The judgment delivered on September 30, 1946, by the International Military Tribunal brought to a close the first prosecution instituted under the London Agreement of August 8, 1945, entered into by the governments of the United States, France, Great Britain, and the U.S.S.R. But the publication of the judgment stirred a new wave of sharp criticism of the moral and legal foundations of the Nuremberg Trial. The charge that the Tribunal itself, as well as the substantive law which it applied, was ex post facto was renewed with vigor. So was the charge that no real justice was done at Nuremberg, because vanquished war criminals only were brought before the Tribunal and no attempt was made to try alleged war criminals of the victorious nations.

To the student of comparative political theory, few things are more fascinating than the contrast not only between different ages but also between different countries in one and the same age. The greatest advances in the collective thinking of Western humanity have been made coöperatively by men of every nation; and in every age all unite to give to that age its own distinctive character; yet each people contributes something of its own national genius to the spirit of the age. He, then, who would understand a country and the pattern of its people's thinking does well to inquire in what way it has deviated from the thinking of other nations in particular epochs.

Whoever looks at early nineteenth-century America must be struck by its aloofness from many of the main currents of Western thinking. In the great Revolution of the eighteenth century, it had not been thus. The Lockean and Blackstonean tradition of the right of Englishmen to protect their property through representative organs; Rousseau's concept of equal natural rights of every individual and the right of the sovereign people in convention to reconstitute society according to its general will; Montesquieu's advocacy of checks and balances as safeguards of liberty; Quesnay's physiocratic cult of land as the natural source of wealth and power; Adam Smith's analysis of the relationship between national policy and private commerce; deism in religion; and associationism in psychology—these were among the many trends in the Age of Reason that came to a focus in the revolt of the thirteen colonies and the establishment of the United States.

In order to analyze the trend of the United States Supreme Court from the beginning of its 1936 term in October, 1936, to the end of the 1945 term in June, 1946, it is first necessary to state the situation at the beginning of this period.

Before the pressure of our last great depression, the United States Supreme Court had found restrictions to exist upon the powers of the national government, and had found barriers against governmental power, both national and state. These barriers were found primarily in a small number of cases: Ribnik v. McBride, 277 U. S. 350 (1928), which restricted price regulation; Hammer v. Dagenhart, 247 U. S. 251 (1923), in which federal power was held not to extend to the shipment of child-made goods in interstate commerce; Adkins v. Children's Hospital, 261 U. S. 525 (1923), in which it was held that a statutory regulation of minimum wages for women was violative of due process of law; Adair v. United States, 208 U. S. 161 (1908) and Coppage v. Kansas, 236 U. S. 1 (1915), which sustained the so-called “yellow-dog” contract, and held that it was unconstitutional for either state or nation to forbid the employer's contracting that his employees should not belong to unions.

These opinions have now been overruled or explicitly disregarded and the Court has expressed the further opinions that state powers in no way restrict the powers granted to the nation; and that the national power to spend for the “general welfare of the United States” is not limited by the direct grants of legislative power found in the Constitution.

The Fourth Republic in France, which at the present fateful moment is in the early days of its uncertain career, is definitely enough established to ensure that it will forever be listed among the several régimes that have prevailed in France since the Revolution. So also, the constitution of the Fourth Republic, commonly referred to as the constitution of September 28, 1946, this being the date of its adoption by the constituent assembly that formulated it, will demand a place on the proverbially long list of constitutions of France, no matter on what basis a count may be made. This constitution was ratified by the voters on October 13, 1946.

The year 1946, it will be remembered, saw the formulation of an earlier constitution in France by an earlier constituent assembly. This constitution, once drafted, succeeded in being passed by the assembly, the First National Constituent Assembly; but the closeness of the vote (309 to 249) was merely one indication of the difficulty it encountered in securing approval. The date of the adoption was April 19, 1946. The constitution was rejected at the polls on May 5, being the only constitution ever to be disapproved by the French voters.

