“Frenchman, too conservative to go communist, too anarchistic to like fascism, what are you going to do with yourself?” Thus was concluded a penetrating diagnosis of contemporary social trends in France published about a year ago. It is significant that such a survey should have come from the pen of a brilliant young journalist belonging to what may be called the post-war generation. For, whatever else recent dramatic developments in French public affairs may portend, there is no doubt that political control is passing to a new set of leaders, as well as, perhaps, to new ideologies.

France is now twenty-two years removed from the outbreak of the World War. Men born as late as 1900 are approaching middle age. Among the eighth of the population now over sixty years of age, only a handful of persons remain who can remember the Franco-Prussian War. Most of the men who were directing national policy through the World War and the peace settlement have died—Clemenceau, Poincaré, Briand, Painlevé, Barthou, Viviani, and Ribot.

Few treaties have been the object of such different and contradictory constructions as the Pact for the Renunciation of War. For some writers, the Pact constitutes a mere gesture and has only a moral value. For others, it condemns any act of force whatever and imposes upon the contracting parties a positive obligation to settle all disputes by pacific means. There are still others who take a stand between these two extreme views, but they are far from reaching an agreement as to the exact meaning of the Pact. Such a divergence of opinion is largely due to the fact that this treaty has been generally contemplated from a political rather than from a legal point of view. While the opponents of the Pact have endeavored to minimize its importance, the supporters have been at pains to enlarge its scope by means of an extensive interpretation. Instead of attempting to examine carefully the legal issues involved and to arrive at a conclusion as a result of an objective investigation, both camps have striven to find arguments likely to support their preconceived opinions. Owing to the personal authority of certain writers who have taken a part in this discussion, some arguments which they have advanced have made considerable impression and have been adopted uncritically by a large body of opinion, although they lack any legal foundation.

On an early page of his celebrated Constitutional Limitations, Judge Cooley defines “constitution” in the following curt terms: “That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” Returning later to the subject, he quotes with approval a more elaborate conception, couched in these words: “What is a constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the framework of the political government, and necessarily based upon the preëxisting condition of laws, rights, habits, and modes of thought. There is nothing primitive in it, it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent, and incapable of definition.”

The Federal Social Security Act, which may be regarded as the central core of the social security program, is an omnibus act, containing the following features: (1) a national, compulsory oldage insurance plan, covering all employees except certain exempted groups; (2) two measures designed to stimulate the states to enact state unemployment compensation laws, namely, (a) a uniform nation-wide tax upon employers, against which a credit is allowable for contributions made to approved state unemployment compensation plans, and (b) subsidies to the states to cover the administrative costs of unemployment compensation; and (3) grants-in-aid to the states for old-age assistance, pensions for the blind, aid to dependent children, child welfare, maternal and child health, vocational rehabilitation, and public health activities. It is estimated that each of the two forms of social insurance will apply to about 25,000,000 wage-earners, and, when the maximum rates become effective in 1949, will involve annual contributions of nearly $3,000,000,000. This amount is approximately equal to the normal annual expenditure of the federal government prior to 1930. In addition, the grants-in-aid to the states were estimated by the actuaries of the President's Committee on Economic Security to reach a total of a half-billion dollars annually within a few years.

History of the Federal Act

When, in a message to Congress on June 8, 1934, the President indicated that he would submit a program of social insurance for consideration at the following session, the Wagner-Lewis unemployment insurance bill and the Dill-Connery old-age assistance bill were pending. Shortly afterwards, the President, by executive order, created the Committee on Economic Security, consisting of the Secretaries of Labor (chairman), Treasury, and Agriculture, the Attorney-General, and the Federal Emergency Relief Administrator. This committee appointed Professor Edwin E. Witte, of the University of Wisconsin, as executive director, and proceeded to build up a staff of actuaries and experts to study the whole problem of economic insecurity, and to prepare recommendations.

