal Trade Commission. With the onset of the Depression, the widened scope
and heightened intensity of social and economic problems that would have to be
resolved in the arena of constitutional politics gave to the idea of
constitutional realism an even more urgent appeal.
The realist imperative rested on the assumption that American government
and public law needed reform in order to meet the exigencies of the economic
crisis and of modern industrial society. So far from separating facts and
values in a rigorously scientific manner, constitutional realists treated facts
as having normative force. Facts not only determined, or ought to determine,
rules but also formed the basis for the value judgments implicit in policy
decisions.2 Thus to set forth the realities of the constitutional
system was the first step in changing the system. According to the legal
philosopher Karl Llewellyn, realism did not reject the normative and ideal
element in constitutional law. What it did was to turn from the documentary
constitution as a source of rules to the facts of actual governmental needs and
practices. Words did not legitimate institutional practices, Llewellyn wrote;
rather it was the other way around.3 Not to be forgotten was the
realists' belief that facts would dispel the ignorance on which conservative
constitutionalism depended. When the people learned what was being done to them
by conservative judicial oligarchs, Louis Boudin asserted, they would demand
Describing the actual Constitution was the realists' first task. This
necessarily involved a good deal of demythologizing, especially when myths, as
those surrounding the judiciary, served to protect conservative economic
interests. Influenced by their aversion to judicial control of the organic law,
reform realists defined the Constitution as essentially political rather than
legal in character.5 Charles Beard explained that very little of the
Constitution was unambiguous fixed law. "The Constitution as practice," he
reasoned, "is today what citizens, judges, administrators, lawmakers, and those
concerned with the execution of the laws do in bringing about changes in the
relations of persons and property in the United States, or in preserving
existing relations...."6 Llewellyn described the Constitution as an
institution: "a set of ways of living and doing.... not, in first
instance, a matter of words or rules." A realist theory of constitutional
law in Llewellyn's view would be based on politico-social units that he
identified as governing specialists, interest groups, and the general
To describe the Constitution in terms of institutional practices was to
employ the old and important distinction between a written and an unwritten
constitution.8 Yet more was involved than mere description. The idea
of thinking about the Constitution in political terms contained implications
relevant to the very nature of American government. Edward S. Corwin considered
some of the implications when he evaluated the constitutional impact of the New
Deal. He predicted in 1934 that NRA would revolutionize the constitutional
system. It not only signified coordination rather than separation of powers but
also meant that "a change in the character of the Constitution itself would
take place." Henceforth Americans would be less legalistic and more political
in their constitutional outlook. "We shall value it for the aid it lends to
considered social purpose," Corwin declared, "not as a lawyer's
document."9 The new Constitution must meet the test of
serviceability, he wrote in 1938: "it was the People's Law and must meet their
need."10 The conception of the Constitution as the people's
political law also informed the thinking of the well-known scholar-publicist on
American government, William B. Munro. One of Munro's main reform suggestions
in the 1930s was that a state constitution ought to contain precepts explaining
what was expected but not legally required of public officials. To adopt this
approach, he reasoned, would transfer responsibility for the constitution from
the courts to the legislature and, thus, to the electorate where it properly
In their attempt to establish "serviceability" as a criterion of public
law constitutional realists faced serious obstacles in the traditions
surrounding the judiciary. Here the principal work of constitutional
demythologizing had to take place. Chief among the myths needing critical
scrutiny was that which defined the Constitution as a fixed body of legal
principles, and which had as a corollary the belief in impartial judicial
guardianship of the fundamental law.12 Yet the latter aspect, the
impartiality of the judges aside, was of course not chimerical. On the
contrary, the Supreme Court's involvement in major struggles concerning the New
Deal gave judicial guardianship of the Constitution a substantial basis in
reality and made it a matter of special concern to realist scholars.
For years constitutional realists had scored the simplistic notions of
mechanical jurisprudence according to which judges declared or discovered law
in an objective manner.13 In the 1930s they argued even more
vigorously against the notion that judges served as impartial instruments of
the law or that the judiciary had a proprietary right to control constitutional
change. The second of these points was implicit in the political conception of
the Constitution that realists fashioned and would provide a basis for breaking
the judicial hold on constitutional development. As for the judicial process,
realists emphasized the wide range of nonlegal factors that shaped decision
making, including the judges' environment, personality, conscience, policy
preferences, and general social, political, and economic outlook.14
The most extreme repudiation of the traditional judicial theory came from the
group of lawyers and legal philosophers known as legal realists, who reduced
the judicial process to the level of the personal and the idiosyncratic by a
categorical denial of prescriptive rules.15 Historians and political
scientists generally took a wider view, calling attention to the social
ideologies and economic institutions which shaped the contours of
constitutional law, as well as individual differences in outlook and belief
which determined divisions between judges.16
The Constitution conceived of politically and removed from the vise of
legalistic judicial control provided the basis for the realists' demand for
strong government, one of the central elements in their thinking. Negative,
laissez-faire government was identified with the static ideal of conservative
constitutionalism used by business interests to maintain freedom from public
control. A start in the direction of energizing rather than restraining
government had been made in the Progressive era, and studies of big government
and centralization in the 1920s showed a continuation of the
trend.17 In the early years of the Depression, however, it was not
so clear that the American Constitution could generate sufficient power to meet
the emergency. Rexford G. Tugwell, critical of the system of deadlock known as
checks and balances, lamented the impotence of the instruments of power
available to the New Deal. To deal with the crisis he proposed a plan of
positive government based on executive responsibility and delegation of
legislative powers.18 Max Lerner toward the end of the decade still
exhorted: "We must release ourselves from the eighteenth century doctrine [of
limited governmental powers] to the extent of accepting the necessity of a
government with full powers." Instead of the separation of powers Lerner like
most liberals argued for "the articulation of powers, which is aimed at getting
things done."19 Furthermore several works of constitutional history
attempted to show that energetic national government, regulating and promoting
economic development rather than letting it drift along in the manner of
laissez-faire, was consistent with the outlook of the Founding
Fathers.20 Surveying American constitutional development, Carl B.
Swisher saw efficient governmental operation as the outstanding problem of the
future. "If government remains, or becomes, strong enough to rule over the
economic units which constitute most of the producing and distributing agencies
of our society," he wrote in 1943, "the government may well become the great
center of power around which men of ability will congregate." Ultimately,
Swisher believed, the key to efficient government was "a continuing one,
demanding constant revitalization through an influx of new personnel and new
The emphasis of Swisher and other constitutional realists on leadership
and action revealed a concern for men rather than constitutional rules which
affected the very meaning of constitutionalism. Swisher's constitutional
history, observed Corwin, took the position that institutions did not much
matter provided the right men managed them. This was a point of view which
Corwin thought contradicted a basic premise of the framers of the
Constitution.22 Equally significant was the realists' emphasis on
strong government. For it was not far to move from criticizing weak and
ineffective government to questioning the value of limited government itself.
Frequently the attack on laissez-faire government became an attack on
constitutionalism itself, reinforced by a widespread cynicism toward the rule
The Constitution as a dynamic process of government responsive to
political forces and social pressures provided the intellectual foundation of
the realist position. Yet to conceive of the Constitution in this way was to
deny the normative, teleological meaning of constitutionalism as a system of
legal restraints on government guaranteeing individual liberty. Disregarding
the normative element — refusing to ask what the political purpose of a
constitution was — realists held that every state had a constitution.
Accordingly they found themselves unable to distinguish between a
constitutional and a non-constitutional state. The United States, they
reasoned, was not essentially different from other countries in the interaction
between law and politics that characterized its constitutional life. Social
movements, economic interests, and mass psychological pressures were the forces
which determined the course of politics. Constitutions, if not valueless, were
relatively unimportant and inconsequential. And constitutionalism was mere
rationalization, a series of incantations comparable to word-magic.
This anti-constitutionalist attitude was often expressed in criticism,
if not direct repudiation, of the principle of a government of
law.23 Typical was Munro's argument that the Constitution and laws
were trivial in importance when compared to social and personal forces.
Regarding a government of laws as a pure fiction of political fundamentalism,
Munro held that the more complicated civilization became the more necessary it
would be to widen the scope of administrative discretion and to have a
government of men.24 Turning to the problem of constitutional reform
in 1935, Munro reasoned that a course of action clearly dictated by social
interest would be followed irrespective of constitutional compulsion, while
constitutional requirements not regarded in the public interest would, despite
judicial enforcement, be evaded by governing officials. This fatalistic
attitude led Munro to the extraordinary conclusion that a bill of rights ought
to contain precepts indicating what public officials are expected to do, rather
than legally enforceable guarantees and restraints. A more radical departure
from traditional American constitutionalism would be hard to
Though cognizant of the rise of totalitarianism in Europe, Beard in 1936
remained dubious about the idea of a government of law. Granting that Hitler's
Germany showed the significance of the ideal, Beard nevertheless felt that "law
itself is bewildering abstraction. There is something in it, but the reality is
hard to grasp." If pushed too far the idea of the rule of law became "unreal,"
for it obscured the role played by men as legislators, administrators, judges.
Beard's purpose was to refute the myth of the mechanical certitude of the law,
but in the process he cast doubt on a central premise of
constitutionalism.26 Other constitutional realists, more skeptical
toward the rule of law and influenced by a more thoroughgoing relativism, found
distinctions between constitutional and non-constitutional states untenable.
