The purpose of this paper is a re-examination of the thesis set forth by Otto von Gierke: that in medieval political theory there were certain organic tendencies which, because the jurists failed to develop the concept of the real personality of the group, ultimately gave way to an atomistic construction of the state. The paper is not concerned with the actual structure of medieval society, nor with the legal concepts of jurists, but with the theoretical doctrines of the publicists which Gierke interprets in that section of Das deutsche Genossenschaftsrecht which, in Maitland's translation, has become a classic for students of political theory. It is my contention that, while his treatment of subordinate issues of medieval political theory is often masterly, Gierke's main theses in regard to the medieval concepts of the nature of the group, the relation of officers to the group, and the relation of groups to one another are fundamentally inaccurate.

In the first part of this article, we analyzed the effect of size and world location on the international relations of states and the problems of foreign policy. But more immediate in its conditioning effect is regional location—location viewed with reference to the immediate vicinity.

Like world location, regional location is a question of facts plus the significance of those facts at any given historical period. Just as it was found necessary to consider world location in relation to two systems of reference, the geographic and the historical, so the full meaning of regional location becomes apparent only after considering both the geography and the historical and political significance of a state's immediate surroundings.

Regional location determines whether neighbors will be many or few, strong or weak, and the topography of the region conditions the direction and nature of contact with those neighbors. The man who once formulated the foreign policy of Manchuria had to do so with one eye on Japan and the other on Russia; every international gesture of Belgium is conditioned by the fact that she lies between France and Germany and across the Channel from Great Britain; and the states of Central America can never for a moment forget that the territory north of them is occupied by one large power and not by several whom they might play off one against the other as their European counterparts, the Balkan states, have been able to do from time to time with their northern neighbors.

Perhaps no country has ever constructed so elaborate and complicated a mechanism for correlating the political and economic requirements of its rulers as has Germany under Hitler. Under no other political system has the organization of all classes been pushed so close to its ultimate limit. Every conceivable aspect of life in the Third Reich has been closely scrutinized for its value to National Socialism and subjected to some form of official control. Because of the continual state of crisis in which the régime finds itself, both at home and abroad, this control has been expanded to an extent undreamed of in pre-Hitler Germany. To make it effective, there has been constructed a labyrinth of bureaus, agencies, and supervisory offices that is confusing and often incomprehensible to the foreign observer.

The task of rationalizing this complex system and justifying the tremendous exercise of authority it requires has been indeed a trying one for the German speculative genius. Seeming contradictions arising from the practical political necessities faced by National Socialism have not made it any easier. For example, the propaganda value of portraying the Third Reich as a bulwark against soviet tyranny has made necessary a complicated explanation of the difference between Russian “regimentation” and German “organization.”

From Philadelphia in 1787 to Philadelphia in 1937 our minds turn back and forth tonight, to pay tribute to the constitutional contributions of the Fathers and to inquire into the constitutional conduct of some of their sons. If we praise the Fathers as hard-headed realists, we may invoke their example to justify a propensity for realism among ourselves. They were creators. We seek to be scholars. Their aim was to build; ours is to understand and to evaluate. Toward them and their building we may bow in deep piety, but without obligation to let awe or reverence obscure our glance at the work of their successors.

Happily, too, our piety need not dim our eyes in looking at the work of the Fathers. Without falsity of fact or of sentiment, we may appraise their achievement. We need not think of them as demigods or as men who met to lay their fortunes on the altar of their country. We can accept to the full the view that their design was to create a government that would serve the interests they had most at heart. If they assumed that what would be best for themselves would be best also for the general good, in this they were not unique. Even today, men sometimes fuse the special and the general, as perhaps some papers on our program may prove.

Man need not be noble to be wise, unwise as it may be in the long run not to be noble. The advancement of special interests may at a given time conduce greatly to a wide general interest. The wisdom of the achievement of 1787 may be assessed by an evaluation of results without inquiring whether it was the fruit of sacrifice. The results, of course, may be overestimated.