When, over a century and a half ago, a poet saw a group of his countrymen about to set sail on their way to a new home in Georgia, he took a gloomy view of their prospects. He believed that they were leaving a land of scattered hamlets, sheltered cots, and cultivated farms, where ease, health, and plenty had prevailed, for a “dreary scene” around the “wild Altama”—a region of blazing suns, wild tornadoes, poisonous fields, and matted woods where lurked the “dark scorpion … vengeful snake … crouching tigers … and savage men more murderous still than they.” Posterity has liked best the poet's fond memories of his native village. Goldsmith, however, considered the practical politico-economic aspect of his poem to be its best feature. He had indeed paid some attention to actual economic changes that were causing a depopulation of the English countryside. His compatriots, he believed, were crossing “half the convex world,” not because they were dissatisfied with a land where simple pleasures and “light labour … gave what life required but gave no more,” but because such a manner of living was no longer possible in Britain: “trade's unfeeling train” had “usurped the land” and made it a place where the “man of wealth” extorted pleasures “from his fellow-creature's woe” and took up “a space that many poor supplied.”

Mr. W. F. Willoughby, in his Principles of Public Administration, holds that “the function of direction, supervision, and control of the administrative activities of the government resides in the legislative branch of the government.” More specifically, he states that, “in the case of our national government at least, Congress is the source of all administrative authority.” It may be suggested however, that an examination of existing systems of government shows a large amount of variation in this respect, and that three main systems may be recognized.

These three main systems may be noted in private as well as in public administration. In undertakings managed directly by a single person, he at the same time is the organizer of the business and conducts its operation. This may be called an autochthonous administration. In collective groups, or societies, a distinction appears between the determination of general policies by the group or society (or by a general committee) and the actual management by the officers or agencies set up by the central group for certain purposes.

In any consideration of the future of the states, it is desirable at the outset to recall the circumstances of their development and of their entry into the Union. When the present Constitution was framed and adopted, the states were more than a century and a half old. At that time, and for many years thereafter, it was the states to which the people gave their primary allegiance. Under the Articles of Confederation, the strength of the states was so great that the central government was unable to function; when the Constitution was framed, the people were still greatly concerned about “states' rights.” This priority of the states in the federal system continued through the nineteenth century, down to the period of the Civil War; in the closing decades of that century, state government sank into the depths in an orgy of graft and corruption and inefficiency, which resulted in a wave of state constitutional restrictions, particularly upon legislative powers.

At this time, when the prestige and efficiency of the state governments were at their lowest ebb, there began to appear ringing indictments of the whole state system. Most conspicuous of these were the well known writings of Professors John W. Burgess, of Columbia University, and Simon N. Patten, of the University of Pennsylvania.

The high command of the present Administration stipulated that all controversial reform legislation on the President's “must” list should be enacted during the first session of the Seventy-fourth Congress, leaving for its second meeting only the inevitable appropriation bills and whatever measures the exigencies of politics and government might make necessary. In accordance with this strategy, the President compelled Congress to remain in Washington until late August, 1935. When the legislators reassembled last January, there was common agreement that the second session would be brief, the “bonus” paid to the exservice men, routine administrative bills enacted, and that the members would then dash off to the quadrennial political war. After a White House conference, the House majority leader, Mr. Bankhead, announced that “the President wants as short a session as possible consistent with the public interest and any eventualities that may arise, caused by possible decisions of the Supreme Court affecting New Deal legislation.” Within a week the high court had invalidated the New Deal farm program and set in motion forces which could be depended upon to prolong and make turbulent the Congressional session. Throughout its duration, debate raged over implications of the separation of powers doctrine. Prominent Democrats asserted that the courts had exceeded their authority in nullifying certain acts passed by the representatives of the people. The Republican orators, on the other hand, generally welcomed the judicial check on the legislative branch but bewailed the “supine surrender of Congressional prerogatives to Executive dictation.” The inexorable rules of politics in an election year preordained that political considerations be given prominence in every legislative deliberation. Thus, directed by the President, pushed by organized minorities, challenged by the Supreme Court, tormented by fear of electoral repulse, our legislators stumbled unhappily through a hectic session.

Effective legislative supervision over administrative agencies depends on the means and methods employed. The main types of means and methods which may be employed include the following: (1) provision for securing adequate information concerning the work of the administration, by requiring records and accounts of administrative actions and financial transactions, regular reports of such actions and accounts, and requests for information on particular administrative affairs; (2) provisions for the examination of such reports, accounts, and other information, usually by means of legislative committees; (3) special investigations of a more intensive character of particular administrative services; and (4) impeachment and removal from office.

