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.

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.

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.

The first postwar year found rural local government facing problems of readjustment. As the rural units had felt the impact of war less forcefully than the states and cities, so their reconstruction problems were less acute; but they were none the less genuine and significant. To mention but a few, these included the construction of deferred public-works projects, the provision of housing and various forms of assistance for returned veterans, the modernization and expansion of public-welfare services, the securing of additional revenues adequate to finance an expanded program of local activities, and the reorganization of local areas and machinery with a view to fostering economy and efficiency in a period of mounting governmental costs. Though less than a dozen state legislatures held regular sessions, the year's enactments served both to initiate reconstruction programs begun a year earlier in many states and to indicate the nature of other measures likely to be more generally adopted in the future. Statutes of previous years formed the basis of various improvements in local government which were effected in 1946.

The school-consolidation programs begun in the preceding year in Illinois and Kansas continued to make progress. At the beginning of October, 174 consolidations involving 897 districts had been effected in Illinois. In Kansas, some 2,000 districts have already been eliminated, and it has been estimated that the program in that state, as revised early in 1947, may ultimately reduce the number of districts, originally well over 8,000, to only 3,000.

The net result of ten years of extraordinary activity is that the Supreme Court has gone a long way toward squaring the legal concept of American federalism with the intent—and, it is tempting to add, the plain language—of the Constitution. The most important thing that has happened is that the Court has snuffed out the heresy of “dual federalism.” This subtle weapon of laissez-faire economics was utilized at a fairly early date, notably in the two child labor cases, to strike down federal reform legislation, but it achieved great weight, which comes with reiteration in important cases, during 1935 and 1936, when the Court was grimly determined to save the country from the horrors of the New Deal. Briefly, the doctrine holds that the mere existence of states constitutes an independent limitation on the exercise of national powers. Thus, Justice Day asserted in the first child labor case: “The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.” This theory is inconsistent with the principle of federal supremacy, a principle which the present Court has restored to its proper place in American constitutional law. But, in sustaining a sweeping exercise of national power, the Court has by no means been unmindful of the proper status of the states in the Union. Furthermore, it is a mistake to assume that every growth of national power is at the expense of state power. While it is true that we have more government at the federal level today than ever before, we also have much more state government. A fuller exploitation by Congress of the powers committed to it by the Constitution has been matched by a fuller exploitation of the authority reserved to the states. The laments of losing litigants should not be taken as a correct assessment of the present position of the American states.

Montesquieu may have been inaccurate in his description of the English system of government of his time and a poor prophet of the developments that were to take place in it, but he certainly proved an excellent forecaster of one of the major trends in American political development. Montesquieu believed that in order to safeguard liberty it was necessary to separate the powers of government and to vest them in legislative, executive, and judicial departments. When the framers of the Constitution of the United States vested the legislative, the judicial, and the executive powers of government in the three departments, they were doubtless following the ideas of Montesquieu as well as generalizing from the hard experiences of early state and Confederation years.

The doctrine that a department to which certain powers of government have been assigned may not grant them to another department and thus frustrate the principle of the separation of powers is often called the doctrine of the delegation of powers. This doctrine is a corollary of the doctrine of the separation of powers. It might also be thought of as a sanction of that doctrine.

To think of the doctrines of separation and delegation of powers without reference to their qualifications may give one a misleading idea of both Montesquieu and the American system of government, and it is important to remember that Montesquieu himself introduced the idea of checks and balances in his formulation of the doctrine of the separation of powers. He also seems to have anticipated the charge that a rigid separation would be unworkable. Practical observer and reformer that he was, he saw the necessity for making it possible to have the legislative and executive branches of government work together, and he believed that in his proposed system of government he not only had protected liberty, but had made it easy for the government to function effectively. In his discussion of the constitution of England, he stated that: “These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert.”