In spite of all that has been written about Rousseau's political theory, he is still generally regarded as a proponent of the theory of natural rights. His political writings are thought to contain an exposition of that theory, and they are believed to have been highly influential in spreading it. Thus Professor Crane Brinton, writing in the Encyclopædia of the Social Sciences, says that although Rousseau added little to the actual dogmas of the theory of natural rights, “he did much to give it proselyting strength” and he “gave the doctrine of natural rights, hitherto endowed with the solid and effective but imaginatively limited prestige of nature as reality, as uniformity, and as the “golden mean,” the additional prestige of nature as mystic strength, as magna mater.” But it has already been shown that Rousseau's political doctrine was neither wellknown nor influential in France until the doctrine of natural rights lost its vogue and the authoritarian doctrines of Robespierre and the extremists of 1793 superseded it.

The Supreme Court of the United States was dominated for almost two decades by the philosophy of Mr. Justice Sutherland. Even prior to becoming an Associate Justice, October 2, 1922, he had been a figure of national prominence for over twenty years, serving one term as congressman, 1898–1900, and two terms as senator, 1905–1917. His retirement, January 16 of this year, closes the more active phases of a long career in public service. Throughout he has shown himself a man of firm convictions and pronounced views, whether expressed on the floors of Congress, in public addresses, or in Supreme Court opinions. Yet little, almost nothing, has been published on his life, thought, and work, as was contemporaneously done with respect to Justices Holmes and Brandeis.

This neglect of judicial biography has been noticed by Dean Charles E. Clarke of the Yale Law School. Writing in the Nation of June 12, 1937, he observed: “Many of the books which needed to be written on judicial supremacy have now been completed.

The power to conclude and ratify treaties in the United Kingdom is one of the few remaining prerogatives of the crown. We may search in vain for constitutional laws, provisions, and decrees specifying the required formalities incident to the negotiation, conclusion, and ratification of treaties by Great Britain, because these matters are not governed by any act of Parliament or by any written regulations. British constitutional law on these points has not been embodied in statute and rests upon the common law alone. Thus there is no express definition of the treaty-making power and no reference to the authority by whom the treaty-making power may be exercised. Nevertheless, it may be said that under British constitutional law, which in this instance is common law, the authority to make treaties is vested absolutely in the crown as the unquestioned prerogative of sovereignty.

In July, 1936, none of the Great Powers wanted a European war. But, as in 1914, the preceding three or four years had brought in their wake a series of incidents and developments which increased tension considerably and made statesmen realize that a general war was far from impossible. The armaments race, the Italo-Abyssinian affair, the remilitarization of the Rhine zone, the Franco-Soviet alliance and the resulting denunciation of Locarno by Germany, the growth of nationalism and dictatorship, the increasing hostility of bolshevism and fascism, the apparent breakdown of world peace machinery—to mention only a few aspects of the situation—produced considerable pessimism about the chances for keeping the peace. On July 1, 1936, M. Blum, speaking in the League Assembly, emphasized “with what serious apprehension France views the present situation.” “The world at this moment,” he said, “is not a world of peace … We feel the atmosphere growing heavy; we see the shadow looming. Everywhere the world is arming … For the first time in eighteen years, a European war is once again looked upon as a possibility.”

It has been said that the concept of “formal perfection is in itself a thing so impressive, so fascinating, so pleasing, that it tends to camouflage a defect of content and then to deceive by a kind of agreeable dazzling of the mind.” Apparently John Fiske was basking in the light of this concept when he characterized federal government as “the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of law … moving one within the other, noiselessly and without friction.” Surely, only a childlike faith in the efficacy of mere mechanics controlled by written constitutions could have closed his ears to the clatter arising even then within our American federal system. The concept of federalism may be a lofty one; its practice seems often to be on a more mundane plane.