Max A. Shepard in 1939 illustrated this intellectual dilemma in an analysis of
law and consent. Adopting a group theory of law derived from Arthur F. Bentley,
Shepard defined law as those rules of conduct which are obeyed in accordance
with community customs and feelings. Ethical considerations — the idea
that law must be morally right in order to be law — he regarded as "a
confusing factor" because they raised the question of whose standards should be
the measure of what was right. And judgments about the motivation of obedience
were less important than the fact of obedience, which Shepard took to signify
consent. Accordingly he could disregard the apparently obvious difference
between a constitutional democracy and a totalitarian regime, as when he
concluded: "Thus Hiter, Mussolini, and Stalin keep large groups 'cowed,'
inducing a grudging consent through 'ruthlessness.' It is not casuistry to say
that here individuals have not been forced to obey, but have consented to obey.
All governments, from the most peaceful representative government to the most
Oriental of despotisms, rest on consent as I define the term."27
The failure or inability to make normative distinctions was related to a
fundamental indifference to constitutional rules. It was impossible, wrote
Edward McChesney Sait in 1938, to contend that a state, however autocratic it
might be, could exist without a constitution or that a frame of government was
not a constitution unless it guaranteed rights and privileges to citizens. Sait
said that applying the term "constitutional" to the erection of safeguards of
liberty, thus implying a contrast between arbitrary and lawful governments, was
to use it in a restricted and specialized sense. Though the collapse of the
Weimar Republic led him to think rigid constitutions were preferable to
flexible ones, the whole question of constitutional structure seemed a minor
matter. "While using them," Sait observed of constitutions, "we need not
suppose that they plumb social realities or determine social conduct."
Political affairs were shaped by men's actions, and a constitution would
somehow be adjusted to the needs of the community.28
Constitutional realism, carried to its logical conclusion, dictated a
cynical attitude toward political ideas in general and toward constitutionalism
in particular. The concept of limited government under law seemed to lack any
intrinsic validity. It was an axiom of modern social science, as Charles E.
Merriam put it, that "the greater part of political theorizing on close
analysis turns out to be more or less thinly veiled propaganda of particular
social interests."29 And although Beard by 1937 had abandoned the
deterministic aspects of his economic interpretation, his principal conclusion
at the 1937 meeting of the American Historical Association was that "the first
and prime consideration of any realistic constitutional history is economic:
whose property, what property, and what forms of regulation and
protection?"30 Under this kind of realistic analysis
constitutionalism dissolved into a form of interest-seeking that protected the
The belief in law as an entity existing apart from men's opinions and
will in a higher realm of pure reason, asserted A. K. Rogers, was a device for
blocking the experimental spirit of democracy. Tugwell asserted in
exasperation: "The Constitution is used as a holy of holies within which the
ugly practices of free competition can be hid from vulgar eyes." And Harold J.
Laski, answering a constitutionalist's plea to make ultra vires all
exorbitant acts of government, asked: "How do we know what an 'exorbitant' act
of government is?" Except for certain procedural aspects of personal liberty,
Laski thought that the constitutionalist's formula for the rule of law "boils
down to protecting certain property relations from reform by the will of a
legislative assembly."31 Even civil liberties were dismissed by
Lerner, who stated that rather than setting boundaries of arbitrary power they
were "a pack of tricks to defeat the purposes of majority rule." The only valid
meaning of civil liberties for Lerner was the right of the majority to organize
new economic alignments.32
Although constitutional realists professed to view the Constitution as a
social symbol around which public life was organized, they could not quite
overcome their sense of amazement or incredulity at what, from their reform
perspective, seemed mere fetishism blocking progressive change.33 In
The Encyclopedia of the Social Sciences, for example, constitutionalism
was not the theory and practice of limited government, with roots reaching back
into ancient and medieval political thought. It was instead, wrote Walton H.
Hamilton, "the name given to the trust which men repose in the power of words
engrossed on parchment to keep a government in order." Not only did this
definition seem to deny constitutionalism historical actuality or validity but
it also was based on a simplistic, formalist view of constitution which
realists criticized in other contexts. Hamilton identified his subject with the
attempt to limit irresponsible authority, but dated it only from the first
American state constitutions of 1776. Constitutionalism offered exact language
as a test of official conduct "at the risk of imposing outworn standards upon
current activities." Like other constitutional realists, Hamilton viewed
constitutionalism as a form of word-magic, then seemed disillusioned at its
failure to produce results. The Constitution "is not a self-regulating
mechanism which automatically holds official conduct to conformity with its
lines," he concluded.34
When Lerner adverted to Hamilton's essay as an account of the hold of
constitution-worship on the American mind, he offered without intending it an
implicit criticism of constitutional realism.35 For what Hamilton
described was not constitutionalism, at least not in the way it was conceived
of by many intellectuals who in the mid-1930s took a more affirmative view of
the reality and importance of the rule of law.
Insofar as constitutional realism referred to an awareness of social and
economic influences on constitutional development and a recognition that
political institutions were a vital part of the Constitution, it described the
general outlook of most students of public law and policy. Realist tendencies
of this sort were prominent even in the work of traditional scholars, such as
Andrew C. McLaughlin and Homer C. Hockett, and before long took on the aspect
of conventional wisdom in constitutional history textbooks.36 Yet by
no means all who applied the insights of constitutional realism accepted the
anti-constitutionalist conclusions to which it led. On the contrary, against
the background of anti-liberal movements sweeping Europe many political and
legal scholars reasserted the principles of constitutionalism. Recognizing the
need for strong government to deal with economic or international crisis, they
looked on the Constitution as the basis for progressive change. But they also
evinced special concern for the Constitution as formal law guaranteeing liberty
and restraining governmental power. Accordingly judicial review in this outlook
was a vital means of assuring limited and responsible government. Without
denying the influence of men's actions these intellectuals renewed the ideal of
a government of law. And they held that in the United States the rule of law
was a substantial reality. Thus from within the realist movement came a
neo-constitutionalist impulse. Resembling the nineteenth-century belief in the
superiority and world-importance of American institutions,
neo-constitutionalism became a major component of America's ideology in World
War II and the Cold War.
Among the earliest and most influential of the intellectuals who
explored the central themes of neo-constitutionalism were three Harvard
political scientists, William Yandell Elliott, Charles H. McIlwain, and Carl J.
Friedrich. Elliott clearly identified himself with the need for strong
government. He agreed with many liberals that the executive should be given
greater powers in the context of a more disciplined party system and recognized
that the Constitution was a means of or- ganizing as well as limiting power. He
nonetheless showed special concern for the Constitution as formal law. And
above all he insisted on the value of constitutionalism. Elliott's first major
work had defended the constitutional state against the alternatives offered by
syndicalism, pluralism, and fascism.37 In the 1930s he cautioned
against cynicism about constitutionalism. "I am not bent on debunking," he told
the American Historical Association in discussing the Constitution as a social
myth, "but on that more difficult thing — understanding the peculiar fact
that is the American Constitution." In place of old symbols, such as the
Supreme Court as impartial arbiter, which the realists — Elliott called
them "sophists" — had shown to be no longer valid, he proposed new
ones.38 For at stake ultimately was nothing less than the survival
of a method of politics that placed negative restraints on power. "How much
skepticism can be tolerated in a period of new faiths that really clash?"
Elliott asked as he speculated on whether the United States could successfully
resist the "universal drift" toward or "contagion of a form of organization
called the corporative state."39
An even more urgent sense of crisis informed Charles H. McIlwain's
contribution to neo-constitutionalism. An older scholar, firmly identified with
traditional constitutionalism, McIlwain's major historical work attempted to
show that in medieval English history fundamental law had operated to control
acts of government in a manner similar to the American doctrine of judicial
review.40 McIlwain also maintained that sovereignty in its true
meaning never signified unlimited, absolute power, but always power subject to
law.41 "The one great issue that overshadows all other," he wrote in
1936, "is the issue between constitutionalism and arbitrary government."
Economic differences between capitalism, socialism, and communism were less
significant than the fundamental question of "whether we shall be ruled by law
at all, or only by arbitrary will." At the 1937 meeting of the American
Historical Association, McIlwain reiterated his warning: "There is a tidal wave
of despotism sweeping over the world. On this anniversary of our Constitution
we find constitutionalism itself threatened everywhere as it has never been
threatened since the founding of our government." The immediate danger was
despotism, explained McIlwain, but the cause of the crisis was the feebleness
of government. Like many of his liberal critics, McIlwain would concentrate
power in a government that was unhampered by checks and balances, yet fully
responsible to the people through the electoral system. As important as
political responsibility, however, were legal limitations on government
enforced by the judiciary. Believing that the greatest contemporary danger lay
in the threat to individual liberty posed by government, McIlwain reasoned that
the protection of liberty was a problem of law. "And the one institution above
all others essential to the preservation of law," he insisted, "has always been
and still is an honest, able, learned, independent judiciary." McIlwain argued
moreover that lasting and effective social reform depended upon orderly
processes of law and courts free from governmental control. Recognizing the
conflict between his own view of the judiciary and that of most liberals, he
expressed the hope that the mutual suspicions of reformers and
constitutionalists would be ended.42
In contrast to McIlwain the neo-constitutionalism of Friedrich placed
less emphasis on concentration of authority and judicial supervision and much
more on the division of power among the parts of government as the best means
of achieving responsible rule. To Friedrich it was the division of power which
was the basis of civilized government and the essence of constitutionalism. In
Friedrich no more than in Elliott or McIlwain did constitutionalism mean a
return to the negative laissez-faire state. Friedrich was aware of the
historical importance of bureaucracy, but also of the political problem it
created. Conservatives saw bureaucratization as anathema, liberals saw it as
panacea; the latter, however, were unwilling to recognize the inherently
political character of bureaucracy. Friedrich thought that bureaucratic
organization was necessary for control of the industrial system, but
recognizing its political nature he also saw the need to constitutionalize it.
