Professor Hans Kelsen is the leading exponent of the “pure” theory of law, which is attracting a great deal of attention abroad but as yet has received scant notice in the United States. His theory marks the culmination of the tendency toward a strictly legal theory, represented in the writings of K. F. von Gerber, Paul Laband, and Georg Jellinek. This movement aims to eliminate all purely metaphysical postulates—such as the natural law concepts—from legal theory, as well as to free it from the political tint which it so often manifests. It also endeavors to separate the validity of law from dependence on any personal authority.

This attempt to “depersonalize” law is the last stage of a development that began with the passing of absolutism. At that time, ideas of a “general will” and of popular sovereignty—attended by a demand for “a government of laws and not of men” and by the introduction of the principle of separation of powers—made their appearance, only to be supplanted, more recently, by the concept of the Rechtsstaat.

In the one-party states, of which the U.S.S.R., Germany, and Italy may be taken as the best examples, the definition of relationships between the party and the state has presented a major problem of constitutional theory. No two of these states have solved the problem in the same way. The C.P.S.U., engineering the dictatorship of the proletariat, depends upon methods which are constitutionally indirect. Only in the Commission for Soviet Control is there a constitutionalized inter-relationship between the mechanisms of the party and the state; for the rest, the party relies upon its political discipline over the public personnel. Indirect reference to the Communist party is contained in the new Soviet constitution, in the guarantee to citizens of the right of “uniting in the Communist party of the U.S.S.R.,” and in the incorporation of the hammer and sickle and the slogan of the party into the emblem of the state. On the other hand, the Nazi régime in Germany prohibited the formation of other parties than the N.S.D.A.P. by the law of July 14, 1933, and, by the law of December 1, 1933, proclaimed the formal union of the party and the state.

The liberty of any given citizen is inhibited by four great enemies. The first enemy is outer—the inhibition of the liberty of one by the liberty of others. The other three are inner enemies—illness, poverty, ignorance. The outer enemy is commonplace to political scientists. And so it is this inner triumvirate against freedom which I wish first and mainly to discuss. Worst of the three is ignorance.

Pure liberty would consist simply in doing what one wants to do. Illness is enemy to this ideal not merely because illness weakens wants, but also because it aborts the very formation of virile wants. Poverty is enemy not only because it stunts the growth of healthy wants, but because it circumvents efficacy of efforts to fulfill any and all wants. Ignorance, however, is worst of the three, not only because it fortifies the other enemies, inner and outer, but because it also converts such regulation of elemental wants as is made inevitable by civilization into the psychological poison of aggression and thereby estops fructifying sublimation of the crasser forms of freedom.

As was pointed out a year ago in this Review, the Supreme Court was able to deal with the cases involving the New Deal which came before it during its 1934 term without any striking enlargement of judicial power and without the announcement of any novel constitutional doctrine. The N.R.A., the Gold Clauses, the Farm Bankruptcy Act, were dealt with by the familiar processes of deciding whether Congress had actually exercised a power not granted to it by the Constitution, or had exercised a granted power in a forbidden way. The New Deal issues which came to the Court during the 1935 term were quite as far-reaching in significance and were certainly not of a routine variety. They involved, in some cases, constitutional clauses never before interpreted by the Court. Some of the federal laws under attack were obviously exercises of delegated powers, but at the same time, they exercised delegated powers for purposes which were novel and which had been commonly supposed not to be within the reach of federal authority. In dealing with laws of this type, the Court brought forward and established as a working implement of constitutional construction the so-called doctrine of “dual federalism.”

Something more aggressive than the laws of probability determined the fate of state constitutional amendments last year. Yea-sayers dominated nay-sayers in the ratio of three to two. Ninety amendments of the 158 under consideration in 35 states received the electoral imprimatur. In this general mood of acceptance, only California was steadfastly negativistic, rejecting 16 of the 20 proposed changes. Louisianians, on the other hand, took practically all that was offered—with unselective enthusiasm approving 33 of the 34 amendments on their imposing ballots.

Some students of metropolitan problems have suggested that the granting of extraterritorial powers to municipalities by state legislatures may provide a temporary integration of governmental agencies within a metropolitan region. Inevitably, however, the development of such powers in any extensive fashion must lead to additional confusion in the already tangled web of jurisdictions. The problems of relationship of governmental units are simply multiplied. This is illustrated by the experience of cities in California. A wide range of power has been given by the state constitution and general laws whereby the cities may undertake public utility projects within and without their municipal boundaries as deemed necessary. The courts, for the most part, have been liberal in interpreting extramural powers of cities undertaken both (a) as municipal corporations providing service, and (b) as governing units exercising the police powers. A significant addition to municipal powers has been made by interpretation of the constitutional provision that cities shall have exclusive jurisdiction in “municipal affairs.” In an early case that established a controlling doctrine, the court said: “The supplying of water to outside territory, being necessarily a matter incidental to the main purpose of supplying water to its own inhabitants, is as much a municipal affair … as is the main purpose, which is conceded to be such, and therefore charter provisions relating thereto prevail over general laws, if inconsistent therewith.” In similar matters, the cities become free agents under freeholder charters except as they encounter the jurisdiction or interest of other cities.

Calling for the final abolition of the spoils system through the substitution of career service, Franklin D. Roosevelt has come forward with the boldest, the most courageous, and the most constructive step in his career. This program is part of his plan for the reorganization of the administrative structure and the fiscal controls of the government. There may be minor debatable issues. However, the comprehensive program is a weaving together of the best constructive thought of the past generation with regard to American government.

Of all criticisms of the New Deal, the one most frequently emphasized is the lack of coördination. Headlessness in policy-framing and sprawling aimlessness in policy execution are twin charges which the Administration has been forced to admit. The recent report of the President's Committee on Administrative Management is an indication that the Administration intends to leave to posterity a good record on this score; but both practitioners and students of government are well aware that no reorganization can be so complete, so perfect in its functional allotment of duties to departments, that the problem of horizontal integration will not still need to be faced and solved. This reminder is less an apologia than an indication of the frame of reference of the present note; those who have been administering the government for the past four years have never been unaware of the need for concerted action among the executive departments, and many attempts have been made to achieve it. A device often employed for the purpose has been the interdepartmental committee.