Edward S. Corwin

The Constitution as Instrument and as Symbol.

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 preexisting 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 Democratic Dogma And The Future of Political Science

Everyone has heard the gibe that the specialist is a man who knows more and more about less and less, while a sociologist is one who knows less and less about more and more. Another quip has it that while psychology is all data and no conclusions, sociology is all conclusions and no data. Political science itself has not escaped a certain amount of cheap disparagement from those who know little or nothing about it. Thus a political scientist has been described as one who among politicians is reckoned a scientist, and among scientists is reckoned a politician; or, indeed, as one who is called a political scientist because he is neither—an obvious paraphrase of Voltaires famous sarcasm regarding the Holy Roman Empire. At any rate, the time has come when a certain group of political scientists have wearied of such gibes, to say nothing of that condescension which they think they detect in the attitude of laboratory scientists toward them; and they have registered a vow to convert political science from a “normative” or “telic” science, as it has been variously called, into a natural science, into a science which will hereafter be printed in lower case instead of in upper, and will, moreover (the height of ambition of all true sciences) be able to predict the future just as astronomy, physics, and chemistry are able to do—not to mention astrology, alchemy, and palmistry. Nor is this newly conceived ambition the product merely of discontent; it is rather more, perhaps, response to the beckoning of opportunity—the opportunity spelled by the rise of the behavioristic psychology.

Curbing the Court 1

ON A particular day in April 1780, a Whig member arose in the House of Commons and moved the following resolution: Resolved that the influence of the Crown has increased, is increasing, and ought to be diminished. Today there are pending in the houses of Congress proposals the purport of which may be summarized in a paraphrase of this famous motion: Resolved that the power of the Supreme Court has increased, is increasing, and ought to be diminished. Whether the power of the Court is increasing at this moment is perhaps doubtful-things are not always as they seem. At any rate, the power of the Court in relation to legislation, both state and national, has increased vastly during the last half-century, and certain aspects of this increase are to be deplored as out of harmony with democratic institutions. As to these, the power of the Court ought to be, if not diminished, at least brought under control-the question is, how?

Constitution v. Constitutional Theory: The Question of the States v. the Nation.

The relation of the states and the nation is a topic on which there is a good deal of discussion these days. One week last spring brought to my desk four pamphlets on. the subjectall of them from an anti-nationalistic point of view, and most of them emanating from the sovereign state of Maryland. At the same time The Times newspaper carried several articles on the subject. One was a rebuke by the President of the present tendency to look toward the national government for everything. A day or two later another utterance from the same distinguished source called for the establishment of a federal bureau of recreation. But, along with this ancient issue, whose infinite variety time has never yet been able to wither or custom to stale, goes another of even broader import. Like other branches of learning, constitutional interpretation pretends to a certain terminology or jargon of its own, but just how accurate this is, is indeed a question. And if it be inaccurate, this fact furnishes all the more reason why some attempt at defining terms should accompany a consideration of the question of the constitutional relationship of the states and the nation. First, we have the term constitution, but even that is of ambiguous significance. In the formal sense the Constitution of the United States is the written instrument which was drafted at Philadelphia in 1787, plus the amendments which have been added since, in accordance with the forms laid down in the same instrument. In a material sense, however, the Constitution of

Constitutional Law in 1922–1923: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1922

The opening paragraph of Section 8 of Article 1 of the Constitution reads as follows: “Congress shall have power to lay and collect taxes‥‥ to pay the debts and provide for the common defense and general welfare of the United States.” For what purposes may Congress, in light of this phraseology, spend money raised by national taxation? Hamilton answered, for any purposes which Congress itself found to be promotive of the general welfare. Madison, on the contrary, held the power thus granted to be only instrumental—Congress might spend money only as a means of carrying into effect its other granted powers. So far as the practice of Congress is concerned, Hamiltons view has long since prevailed, but the Supreme Court has never had occasion so far to develop its theory on the subject. Its failure, therefore, to seize the opportunity proferred it in the Maternity Act cases is somewhat disappointing. By the Maternity Act of November 23, 1921 Congress extends financial aid, in the work of reducing maternal and infant mortality, and protecting the health of mothers and infants, to such states as shall accept and comply with the provisions of the act. The act was attacked on two grounds; first, that the appropriations voted were “for purposes not national, but local to the states,” and secondly, that the acceptance by a state of the terms of the act would constitute a surrender by it of its reserved powers.