Furthermore, although historically constitutionalism had been in conflict with
monarchical bureaucracies, its stress upon rationality and predictability made
it compatible with modern bureaucratic organization. Sympathetic thus to
positive government, Friedrich was also receptive to social and economic
change. Indeed, it was not something to be feared, he wrote, "but is of the
very warp and woof of modern constitutionalism."43
Concern for constitutional limitations spread through the 1930s. With
reason Thomas I. Cook concluded in 1941 that political and social scientists
were reviving the analysis of government in terms of arbitrariness versus the
rule of law and were increasingly aware of the danger of attacking
constitutional law in the desire for solutions to specific
problems.44 Arguing for a flexible Constitution adequate to the
purposes of reform, Forrest R. Black as early as 1933 criticized the "dynamic"
school of political scientists who dismissed a written constitution as a mere
parchment barrier and looked to sociology as the main source and sanction of
law. Arthur N. Holcombe's liberal appeal for government planning in 1935
focused on the need for constitutional limitations and responsibility. The
creation of power was no longer the issue, but rather "what to do with all this
power when generated, and how to keep it under public control." In response to
this "baffling" problem Holcombe urged liberal reformers to seek the invention
of political instruments combining "the power of a personal dictatorship with
the sense of responsibility of a constitutional organ of government." His
recommendations included formal representation of economic interests, a more
disciplined party system, and a professional bureaucracy.45
Rather than political in tendency as in Holcombe's approach,
neo-constitutionalism was more typically legalistic and juridical. Contributing
to a symposium on the Constitution and social progress, assistant attorney
general and former law professor John Dickinson attacked the idea of
withdrawing from the courts the power to declare legislation unconstitutional.
He warned that to do so, as some reformers proposed, "would in substance reduce
the constitution to a mere anthology of hortatory platitudes." The Constitution
must change in accordance with social forces, said Dickinson, but Americans
lacked the habits of internalized political control which enabled a people to
govern themselves without a charter of organic law.46 Judicial
enforcement of the Constitution was the principal theme in Benjamin F. Wright's
1942 account of American constitutional history. Wright held that although many
constitutional changes occurred without legal sanction, "the central course of
American constitutional development has been legal." Furthermore,
constitutionalism — the limitation of government by law through judicial
review — was an essential part of the democratic tradition. Not denying
political influences on courts, Wright nevertheless defended the judiciary's
reliance on rational debate and legalistic justification of its decisions.
"This method," he pointed out, "enables us to hold before the whole people,
majority and minorities alike, the ideal of discussion rather than violence as
the only proper reliance in politics."47
The vigor with which the old and seemingly hopelessly theoretical
problem of sovereignty was discussed in the 1930s was a further indication of
the neo-constitutional revival. One of the great constructs of
nineteenth-century political thought, the very idea of sovereignty had been
rejected by theorists of pluralism who held that groups and voluntary
associations rather than the state possessed power. Sovereignty was a perfect
abstraction having no basis in reality.48 Yet by the time of World
War II the group conflict so admired in pluralist theory seemed badly in need
of control. "Is there no supreme body which may take the place of parliaments,
courts, and people as the final authority of last resort?" asked the emigre
German legalist Otto Kirchheimer in 1944.49 Theories of dictatorship
provided one kind of solution. Neo-constitutionalism provided another.
Elliott's early attack on pluralism and fascism defended "democratic
constitutionalism and the sovereignty based upon it." "The very existence of
government under law instead of a universal feudal regime of petty groups,
knowing no other arbitration than the right of might," Elliott asserted, "shows
to what a degree the state-purpose is real and operative in modern society."
The state-purpose meant sovereignty, which McIlwain defended as the "central
formula under which we try to rationalize the complicated facts of our modern
Succinctly stated this was a theory of the sovereignty of the
constitution.51 As was true of neo-constitutionalists in general,
its proponents denied neither the idea of social forces behind law, nor the
social reform program of the English pluralists or American liberals. They
rejected, however, the idea that the formal legal unity of the state as
expressed in the Constitution was illusory or insignificant, as the pluralists
insisted. Sovereignty conceived of in this sense served as a point of reference
useful in maintaining a standard of peace and order more definite than the
claims of competing groups.52 Even critics of the idea of
sovereignty seemed to accept the sovereignty of the Constitution. Thus Heinz
Eulau, though questioning the classic theory of depersonalized
constitutionalism as patently unreal, proposed to combat the Nazis' dictatorial
version of sovereignty with democratic popular sovereignty — expressed
through "the organizational equipment of the constitutional
The intellectual impact of neo-constitutionalism was strikingly apparent
in the changed outlook of the constitutional realists themselves. In the crisis
state which now existed, Lerner wrote in 1940, it was necessary to maintain
state power without state monopoly of thought or action. Democratic survival
demanded a commitment to constitutional principles and procedures as well as
attention to economic matters. "We cannot continue to draw the sharp boundaries
between the two realms that we have drawn in the past," Lerner concluded as he
looked back on the crisis of the 1930s and congratulated Americans for
retaining "the essential fabric of legality." Swisher also demonstrated the
realist shift toward constitutionalism. A liberal political scientist who had
been special assistant to Attorney General Homer Cummings at the time of the
great court-packing controversy, Swisher in his realist history of 1943
emphasized efficiency in government and the availability of public power for
social purposes as a test of constitutional development. In 1946, however,
Swisher wrote that the significance of a constitution extended beyond that of
giving power. Among its most important meanings were those that were
restrictive and in some cases absolutely negative. Swisher admitted a tendency
to describe political systems that one approved of as constitutional and those
one disapproved of as arbitrary. Yet such judgments were not entirely
"There is value," he declared, "in the relative conception of
orderliness and impersonality in the application of law." The positive state
was clearly necessary, but it was all the more important that administrators
"be held by constitutional restrictions."54
As perceptions of constitutionalism changed in the late 1930s realist
and neo-constitutionalist ideas came into conflict. This intellectual
confrontation was an important feature of the 1937 meeting of the American
Historical Association, which was given over entirely to consideration of the
United States Constitution on the sesquicentennial of its formation. Speaking
in Independence Hall in Philadelphia, McIlwain issued his call to make ultra
vires all exorbitant acts of government. In reply several scholars
presented analyses in a realist framework of thought.55 But the
leading voice was that of Beard, who reiterated that economic interests
remained the primary datum in constitutional history. In actuality, however,
Beard's remarks gave evidence of a convergence of ideas with those of the
As early as 1932 Beard displayed a more sympathetic attitude toward
constitutionalism that was related to his reconsideration of political ideas in
general.56 Analyzing the problem of domestic reform in 1936 he
remained skeptical about the rule of law, and at the Philadelphia meeting in
1937 he reaffirmed the primacy of economic interests in understanding
constitutional change. Yet the very purpose of performing an economic
interpretation, Beard explained before an overflow audience in Independence
Hall, was to strengthen constitutionalism. Referring to the study of economic
influences Beard averred: "This conception... has a profound meaning for the
future of constitutional government as practice and for social living under the
Constitution." Its special relevance lay in promoting government by discussion
in contrast to government by force.57 Beard made the same point in
the 1935 edition of An Economic Interpretation of the Constitution: "By
the assiduous study of their [the Founding Fathers'] works and by displaying
their courage and their insight into the economic interests underlying all
constitutional formalities, men and women of our generation may guarantee the
perpetuity of government under law, as distinguished from the arbitrament of
force."58 Beard's revaluation of constitutionalism was completed in
The Republic (1943). He not only set out a new interpretation, arguing
that the Framers' greatest triumph was to avert military dictatorship, but also
declared that "no other theme of national policy is so important for us as
constitutionalism — the civilian way of living together in the
Republic...." How to preserve the idea of constitutional processes and impress
it upon the minds of future generations was the "task of civilization, supreme
over all others."59
Friedrich, who surely agreed with Beard, was confident enough in 1941 to
conclude that the moment of deepest crisis for constitutionalism had already
passed. He believed that many people who a few years earlier had been cynical
or indifferent had rediscovered the importance of
constitutionalism.60 The necessity of making constitutions again,
remarked Carl Becker in an attitude of pessimism and seeming reluctance in
1937, was transformed into a positive principle of the good society during
World War II.61 Becker himself acknowledged in 1941 that his view of
constitutional democracy had become less detached and critical, more cordial
and defensive. The European dictators, by reducing to an absurdity the idea
that law and morality were nothing more than the right of the stronger, had
accomplished what civil liberties organizations and constitutional defense
leagues could not.62 Friedrich, noting the reaction of intellectuals
like Becker and Beard who now extolled the virtues of constitutional democracy,
thought it all demonstrated what the realists had once denied: that the
Constitution in its legal signification as the rule of law exerted a potent
The constellation of ideas that defined neo-constitutionalism formed a
major part of American ideology during the Cold War. As in the realm of
diplomacy, so in the intellectual sphere but to a much greater degree, the
foundations of hostility toward the Soviet Union were established well before
the end of World War II. As the United States faced the challenge of the Soviet
Union both liberals and conservatives professed abiding commitment to the
values of constitutionalism. The more noticeable tendency was the reform
realist identification with constitutionalism. The widely used constitutional
history textbook by Alfred H. Kelly and Winfred A. Harbison, which was liberal
and pro-New Deal in outlook, minimized in typical realist fashion the causative
force of constitutional ideas in favor of an economic interpretation. But the
authors did not question the reality or importance of constitutionalism defined
as the rule of law. The idea of limited government was the grand theme of
American constitutional history.64 In another work Kelly affirmed:
"Our faith in constitutional government and individual liberty is not just a
piece of outworn intellectual baggage from a dead age."65
The essence of Cold War constitutionalism remained the idea that "the
power of the state ought to be checked and controlled according to the forms of
law."66 In the more prosperous economic situation of the 1940s and
1950s, however, neo-constitutionalists showed less concern with positive
government than during the Depression. Liberty was more often defined in
negative terms — as freedom from rather than freedom to — and with
good reason in view of the ubiquitous loyalty programs inspired by
anti-communism Accordingly neo-constitutionalists focused on judicial
protection of individual freedom in struggles over civil liberties Thus,
despite some backing-and-filling, the rule of law seemed to operate as a
political force The moral and religious aspect of neo-constitutionalism, which
was present from its beginning, also became more prominent in the Cold War era
Reacting against relativism and positivism, neo-constitutionalists displayed
normative tendencies of thought characteristic of the general revival of
political philosophy after World War II Indeed part of the latter development
has consisted in attempts to restate the theory of constitutionalism in terms
appropriate to modern industrial society.