Woodrow Wilson long ago recognized the value of the comparative approach in studying public administrative processes. Moreover, in recent years the recognized scope within which fruitful comparisons may be made has been considerably broadened, and public administration has benefited from studies of the experience of large-scale industrial, commercial, and other enterprises. Thus far, however, relatively little attention has been paid by students of public administration to the administrative experience of armies. Military organizations have long dealt with the problem of combining men and materials to produce coördinated and effective action. Out of centuries of experience have emerged certain doctrines, forms, and methods concerning control and coördination which are recognized and accepted by all modern armies. Details and applications change rapidly, but these basic concepts, which have virtually achieved the dignity of principles in their own sphere, change slowly, if at all.

“La politique de toutes les puissances est dans leur géographie,” conceded the man whose famous retort, “Circonstances? Moi, je fais les circonstances,” indicates his contempt for any agency but the human will as the arbiter of human destiny. But since the Red Sea parted for Moses and the sun obligingly paused for Joshua, the human will has been unable to recapture the control over topography and climate exhibited by those forceful gentlemen, and it is probably safe to say that it was by Russian geography rather than by men that the diminutive Corsican was finally defeated. If he is still living, there is at Waterloo even today a loyal guide who asserts with unshakable conviction that neither genius nor skill but a swampy ditch gave that victory to Wellington.

Unfortunately for the political scientist with a fondness for simplification, but fortunately for the statesman striving to overcome the geographic handicaps of his country, neither does the entire foreign policy of a country lie in geography, nor does any part of that policy lie entirely in geography. The factors that condition the policy of states are many; they are permanent and temporary, obvious and hidden; they include, apart from the geographic factor, population density, the economic structure of the country, the ethnic composition of the people, the form of government, and the complexes and pet prejudices of foreign ministers; and it is their simultaneous action and interaction that create the complex phenomenon known as “foreign policy.”

According to the textbooks of publicists, and according to the formal rules of international law, Ethiopia possessed certain well defined rights, and as a state was legally equal to all other states. Her position in the world, legally considered,was secure, buttressed as it was by a formidable array of rights such as “existence” and “self-defense.” Yet when it came to discussing the fate of Ethiopia, students of international affairs did not run to their law books, but focussed their attention upon happenings in Rome, Paris, London, and possibly Geneva. China, too, is a state, endowed with a legal right to exist on equal terms in what is euphemistically called the “family of nations.” But Far Eastern events are determined and shaped but little by legal rules; rather it is the policies of Japan and the other Great Powers which actually condition the flow of events and govern the future of China. Situations such as these are by no means exceptional, and lead many to the conclusion that they make for “a world without an effective system of public international law, in which force is the determining factor between nations [and in which] only Great Powers, by reason of their disproportionate strength, can invest their national policies with real international importance.”

Constitutional Amendment. The Pennsylvania constitution provides: “Any amendment … may be proposed in [either house]; and if the same shall be agreed to by a majority of the members elected to each … the Secretary of the Commonwealth shall cause the same to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published; and if, in the General Assembly next afterwards chosen, such proposed amendment shall be agreed to … the Secretary of the Commonwealth shall cause the same again to be published in the manner aforesaid; and … submitted to the qualified electors. …” Herman Tausig, suing as a taxpayer, sought to prevent a popular vote on a number of proposed amendments undertaking, among other things, to repeal provisions thought to forbid the levying of graduated income and inheritance taxes and the appropriation of money for old age pensions. In holding that the action was not premature, the court stated: “The law of this state prohibits inquiry into the validity of the steps preliminary to the adoption of an amendment after it has received the approval of the people.” Reversing, or at least qualifying, certain earlier rulings discussed in the opinion, it demanded strict compliance with the procedure set out above, but ruled: “The framers did not intend the Secretary of the Commonwealth should be responsible for the actual publication; he has no means of accomplishing this. Nor will the submission of a proposed amendment be frustrated by the neglect or refusal of one or more newspapers to publish within the specified time. … All the section commands is that the secretary transmit the advertisements of the proposed amendment to the proper newspapers within sufficient time to enable them to be published … three months or more in advance of the election.”