The Meiji constitution was in effect from November 29, 1890, until May 3, 1947, a period of fifty-six years and approximately five months. The present constitution, which may be known after the demise of Emperor Hirohito as the Showa constitution, was proclaimed in effect by Premier Yoshida Shigeru in the presence of Hirohito on May 3, 1947. The proclamation was read from a platform on the Palace plaza in Tokyo. The audience of five thousand people which stood in the rain before the platform was small in comparison with the huge crowd that surged around the imperial carriage on November 3, 1946, following the official ceremony of promulgation; but it was equally enthusiastic in its demonstration of loyalty. On both occasions, it was apparent that the embarrassed-looking, bespectacled little Emperor, and not the constitution, was the center of popular interest.

Many social scientists employed by the government or in the armed services during the war found their research and scientific wisdom not eagerly accepted, wisely interpreted, or sensibly followed by policy-makers. Unlike some of the old-line departments, the war agencies had no established procedure for utilizing social science. Social scientists had a place on the ever-changing organization charts, sometimes merely because it was somewhat vaguely felt that all kinds of brains, even academic, were necessary to win a total war. Often they had to carve out for themselves the specific rôles they wished to play. They functioned, not in accordance with the charts, but within what Mansfield and Marx call informal organizations of their own making.

In many situations, there was a discrepancy between what social scientists thought they could do and what the policy-makers were prepared to let them do. Some sought deliberately to bridge the gap by promoting and marketing their disciplines and themselves. Like their colleagues in the natural sciences, they wished to be consulted when problems involving their own expertness were involved.

The informal techniques that social scientists employed in behalf of social science and themselves are worth recording because certainly similar ones must often be utilized whenever social scientist meets policy-maker. They should be mentioned to any social scientist about to enter government service, so that he can at least be aware of the problem and more easily survive the initial period of disillusionment and misery. They belong, it seems, within the purview of the student of public administration.

Socialist thought has long contained two potentially contradictory doctrines concerning the control or management of productive enterprises under a socialist régime. One of these is the idea of workers' control: the concept that under socialism workers will no longer be merely passive victims of the productive process, but, direct participants in the control of productive enterprises. The other is the idea of central control on behalf of the entire community: the concept that socialism will replace “the anarchy of production” under capitalism with a central determination of the appropriate goals of economic activity. That there is possibiUty of conflict between these two objectives is self-evident. The decentralization of economic administration implied by workers' control may easily contradict the desire for centralization of certain kinds of economic decisions. Conceivably, one goal or the other might have to be abandoned, or at least seriously modified.

Today, for the first time in any major industrial nation, a socialist party pledged to the maintenance of democratic institutions is undertaking the task of building socialism. The achievements of the British Labor party may well determine the future goals and techniques of democratic socialists elsewhere. It is not inconceivable that success or failure of the British experiment will determine the path that Western Europe will follow. It is noteworthy, then, that during the last decade the Labor party has abandoned the goal of workers' control; in its current program of nationalization, it is making no provision for direct control of production by workers. This modification of socialist objectives, representing a swing away from the syndicalist content of socialist thinking in the direction of Fabian ideas, was achieved only after the entire socialist movement and the Labor party itself underwent the test of a protracted internal struggle, both of an intellectual and of a practical kind.

Public programs for agriculture challenge social scientists. How do public aids to agriculture affect the economic freedom of farmers? Can losses of economic freedom be balanced by gains in political self-determination through farmers sharing in the adoption and management of public programs for agriculture? Is governmental power conveyed to farm organizations whose leaders (however “broad-gauged” and public-spirited”) lack institutional responsibility to the public? Notwithstanding mutual interdependence of various aspects of the “farm problem,” is there a tendency toward splintering public policy among separate agencies in different commodity fields and among conservation, educational, regulatory, research, and credit agencies? Can the content of public policy be divorced for research from the process of policy formation and execution? Can federalism survive the vigorous development of regulatory programs administered from Washington? Contrarily, does federalism introduce factors which tend to defeat administrative responsibility in federal agencies? Is it possible for publicly-supported research freely to probe controversial issues raised by public policy?

Such questions are increased in pertinence by current circumstances. Major re-directions of farm programs seem in prospect. The Committee on Agriculture in the House of Representatives is holding the first comprehensive hearings on agricultural policy since 1937. Meanwhile, Congress has authorized an expanded research program for agriculture which in itself may embody a marked shift in policy.