The central place of constitutionalism in America's Cold War ideology
was aptly illustrated in Walter Lippmann's 1955 analysis of the crisis in
western civilization Describing the disintegration of political authority in
the modern world, Lippmann found the source of the crisis in the decline of the
"public philosophy." This was a protean term for Lippmann, it meant variously
natural law, the wisdom of a great society, the traditions of
civility.67 But the public philosophy was the antithesis of
totalitarianism, it could be applied to problems such as the abuse of private
property rights, and it could be most effectively communicated — its
"imponderable truths" made immediate — by the methods of constitutional
government Indeed, the first principle of a civilized state, according to
Lippmann, "is that power is legitimate only when it is under contract." The
idea of "reciprocal rights and duties under law" as the essence of
constitutionalism thus emerged as the practical meaning of the public
philosophy.68 Lippmann had presented essentially the same analysis
in earlier works, but his Cold War treatise was more sharply focused on the
value of constitutionalism.69
The broad appeal of constitutionalism was evident in two studies of
American civilization written from different historiographical perspectives by
the conservative Ralph Henry Gabriel and the liberal Lerner According to
Gabriel, as the Constitution of 1787 was a republican alternative to monarchy,
so in the twentieth century it remained the American alternative to European
dictatorship Lerner thought that the Constitution counted most as a symbol of
non-totalitarian social organization Referring to the idea of constitutionalism
he wrote "Even among those skeptical of spread-eagle patriotism, there is a
sober sense that the American political genius has here added something of its
own to the tradition of government." From the ranks of the social scientists
Alfred deGrazia cautioned against dismissing respect for constitutionalism as a
mere psychological state Constitutionalism was one of the great ideas around
which human activity was organized, deGrazia explained, adding "Science can
describe and analyze it but is not permitted to dismiss or depreciate it. Its
dismissal or depreciation is purely a political affair — to be left to
people attached to different values or even to cynicism."70
The political importance of constitutionalism was evident in the 1950s
in struggles over civil rights and liberties The judiciary was at the center of
these conflicts, attempting to make the rule of law a reality and create a
viable tradition of libertarianism 71 It was in this context that
the well-known debate over the democratic character of judicial review occurred
Judicial activists urged vigorous exercise of judicial review to shape
constitutional law in accordance with democratic values, while supporters of
judicial restraint, disliking judge-made law, would defer to popularly elected
legislatures and confine courts to a narrowly circumscribed role.72
Although the two groups differed sharply over the meaning of democracy and the
scope of judicial review, both accepted the institution of review Both,
moreover, regarded their positions as expressions of the constitutional idea of
the rule of law And despite some recriminations on this point, both were right
According to activist Charles E. Wyzanski, the essence of constitutionalism was
the right of individual liberty and property against governmental interference,
and the existence of independent courts to vindicate the right.73
None of the judicially modest could object to this view, just as no activist
could disavow the ideal enunciated by restraint advocate Herbert Wechsler In an
article on neutral principles of constitutional law, Wechsler wrote that courts
should decide cases on the basis of "reasons that in their generality and their
neutrality transcend any immediate result that is involved."74 The
debate turned on the method of realizing constitutionalism through courts of
law The Italian scholar Giovanni Sartori concluded astringently that
constitutional guarantees were protected not by a pervasive conception of law,
but by devices of juridical defense.75 To most
neo-constitutionalists, however, the rule of law meant more than the positive
fact of court decisions It was the character of judicial decisions — the
result of a deliberative process involving a pluralism of views — which
gave reality to the rule of law and distinguished it from arbitrary
One of the most distinctive features of Cold War constitutionalism was
its moral impulse — a tendency consciously developed as an antidote to
relativistic positivism Reflecting on the influence of his early work, The
Pragmatic Revolt in Politics, Elliott wrote in 1940 that its chief
importance lay in its insistence on evaluating politics in the light of moral
norms.77 Indeed by the beginning of World War II an important
intellectual struggle was being waged between advocates of a value-free and a
normative study of law and political science.78 As Cold War
attitudes intensified in the 1950s and the enormities of Nazism were fully
considered, the apparent connection between totalitarianism and positivism in
political science provoked strong reaction from neo-constitutionalists. The
positivistic social scientist, declaimed Cook, had no convincing answer to give
to the totalitarian nihilist because he "had abandoned by implication (whatever
his nominal professions) the full method of freedom of constitutional
government and the rule of law." Rejecting relativism yet unable to accept
moral absolutism, Cook fell back on a form of "natural law with a changing
content" which he called "universalist relationism."79 Lippmann, who
also turned to natural law, deplored the tendency to reduce ideas and
principles concerning right political and social action to the sphere of
private, subjective relevance. The liberal democracies of the West, he observed
in a harshly critical tone, "became the first great society to treat as a
private concern the formative beliefs that shape the character of its
Analytical or positivist jurisprudence, starting with John Austin in the
nineteenth century and culminating in Hans Kelsen's pure theory of law in the
twentieth century, found incomprehensible the idea that law must accord with
reason or some conception of right higher than the state in order to be
authoritative. Rejecting natural law or natural rights thinking, positivist
jurists defined law as command.81 Neo-constitutionalists maintained,
however, that by dismissing the idea of the rule of law as a metaphysical
superstition and by teaching that every state had a constitution and was a
rechtstaat, legal positivists prepared the way for fascism and
communism.82 It was necessary therefore to insist on a normative
conception of a constitution. Sartori urged political and legal scholars to
think of a constitution in teleological terms as a guarantee of liberty, rather
than as the institutional and organizational framework of the state in the
manner of realism or positivism. The "garantiste" approach, as Sartori
termed it, gave moral content to constitutionalism and could be ignored only at
peril. "When the time of trial comes," he summarized, "one discovers that what
the 'pure' jurists have really been doing — under the shield of their
juridical indifference to metajuridical matters — was to pave the way for
allowing unscrupulous politicians to make a discretionary use of power under
the camouflage of a good word" — namely, the constitution. Ironically
constitutional realism, which had placed such a heavy emphasis on the non-legal
character of constitutional rules, now seemed to be an attempt to depoliticize
a problem that was inescapably political, that is, constitutionalism
itself.83 Friedrich, writing in 1968, under- scored the conclusion
that realist or positivist conceptions of constitution failed because they did
not ask: "What is the political function of a constitution?"84
In rejecting positivism neo-constitutionalists reflected one of the
major tendencies of the renewal of political philosophy that took place
following World War II. Philosophers such as Eric Voegelin, Leo Strauss,
Michael Oakeshott, and Bertrand deJouvenel sought to identify the principles of
right order in human society.85 At a less general level
neo-constitutionalists attempted to set forth the principles of good
government. This endeavor followed from the belief that in answering the
ultimate problem of politics — how to be governed well — it was
possible on empirical grounds to describe a general model of which particular
forms of rule are specific applications.86 A further consideration
stimulated efforts to restate constitutional theory. During World War II and in
the early years of the Cold War the superiority of the constitutional to the
totalitarian state was a sufficient theme of neo-constitutional writing. As it
became evident, however, that the crisis of political order of which
totalitarianism was a symptom could not be met simply by resorting to old
formulas, neo-constitutionalists sought to adapt theories of the rule of law to
the dominant concerns and aspirations of the contemporary age.