The commerce clause has been a double-edged tool of constitutional interpretation from the earliest days of judicial review of state and federal legislative activity. It is at once a positive source of federal power and, in the absence of federal exercise of that power, a source of implied limitations on state legislation. Any consideration of trends of interpretation of the clause in the past decade must treat both aspects of the matter. In general, it may be said that expansive implications of the Wagner Act decisions in the spring of 1937 have been elaborated and broadened until the commerce clause is today an ample source of federal legislative authority to deal with a wide range of problems arising out of or having any substantial effect upon interstate commerce. No such clear generalization may be made with respect to the nature of the limitations which the unexercised commerce power imposes on state police power and tax legislation. But the tendency, not yet consistently dominant, seems to be in the direction of upholding much state legislation that would formerly have been ruled a burden on interstate commerce. It is, of course, unnecessary to labor the fact that state legislation incompatible with a valid federal exercise of the commerce power is unconstitutional.

Both the above generalizations require some further examination. The first can perhaps best be looked at in terms of (1) changing definitions of interstate commerce, (2) the reshaping of familiar formulæ for determining the reach of the power to regulate, (3) the abandonment of the “dual federalism” concept, and (4) the broad application of federal statutes to businesses alleged not to be in interstate commerce. Discussion of the second general problem may perhaps best be considered in terms of the gradual, and still wavering, emergence of what may be called the “leaveit-to-Congress trend” in the review of state legislation alleged to burden interstate commerce.

A democratic and peace-loving Germany must have sound political, economic, social, and ethical foundations. On the political side, this means, among other things, the restoration of local self-government, destroyed by Nazi rule and now in process of being rebuilt. Fortunately, Germany has a long tradition of local self-government on which to build. The tradition reaches back to the Middle Ages, but was lost in the centralizing absolutism of modern times. With the reforms of Stein in 1808, a new chapter in the history of local self-government began which lasted on down through the Bismarckian Empire and the Weimar Republic.

One of the attributes of local self-government is freedom of association. In other words, local authorities may voluntarily unite in associations for the promotion of their mutual interests and the defense of their rights against encroachments by the state. For example, the United States has its state leagues of municipalities, federated into the American Municipal Association, France has its Union des Villes et Communes de France, and Britain has its Association of Municipal Corporations. The same was true of pre-Hitler Germany, with its various unions of cities (Städte), rural counties (Landkreise), rural communes or municipalities (Landgemeinden), and provinces.

The first German union of local authorities was the Hanover Städteverein founded in 1866 while Hanover was still an independent kingdom. Thirty years later (1896), the cities of all Prussia formed the Preussischer Städtetag. In that same year, the Bavarian cities were also organized. These various state unions were finally united (1905) into an all-German association known as the Deutscher Städtetag. In addition to the state unions, larger cities were direct members of the organization—usually cities with more than 25,000 inhabitants and constituting Stadtkreise (city-counties or county-boroughs, to use the English terminology). In 1931, 279 cities held direct membership in the Deutscher Städtetag.

By its complete defeat, the surrender of its armed force, and the abolishment of its national government, Germany has ceased to exist as a sovereign state and subject of international law. By the Declaration of Berlin, June 5, 1945, the four Powers occupying the country—the United States of America, the United Kingdom, the Soviet Union, and the French Republic—assumed “supreme authority with respect to Germany including all powers possessed by the German Government, the High Command, and any state, municipal, or local government or authority.” This meant that the four occupant Powers have assumed sovereignty over the former German territory and its population, though the term “sovereignty” was not used in the text of the Declaration. The four occupant Powers exercise their joint sovereignty through the Control Council, established at Berlin as the legitimate successor of the last national government of Germany. All this is in complete conformity with general international law, which authorizes a victorious state, after so-called debellatio of its opponent, to establish its own sovereignty over the territory and population of the subjugated state. Debellatio implies automatic termination of the state of war. Hence, a peace treaty with Germany is legally not possible. For a peace treaty presupposes the continued existence of the opponent belligerents as subjects of international law and a legal state of war in their mutual relations.

The opposite doctrine, advocated by some authorities and governments, that Germany, in spite of the fact that there exists no independent national government, not even a “government in exile,” still exists as a sovereign state, that the four occupant Powers are not the sovereigns in relation to the German territory and its population, that they only exercise Germany's sovereignty just as a warden exercises the rights of his ward, is manifestly based on a legal fiction. According to international law, a community is a state if, and as long as, a certain population is living on a definite territory under an independent government. If one of these three essential elements of a state in the sense of international law is missing, the state as a subject of international law disappears, or, in other words, the community ceases to exist as a sovereign state. No state can exercise the sovereignty of another state. State sovereignty does not permit representation or substitution.