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 itself.1
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 bête 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 genuine self-government.4
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 public.7
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 belonged.11
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 leadership."21
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 of law.
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 imagine.25
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 status quo.
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 political life."50
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 State."53
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 subjective.
"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 neo-constitutionalist McIlwain.
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 political force.63
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 authoritariamsm.76
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 citizens."80
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 scholarship.
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 framework.92
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 constitutional theory.94
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 neo-realists.
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 constitutional order.111
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), XIII-XVI.
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), 6.
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, 1918), 645-58.
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, 1930).
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), 245.
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 Constitution 228-29.
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), 53-54.
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), 122-33.
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), 25-37.
46 John Dickinson, "The Constitution and Progress," Annals of the American Academy of Political and Social Science, CLXXXI (Sept. 1935), 11-18.
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 (Stanford, 1961)
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 Constitution Reconsidered.
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, 146.
63 Friednch, Constitutional Government and Democracy, 156-57, 617.
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, 1958), 129-62.
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), 236-46.
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 Philosophy, 167.
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. 1962), 588-89.
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 than constitutionalism.
101 Wilson Gary McWilliams, "Civil Disobedience and Contemporary Constitutionalism The American Case," Comparative Politics, I (Jan. 1969), 211.
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, 298-324.
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," 220.
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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