In general, law remains the essence of the constitutional state. The
central meaning of law, moreover, is that of formal institutionalized rules
rather than informal countervailing power or influence, although the latter is
recognized as having a place in the constitutional order.87 The rule
of law means that the rules under which government operates and men live must
be general and prospective.88 It also means that people who are
under the law can find out what it is and know the consequences of actions they
may take. A degree of predictability is thus introduced into public life that
reflects the ancient quest for political stability.89 The elemental
beliefs on which constitutionalism rests are the dignity of the individual
person and his fundamental rights and the distrust of men in power and the
consequent need to check and control them.90
In reformulating constitutional theory neo-constitutionalists have
responded to political and social forces such as the demand for equality of
civil rights, economic progress, and social justice. They have also felt
obligated to meet the imperative of a scientific study of politics deriving
from a persistent realist or behavioralist tendency in modern social science
The concept of responsibility forms the central theme of Herbert Spiro's
theory of comparative politics. Rejecting the value-neutral approach, Spiro
holds that modern man thinks of himself as controlling his future, as being
responsible for himself. This fundamental fact creates for Spiro a
preeminent value which can be used to judge all political systems. According to
his analytical scheme, individuals should have opportunities to form policies
from several alternative choices, resources for implementing policies, and
foreknowledge of the consequences of their actions. Neither a bureaucratized, a
totalitarian, nor a constitutional state satisfies all of these requirements;
but, concludes Spiro, "the basic goal of constitutional democracy is ... the
creation of better situations of responsibility," and it meets and holds in
balance these varied demands more effectively than any other form of
government. Spiro in 1959 conceived of his theory as avoiding what he called
the Anglophile and Cold War fallacies of assuming that western constitutional
democracy was the final expression of man's political genius. The norm of
individual responsibility, he argued, was more easily referable to concrete
reality than the values ordinarily used in Cold War political analysis such as
freedom, equality, or security. Even the communists could agree with the
standard of responsibility.91
Spiro's intention of transcending Cold War ideology notwithstanding, his
theory of comparative politics was a restatement of the theory of
constitutionalism. The same may be said of Friedrich's magisterial work, Man
and His Government. Undertaking a systematic theory of politics, Friedrich
addressed himself to the disintegration of authority and legitimacy in the
political order, signified by widespread dissatisfaction with government and
the failure to settle disputes such as those involving race. As against their
growing disenchantment, however, Friedrich observed, people have demanded ever
more of government in solving modern social problems. By the 1960s according to
Friedrich, totalitarianism was recognized as a false solution to the crisis in
the political order. Traditional democratic constitutionalism was not fully
satisfactory, either, in providing justice, equality, and freedom. But in
charting the "leap into the unknown," said Friedrich, it was necessary to start
with the methods of governing that had once been adequate. Accordingly the
basic features of Friedrich's model political order derived from the
constitutional state which he had defended for thirty years. Those features
were effective government action; enforceable restraints on government to
enable individuals to become political persons; participation of citizens in
making rules; the existence of general rules; an independent judiciary; and
voluntary associations coordinating these elements and providing a decisional
Still another defense of constitutionalism was presented by the British
scholar, M. J. C. Vile, as part of an historical study of the separation of
powers. The historical record, Vile argued, shows a persistent concern for the
idea of the separation of powers which demonstrates its relevance. Even
empirical political scientists, he pointed out, continue to rely upon it in
fashioning theories of political development. Significant also was Vile's
refutation of the realist-behavioralist attack on constitutionalism, in which
he shows that behavioralists have simply taken for granted the stability
provided by the constitutional rules which they have considered
unimportant.93 Vile's principal concern, however, was to posit a
theory of constitutionalism based upon the modern concepts of function,
structure, and process in political science. Functions such as the making,
application, and interpretation of rules were most effectively carried out and
were best controlled and coordinated by basic organizational structures, either
collegial (legislature) or hierarchical (executive). Process describes the
comprehensive manner in which functions were performed (for example the
legislative process), including the participation of informal or non-official
elements like parties, pressure groups, and the media. But at the center of
each process, Vile emphasized, must be a procedure: an
institutionalized, rule-prescribed action. These procedures were important
because they reflect the dominant values of the society. Historically in
western civilization the basic procedures have been the legislative, executive,
and judicial, expressing the values of democracy, efficiency, and justice. But
in the twentieth century, Vile observed, the additional value of social justice
has emerged and through the agency of the mass political party, and in other
ways, has nearly overwhelmed the older values. Writing toward the end of the
1960s, Vile urged placing social justice in a perspective where it could be
reconciled with the older values. This he considered the task of modern
Neo-constitutionalism has thus been a major expression of American
political thought in the era of the Cold War. Nevertheless it has not ended
debate on the way in which law and politics interact in constitutional
development. There persists a realist tendency in behavioralist scholarship
that is heavily concerned with social forces and processes rather than formal
rules and institutions. As the civil rights movement of the late 1950s
broadened into the more far-reaching reform demands of the 1960s, the insights
of constitutional realism distinguished the work of a number of
Behavioralist students of public law have applied a realist point of
view in emphasizing the value preferences and policy attitudes which they
believe determine judicial decisions. Although most of these new realists would
support the position of judicial activism, they are not concerned with the
normative question of the proper role of the judiciary. Instead they
concentrate on the dynamics of decision making in the manner of the realists of
the 1930s. Their understanding of the Constitution is essentially similar,
moreover, to that of the older realist movement. From a behavioral standpoint,
writes Glendon Schubert, the Constitution is what a majority of justices agree
it ought to be said to mean, or what the president or Congress may proclaim by
word or deed. In an even broader sense Schubert holds that the Constitution is
embedded in "the consensually dominant patterns of values that constitute
American political ideologies."95 Other of the new realists focus on
courts — rather than individual judges — as participants in the
political process. This approach denies any essential difference between the
character of legal and political questions. Judicial actions, according to one
of the advocates of this approach, are "neither more nor less reflections of
the legal rules which have the support of the most powerful interests of
society than are the activities of legislators, administrators, and other
groups."96 For years of course it was recognized that courts were
politically involved. The new realists have rigorously applied this insight in
studies of the Supreme Court's actions and results, as distinct from its legal
rhetoric. In urging a jurisprudence based on "impact analysis" of Supreme Court
decisions they consciously direct their attention to the social consequences of
judicial action. And they set themselves squarely against the
neo-constitutionalist appeal for neutral principles of constitutional law. The
new realism, explains Martin Shapiro, "is basically an attempt to treat the
Supreme Court as one government agency among many — as part of the
American political process, rather than as a unique body of impervious legal
technicians above and beyond the political struggle."97
Another and far more serious challenge to Cold War constitutionalism,
however, has appeared in the attack on the liberal democratic state that has
been made manifest in student strikes, ghetto riots, and the general phenomenon
on the left known as "the movement," including both revolutionary theorists and
Weatherman activists. In evaluating the crisis of public authority that seems
to exist today care must be taken to separate drama and rhetoric from genuine
thought. Nevertheless there has emerged in recent years, paralleling the demand
for participatory democracy, an intellectual quest for a renewal of political
life that raises important questions about constitutionalism.
Insofar as it is critical of existing tendencies, this intellectual
appeal makes the point that American constitutionalism has become atrophied in
what was originally its unique strength: political action by citizens through
republican institutions. In the post-New Deal era the Supreme Court has
admirably protected freedom of speech, press, and religion. Yet these civil
liberties, identified as the very soul of democracy by neo-constitutionalist
liberals, no longer seem to provide meaningful political freedom in the eyes of
a growing number of critics. Constitutionalism, say the critics, contains no
theory of political action.
This is because it was the creation of intellectuals aspiring toward a
mechanistic science of politics in which the personal, human element would be
eliminated or reduced to a minimum, and in which decisions would be shifted
from men to institutional structures or avoided altogether by rule
prescriptions. The result of these constitutional theories in modern times has
been the debasement of politics and the discouragement of political education
and leadership. In tones of decided hostility Sheldon Wolin thus writes: "A
constitutional government is a system for directing stimuli which will control
human actions and outlooks and, by so doing, make them
predictable."98 Critics like Wolin charge that constitutionalism,
seeking as it does to produce uniformities of behavior, takes no account of the
need for political action.
In this context the term "political action" takes on a special meaning,
referring to acts that are defined as consequential, purposive, novel, and
indeterminate. All other actions, including the predictable responses and
knowable results that constitutionalism seeks to promote, are defined as
behavior." The emphasis that is placed on action in this analysis marks it as
neo-realist in character, an expression of the personalism that has so often
been a distinctive feature of attacks on constitutionalism.100 Like
their counterparts of the 1930s, the neo-realist critics charge that
constitutionalism reduces momentous human choices to the single standard of
legality.101 The failure of constitutionalism to consider the need
for political action is in turn related to lack of true awareness of the need
for public space in which citizens can act. "Public space" is another rather
freighted term, but it may be thought of as opportunities for debate,
deliberation, and speech.102 This criticism recalls C. Wright
Mills's strictures on the trivialization of public life and the eclipse of the
idea that a community of publics should be a source of governmental action and
legitimacy.103 It is related furthermore to the current interest in
decentralization, which seems to rest on the belief that political life can be
regenerated by resort to town-meeting methods of action at the local
level.104 Constitutional theory, however, is most seriously
defective according to the neo-realist critique in its narrowly economic
conception of man. In the traditional constitutionalist view, writes Kirk
Thompson, freedom is private not public, and negative in character being
defined as the absence of governmental restraints on economic pursuits. The
conclusion of Thompson and other neo-realist critics is that constitutional
theory posits no true political freedom.105
At the heart of the neo-realists' quest for political renewal is the
restoration of citizenship.106 In traditional constitutionalism
citizenship is merely protection for economic interest; it is not, as Thompson
puts it, "a vital and active membership in a political
community."107 Not providing for political action, constitutionalism
minimizes dependence on citizens. Indeed, writes another critic of the liberal
constitutional state, it "rejects the notion of citizenship as the ennobling
and educative experience of participation in the definition of
justice."108 This is a serious weakness, however, for if the state
is to ask for the degree of commitment and cooperation necessary to meeting
contemporary problems, it must give citizens a sense of controlling the
government.109 Yet everywhere, according to this critique, citizens
are overborne: a situation of tyranny exists in which the public citizen is
excluded from the political. In part this is the result of bureaucratization.
