Lochner v. New York still stands as the symbol of the Supreme Court's orientation during the half century from the late 1880s to the middle 1930s, an orientation characterized by many commentators on the work of the Court as individualistic, anti-communitarian and laissez-faire. It has been attacked by the enemies of its assumptions not only as bad law but as dead law as well. Almost forty years ago Thomas Reed Powell was writing that Lochner had died without even being mentioned in its own obsequies. Those whose conservative natures might have prompted the suspicion that Justice Peckham's argument for the Court must have had some merit have shied from defending it, dazed perhaps by Holmes' brusque comment that the argument had substituted Herbert Spencer for the Founding Fathers.

In the fashion of fellow Young Burkes who are challenging liberal folkways in areas from civil-military relations to free speech, Albert Mavrinac offers here a prescription for Supreme Court supervision of group conflict in America. At the outset, it is fitting to pay tribute to his intellectual fortitude. To embrace Lucifer, Lochner v. New York, and, in the same article, to condemn St. Joan, Brown v. Board of Education (in the latter case virtually in the midst of the beatification ceremonies), and to strike this stance in the presence of a constitutional law fraternity strong in its liberal piety—this is indeed a profile in academic courage. I take it that my assignment as commentator in this Review is to discuss what there is besides courage to support his revisionist credo.

My initial reaction was that Mavrinac had written an interesting essay about wisdom for legislators: it hardly seemed possible that an analysis of judicial standards should lack discussion of the integrity of the judicial process itself and focus so sharply on extra-court considerations. Having persuaded myself that a consistent theory of judicial review must lie in the interstices of the argument, I re-read it.

This effort is impelled by a growing conviction that most of our people and much of our responsible political and intellectual leadership are so hopelessly confused in matters of foreign affairs, as actually to be becoming dangerously irresponsible. The paper is not meant to appear spectacular, nor is it aimed at being pleasing. It will attempt a bit of plain speaking to a very important segment of our intellectual leadership, with whatever persuasiveness it may attain. Most of it will consist of simple statements of readily verifiable fact. In the very nature of my space and personality limitations, my statements will have to be somewhat dogmatic, and readers are invited each to pursue his own confirmations of them.

Implicit in the title are two propositions: (1) that our recent and current foreign policies and strategies have been basically so poorly conceived and so increasingly dangerous that they have been largely unworthy of the apparently dominant intellectual support they have received, and (2) that too much of what has been passing for political science scholarship has been little more than footnoted rationalization and huckstering of those policies.

For students of government the annually recurring debates over foreign aid are a stethoscope held to the heart of the United States foreign policy process. They reveal in classic form the political strains and stresses that have come to afflict this country's postwar external relations. Foreign aid has required new concepts, skills, personnel, institutions, legislation, and funds. This modern brand of “dollar diplomacy” has not only jostled traditional structures and processes within the executive branch but has called upon the legislator and the man in the street to adjust to a new vision of the American mission and to what it involves in material terms as well. Herewith is a case study of that reappraisal.

The foreign aid debate of 1957, centering around the preparation and approval of the authorization and appropriation acts for fiscal 1958, was especially instructive because it was the occasion for a resounding collision between a greatly intensified crusade to redirect and reinvigorate the program, particularly in support of long-range economic development, and an equally determined campaign to bear down on the brakes. The present commentary focuses primarily on the roles of the official executive and legislative participants, as well as of influential non-governmental interests, during the course of this debate. The story sheds some light on both the foreign policy process in general and on some of the major substantive and administrative issues at stake in this particular case.

When Woodrow Wilson, still in the early years of his academic career, studied the relations between Congress and the Executive, he focussed on organization and channels of leadership and responsibility. He was distressed at the disorderliness of affairs in which Congress had a part, and he was convinced that its noisy and often undignified procedures were an impassable obstacle to good government. He pined for the logic and clearly fixed responsibilities of parliamentary government on the British model of that time, for its party discipline and for the clear-cut choices between alternative policies that it offered to the electorate.

For contemporary observers, Congressional-Executive relations still attract attention, particularly in the field of foreign affairs. But the factors which Wilson examined with the greatest care of all seem now to be less central than they were to him. Partly this is because the federal government itself has changed: it now has a vastly wider range of both responsibilities and control than it once had, and there have been shifts in the relative power of the different branches within the government, to which Wilson himself as President contributed much. But there are also other reasons. In an age of ideological extremes, a wider consent than a simple majority seems more desirable than it might have been in Wilson's day, and no one is certain that the parliamentary form is superior in providing for this wider consent.