The Presidency in Perspective

It is an axiom of American history that the Constitution came from the framers a bundle of compromises. Not so generally recognized is the confirmation which is lent this observation by those clauses of the Constitution most nearly affecting the office and powers of the President. The vagueness of the constitutional grants of power to the President has always furnished matter for comment, sometimes favorable, sometimes otherwise, depending on the commentators bias. The executive power shall be vested in a President of the United States of America; the President shall be Commander-in-Chief of the Army and Navy; with the advice and consent of the Senate he shall make treaties and appoint to office; he shall have power to grant pardons for offenses against the United States, he shall recommend . . . such measures to Congress, as he shall judge necessary and expedient; and so on and so forth. Yet, in order to exercise any of these powers-in order, indeed, to subsist-he must have money, and can get it only when and if Congress appropriates it. Likewise, he is dependent on Congress for the very agencies through which he must ordinarily exercise his powers, and Congress is the judge as to the necessity and propriety of such agencies. Again, he is bound to take care that the laws which Congress enacts are faithfully executed-for this purpose all his powers are in servitude: and Congress has the power to investigate his every official act, and can, by a special procedure, if it finds him guilty of high crimes and misdemeanors, impeach him and throw him out of office. Moreover, by the standard set by the prerogative of the British monarch in 1787, his executive power and his power to protect that power were seriously curtailed. The power to declare war was vested in Congress; the Senate was made a participant in his diplomatic powers; he was given a veto upon all legislative acts, but this the houses may override by a two-thirds vote.

The President as Administrative Chief

The Presidents primary duty, logically if not chronologically, is to create an administration and maintain one for the faithful execution of the laws. In this capacity he enjoys in relation to his official subordinates certain powers of appointment, supervision, and removal; and it is my purpose in the present essay to treat of these in some detail. The appointment power is, of course, shared by the Senate; but for the rest the principal limitations upon Presidential authority in this field-as, in fact, in most others-arise from the impinging powers of Congress. It was formerly, and within limits is still, an element of the royal prerogative in England to create offices as well as to appoint to them.1 At the outset indeed the two things were indistinguishable. Etymologically, an office is an officium, a duty; and an officer was simply one whom the King had charged with a duty. In the course of time certain frequently recurrent and naturally coherent duties came to be assigned more or less permanently, and so emerged the concept of office as an institution distinct from the person holding it and capable of persisting beyond his incumbency. The Constitution, however, by the necessary and proper clause, assigns the power to create offices to Congress, while it deals with the appointing power in the following words of Article II, Section 2, paragraph 2:

Some Aspects of the Presidency

T IS a common allegation that the terms in which the Presidents powers are granted are the loosest and most unguarded of any part of the Constitution, and this is true when Article II is read by itself. But what warrant is there for reading it thus, rather than in its context, the Constitution as a whole? When it is read in this way the net impression left is quite different. The Executive power shall be vested in a President of the United States of America; the President shall be Commander in Chief of the Army and Navy; with the advice and consent of the Senate he shall make treaties and appoint to office; he shall have power to grant reprieves and pardons for offenses against the United States; he shall recommend to Congress such measures as he shall judge necessary and expedient; and so on and so forth. Yet, in order to exercise any of these powers-in order, indeed, to subsist-he must have money, and can get it only when and if Congress appropriates it. Likewise, he is dependent on Congress for the very agencies through which he must ordinarily exercise his powers, and Congress is the judge as to the necessity and propriety of such agencies. Again, he is bound to take care that the laws which Congress enacts are faithfully executed-for this purpose all his powers are in servitude; and Congress has the power to investigate his every official act, and can, by a special procedure, if it finds him guilty of high crimes and misdemeanors, impeach him and throw him out of office. Moreover, by the standard set by the prerogative of the British monarch in 1787, his Executive power and his power to protect that power were both seriously curtailed. The power to declare war was vested in Congress; the Senate was made a participant in his diplomatic powers; he was given a veto upon all legislative acts, but one which the houses may override by a two-thirds vote, whereas the supposed veto of the British monarch was absolute.

Amos, Maurice Sheldon. Lectures on the American Constitution. Pp. ix, 178. New York: Longmans, Green and Co., 1938.

ciency. A section on current personnel procedures in the public service follows, and a final major division is devoted to a description of employee representation plans and a discussion of collective bargaining under present legislation. In an additional brief chapter the authors appraise the status of personnel administration at the present time. Basic to the whole presentation is the assumption that modern business is a joint enterprise of capital and labor. The particular function of personnel management from this point of view involves &dquo;giving sufficient attention to human forces to as-

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are a good deal of a disappointment, totally lacking, as they do, the sort of comparative criticism that Professor Amos could so well have supplied. Or it may be that American constitutional law is so much the sui generis product of the American politico-legal genius that it defies all efforts at comparison with anything else. Throughout the book the guidance of Professor Willis’ work on Constitutional