THE one great issue that overshadows all others in the distracted world today is the issue between constitutionalism and arbitrary government. The most fundamental difference is not between monarchy and democracy, nor even between capitalism and socialism or communism, tremendous as these differences are. For even in any socialistic or communistic régime, as now in every bourgeois democracy, there will be rights to be preserved and protected. Deeper than the problem whether we shall have a capitalistic system or some other enshrined in our law lies the question whether we shall be ruled by law at all, or only by arbitrary will.

The prevailing system of private ownership is so old and has in the course of centuries become so entwined in most existing systems of positive law that it is a natural mistake to identify private property with law itself, and opposition to it with lawlessness. The agitator for a communist revolution, like the capitalist, is in danger of forgetting that law does something more than merely protect vested rights of property: in capitalistic states it is law alone that leaves the agitator free to preach capital's overthrow. If, then, we give an economic definition to conservatism and to radicalism, as is commonly done, it is not legitimate to identify constitutionalism with either. Under an arbitrary government, the radical agitator is as likely to find himself in a concentration camp as the capitalist, and under those arbitrary governments which are now fascist it is he oftener than anyone else who feels the brunt of government by arbitrary will.

The problem of constitutionalism, then, is everybody's problem, whatever economic or social system he may prefer. It is law alone that gives protection to rights of any kind in any individual, personal as well as proprietary, whatever form the state may take and whatever the nature of social control. In this world struggle between arbitrary will and settled law, it is true that liberalism and democracy are deeply involved. The triumph of will over law must mean the end of both. But our present crisis is not merely the crisis of liberalism or of democracy; it is a struggle for every human right against despotism.


Down to the eighteenth century political theorists usually drew a distinction which we in later times have slurred over -- the distinction between despotism and tyranny. The former might be a legitimate form of government in which will was supreme; the latter was always to be condemned because its end was the good of the government, not of the governed. In the eighteenth century there were kings who were, or who thought themselves to be, "benevolent despots." The surge of democracy since the French Revolution has tended to destroy this distinction. To the average man the terms "despot" and "tyrant" have for a century meant practically the same thing. No government, we have thought, could be a good government if it was not "self-government." Now we seem to be reviving the old distinction. In the disillusionment of the war and its aftermath, and with the shipwreck of the nineteenth century's high hopes in laissez-faire democracy, the world seems to be turning in despair to despotism as the only solution for the problems with which democracy has suffered us -- or, as some would say, has caused us -- to be overwhelmed. There is probably no one who would not now admit that the hopes of the nineteenth century were far too high. Today the "idea of progress" seems to be nearly as extinct as the dodo. According to the late Professor Bury, this "idea of progress" is linked with secularism and has grown in proportion as a sincere belief in a world to come has faded. If this is true, then we may probably expect, as some of our religious leaders now do, a return to supernatural religion as one ultimate outcome of our present pessimism. But the immediate political outcome of that pessimism is a return to despotism. The former blind faith that democracy would bring the millennium, like the conviction so recently and so loudly preached that economic depressions could never recur, has been rudely shattered; but with a faith even more blind our world is now desperately trying to persuade itself that despotism is always benevolent. The amazing thing is that so large a part of the world seems to have succeeded in the attempt, in the face of examples of confiscation, persecution of religious belief, suppression of the press and free speech, and even murder. It may require further bitter lessons to prove the truth of Plato's conviction that after all a lawless autocracy is worse for mankind than even the feebleness of democracy.

This is no new issue, but probably never before in the history of the world has the fate of the race been so involved in its outcome as now. That it is at bottom an issue between law and will was never more clearly shown than in a startling dispatch from the Berlin correspondent of the London Times, dated July 5, 1935, which I quote in part:

A principle entirely new to German jurisprudence has been introduced by the Penal Code Amendment Law, which was one of the batch of laws published by the Reich Cabinet on June 26 and is promulgated today in the official Gazette. It is that the Courts shall punish offenses not punishable under the code when they are deserving of punishment "according to the underlying idea of a penal code or according to healthy public sentiment (Volksempfinden)." If no penal code applies directly, such an offense is to be punished according to that law the underlying idea of which best fits it. . . .

The principle that an act could be punished only if it was an offense punishable under the code was enshrined both in the penal code and in the Weimar Constitution. As a principle of German law it was centuries old. The result was that ad hoc laws or decrees had to be passed from time to time to meet new offenses.