Consider the implications for social science of the Hope-Flannagan Act (P.L. 733, 79th Congress). While including important traditional elements, the measure reflects the judgment that the country was thrown into ill-conceived regulatory programs in the 1930's and the assumption that redoubled research into the entire production and distribution process will discover ways to construct public policy which would be at once less arbitrary and more effective than New Deal measures. The challenge to the natural and social sciences concerned with argriculture is clear and profound.

It is stressing the obvious to observe that the state must often resolve conflicts between certain of its constitutional powers and certain equally constitutional private rights. Such is the age-old controversy of liberty versus authority, familiar to every social scientist. Such is the contemporary controversy between “Bible-dizzy but patently sincere” zealots of the Watch Tower Bible and Tract Society, more widely known as Jehovah's Witnesses, on the one hand, and the police power on the other. There is nothing novel about a quarrel between religion and the police power, as witness the Mormons; but a new twist is now given by the personalities of Jehovah's Witnesses and their unique ways of practicing their faith.

Much of their attitude is reflected in their slogans, “Religion is a Racket,” “Religion is a Snare,” and “Millions Now Living Will Never Die.” With a fine neutrality, they consign to the leaping flames all existing religious beliefs other than their own, although they are especially antagonistic to Roman Catholicism. Followers of “Pastor” Charles Taze Russell and “Judge” Joseph Frederick Rutherford, they are serene in their belief that the second coming of Christ is due momentarily, that there is no time to build churches, and that the “witness work” must be carried on by the direct method of calling on people in their homes, distributing pamphlets and playing records on portable phonographs describing their publications and beliefs for the edification of whomsoever will listen.

The recurring problem of executive reorganization once again has become a major issue. One reason is the recognition in all quarters of the desirability of a thorough overhauling of the vast federal administrative structure which mushroomed necessarily under pressure of the war emergency, and of the necessity for a reconversion of the executive organization to a peacetime basis. Another incentive to renewed concern is the urgency of assuring organizational efficiency for the translation into effective action of national policies undertaken as the result of our enlarged domestic and international responsibilities in the postwar period. Furthermore, the particular interest shown by the present Congress in the reduction of governmental expenditures has helped focus attention on the question of economy in governmental operations. The fact that a decade has passed since the last frontal attack on the problem lends support to the demand for a new drive toward reform.

Unfortunately, the revival of interest in a comprehensive reorganization movement comes at a time when the prospect for success in such an undertaking seems, on the surface at least, to be unusually dim. Even under the most favorable circumstances, large-scale executive reorganization involves formidable difficulties. However initiated, a reorganization program must be sanctioned by the enactment of authorizing legislation. This is a hazardous task, demanding mutual confidence and an acceptable working relationship between the legislature and the executive.

On March 21, 1947, the House of Representatives concurred in the Senate amendments to House Joint Resolution 27, which proposed an amendment to the Constitution of the United States placing a limit on the number of terms a President may serve. The vote in the House on so important a question was amazingly small—81 ayes, 29 noes, a total of 110 votes. Objection to the vote on the ground of absence of a quorum was made and then withdrawn. The necessary vote of two-thirds was declared to have been taken, and the way was cleared for possible ratification by the legislatures of the states.

The pertinent part of the proposed amendment in its final form is as follows:

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.”

Under this amendment a President might conceivably serve not to exceed ten years. The primary object of the latter part of the complicated proposal was to except President Truman from its application. In order to be valid, the proposal must be ratified within a period of seven years after its submission to the states.

When Congress adjourned sine die on August 2, 1946, it brought to a close its shortest session since 1939. The legislative activity for the year, however, was most important, meriting careful analysis. Representatives and senators had their first opportunity for a good rest since America's entrance into the war, and they also desired time to stage their respective political campaigns. Even at the time of adjournment, members of both parties realized that the election outcome was unusually uncertain, with the Republicans having their best chance since 1933 to gain control in both houses. Consequently, the Congressional leaders planned their program to allow the membership an early departure from Washington.

Most of the time and effort of the session were directed to the determination of whether many of the emergency controls authorized during the war should be continued, now that hostilities had ceased. The two most controversial issues were the labor problem and the extension of OPA, both of which were tied up with an extension of the war powers.