The topic set for this panel is “value consensus” in democracy. I put the expression in inverted commas, not because I am here concerned with the validity of the fact-value distinction but because, even granting the distinction, I find it difficult to see why, in this context, “value” should be added to “consensus.” Democracy is the name we give to a certain form of political community, and every community, by definition, is constituted by the fact that its members hold certain things in common. A political community, I take it, is always constituted by the fact that its members hold certain political things in common. And a democratic political community would, by equal reason, be constituted by the fact that the political things its members hold in common are democratic. The problem of discovering what constitutes a democratic consensus, as it seems to me, is the problem of what things fellow-citizens in a democracy must hold in common, what they may hold in common, and what they may not hold in common, if they are to constitute a democratic political community. I think it would be confusing, at the outset, to speak of “values,” because, even assuming that we know what values are, we cannot assume that values are the principal things to be shared, or that non-values are not equally or more important than values.

The affairs of the Teamsters Union have suddenly loomed with an importance seldom recognized in any private association of this highly associated country. No doubt a major source of the recent interest in the internal politics of this and other unions is the fascination exerted by intimations of colorful criminality. Senator McClellan's committee, indeed, has gone far to indulge the widespread taste for this variety of sensation. Some segments of public opinion have obviously been gratified to be given ammunition useful in a campaign to weaken the economic and political power of organized labor. Meanwhile, the prospect for a few elementary reforms has suddenly improved. The American labor movement has acted to cleanse itself of some of the stain which has drawn so much attention. Legislative proposals designed to insure integrity of union elections and financial management are actively agitated.

Nevertheless, publicity and agitation have so far done little to illuminate the basic problem. The public hue and cry about gangsters quite possibly may have hindered rather than helped understanding of what is involved.

The British Labour Party defies the classifications which students of the structure of political parties have developed. By its historical origin and its formal organization it would seem to be a mass party in the sense that Duverger and others have used that term. But it has also exhibited, notably since 1945, the characteristics of a traditional parliamentary party, denying its mass membership power and influence and allowing its parliamentary leaders the exercise of full authority. Yet in the nineteen-thirties there was evidence that the Labour Party was developing all the characteristics of a mass party, doctrinaire in its program, unreconciled to parliamentary institutions, and anxious to subordinate its parliamentary leadership to the extra-parliamentary organization. It is the defeat of this tendency and the assertion of parliamentarism in the period since World War II which makes this a decisive epoch in the development of the Labour Party, the study of which offers an explanation of the paradox of the party's structure.

The Second Republic of Austria is now well into its thirteenth year of national existence. The First Republic, thirteen years after its creation, showed all the signs of political disillusionment and impending dissolution. The Second Republic, in happy contrast, presents to the foreign observer a picture of political stability, economic prosperity, and sound foreign relations almost unequalled in this part of Europe. Much of the credit for this unusual state of affairs must be attributed to the two major political parties, the Oesterreichische Volkspartei (OeVP) and the Sozialistische Partei Oesterreichs (SPOe) which, uninterruptedly since 1945, have collaborated in the political resuscitation of the state that was once characterized as having “a strong tendency toward nonexistence.”

West Germany today is ruled by a constitutional regime in which a strongly led democratic majority party has carried the predominant, indeed, increasingly almost the sole, responsibility of running the national government. Yet the “basic law” of the country embodies a federal system of institutions and checks and balances which were in great measure designed specifically to hamper the exercise of power by just such a politically powerful national government. The inclusion in the Constitution, under German federalist and Allied pressure, of a number of institutional devices, especially that of the “Bundesrat” rather than the “Senate” form of upper House, was rather openly intended to introduce restraints on the power of national party leaderships by allowing the leaders of the Laender governments a direct voice and, on many matters, a potential veto in the formulation of national policies. The creation of a second chamber with members drawn from, and exclusively responsible to, the Land cabinets was pretty clearly an attempt to institutionalize political diversity. It was expected that as the party makeup of the several Laender governments would often differ from the coalition pattern of the Federal government, and that as each Land government would have to cast its indivisible Bundesrat votes with regard both to its regional interests and to its particular party composition, the resultant configuration of power in the upper chamber would differ considerably from that in the Bundestag.