As part of the most basic process in democratic government, the laws of the various states having to do with absentee participation in elections merit consideration. In the election of November 3, 1936, it is estimated that nearly two per cent of the total of forty-five millions were absentee votes. Furthermore, all available evidence indicates a steady expansion of this figure. The number of federal employees in Washington is on the increase; from this source alone the number of absentee voters in the election of 1936 was over eighty thousand. The revival of business and industry, especially in the fields of transportation and communication, and the growing mobility of Americans generally, can be expected to add their quotas to the total number of absentee voters.

The election returns of November, 1936, seemed to portray a democracy strongly united behind a leader and a program of action. It appeared that Franklin D. Roosevelt and his New Deal platform had been endorsed by nearly every interest and section in the United States, and an overwhelmingly Democratic Congress selected to enact into law those principles for which he “had just begun to fight.” Within six months, however, that unity started to disintegrate. Congress began to dissect carefully the program which the President proclaimed to be both beneficial for the entire country and politically prudent for the political party which he headed.

The representation of colonies in the French parliament is one of the many oddities characterizing France's colonial system. Nothing similar is found in the political institutions of any other European colonial power. This representation is a direct result of the doctrines of the French Revolution, which preached the equality of man irrespective of race, color, or political education. Thus during the years of the National Assembly delegates from Santo Domingo, Martinique, and Guadeloupe were admitted, and on August 22, 1792, all of the colonies were given representation in the national parliament. This equality lasted until the advent of Napoleon and the constitution of the Year VIII, which suppressed the colonial deputies entirely for nearly fifty years. The political idealists of 1848 not only freed all slaves in the colonies, but also gave them the political rights of French citizens. In good Bonapartist tradition, Napoleon III, in 1852, put an end to this political experimentation, and only Algeria participated in the plebiscites of 1852 and 1870. When the Government of National Defense succeeded the Second Empire and by the decree of September 8, 1870, called an election on the basis of the electoral law of March 15, 1849, Algeria and the colonies regained their political representation at Paris; and they have kept it until the present time.

For some time, students of state government and state administration have been puzzled, and perhaps somewhat dismayed, at their inability to measure objectively the accomplishments of the governments of the several states. The same general problem was presented from another angle when, at a round table held in connection with the annual meeting of the American Political Science Association in Chicago in December, 1936, the attempt was made to measure objectively the results of the administrative reorganization code movement. If standards of achievement could be agreed upon, it might be possible for different investigators, working independently, to examine the same states with similar or comparable results. It should, likewise, be possible to compare the government of a given state before and after the adoption of a code providing for administrative reorganization, and to compare with some degree of accuracy the governments of states of similar size, population, industrial characteristics, etc.

The 1936 term of the Supreme Court will probably be rated a notable one. This is due both to the Court's own work, and to certain extraneous occurrences which could hardly fail to have some impact upon it. In any attempt to evaluate the work of this term, one should bear in mind the following facts: First, a month after the Court convened President Roosevelt was reëlected by one of the most impressive popular and electoral majorities in our political history. Second, in February the President submitted to Congress his proposal for the reorganization of the Supreme Court, including the enlargement of its membership by the addition, up to fifteen, of a new justice for every one remaining on the Court beyond the age of seventy. This proposal aroused violent opposition, the debates on it continued for many months, and ultimately the plan was defeated largely through the efforts of the President's own party. The discussions on this proposal were going on during much of the time in which the Court was sitting. Third, in every case in which New Deal laws were attacked, they were held valid. These results were accomplished in many instances by five-to-four margins, and in the Minimum Wage Case by a five-to-four reversal of a previous five-to-three decision.