Dr. Hans Frank, Reich Minister without portfolio and former Reich Commissar for Justice, explains in a newspaper article that the new principle does not mean that anyone against whom a charge is brought in future in Germany is to be regarded from the outset as guilty, or that the rights of the defense will be impaired. The National Socialist State, he says, knows very well how to distinguish between criminals who are of thoroughly evil character and a pest to the community and small, harmless, everyday sinners. The Judge is not given unrestricted powers to condemn all and sundry in every case; he is invested with a proud power of decision which confers on him as representative of the National Socialist world-outlook and the healthy German public sentiment the rôle of a people's Judge in the finest meaning of the term. Dr. Frank declares the new law to be a landmark on the road to a National Socialist penal code.

Let there be no mistake as to the meaning of this. The principle "that what was not prohibited was allowed" is condemned and repudiated as a "Jewish liberalistic principle." Even where no penal code "applies directly" to an offense, that offense is nevertheless to be punished "according to that law the underlying idea of which best fits it." "The Nationalist Socialist State . . . knows very well how to distinguish between criminals who are of thoroughly evil character and a pest to the community and small, harmless, every-day sinners"! In other words, in order to be punishable an offense need not be against any law, and punishment for it requires no warrant of law. It is enough if it is against "the idea." Whose idea? How can anyone take seriously the explanation that this "new principle does not mean that anyone against whom a charge is brought in future in Germany is to be regarded from the outset as guilty, or that the rights of the defense will be impaired?" Doubtless no rights will be impaired, for from now on no rights exist.

It is probably fortunate that the unashamed frankness of the present German leaders has made the issue so plain to all the world. We may appreciate how galling this pronouncement must be to many liberal Germans when we remember how great a contribution Germany has made in the past to the theory of the Rechtsstaat. This is the repudiation of everything for which Germany has stood since the Thirty Years War. However, the present silence of Germans in Germany is easy enough to understand. What is harder to account for is the apparent acquiescence of the outside world. Startling as this repudiation of law is, it seems to have startled nobody. I have seen little comment on it, favorable or unfavorable. We are no longer even surprised at events or at political doctrines which would have been shocking if they had been thinkable in the western world a bare score of years ago. This easy complaisance is the measure of our common danger.

Pronouncements like the one quoted above bring into stronger relief the opposing doctrine which underlies the recent decision of the United States Supreme Court in the Schechter case, and they enable us better to understand the true significance of that case and the principle on which it is based. Surprise has been expressed that the "liberal" justices joined with the rest of the court to make the decision unanimous. To some it has seemed strange that a judge who sincerely believes that only a federal authority can effectively perform the essential services involved in this case, should nevertheless join in a judgment which denies it the power to do so. Such critics overlook the fact that it is not merely the specific power to regulate commerce which this case involves, nor the definition of what is and what is not interstate commerce. The ultimate question is far deeper than that. However necessary, however beneficial such a power may be, if ultra vires it must be disallowed.

Reformers are naturally irritated when comprehensive plans of social betterment are thus wrecked, apparently on the rocks of mere legalism; but in their irritation they may be overlooking what the alternative means. Government without or beyond law is despotism, and it is none the less despotism because it is benevolent. As Saint Augustine declared, judges may not judge of the law, but only secundum legem. The laws may be those of "the horse and buggy era," but, as Lord Bacon said, "Judges ought to remember that their office is jus dicere and not jus dare." The justices of our Supreme Court have remembered it. When judges cease to do so it will be but a short step further to say, "If no penal code applies directly, such an offense is to be punished according to that law the underlying idea of which best fits it." In order to prevent that it may be worth while temporarily to forego even needed reforms. I say "temporarily," because obsolete laws should be changed, and that right speedily, but the judges have no commission to do it. Present criticisms of our highest court, and proposed constitutional amendments affecting its authority to review legislation, call to mind the case of Chief Justice Herbert at the time of the English Revolution. Unlike our American judges, he had upheld a discretionary and arbitrary power instead of denying its legality, but the underlying principle in the two cases is identical. No more dangerous power could easily be imagined than the dispensing power which the court had upheld in this case, and none was ever more outrageously exercised than this had been by James II. Yet the reply of the Chief Justice to his critics seems unanswerable: "When we were to give judgment in Sir Edward Hales's case we could neither know, nor hinder if we did, any ill use the King might make of this power; we were only to say upon our oaths, whether the King had such a power or no." Readers of Macaulay need not be reminded that this, as well as my interpretation of it, is the rankest heresy. This may not be the only part of our orthodox historical creed needing revision in the light of recent developments in continental Europe.