In Hannah Arendt's description, "Bureaucracy is the form of government in which
everybody is deprived of political freedom, of the power to act; for the rule
by Nobody is not no-rule, and where all are equally powerless we have a tyranny
without a tyrant." Corporate power, acting through forms of voluntary
associations originally conceived as instruments of citizen action, is seen as
further undermining the vitality of citizenship. In the situation that is thus
created civil disobedience becomes a means of gaining access to the political
sphere. Wilson Carey McWilliams in a recent analysis treats civil disobedience
not as an appeal to a higher moral law nor to individual conscience, but rather
as a way of restoring to citizenship the possibility of political action.
Another critic of neo-constitutionalism writes of theories of civil
disobedience as "strategies for democratic citizenship in a time when the
deficiencies of American political life are becoming known to increasing
numbers and varieties of people...."110
Though critical of constitutionalism, the neo-realists do not evince the
cynical attitude of earlier constitutional realists. Rather they seek to
revitalize and reformulate constitutional theory. Constitutionalism, argues
Thompson, has not provided a proper balance between order and liberty, and he
evidently considers the task of critics such as himself to be to help define a
proper balance. Their theory and practice would be more political and
libertarian, but it would remain within the framework of the existing
Meanwhile other critics of the liberal democratic state adopt an outlook
that is more clearly continuous with traditional constitutionalism. Several
studies of the public power of corporations, trade organizations, labor unions,
and other "voluntary associations" of pluralist theory call for the application
of constitutional limitations and standards of public
responsibility.112 One of the keenest critics of contemporary
liberalism is Theodore J. Lowi, who attacks the "vital center" for elevating to
the status of principles of government the political process of group
bargaining and special interest promotion. To remedy the constitutional defects
of a flaccid liberal state Lowi urges "some contemporary version of the rule of
law."113 Thus, although there are differences between rule of law
critics such as Lowi and the neo-realist theorists of political action, there
does not appear to be the deep division over the value of constitutionalism
(reformulated or revised) that characterized the conflict between
constitutional realists and neo-constitutionalists in the 1930s.
Constitutional politics has often seemed more rhetorical than
substantive, the chief concern of its practitioners appearing to be expediency
rather than principle, power rather than right. It may be, however, that
historians witness an ironic reversal: revolutionary politics may be more
rhetorical than substantive, professions of armed insurrection or resistance
concealing a willingness to work within the constitutional
framework.114 Arendt has advanced the thesis that the civil
disobedience of student radicals, despite their leaders' protestations to the
contrary, is a form of voluntary association and an expression of dissent by an
organized minority that is compatible with the spirit and practice of American
constitutionalism.115 And it is at least suggestive, as well perhaps
as being enigmatic, that the Black Panther party has issued a call for a
constitutional convention.116 While the principles of a Black
Panther constitution remain unclear, there is in the very suggestion of such a
project presumably a realization of the necessity, value, and importance of
constitutional rules. Undoubtedly the same idea informs the new model
constitution that a group far removed politically from the Black Panthers, the
Center for the Study of Democratic Institutions, has brought
forth.117 Thus from sources as divergent as the radical Panthers and
liberal reformers such as Tugwell, the principal author of the Center's
proposed constitution and an old constitutional realist at that, come
initiatives for constitutional reform. The ironies are numerous and worth
cogitating, but the significance seems clear. Both groups recognize that a
constitution is not only an important expression of values and principles but
also the source of authority for legal and political rules and institutions
which affect the course of social change.
Constitutionalism must remain a complex and shifting set of values,
ideas, and institutional practices. As long as it has to do with law, the
nature of which has never been and will never be agreed upon, this will be so.
And since it is preeminently a method of conducting politics, constitutionalism
must also have a strongly political character and tendency. But regardless of
how political the Constitution may seem, the very idea of the constitutional
will carry an inescapable legal meaning. The use of the term "constitutional"
in a descriptive way in analyzing public problems — be they questions of
corporate responsibility, civil rights, regulatory authority, or military power
— will have a normative connotation, implying a commitment to managing
public affairs in accordance with fundamental values and through certain
formally legitimate procedures Awareness of this inner tension is one of the
major consequences of the reassessment of constitutionalism that has taken
place in the past three decades of world crisis and turbulent change.
1 Herman Belz, "The Realist Critique of Constitutionalism in the Era of
Reform," American Journal of Legal History, XV (Oct. 1971), 288-306.
2 John A Hobbs, "The Rise of Scientific Value Relativism in American
Political Science" (doctoral dissertation, Princeton, 1961), 67-70.
3 Karl Llewellyn, "The Constitution as an Institution," Columbia Law
Review XXXIV (Jan. 1934), 33.
4 Louis B. Boudin, Government by Judiciary (2 vols., New York,
1932), I, x.
5 Charles Grove Haines, The Role of the Supreme Court in American
Government and Politics, 1789-1835 (Berkeley, 1944), 1-44.
6 Charles A Beard, "The Living Constitution," Annuals of the American
Academy of Political and Social Science, CLXXXV (May 1936), 31.
7 Llewellyn, "The Constitution as an Institution," 17-26, Karl
Llewellyn, "The Real Constitution — and the Supreme Court," Survey
Graphic, XXV (April 1936), 233-35.
8 For example, see Howard L. McBain, The Living Constitution A
Consideration of the Realities and Legends of Our fundamental Law (New
York, 1927), William Bennett Munro, The Makers of the Unwritten Constitution
The Fred Morgan Kirby Lectures, delivered at Lafayette College, 1929 (New
York, 1930), Charles E. Merriam, The Written Constitution and the Unwritten
Attitude (New York, 1931), Walton H. Hamilton, "1937 to 1787, Dr.," The
Constitution Reconsidered, Conyers Read, ed. (New York, 1938),
9 Edward S. Corwin, "Some Probable Repercussions of 'Nira' on Our
Constitutional System," Annals of the American Academy of Political and
Social Science, CLXXII (March 1934), 139-44.
10 Edward S. Corwin, Court over Constitution: A Study of Judicial
Review as an Instrument of Popular Government (Princeton, 1938), 228-29.
11 William Bennett Munro, "An Ideal State Constitution," Annals of
the American Academy of Political and Social Science, CLXXXI (Sept. 1935),
12 T. Swann Hardmg, "The Myth of Constitutional Absolutism," Journal
of Social Philosophy, II (Oct. 1936), 69-84, James Hart, "A Unified Economy
and States' Rights," Annals of the American Academy of Political and Social
Science CLXXXV (May 1936), 102-14.
13 T. R. Powell, "The Logic and Rhetoric of Constitutional Law,"
Journal of Philosophy, Psychology, and Scientific Method XV (Nov. 21,
14 Carl B. Swisher, Stephen J. Field Craftsman of the Law
(Washington, 1930), 4, 166-67, Charles Grove Haines, The American Doctrine
of Judicial Supremacy (Berkeley, 1932), 500-40, Boudin, Government by
Judiciary, I, IV-X, Howard Lee McBain, "Some Aspects of Judicial Review,"
The Bacon Lectures On The Constitution of the United States Given at Boston
University 1928-1938 (Boston, 1938), 375-90, Hardmg, "The Myth of
Constitutional Absolutism," 69-84, C. Herman Pritchett, "Divisions of Opinion
Among Justices of the U.S. Supreme Court, 1939-1941," American Political
Science Review, XXXV (Oct. 1941), 890-98.
15 Wilfrid E. Rumble, Jr., American Legal Realism Skepticism, Reform,
and the Judicial Process (Ithaca, 1968), Edward F. Purcell, Jr., "American
Jurisprudence Between the Wars Legal Realism and the Crisis of Democratic
Theory," Amen can Historical Review, LXXV (Dec. 1969), 424-46.
16 Max Lerner, "The Supreme Court and American Capitalism," Yale Law
Journal, XLII (Feb. 1933), 696-701, Henry Steele Commager, "Constitutional
History and the Higher Law," The Constitution Reconsidered, Conyers
Read, ed. (New York, 1938), 225-45.
17 Charles McKinley, "The Constitution and the Tasks Ahead," American
Political Science Review, XLIX (Dec. 1955), 962-63, Felix Frankfurter,
The Public and Its Government (New Haven, 1930), 24, Walter Thompson,
Federal Centralization A Study and Criticism of the Expanding Scope of
Congressional Legislation (New York, 1923), Charles A Beard and William
Beard, The American Leviathan The Republic in the Machine Age (New York,
18 Rexford G. Tugwell, "Design for Government," Political Science
Quarterly, XLVIII (Sept. 1933), 321-32, Rexford G. Tugwell, "The New Deal
The Available Instruments of Governmental Power," Western Political
Quarterly, II (Dec. 1949), 545-80.