Records and Reports. Modern administrative agencies keep elaborate records of their acts and financial transactions, and publish a large volume of reports and documents, many of which are submitted to the legislative bodies. To a considerable extent, such records and reports are required by legislative provisions. But these legislative requirements vary widely with respect to different agencies; and the practice of the different agencies varies still more widely. The total mass of published reports and documents issued by national, state, and the more important local governments is so extensive, and presented in such a variety of form, that it is difficult to obtain a clear understanding of the general results. On the other hand, some administrative agencies and many of the minor local governments present such brief reports, or in some cases none at all, that no definite information is available to the legislative body nor to the general public.

It gave me real pleasure to accept your committee's invitation to address you. As a lay member of your Association, for years I have longed for opportunity to witness the rites of your priesthood. I have taken part in some of your round-table conferences of professors and politicians. The effort made in this series to crossfertilize the knowledge of the world of research and the experience of the world of action is admirable in conception and stimulating in results. The members of this Association, by their life devotion, give indorsement to the statement of Alexander Pope that the proper study of mankind is man. And surely it is a necessary study, one all the more essential in such a fast-moving world as that we know today.

Man is a timid, staring creature. He moves through life in a mist of ignorance and fear. In thinking about his problems and his perils, I am reminded of something that Henry St. John, Lord Bolingbroke, wrote in his Letters on the Study of History: “We are not only passengers or sojourners in this world, but we are absolute strangers at the first steps we make in it. Our guides are often ignorant, often unfaithful … In our journey through it, we are beset on every side. We are besieged sometimes even in our strongest holds.

The central problem of the administrative structure of government is that of defining administrative jurisdictions. It is only by carefully describing the spheres of activity of organization units and of their employees that responsibility for administrative errors can readily be located. If duties are clearly defined, and if the relations of particular units to other agencies are generally understood, offending units, together with their responsible personnel, may be called to task for failure to perform their assigned duties or for trespass on the spheres of others. The patency of these facts has led American students of federal administration to devote considerable attention to functional jurisdictions. During the past generation there have been a multitude of proposals for the reallocation of functions among the bureaus, departments, and independent establishments of the federal government. Intent upon these functional concerns, American students have denied or ignored the importance of the territorial definition of jurisdictions.

On May 4, 1936, the Emperor Haile Selassie departed from Djibuti aboard the British cruiser Enterprise, en route to Geneva by way of Palestine and England. On May 5, the victorious legions of the Second Roman Empire, commanded by Marshal Pietro Badoglio, entered Addis Ababa after what appears to have been a week of looting and pillaging in the Ethiopian capital. A few hours later in Rome, Benito Mussolini thunderously declared to a hastily-summoned Adunata: “Ethiopia is Italian! Italian in fact, because occupied by our victorious armies; Italian in law, because with the gladiators of Rome, civilization triumphs over barbarity, justice over arbitrary cruelty.”

At the behest of its Duce, a grateful Italy surrendered itself, between May 5 and May 9, to the most riotous celebration in the annals of Fascism. To climax the memorable jubilee, Mussolini appeared on the balcony of the Palazzo Venezia, after consulting successively and rapidly with the Fascist Grand Council and the Council of Ministers in the late evening of May 9, to read to the second Adunata of the week the substantive provisions of a new royal decree-law. Therein (1) Ethiopia was declared to be under the full and complete sovereignty of Italy; (2) the assumption by the king of Italy of the additional title, emperor of Ethiopia, was proclaimed; and (3) announcement was made that Ethiopia would be governed in the future by a governor-general, with the title of viceroy of Ethiopia.

Final adjournment of the Seventy-fourth Congress, which like its immediate predecessors turned out a substantial grist of bills affecting cities, brought into focus once again the question of what is happening to our “sovereign states” and their political subdivisions. Federal contacts with cities are not, of course, an entirely new phenomenon in the United States. For a number of years prior to the depression, certain federal agencies had maintained informal contacts with municipal governments by offering them services, information, and advice, and such services are still being utilized. Until July, 1932, however, with the passage of the Emergency Relief and Construction Act, congressional statutes had never touched municipal governmental functions except indirectly through grants-in-aid to the states, the federal government had never entered into important contractual relations with cities, and Congress had never sat in legislative session to deal with the problems of cities as political units.

