A little over a century ago, De Tocqueville ended the first volume of Democracy in America with the flashing paragraph which identified two rising nations destined to become transcendent centers of power. The prescience of that ending was matched by the closing sentence of the second volume: “The nations of our time cannot prevent the conditions of men from becoming equal, but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or wretchedness.” This sentence is more than a frame of the age, even to the hour. It hints at a theory of history; it is a clue to the relation of trends and choices.

Each major trend, holding such momentous alternatives, is itself the cumulative outcome of choices. The main alternatives, likewise, result from the interaction of fresh ideas with tradition, available resources, and potential techniques. Each new choice sets in motion its limited train of consequences, to be worked out in a succession of adaptive changes. In this restricted sense, man is intermittently the captive of his own discoveries. But spontaneity survives amid the accommodating changes launched by earlier acts of creation. Recurrently, as well as originally and fundamentally, ideas are the determinants.

The casual student of Western political history encounters sovereignty in a number of guises. In the stage of absolute monarchy, it was a personal endowment of princes; in the stage of democracy, it seems to be a collective endowment of the “nation” or the “people.” In the latter period, moreover, a definition of law as the command of a sovereign becomes increasingly popular.

These various contexts for sovereignty will already have suggested the protean possibilities of the general conception, but the student will have had little difficulty in sensing its generally anti-constitutional influence. Even popular sovereignty, which sounds the least dangerous, has had to be offset by opposing institutions in accounting for the relatively high constitutional morality of the democratic system.

While, therefore, it is not surprising to find sovereignty again (and in a still different guise) when we examine the leading conceptions of American public law, one well may marvel to find it accorded a key position among them. For, strange to say, the sovereignty of the state is widely accepted as the cornerstone of a legal edifice which the lawyers themselves appear to have laid.

The disintegration of due process of law was somewhat advanced prior to October, 1937, as a result of judicial reversals of opinions on price-fixing and minimum wage legislation. As the process of transformation continued, it took four major forms. They were: (1) the withdrawal of substantive due process as a limitation on social legislation, taxation, rate-making, and regulatory action generally; (2) an expansion of substantive due process in cases involving freedom of expression, assembly, and religion, including rights of labor through the application of new concepts of freedom of speech; (3) the curtailment of procedural due process as a limit on administrative action except in cases involving the deportation of aliens; and (4) the use of procedural due process in such a way as to provide greater protection on the whole to persons accused of crime. This transformation has been accompanied by changed assumptions which accommodate governmental activity.

Thus, on the assumption that so long as one is free to possess the fruits of agricultural production there is no denial of due process of law, the Court has sustained rigid restrictions on the marketing of agricultural products even when retroactively imposed and when the quotas were so applied as to include the wheat produced by a farmer for his domestic consumption. On a further assumption that since Congress has the power to decide the issue of the advantages and disadvantages of holding companies, the Court not only sustained the Public Utility Holding Company Act, but in so doing asserted that the judiciary could not question the propriety of Congress' decision.

The Supreme Court's decisions dealing with civil liberties in the ten years under review fall into four groups: (1) cases involving the rights protected by the First Amendment—freedom of religion, speech, press, and assembly; (2) those concerned with racial discrimination; (3) cases enlarging the power of the federal government to protect civil rights against invasion by private persons; (4) war-time cases arising out of conflicts between civil liberty and military power. Decisions dealing with procedural due process and other rights of those accused of crime are discussed in another part of this symposium.

I. FIRST AMENDMENT—FREEDOM OF RELIGION, SPEECH, PRESS, AND ASSEMBLY

During the decade we are examining, the Supreme Court not only has decided a substantial number of cases involving freedom of speech, press, and religion, but it has developed a new and important judicial philosophy or doctrine with respect to them. In this judicial doctrine, three principles are fused. The first is that the four liberties protected by the First Amendment are so indispensable to the democratic process and to the preservation of the freedom of our people that they occupy a preferred place in our scheme of constitutional values.

In No. 78 of The Federalist, Alexander Hamilton wrote: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…” Whatever acceptance this view of the judge as automaton and of the judicial process as a ministerial function may once have had, little trace remains of it today, after ten years of experience with the “reorganized” Supreme Court. The Roosevelt Court was not, of course, the first on which judicial decisions were influenced by the personal values of its justices. Throughout the history of the Court, the autobiographical element in its output has been as important as when Justice Holmes bluntly told his colleagues in 1905 that “this case is decided upon an economic theory which a large part of the country does not entertain.” But the prevailing theory was that judges did not make law, they merely found it.

The constitutional revolution of 1935–37 changed all that. The public, as Max Lerner says, “began to see that judicial decisions are not babies brought by constitutional storks, but are born out of the travail of economic circumstance.” For two terms, the Constitution meant what Justice Roberts said it meant. After the consummation of the revolution, the forces which had been most ardent in picturing earlier conservative courts as demonstrating the workings of a government of law could only explain the strange phenomenon of a liberal court as the triumph of a government of men. Additional recent factors serving to underline the personal basis of judicial decisions have been the tossing of barbed phrases on the bench, Justice Jackson's ill-tempered public attack on one of his colleagues, and the mounting tide of dissenting opinions.

Few American political scientists have heard of the “Federal Labor Relations Commission,” but to a small group of students at Stanford and Columbia Universities the Commission was very real. It is true that its work did not attract as much attention from the great metropolitan journals as did the operations of its rival, the National Labor Relations Board; but to the students who were members of its staff it provided a first-rate laboratory for the study of public administration. For that reason, a brief review of the Commission's operations may be of some interest to teachers of public administration.

Political scientists have always been interested in teaching methods; and the war and the experience gained in having to train large numbers of men for the armed services seem to have stimulated that interest. Articles which appeared in the June issue of this Review were evidence of that concern. While these articles were directed primarily toward teaching methods in political science courses generally, many of the suggestions were particularly applicable to teaching public administration. Francis Wilcox's regret that “there is one problem in particular which should give us pause, our slowness to utilize laboratory methods in political science,” is largely responsible for this article, since the operations of the Federal Labor Relations Commission were an attempt to provide such a laboratory.

One of the happier educational products of the war was the widespread self-examination it encouraged among American colleges. With the wartime slump in enrollments, those members of the faculty who remained on the campus were commonly given the task of planning the postwar educational programs of their respective institutions. We are now in that postwar period, and much of this admirable effort has been dropped to grapple with the heavy enrollments the schools were presumably planning to meet. But in many schools, whether the curricula underwent any major operations or not, there remains a ferment of doubt and argument over the adequacy of what they are doing.

This ferment is not likely to die out soon. Colleges which brushed aside the polemics of Mr. Hutchins at Chicago a decade ago are still agitated by the Harvard Report on General Education. Harvard, like the College of the University of Chicago, is proceeding to make major departures from the prevailing practices of American colleges. Columbia College has paced the adoption of integrated courses in Western Civilization. Massachusetts Institute of Technology, guiding light of American technical schools, has discovered that engineers should also be liberally educated men and has made curricular changes designed to do something about it. The University of Florida and Michigan State College have moved sharply in the same direction, more or less independently, by creating basic colleges through which all would-be technicians and specialists must percolate before burying themselves in their chosen profession. Other schools are instituting comprehensive courses, tightening up the elective system, and otherwise taking steps to insure that general education is not lost in the scramble to prepare for a job.