University of Chicago - Cap and Gown Yearbook (Chicago, IL)

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was unworthy. I wanted to bask in the reflected glory of my old friends, the Dean and Faculty of this Law school. They include my teachers, my fellow students, and my colleagues at the Yale Law school, and my stu- dents and colleagues here. I am bound to them by ties of obligation and affection that run back in some cases forty years. I knew them in their days of poverty and struggle. I am happy to saiute them as they enter upon a new era of Gracious Living. In order not to be altogether derelict on this occasion I must build up the subject you have selected into one that is worthy of your attention. I was relieved to hnd, through further research, that Britannica and the 53m- topiccm were entirely right. Neither of the ideas in the title of this symposium is very interesting in itself. Re- sponsibility cannot exist without power. And power, by itself, is simply an inconvenient fact of life. A. A. Berle, Jr., in his new book, Power Without Property, observes that almost nothing has been written about power. And 28 Professor McKeon, in his authoritative paper, makes the same remark about responsibility, adding that it is a comparative parvenu, born in 1787. These two ideas, or words, impress us only in com- bination. In combination they lead us into all the major legal and political problems of the West. The legal and political history of the West may be seen as the effort to make power responsible. The problem of pnwer and responsibility is identical with that of a free and just society. Freedom implies power of some kind, and jus- tice implies responsibility. The American tradition is the tradition of dispersing power and trusting to luck, or to the Invisible Hand, to produce responsibility. From James Madison to Rein- hold Niebuhr the modem has been that salvation lies in having many contending centers of power. The Feder- alist am tinds safety from factions in having a great many of them, fighting over a large territory, In the latest pamphlet published by the Center for the Study of Democratic Institutions, Mr. Niebuhr, referring to the corporation and the labor unionJ said, HWhat health we haVe is due to the fact that these dubious sovereign- ties balance one another. Mr. Niebuhr went on to deal with the function of government as follows: HIt is only the purpose of government to see to it that the over-all purposes are fulfilled within the terms of the spon- taneous desires, motives, etc. of all the centers of power. This is the new liberalism as against the old liberalism. The old liberalism assumed that spontaneity, free enter- prise, free market, all contributed to the general welfare. We know that is not true. We know there must be Checks and balances. The government, if it finds one center of power is too strong, must raise up another cen- ter of power in the interest of justice. There is something unsatisfactory in the notion that the whole matter of power and responsibility, freedom and justice, is going to be solved because the centers of power will balance one another and that the role of government is simply to see to it that the supply of such centers is adequate. In order to have any confidence that if enough centers of power contend they will make one another responsible and give us a just society, we must attribute to Provi- dence a greater interest in the welfare of the American peeple than either our history or our merits would seem to justify. My purpose this morning is to suggest the pos sibility that we as a people, as a community learning together, might learn how to assume conscious control of our destiny. In considering this possibility, one of the grossest errors we can make is to assume that we have exhausted our intelligence and imagination, that is, our capacity for learning. The fact is that we have hardly ever

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cm ex-Choncellor returns and 1e, e; gives 0 speech POWER AND RESPONSIBILITY by ROBERT M. HUTCHINS Delivered November 18, 1959 as part of the Sec- ond Dedicatory Conference of the new Jaw build- ings. On being invited to address this distinguished audience on the subject of Power and Responsibility, I turned first, of course, to the Encyclopaedia Britannica. I found that there was no article on Responsibility and that the one on Power begins. :The word power: as used by the engineer. . . 3i Eager, as always, to stretch my mind, I took up the Syntopicoe, only to discover that neither Power nor Responsibiiity is one of the Great Ideas. Since the Encyclopaedia Britannica is described on the title page, which bears the imprimatur of this Uni- versity, as a New Survey of Universal Knowledge, we must conclude that nothing is known of Power or Re- sponsibility. Since the Syntopicon is the Social Register of ideas, we must conclude that Power and Responsibil- ity have not yet iiarrivedf! How is it possible to have a symposium about matters of which we are totally ignorant, which may not exist, and which, if they do exist! have a low or insignificant status? If you ask why I accepted this invitation when I had been assured 0n the highest authority that the subject was trivial or irrelevant, the answer is that my motive 27

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exerted it because we never had to. To say, for example, that there is something inherently degrading and cor- rupt about American politics and that therefore govern- ment must govern as little as possible is to overlook the fact that governments have been transformed because communities have learned to make them responsible. Nobody living in Sir Robert Walpoleis day could have imagined that in 150 years the British would be setting standards of honesty in public administration for the world. It will not escape our notice, I hope, that this transformation was accompanied, and in some degree causedJ by the reformation of the British universities. If a society is to be free and just, all power in it must be made responsible This means that all power must be brought to the test of reason. The obvious way of doing this is through the law. It is no answer to say that some laws are unreasonable. Of course they are. But the law is still what Dr. Johnson said it was, lKthe last result of human wisdom acting upon human experience for the beneflt of the public.n We have been preoccupied since Machiavelli with social physiesepolities is who gets what and how and the law is what the courts will doebut the law is still a work of reason. If it is not, then perhaps I may be permitted to say; in an ad hammer; kind of way, that this school has no claim to be a part of a intellectual institution. To borrow a phrase from an unpublished paper by Bertrand de Jouvenel, the law is the method by which potentia- beeomes potesten, by which power becomes au- thority, by which it acquires legitimacy in its possession and is constrained to reasonableness in its exercise. Office means duty. This idea is familiar enough. In fact the deepest con- stitutional conviction that we have is that governmental power must be made responsible. When the Constitu- tion was framed, government and the individual were the only two entities in society. Government was the one with the power. Now other centers of power may have a more direct and drastic effect on the individual and on the life of the country than any 18th Century govern- ment could have hoped to have. This raises new con- stitutionai questions. As Arthur S. Miller has said in a paper about to be published by the Center for the Study of Democratic Institutions, uWhenever any organization or group perw forms a function of a sufhciently important nature, it can be said to be performing a governmental function and thus should have its actions considered against the broad provisions of the Constitution. In the racial cove- nant eases, the white primary cases, and the company town cases, the Court has shown that the concept of private action must yield to a conception of state action where public functions are being performed. . . . With the continuing pluralizing of American society and the increasing recognition of the governmental power of private groups, it can be forecast with some certainty that the trend of the C0urt in lpubliC-izingl private groups will continue. It should become the important constitutional law development of the mid-twentieth century. Mr. Miller ends his essay with these words: hThe study of constitutional law today shOuld include not only what governments can and cannot doI but also what they must do? But if governments must do more than they did, the task of making governmental power re- sponsible is back with us in new and disturbing forms. A United States senator remarked in my presence the other day that Congress was ceasing to be a legislative body. If it brought power to the test of reason at all, it did So not by making laws but by holding hearings. Using the example of miiitary expenditures, he said that if Congress increased them, the Administration would impound the money. If Congress reduced them, the Ad- ministration would reschedule its purchases. Bureauc- racy in government and in political parties and the com- plexity of the operations of government, present and proposed mean that the constitutional theory of re5pon- sible government requires the most thoroughgoing re- examination. We might learn something about political 29