Many bills on labor were given consideration, and several precipitated prolonged fights. The most dramatic event of the year on Capitol Hill was the appearance of President Truman before a joint session of Congress on May 25, requesting “emergency power” to draft strikers in basic industries into the armed services in case other methods of avoiding strikes failed. In pursuance of his recommendation, a bill (H. R. 6578) providing for settlement of industrial disputes passed both houses in different forms, but was permitted to die on the Speaker's table, the House having refused to dispose of the Senate amendments.

New Jersey's new constitution will become effective January 1, 1948. By the overwhelming vote of 653,096 to 184,632 (official figures), the people signified their approval, November 4, of the work of the constitutional convention held at Rutgers University, June 12 to September 10, 1947.

Revision became a live issue when Governor Alfred E. Driscoll, in his inaugural address, emphasized the need for modernizing the state's outmoded 1844 constitution. Quickly a bill was passed calling for popular endorsement of a limited convention—limited in that the question of legislative representation was barred from discussion. At the regular election for county officials on June 3, the voters were given an additional ballot to express their preference for or against the proposed convention. On this ballot they voted also for delegates.

Each county was entitled to as many delegates as it had senators and representatives. In 13 of the 21 counties, delegates were selected by the party organizations on a bipartisan basis, and the final party distribution was: Republicans 54, Democrats 23, and Independents 4. Of the 81 delegates, 50 were lawyers, and of these 21 were either active or retired judges. Twenty-five delegates were serving or had served in the legislature. Sixteen had teaching experience. Eight were women.

During the past few months, many Americans have been preparing verbally to bury Great Britain and her Empire. They seem to consider this the prerogative, if not the duty, of relatives of one who has long fought off various economic and social ills and more recently has suffered a series of bad setbacks.

Without doubt, Britain's economic position is serious. A vigorous, diversified, international trade is essential to maintaining or increasing her prewar standard of living. Before the war, she paid for roughly sixty per cent of her imports by tangible exports of goods and materials of various kinds. The other forty per cent was taken care of by returns on her foreign investments and by shipping, financial, insurance, and other services. The war and its aftermath have cut down alarmingly her foreign exchange from these latter sources and, at the same time, have added to her overseas expenditures to meet financial charges on her war borrowings, to maintain troops, and to meet her share of occupation and rehabilitation costs in other countries.

In short, Britain can maintain the standard of living of most of her population only by increasing her exports substantially above prewar levels. As the sign-boards say: “To fill the shops, we must fill the ships.” And this must be done against the handicaps of war losses and damage, labor shortages, loss of many prewar markets, widespread fatigue, a limited diet, and last but not least, obsolete equipment in such basic industries as coal and textiles.

The principal provisions of Sections 9 and 12 of the Hatch Act, designed to limit the political activities of federal employees and of certain state employees, were challenged in two cases decided by the Supreme Court in February, 1947, and held constitutional in both instances by a divided court.

Section 9 of the Hatch Act forbids most officers and employees in the executive branch of the federal government to take “any active part in political management or in political campaigns.” At the same time, all such persons are to “retain the right to vote as they may choose and to express their opinions on all political subjects and candidates.” The penalty for violation of the act is dismissal from the office or position held. A similar prohibition against taking part in political management or political campaigns is imposed by Section 12 of the act on any state or local employees whose principal employment is in connection with any activity financed in whole or in part by federal loans or grants. The activities prohibited are declared by Section 15 to be the same as those previously determined by the United States Civil Service Commission to be prohibited to employees in the classified civil service of the United States.

A whole barrage of charges was brought to bear against the constitutionality of this legislation. As applied to federal employees, the attack was centered on the second sentence of Section 9 of the act, which reads: “No officer or employee in the executive branch of the Federal Government … shall take any active part in political management or in political campaigns.”

Among the luxuries that Americans indulge in during the current prosperity and high-income level is complacent disregard of the more serious aspects of intergovernmental fiscal relations. Ominous cracks and crevices in the fiscal structure temporarily close during a period when the price can be paid for disregarding them. A depression, however, uncovers already existing problems and aggrevates preëxisting evils.