The modern school of sociological jurisprudence have done a very great service, but there is very great need to limit their teachings to their proper sphere. The only alternative to despotism is constitutionalism. Call this mere legalism if you will, and admit to the full the unfortunate obstructive delays that legalism sometimes involves. But let us not close our eyes to the alternatives. We must choose one or the other. Dr. Frank and the Nazi leaders in Germany have seen these alternatives more clearly than we, and they have deliberately made their choice for will against law. Dare we make the same?

To make all this perfectly clear, allow me to quote one or two further paragraphs from Dr. Frank's article in the Zeitschrift der Akademie für deutsches Recht, referred to above in the dispatch of the London Times correspondent:

National Socialism, conscious of its creative power in all spheres of the iron laws of national life, racial theory, and authoritarian government, practically found no formulated ideas or generally recognized conceptions of organization in the field of law. Law, for many decades, had been a subject of rationalist thought exclusively treated on the principle of technically polished logic. It was the school of Roman Law jurisprudence that had replaced direct service to life with service to abstractions, with the result that the substance of juridical thought and science, no less than the personalities professionally connected with law, led a life of isolation, hardly understood by the people and rarely regarded with respect, never with sympathy. . . .

The German Academy of Law, consequently, is the corporative representative of the German conception of law which considers the common weal the sole standard of its work, definitely doing away with former schools: the schools of natural law, of historical law, of the sociological theory of law whose destructive materialist tendencies it regards as least fitted for German justice. Service to the vital necessities of our people, not service to theories, is the ideal of the German guardians of law. In this sense the Academy of German Law will develop the Aryan conception of justice, thus contributing to the progress of our entire European civilization.

Thus German, or "Aryan," justice is something different from what the world has known since the time of Plato and Aristotle and the Roman lawyers, and something vastly better, based not on universal reason or "polished logic" but on the will to serve tribal ideas. This is indeed, as the Times correspondent says, a breach of the Weimar Constitution and of all German conceptions of law held for centuries. It is more than that. With a relentlessness that may remind some of us of German methods in the Great War, the Nazi leaders have broken with the cultural development of two thousand years and more, with Jewish and Christian morality as well as with Latin law and tradition. In all these, "racial theory and authoritarian government found no formulated ideas or generally recognized conceptions of organization." So all must go, law must be remade, and a new history written.

To see what this would mean for us it is necessary to remember how long and how difficult has been the "struggle for law" -- to use the words of the title of one of von Ihering's books -- the struggle between despotic will and constitutionalism. Juries not answerable for their verdicts, writs of habeas corpus, the condemnation of ex post facto laws, judges with independent tenure, strict definitions of treason, rigid enforcement of the rights of accused persons -- every one of these would require a volume to trace its history, and in some cases that history would extend backward for hundreds of years, through revolution and civil war. Yet not one of them is compatible with the Nazi ideal. If it persists they must all go, and much more with them. Are we willing to give up these hard-won gains in return for the "direct service to life" of a despotic Führer, benevolent or otherwise? This is the question. All others are insignificant in comparison.

But if we ever hope to give a true answer to such a question, we must try to understand why it has been asked. I have made no effort to conceal my own preference for constitutionalism and even for democracy. Nevertheless we must not condemn unheard this deliberate repudiation of them both. When a great cultured nation like modern Germany suddenly turns its back on the principles it has been among the foremost in teaching for hundreds of years, there must be a cause and it must be a cause lying far deeper than the mere mentality of the present German leaders.


To President Wilson in 1917 the problem was whether the world could be made safe for democracy. Now it seems to be whether democracy can be made safe for the world. It is even more fundamental than that. As I have tried to show, it is a question whether constitutionalism itself can or should persist, or whether we shall turn away from the political teaching of two thousand years and welcome a revolution which would make the French Revolution pale in comparison. Can liberalism, can democracy, can even constitutionalism, be made safe for the world? If a poll had been taken on that question as recently as fifteen years ago it seems probable that the answer would have been in the affirmative. It is doubtful if it would be today.