19 Max Lerner, It Is Later Than You Think: The Need for a Militant
Democracy (New York, 1938), 233.
20 Walton H. Hamilton and Douglass Adair, The Power to Govern The
Constitution — Then and Now (New York, 1937), Irving Brant, Storm
over the Constitution (Indianapolis, 1936), Beryl H. Levy, Our
Constitution Tool or Testament? (New York, 1941) The most
extreme statement of the thesis of a powerful national government, W. W.
Crosskey, Politics and the Constitution In the History of the United
States (2 vols., Chicago, 1953), was undertaken in the 1930s in the belief
that the exercises of congressional power urged by the Roosevelt administration
were historically legitimate and consistent with the views of the framers of
the Constitution Charles O. Gregory, "William Winslow Crosskey — As I
Remember Him," University of Chicago Law Review, XXXV (Winter 1968),
21 Carl B. Swisher, American Constitutional Development (Boston,
1943), 1019, 1025-27 Rexford G. Tugwell made the same point "The executive
branch of the government is not a piece of mechanism, it is a body of men If
the new program is to succeed, those men must be wise, able, ingenious and
honest." Tugwell, "Design for Government," 331.
22 American Historical Review, L. (Oct. 1944), 127-31 Edward S.
Corwin expressed a similar view a few years earlier Corwin, Court over
23 McBain, The Living Constitution 3-5.
24 Munro, The Invisible Government (New York, 1928), 4-51, 20,
113, William Bennett Munro, Personality in Politics (New York, 1924).
25 Munro, "An Ideal State Constitution," 6.
26 Beard, "The Living Constitution," 29-30.
27 Max A Shepard, "Law and Obedience," American Political Science
Review, XXXIII (Oct. 1939), 783-87 Shepard revealed the abstract,
formalistic quality of his approach in protesting that he did not mean to imply
that ordinary speech might not refer to important social realities in drawing a
line between free and involuntary consent.
28 Edward McChesney Sait, Political Institutions: A Preface (New
York, 1938), 314, 338-40.
29 Charles E. Merriam, New Aspects of Politics (New York, 1925),
30 Charles A Beard, "Historiography and the Constitution," The
Constitution Reconsidered, Conyers Read, ed. (New York, 1938), 165 Beard's
address was viewed as a reaffirmation of his earlier position, the New York
Times reporting that he appealed to historians "to regard economic
interests as determining features of history." New York Times, Dec. 30,
1937 See also Bernard C. Borning, The Political and Social Thought of
Charles A Beard (Seattle, 1962), 165-81.
31 A. K. Rogers, "Constitutionalism," The International Journal of
Ethics, XL (April 1930), 289, Tugwell, "Design for Government," 322-23,
American Historical Review, XLIV (April 1939), 650-51 Harold J. Laski
was referring to views of Charles H. McIlwain.
32 Lerner, It Is Later Than You Think, 118-19 See also Robert N.
Baldwin, "Personal Liberty," Annals of the American Academy of Political and
Social Science, CLXXXV (May 1936), 162-69.
33 Thurman Arnold, The Symbols of Government (New York, 1935),
Thurman Arnold, The Folklore of Capitalism (New York, 1937).
34 Walton H. Hamilton, "Constitutionalism," The Encyclopedia of the
Social Sciences (7 vols., New York, 1935), IV, 255-59 See also Carl Becker,
"Afterthoughts on Constitutions," The Constitution Reconsidered, Conyers
Read, ed. (New York, 1938), 384-400, Merriam, The Written Constitution,
11, Max Lerner, "Constitution and Court as Symbols," Yale Law Journal,
XLVI (June 1937), 1290-1319.
35 Max Lerner, "The Supreme Court and American Capitalism," Yale Law
Journal, XLII (Feb. 1933), 674.
36 Andrew C. McLaughlin, A Constitutional History of the United
States (New York, 1935), Homer C. Hockett, The Constitutional History of
the United States, 1776-1826 The Blessings of Liberty (2 vols., New York,
1939), Erik M. Eriksson and David N. Rowe, American Constitutional
History (New York, 1933), Carl B. Swisher, American Constitutional
Development (Boston, 1943), Alfred H. Kelly and Winfred A Harbison, The
American Constitution Its Origins and Development (New York, 1948).
37 W. Y. Elliott, The Pragmatic Revolt in Politics Syndicalism,
Fascism and the Constitutional State (New York, 1928).
38 For example, when the government is a partner with industry in
regulating national economic life.
39 W. Y. Elliott, "The Crisis of the American Constitution," Bulletin
of the College of William and Mary, XXXII (June, 1938), 12-14, W. Y.
Elliott, The Need for Constitutional Reform A Program for National
Security (New York, 1935), 186-93, W. Y. Elliott, "Getting a New
Constitution," Annals of the American Academy of Political and Social
Science, CLXXXV (May, 1936), 115-22, W. Y. Elliott, "The Constitution as
the American Social Myth," The Constitution Reconsidered, Conyers Read,
ed. (New York, 1938), 209-12, 219-24.
40 Charles H. McIlwain, The High Court of Parliament and Its
Supremacy An Historical Essay on the Boundaries between Legislation and
Adjudication in England (New Haven, 1910), J. W. Gough, Fundamental Law
in English Constitutional His tory (Oxford, 1955), 1-11.
41 Charles H. McIlwain, The Growth of Political Thought in the West
From the Greeks to the End of the Middle Ages (New York, 1932).
42 Charles H. McIlwain, "Government by Law," Foreign Affairs, XIV
(Jan. 1936), 185, 189, Charles H. McIlwain, Constitutionalism and the
Changing World (New York, 1939), 257, Charles H. McIlwain,
Constitutionalism, Ancient and Modern (Ithaca, 1947), 139-46.
43 Carl J. Friednch, Constitutional Government and Democracy Theory
and Practice in Europe and America (rev. ed., Waltham, Mass., 1950), 5-6,
17-19, 26, 35, 57, Carl J. Friednch, "Some Thoughts on the Politics of
Governmental Control," Journal of Social Philosophy I (Jan. 1936),
44 American Historical Review, XLVI (April 1941), 598.
45 Forrest R. Black, "Constitutions and Democracy," Annals of the
American Academy of Political and Social Science, CLXIX (Sept. 1933), 2-3,
Arthur N. Holcombe, Government in a Planned Democracy (New York, 1935),
46 John Dickinson, "The Constitution and Progress," Annals of the
American Academy of Political and Social Science, CLXXXI (Sept. 1935),
47 Benjamin F. Wright, The Growth of American Constitutional Law
(Chicago, 1967), 4-5, 260.
48 See Henry S. Kariel, The Decline of American Pluralism
49 Otto Kirchheimer, "In Quest of Sovereignty," Journal of
Politics, VI (May 1944), 170.
50 Elliott, The Pragmatic Revolt in Politics, VIII, 425-28, 433,
Charles H. McIlwain, "A Fragment on Sovereignty," Political Science
Quarterly, XLVIII (March 1933), 94.
51 Lewis Rockow, "The Doctrine of the Sovereignty of the Constitution,"
American Political Science Review, XXV (Aug. 1931), 573-88.
52 Francis G. Wilson, "A Relativistic View of Sovereignty," Political
Science Quarterly, XLIX (Sept. 1934), 392-95.
53 Heinz Eulau, "The Depersonalization of the Concept of Sovereignty,"
Journal of Politics, IV (Feb. 1942), 5-6, 15-18.
54 Max Lerner, "Constitutional Crisis and the Crisis State," Ideas
for the Ice Age Studies in a Revolutionary Era (New York, 1941), 306-08,
319, Carl Swisher, The Growth of Constitutional Power in the United
States (Chicago, 1963), 3-4, 10-11, 249-50.
55 See essays by Lerner, Carl Becker, and Commager, in Read, ed., The
56 See Charles A Beard's "Introduction" to J. B. Bury, The Idea of
Progress (New York, 1932), IX, Charles A Beard and John D. Lewis,
"Representative Government in Evolution," American Political Science
Review, XXVI (April, 1932), 223-40.
57 Beard, "Historiography and the Constitution," 164-65.
58 Charles A Beard, An Economic Interpretation of the
Constitution (New York, 1935), XVII.
59 Charles A Beard, The Republic Conversations on Fundamentals
(New York, 1943), 16-21, 26 F. A. Hermens, a European neo-constitutionalist,
called this "one of the best books ever written on constitutionalism in
general, and American constitutionalism in particular." Review of
Politics, VI (Jan. 1944), 107 See also Beard's "Introduction" to Merlo
Pusey, Big Government Can We Control It? (New York, 1945).
60 Friednch, Constitutional Government and Democracy, IX.
61 Becker, "Afterthoughts on Constitutions," 396-97.
62 Carl Becker, New Liberties for Old (New Haven, 1941), XVI,
63 Friednch, Constitutional Government and Democracy, 156-57,
64 Alfred H. Kelly and Winfred A Harbison, The American
Constitution (New York, 1963), 1-6, 64, 251, 984-86.
65 Alfred H. Kelly, ed., Foundations of Freedom in the American
Constitution (New York, 1958), 51.