To canvass interlevel financial relations at a time when emergencies did not force impromptu solutions was the purpose of a round-table discussion of the American Political Science Association, convening at Cleveland, December 27 and 28, 1946. Since multiple taxation and the need for tax coördination have been examined—and will continue to be surveyed—by economists, the round-table's attention was directed rather to aspects of the problem which are neglected when intergovernmental relations are viewed solely or primarily in terms of taxation. The round-table discussion of other aspects is here reported by its chairman, Wylie Kilpatrick, of the Governments Division, U. S. Bureau of the Census. Participants included Charles S. Ascher, of the National Housing Agency; Hubert R. Gallagher, associate director of the Council of State Governments; W. Brooke Graves, Legislative Reference Service, Library of Congress; I. M. Labovitz, Fiscal Division, U. S. Bureau of the Budget; and Lewis B. Sims, Governments Division, U. S. Bureau of the Census.

The shifting content of interlevel fiscal relations, changing with different periods, requires a re-survey of the current picture to prevent irrelevancy arising from considering facts which, however much they once were true, no longer obtain today.

Chief Justice Harlan F. Stone died on April 22. He was appointed Associate Justice by President Coolidge in 1925, and was elevated to the Chief Justiceship by President Roosevelt upon the retirement of Chief Justice Hughes in 1941. On June 7, President Truman nominated Fred M. Vinson, then Secretary of the Treasury, to be Chief Justice of the United States, and the Senate confirmed the nomination on June 20. Mr. Justice James C. McReynolds, who retired from the Court in 1941, died on August 24, 1945. Mr. Justice Jackson, who in May, 1945, had been appointed chief American prosecutor at the trial of Axis war criminals at Nuremberg, did not return to the Court during the 1945 term. On June 10, Mr. Justice Jackson, in Nuremberg, released to the press a statement sharply criticizing Mr. Justice Black for his failure to disqualify himself in Jewell Ridge Coal Corp. v. Local No. 6167, U.M.W. This case, which awarded coal miners “portal-to-portal” pay under the Fair Labor Standards Act, was decided by a five-to-four vote, and Mr. Justice Black's former law partner was attorney for the union. The statement, unprecedented in judicial history, made public record of a personal antagonism between the two justices, and elicited nation-wide press comment. Mr. Justice Black made no reply, and there have been no later repercussions of the incident.

A court of eight justices decided twenty-three cases in which three justices dissented, and twenty-one cases in which two dissented. The Court overruled one earlier decision. This brings the list of overruled cases since 1937 to twenty-seven.

Problems of rural local government received considerable attention during 1945 from state legislators, constitution-makers, and the public in general. There were numerous statutory enactments relating to counties and townships, and a new constitution adopted in Georgia contained significant provisions concerning local government. Regular legislative sessions in the states convened, and indeed in a majority of the states adjourned, prior to V-E Day, and in only a few instances did they extend beyond the cessation of hostilities in the Pacific. Essentially, therefore, the 1945 legislative meetings constituted another series of wartime sessions, devoting much of their attention to problems related to winning the war and those of postwar reconstruction. This fact was clearly reflected in the year's enactments concerning local government, as in other fields of legislation.

Structural reorganization of the administrative departments and independent agencies of the national government has been on the agendas of the President and Congress almost continuously since World War I. A brief review of the principal developments during the period between the two wars will give us perspective as we undertake to present the problem in its current setting.

This study represents a preliminary inquiry into certain of the functional aspects of the natural law doctrine, particularly as it applies to American constitutional development. Throughout, the conceptual considerations, as such, will be ignored. Instead, the basic consideration will be one of usage. How does natural law work? What does it do? If this distinction seems arbitrary, the writer can only point out that law and politics are not theoretical studies; that they are the bone and sinew of society; that if the social order is to serve humanity with the greatest possible direction, it should know the proper functioning of its constituent elements. Natural law, like atomic energy, is important because it works, not because it was invented. And by the same token, it is best understood by a respectable familiarity with its usage, not by memorizing the symbols of its essence.

The easy identification of natural law with the constitutional development of this country is apparent from even a cursory examination of the great body of constitutional doctrine. We have, for example, the whole concept of property relationships as they have come to us from the eighteenth century. We have a similar form-pattern in the development of certain processes of the law itself. We talk of the “reasonable man,” or we invoke the “rule of reason.” But the decisive characteristic of American constitutional development has been none of these. Rather it has been the acceptance of the working principle of negation. To avoid an enactment or a statute is considered, in this country at least, a valid exercise of authority. While it might be difficult to seek the legitimate derivation of such an action, or even to justify it, it is possible to consider its assumptions.