Democracy on a great scale is a relatively new thing in the world. It has not yet reached its two hundredth birthday. Practically no great statesman or political theorist ever had a good word to say for it before the French Revolution. Its vogue began with that revolution, yet it now seems to many to have failed in its first great test; they are tempted to throw it over for an older and more effective form of state organization, for a despotism which they pray may be benevolent. To some of these men one proof of the failure of liberalism, democracy, and even constitutionalism lies in the social dislocation which has followed the Great War; to others liberalism and democracy are unacceptable because they were unable to avert the war itself. On any other basis than this it is hard to account for the acquiescence of thousands if not millions of intelligent and liberal men in many recent acts and policies, unspeakably arbitrary and oppressive in character, on the part of their national governments. Faced with the hateful alternatives of disorder or despotism, they have chosen the latter as the lesser evil. It is not the first time in the history of the West.

To one who looks on the whole of that history since mediaeval times it does not seem strange -- whatever may have been the form of our governments -- that we have failed thus far in solving the unprecedented problems of our new world. Such an observer knows that today the population of a single European country like France or Germany is probably larger than that of the whole of Europe less than three hundred years ago. He recognizes that the wholesale industrialization of this huge mass has inevitably brought forward problems unthought of before in the ancient, mediæval, or modern world, problems to which old formulas can never be fitted. But the average man takes little account of these things. He is rightly impatient with existing conditions, and it is his voice that counts. However liberal he may be, he is influenced by the apparent failure of liberalism as a solution of his problems, and may even be willing in the long run to entrust his fortunes to King Stork instead of King Log.

Those who still cling to a belief in the essential soundness of democratic institutions and who hope for their future cannot afford to ignore these ugly facts. It will not do any longer to wave them aside, or to treat them lightly as the results of an economic depression soon to pass. The future historian will smile at so shallow an explanation of the history of the last dozen years or more in Italy, Germany, the Balkans and Spain, or even in the United States and England where democracy is not an exotic. The causes of these things did not arise suddenly in 1918 or in 1914. The crisis of the war and its aftermath of dislocation undoubtedly brought them to an issue, but their true causes are older, deeper, and more lasting. It is plain that if democracy is to persist it must become more effective and less corrupt than it has been for a long time past. Those who believe its feebleness and graft are only incidental and not essential must lose their case if they are unable to point to some means of purging these evils short of revolution or despotism. For purged they must be.

From ancient times the standing objection to democracy has always been its ineffectiveness, and it is still its greatest defect. An arbitrary government may permit corruption, but a feeble government invites it. The lessons of history are not to be hastily drawn, and most so-called "historical parallels" are dangerous. It is not strictly true that "history repeats itself." Yet a student of history may be warranted in thinking that in the past weakness has probably caused the fall of more governments than wickedness. An unjust ruler is hated by his subjects, but they usually tolerate him longer than one incapable of preventing injustice in others. The King must have an abundance of power, says a great political writer of the thirteenth century, if he is to maintain peace and justice. Machiavelli believed that it was less dangerous for a government to be bad than to be contemptible. One need not be a fascist to admit that fascism would very likely never have gripped Italy if the preceding parliamentary régime had not become contemptible.

Probably no form of political and social control ever tried in Europe has embodied higher ideals than the feudalism of the later Middle Ages. Yet it was replaced by strong monarchies many of which became despotisms.

In times of disorder men care more for order than for liberty. In this respect the transition from fifteenth to sixteenth century Europe seems to show a parallel to conditions existent today in at least some European nations. There was then for a time the same indifference to liberty but a passionate desire for order and a willingness to render unquestioning obedience to the only authority capable of maintaining it. In France the despotism of Louis XI can be explained only by the feebleness of the rule it replaced. In England we cannot account for the sufferance of "Tudor absolutism" except in the light of the feudal anarchy of the fifteenth century. From 1215 to the present we hear constant appeals to Magna Carta, the "palladium of our liberties" -- save in one period alone, the era of the Tudors. From 1485 to 1603 there is scarcely a mention of it, and even at the end of the period Shakespeare wrote his King John without a reference to it. To Simon Fish, writing in 1529, the barons of 1215 were simply rebels fighting against "a rightuous Kinge," "forbicause that he wolde haue punisshed certeyn traytours." Since the sixteenth century it has not been usual to regard John as a "rightuous Kinge." It seems strangely true that each age will reconstruct the past in its own image: if so, we may expect some peculiar history to come out of Germany in the near future.