66 Ibid., 14-15.
67 Walter Lippmann, Essays in the Public Philosophy (Boston,
1955), 99, 101.
68 Ibid., 161-71.
69 Walter Lippmann, The Good Society (Boston, 1936).
70 R. H. Gabriel, The Course of American Democratic Thought (New
York, 1956), 445, Max Lerner, America as a Civilization (2 vols., New
York, 1957), I, 29-30, Alfred deGrazia, The Elements of Political
Science (New York, 1952), 305.
71 For a statement of this view, see John P. Roche, "American Liberty An
Examination of the 'Tradition' of Freedom," Aspects of Liberty Essays in
Honor of Robert E. Cushman, M. Konvitz and C. Rossiter, eds. (Ithaca,
72 C. L. Black, Jr., The People and the Court (New York, 1960),
Alexander M. Bickel, The Least Dangerous Branch The Supreme Court at the Bar
of Politics (Indianapolis, 1962).
73 Charles E. Wyzanski, Jr., "Constitutionalism Limitation and
Affirmation," Government Under Law, Arthur Sutherland, ed. (Cambridge,
Mass , 1955), 480-81 Charles E. Wyzanski, Jr., criticized Learned Hand, an
advocate of judicial restraint, for his skepticism about constitutionalism.
This was reflected, said Wyzanski, in Hand's belief that courts could not save
a society that lacked the spirit of moderation, and need not save a society in
which that spirit flourished To the judicial activist this was an admission
that the Constitution as a legal instrument played such an insignificant role
that it could be dispensed with Ibid., 478-79.
74 Herbert Wechsler, "Toward Neutral Principles of Constitutional Law,"
Harvard Law Review, LXXIII (Nov. 1959), 19.
75 Giovanni Sartori, Democratic Theory (Detroit, 1962), 311.
76 Robert Goedecke, "What Are the Principles of American Constitutional
Law?" Ethics, LXXVIII (Oct. 1967), 17-31 See also Robert Goedecke,
Change and the Law (Tallahassee, 1969).
77 W. Y. Elliott, "The Pragmatic Revolt in Politics Twenty Years in
Retrospect," Review of Politics, II (Jan. 1940), 1-11.
78 Hobbs, "The Rise of Scientific Value Relativism," 233, Purcell,
"American Jurisprudence Between the Wars," 441-46.
79 Thomas I Cook, "The Prospects of Political Science," Journal of
Politics, XVII (May 1955), 271-74.
80 Lippmann, The Public Philosophy, 99-100.
81 J. U. Lewis, "Jean Bodin's 'Logic of Sovereignty,'" Political
Studies, XVI (June 1968), 206.
82 F. A. Hayek, The Constitution of Liberty (Chicago, 1960),
83 Giovanni Sartori, "Constitutionalism: A Preliminary Discussion,"
American Political Science Review, LVI (Dec. 1962), 854-56, 864.
84 C. J. Friednch, "Constitutions and Constitutionalism,"
International En cyclopedia of the Social Sciences (17 vols., New York,
1968), III, 318-26.
85 Dante Germino, Beyond Ideology The Revival of Political Theory
(New York, 1967).
86 C. J. Friednch, Man and His Government: An Empirical Theory of
Politics (New York, 1963), 19.
87 Ibid., 271-72, Sartori, Democratic Theory, 311-13.
88 Francis D. Wormuth, The Origins of Modern Constitutionalism
(New York, 1949), 215.
89 R. G. Collingwood, The New Leviathan, or Man, Society,
Civilization and Barbarism (Oxford, 1942), 328, Lippmann, The Public
90 Friednch, Man and His Government, 271, Carl J. Friednch,
Transcendent Justice The Religious Dimension of Constitutionalism
(Durham, N. C, 1964).
91 Herbert Spiro, Government by Constitution The Political Systems of
Democracy (New York, 1959), 33-40, Herbert Spiro, "Comparative Politics A
Comprehensive Approach," American Political Science Review, LVI (Sept.
92 Friednch, Man and His Government, 658-69.
93 M. J. C. Vile, Constitutionalism and the Separation of Powers
(Oxford, 1967), 294-314.
94 Ibid., 315-50.
95 Glendon A Schubert, Quantitative Analysis of Judicial Behavior
(Glencoe, Ill, 1959), 2-11, Glendon A Schubert, "The Future of Public Law,"
George Washington Law Review, XXXIV (May 1966), 593-614, Glendon A
Schubert, "The Rhetoric of Constitutional Change," Journal of Public
Law, XVI (1967), 38, Glendon A Schubert, The Constitutional Polity
(Boston, 1970) See David Ingersoll, "Karl Llewellyn, American Legal Realism and
Contemporary Legal Behavioralism," Ethics, LXXVI (July 1966), 253-66, on
the connection between recent political scientists and the realist movement.
96 Jack W. Peltason, "A Political Science of Public Law,"
Southwestern Social Science Quarterly, XXXIV (Sept. 1953), 53.
97 Arthur Selwyn Miller, "On the Need for 'Impact Analysis' of Supreme
Court Decisions," Georgetown Law Journal, LIII (Winter 1965), 365-401,
Martin Shapiro, Law and Politics in the Supreme Court New Approaches to
Political Jurisprudence (New York, 1964), 15-23.
98 Sheldon Wolin, Politics and Vision Continuity and Innovation in
Western Political Thought (Boston, 1960), 392.
99 Kirk Thompson, "Constitutional Theory and Political Action,"
Journal of Politics, XXXI (Aug. 1969), 655-81 Thompson's conception of
political action is based on the philosophy of Hannah Arendt Hannah Arendt,
The Human Condition (Chicago, 1958), 175-247.
100 For example, see the views of Samuel Beer in Sutherland, ed.,
Government Under Law, 548-50 He argues for actions and judgments that do
not follow from rules, but arise from the pursuit of justice, a value higher
101 Wilson Gary McWilliams, "Civil Disobedience and Contemporary
Constitutionalism The American Case," Comparative Politics, I (Jan.
102 Thompson, "Constitutional Theory and Political Action," 669, Robert
J. Pranger, Action, Symbolism and Order The Existential Dimensions of
Politics in Modem Citizenship (Nashville, Tenn., 1968), 29.
103 C. Wright Mills, The Power Elite (New York, 1956), 253,
104 An example is Public Life, a journal edited by H. R. Shapiro,
which attacks government bureaucracies and the national political parties and
urges the formation of urban townships as units of local self-government See
Public Life, II (Oct.-Nov. 1970).
105 Thompson, "Constitutional Theory and Political Action," 674-79,
David M. Ricci, "Democracy Attenuated Schumpeter, the Process Theory, and
American Democratic Thought," Journal of Politics, XXXII (May 1970),
239-67, Michael Parenti, "Power and Pluralism: A View from the Bottom,"
ibid. (Aug. 1970), 501-30.
106 Pranger, Action, Symbolism, and Order, Robert J. Pranger,
The Eclipse of Citizenship Power and Participation in Contemporary
Politics (New York, 1968).
107 Thompson, "Constitutional Theory and Political Action," 677.
108 Darryl Baskin, "American Pluralism Theory, Practice, and Ideology,"
Journal of Politics, XXXII (Feb. 1970).
109 McWilliams, "Civil Disobedience and Contemporary Constitutionalism,"
110 Hannah Arendt, "Reflections on Violence," New York Review,
XII (Feb. 27, 1969), 30, Hannah Arendt, "Reflections Civil Disobedience,"
New Yorker (Sept. 12, 1970), 78-105, McWilliams, "Civil Disobedience and
Contemporary Constitutionalism," 221-23, Paul F. Power, "On Civil Disobedience
in Recent American Democratic Thought," American Political Science
Review, LXIV (March 1970), 35.
111 Thompson, "Constitutional Theory and Political Action," 655, 681,
McWilliams, "Civil Disobedience and Contemporary Constitutionalism," 221,
Power, "On Civil Disobedience in Recent American Democratic Thought," 35-47.
112 See Kariel, The Decline of American Pluralism, Corinne Gilb,
Hidden Hierarchies The Professions and Government (New York, 1966),
Grant McConnell, Private Power and American Democracy (New York, 1966),
Wolfgang G. Friedmann, "Corporate Power, Government by Private Groups, and the
Law," Columbia Law Review, LVII (Feb. 1957), 155-86, Arthur Selwyn
Miller, "Technology, Social Change, and the Constitution," George Washington
Law Review, XXXIII (Oct. 1964), 17-46.
113 Theodore J. Lowi, "The Public Philosophy Interest-Group Liberalism,"
American Political Science Review, LXI (March 1967), 5-24, Theodore J.
Lowi, The End of Liberalism Ideology, Policy, and the Crisis of Public
Authority (New York, 1969), 298-313 As example, Theodore J. Lowi calls for
a revival of the principle invoked by the Supreme Court in the Schechter
decision invalidating NRA, that delegations of legislative power to
administrative agencies be accompanied by clear standards of implementation.
114 Murray Kempton, "The Panthers on Trial," New York Review, XIV
(May 7, 1970), 38-42.
115 Arendt, "Reflections Civil Disobedience," 86-105.
116 New York Times, Sept. 6, 1970.
117 "Constitution for a United Republics of America," The Center
Magazine, III (Sept.-Oct. 1970).
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