In the 1934 term, the Supreme Court came to grips with some of the major constitutional problems of the New Deal and rendered decisions more intimately affecting our national life than any since the Dred Scott case of 1857. The great slavery decision rocked the nation to its foundations by its futile attempt to solve a problem insoluble by any means save war. The important constitutional decisions of the Reconstruction period in their immediate consequences affected mainly the South, and it will be remembered that by a series of side-steppings, some involuntary and some not, the Supreme Court escaped the necessity of passing squarely upon the validity of the basic program of Reconstruction as embodied in the act of 1867. Forty years ago, in its 1894 term, the Court incurred much unpopularity by three decisions of major significance. It invalidated the Income Tax Act passed in fulfillment of Democratic campaign pledges; it emasculated, temporarily at least, the Sherman Anti-Trust Act by holding it inapplicable to a most obvious and vicious monopoly—the sugar trust; and it incurred the hostility of organized labor by sustaining the issuance by a federal court of a labor injunction. None of these decisions was, however, nor were all of them together, as far-reaching in significance as those handed down in the last term of Court.

No mention of the cabinet is made in the Japanese constitution of 1889. Nevertheless, both before and after the proclamation of the fundamental law, a large part of the national administration of Japan has been initiated, directed, and supervised in a collective method by a body of officials which resembles in external characteristics the typical European parliamentary cabinet.

This cabinet has never enjoyed the unrivaled direction of administration as found in many parliamentary systems. First of all, the Emperor combines in himself all the rights of sovereignty and exercises these rights through various organs including not only the cabinet, but also the army and navy and the Imperial Household. The cabinet does not have a monopoly upon advice given to the Emperor. The right to advise is shared with the Genro (Elder Statesman), the officers of the Imperial Household, the Privy Council, and the advisers of the “supreme command,” including the chiefs of staff of the army and navy, the Board of Marshals and Fleet Admirals, and the Supreme War Council. The Privy Council is the special guardian of the constitution, consulted by the Emperor upon the propriety and wisdom of projects of law, ordinances, and treaties drafted or negotiated by the cabinet, and its advice may, and often does, run counter to that of the cabinet.

As we enter another presidential contest, it is well to reflect on where we stand with reference to party funds and their public control. So much attention in the past two years has been concentrated on pressing emergency problems that this vital matter of regulating the real springs of public policy has been quite overlooked. But now that we are face to face with the realities of a huge quadrennial plebiscite, careful students of democratic institutions might profitably refresh the memories of voters and legislators and point out the significant facts about campaign funds and their regulation today, particularly those facts which have a bearing on the present situation.

The influence of the business cycle on politics has been studied by Rice and Tibbitts. But the influence of politics on the business cycle has not been systematically investigated, although Ayres has shown that prosperous times are about equally divided between Republican and Democratic administrations, and Mitchell has shown that the curve of business during presidential administrations is not at all like the business cycle. There is a popular impression that business is not as good during the year of a presidential election as in other years. It is the purpose of this paper to present the results of an investigation of this question.

There is a kernel of truth in Chief Justice Hughes' remark that “we are under a Constitution, but the Constitution is what the judges say it is.” To realize its full significance, “constitution” must be written in the plural. We have forty-nine courts of last resort, each interpreting the fundamental law of its own jurisdiction. The essential similarity of our state constitutions, and of our state bills of rights to that of the national constitution, together with the tendency of common law courts to follow each other's decisions, lend an element of stability to American state constitutional law that otherwise would be lacking. At the same time, even within so short a period as a year, the interplay of personalities may be seen moulding new doctrines in particular jurisdictions, which doctrines take on added significance because of the realization that they may, in time, serve as a basis for redirecting the course of constitutional development in other jurisdictions as well.

Since the 1932 election, developments have occurred which indicate a growing disposition to simplify the presidential election ballot and suggest that a revision of the mode of electing the chief executive may be eventually realized through constitutional amendment. The so-called “presidential short ballot” reform, which was first adopted in Nebraska in 1917, has moved forward rapidly in recent years. Sixteen states now have enacted statutes eliminating the names of presidential electors from the general election ballot, thus permitting their voters to choose electors by indicating a preference only for a party's presidential candidates.

In his campaign for a unicameral legislature in Nebraska, Senator George W. Norris cited the necessity of conference committees as one of the chief evils in the bicameral system. To Senator Norris, the conference committee is often a “third house” of the legislature, where a small group of men, working in secret and enjoying great parliamentary advantages, so modify bills in dispute between the two chambers that the will of the majority is defeated.