Thus we have foreshadowed the most pressing problem of modern government -- the preservation of the delicate balance between order and liberty, so that the former may not turn into oppression nor the latter into license. Can it be done? One thing at least seems clear from both recent and earlier history. The democracies of the present world, if they are to succeed, must become less contemptible than they have been; that is to say, they must become more competent. Disorder in the past has always been overcome by a concentration of power. It can be overcome by no other means now. At his coronation the mediæval King swore to preserve order and maintain justice. It was his comparative success in doing so that explains the long continuance of monarchical government since feudal times; and he could never have succeeded in it if the statement accredited to Louis XIV had not in some sense always been true: L'état, c'est moi. But by the eighteenth century the strong constitutional monarchy in France had degenerated into the personal one which resulted in the Revolution. The serious problems of today require the same concentrated power that enabled the mediaeval King to enforce his peace in times of disorder; but as that King was "under the law that made him King," in Bracton's phrase, so our modern governments must also have their legal bounds. We must have power; but we need safeguards against its wrongful extension or abuse if it is to remain constitutional and not become despotic, as it became in France before 1789 or as it is now in the German Reich. The powers of our governors should be great, yet they must be limited. If so, Luis custodiet ipsos custodes? Who is to have an eye on those governors themselves? Who shall determine when they have overstepped the bounds of the law which at once confers and defines their authority? Who, if not those technically qualified and duly constituted to interpret that law?


Two historical fallacies have obscured the answer to this important practical question. One is the unwarranted notion that we here in America were the first discoverers of judicial review. The other is the theory so brilliantly set forth by Lord Bryce, and especially by Professor Dicey, that in England, the main source of our political conceptions, there was no constitution which the sovereign parliament could not override. Neither of these assumptions will bear the light.

As to the first: judicial review, instead of being an American invention, is really as old as constitutionalism itself, and without it constitutionalism could never have been maintained. In France, for example, the long history of the Parliament of Paris is a struggle for judicial review against arbitrary government. True, it was a losing fight -- if it had not been, the Revolution would not have come on in 1789 -- but it is none the less important for that. When Louis XI cowed his Parliament by force it was felt to be a usurpation, and all the great French constitutional lawyers in the next two centuries admitted the fact at least by implication. If the Parliament refused to register a royal ordinance, as it frequently did, there was always the same reason for this refusal: the qualified interpreters of the law considered the act as ultra vires. They were merely putting into practice the same fundamental theory of constitutional government recently applied in the Schechter case by our Supreme Court, or asserted in England in the early seventeenth century by Sir Edward Coke when he reminded James I that the King in person could pronounce no judgment in his courts even though they were his courts.

All such facts seem to rest on three necessary assumptions: first, that there is a fundamental constitution; second, that its interpretation rests with the judiciary; and third, that judges have an authority only, in the words of Lord Bacon, "to interpret Law, and not to Make Law, or Give Law."

Our own American judges who thought to avert civil war by political obiter dicta certainly did not make a notable success of it; and Clarendon tells us that it was similar dicta concerning the royal prerogative in the Ship-money Case which stirred up the popular discontent resulting in the English civil wars of the seventeenth century, rather than the mere decision in favor of the King. In 1788 or 1789, by ratifying a written constitution which reserved all unenumerated powers "to the States respectively or to the people" and which in a "bill of rights" expressly forbade certain governmental infringements of individual liberty, we in America merely made our fundamental law more explicit. We added nothing really new. The fact that judicial review was not debated in the constitutional convention of 1787 means little. Judicial review was taken for granted, and as soon as settled government was established under the new constitution, it inevitably emerged, as it always must if a constitutional régime is to persist at all.

But judicial review implies a fundamental constitution to be reviewed, and this means a set of rules not made by the sovereign authority subsisting under that constitution, nor subject to his will. Such rules have existed and must exist in any state worthy of the term "constitutional." It is true enough that statesmen have not always clearly grasped this fact. Misinterpreting the real nature of the English Revolution, a few misguided ones in the eighteenth century tried in the case of Englishmen overseas to violate political traditions which they would never have dared touch at home. The loss of a great colonial empire was the result. The fictitious character of the doctrine of the omnipotence of parliament is now explicitly admitted by the recent Statute of Westminster in imperial matters, the only important field in which it has ever been exploited. In internal matters, in England itself, there are many fundamental rights of the subject that parliament in modern times has never dreamt of infringing and could only infringe at the cost of revolution.

