From tyrannical autocracy to a most radically socialistic régime, from an empire oppressing subjugated peoples to a country proclaiming the principle of “self-determination of nationalities”—such has been the remarkable record of Russia during the past year. These changes, which have come to many as a surprise, were to those acquainted with the ferment permeating Russian life but the logical outcome of Russia's historic development.

In order to be able to interpret the trend of recent events there, events which since the overthrow of Tsarism have been moving with such bewildering rapidity, it is necessary to know what have been the forces that have shaped the life of the country. Russian evolution has come through periods of subjugation, through century long struggles for self-assertion against invaders, through many internal uprisings and through successful wars of expansion. Beginning as a small principality in the interior of a plain, Russia spread to the north and to the south, to the west and to the east until she became a world empire, in area the greatest compact country on the face of the earth, occupying 8,505,000 square miles, or larger in size than all of North America, and having a population of over 175,000,000 people.

A society of human individuals viewed as a politically organized unit is termed a state. The state, which, in its various activities and forms of organization, furnishes the material for political science, may be regarded from a number of standpoints. It may be studied sociologically as one of the factors as well as one of the results of communal life; it may be examined historically for the purpose of ascertaining the part which it has played in the life of humanity, its varying phases of development being traced and their several causes and results determined; it may be considered as an entity, to the existence and activities of which are to be applied the ethical criteria which the moralist and philosopher establish; it may be psychologically surveyed in order to make plain the manifestations of will, emotion and judgment which support and characterize its life; it may be regarded from the purely practical standpoint to determine how it may be most efficiently organized and operated; and, finally, it may be envisaged and studied simply as an instrumentality for the creation and enforcement of law. It is with the state, as viewed in this last aspect, that analytical political philosophy is concerned.

The point of departure of the analytical jurist is that in all communities which have reached any degree of definite political organization, public affairs, whether domestic or international, are not carried on in a haphazard manner, without system or fixed principles, but are governed by bodies of rules logically related to one another and all depending, as deductive conclusions, upon certain assumptions regarding the juristic nature of the state, of its sovereignty, of its law, and of the relations which it bears towards other bodies politic as similarly viewed.

In his admirable analysis of the juristic theory of the state, Dr. Willoughby has said that “analytical political philosophy” views the state “simply as an instrumentality for the creation and enforcement of law.” The point of view from which this philosophy proceeds is thus fixed. It is professedly the legal point of view.

It is, however, precisely by peculiar and distinctive points of view from which phenomena are observed, that sciences or philosophies are differentiated one from another. Two philosophies cannot occupy the same standpoint. If there is to be discussion of a philosophy of politics which asserts its viewpoint to be that of a philosophy of law, then it is necessary to define very clearly the relationship between politics and law.

As these concepts have been defined by the analytical school, it is obvious that they are intimately connected. By the opponents of this school it may be objected that, when correctly conceived, politics and law are perfectly distinct. It may perhaps be held that what is known as law in modern society is not essentially political at all; but that it has merely happened as an accident of modern political development that a part of the law has received the additional and nonessential sanction of political authority.

The purpose of this paper is to make plain two facts: first, that the essential qualities of American federal organization were largely the product of the practices of the old British empire as it existed before 1764; second, that the discussions of the generation from the French and Indian war to the adoption of the federal Constitution, and, more particularly, the discussions in the ten or twelve years before independence, were over the problem of imperial organization. The center of this problem was the difficulty of recognizing federalism; and, though there was great difficulty in grasping the principle, the idea of federalism went over from the old empire, through discussion into the Constitution of the United States. By federalism is meant, of course, that system of political order in which powers of government are separated and distinguished and in which these powers are distributed among governments, each government having its quota of authority and each its distinct sphere of activity.

We all remember very well that, until about thirty years ago, it was common to think of the United States Constitution as if it were “stricken off in a given time by the brain and purpose of man.” About that time there began a careful study of the background of constitutional provisions and especially of the specific make-up of the institutions provided for by the instrument.

In addressing the court in due-process cases one should not commence with the usual salutation “May it please the Court.” Instead, one should say “My Lords.” Backed by and charged with the enforcement of the due-process clause of the fifth and fourteenth amendments, the Supreme Court of the United States is the American substitute for the British house of lords. It constitutes the real and only conservative second chamber of the federal government. It is a second conservative chamber for each of the state governments.

The time has come when the political scientists of the country should recognize, in the decisions of the United States Supreme Court under the due-process clause, the functioning of a second chamber, organized to defeat the popular will as expressed in legislation when that will appears to endanger what the court may regard as a fundamental requirement of the social structure itself.

Like all conservative second chambers, the Supreme Court and the due-process clause are in a hopeless dilemma. If the popular will were frustrated as often as the dissenting opinions of Mr. Justice McReynolds indicate that it should be, the second chamber function of the court would be assailed by the recall of judicial decisions. If the court bowed to the popular will as often as the dissenting opinions of Mr. Justice Holmes indicate that it should, the second chamber function of the court would cease to be exercised.