The true glory of England's institutions lies not in her representative parliament, but in the fact that through it she has preserved her ancient liberties and made them more secure and more general. It has been her unique good fortune that her traditions of free government are so old and so firm that they have never been overturned or seriously interrupted. Thus no formal written constitution has ever been needed, as on the Continent or in North America; the possibility of revolution remains the only sanction of constitutionalism. Our amendable constitution offers a milder alternative. Of course it would be absurd to say that modern English parliaments have never exercised an arbitrary power over subjects. National crises always breed popular hysteria. The treatment of the so-called "delinquents" by the Long Parliament smacks suspiciously of Dr. Frank's "healthy public sentiment" rather than of law; and such things did not end at the Restoration or the Revolution. On the whole, however, they became progressively fewer, so few in recent times, in fact, that one likes to think they never can recur. Like some legal fictions, the political fiction of the omnipotence of parliament may possibly serve some useful purpose. It is dangerous only when it is mistaken for a fact. Among free peoples such fictions persist only so long as they are unreal enough to be harmless.


The limits of a single article are too narrow to permit further historical illustrations, and I must be content with a rather bald résumé of a few of the practical conclusions which seem to me to be deducible from the history of constitutionalism. If, as I have insisted, the problem consists in making constitutionalism safe for the world, one method is suggested by the recent tendency toward autocracy. It must fit itself to "serve the vital necessities" of the people, in Dr. Frank's phrase, and to compete successfully with dictatorships in so doing. Otherwise dictatorships are likely to replace it. To serve these necessities democratic government must have something of the strength, the decision, and the independence that a dictator enjoys.

In the United States such a concentration of power as this implies would of course be legally impossible without some amendments to the Federal Constitution; and the reformers are justified in demanding such amendments. These would strengthen the authority of law, for they would provide legal means of securing what men believe that justice demands. Under our vast new industrial system it is felt that the old guarantees of "life, liberty, and the pursuit of happiness" must include more than they did under the simple rural economy of 1776 or 1787. They must protect men against peonage as well as against prosecutions; they must do more than merely make them equal before the law. These things are so necessary that they will be done somehow. True liberty will be conserved if they can be done constitutionally and within proper limits. If our exaggerated system of checks and balances stands in the way, then that "system" should be altered by amendment.

In his recent book our ex-President has advocated a wholesale return to all those time-worn checks as a cure for our present "mediæval" regimentation. To make such a proposal in all seriousness one must be almost as oblivious of the causes of our present miseries as of what actual conditions were in the Middle Ages. We have indeed been illegally regimented in some cases, and fortunately the Supreme Court has so found; but we must devise legal means to end the abuses which provoked this regimentation, or worse is likely to follow. And it is under the shadow of these very checks and balances that some of the worst of these abuses have sprouted and flowered. When, for example, we see one branch of our government, under pressure from a selfish minority, passing a bill they know to be vicious in the secret hope that another branch may nullify their action, we have the very reductio ad absurdum of all government and an end of all true responsibility. Where responsibility cannot be fixed, corruption will inevitably spread and the interests of greedy minorities are sure to supplant the common weal. But there can be no responsibility without power and there should be no power without responsibility. Government, if it is to be honest and impartial and effective, needs to be restricted; but it must not be weakened. The principle of the separation of powers, valid and necessary if restricted so as to mean merely the independence of the judiciary, when extended too far into the spheres of legislation and administration becomes a menace and an open invitation either to illegal usurpation or to actual revolution.

True constitutionalism, from mediæval times to our own, has never meant government enfeebled by divisions within itself; it has meant government limited by law. None but reactionaries will insist that this law shall remain forever fixed and immovable regardless of economic and social development. The true conservative will admit the need of changes if they are sound and constructive. Indeed, he should welcome them, because they will heighten and not lessen respect for law itself. The one thing he can never safely tolerate is to see law undermined, even under the guise of Dr. Frank's "healthy public sentiment." Against such insidious encroachments of despotism our chief reliance must remain what it has always been: a fearless and impartial interpretation of law by a free and independent judiciary. Our problem today, in a word, is to make needed changes in the laws, but always to keep them law.

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  • C. H. McILWAIN, Eaton Professor of the Science of Government in Harvard University; author of "The American Revolution," "The Growth of Political Thought in the West," and other works
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