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

Page 33 text:

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 To borrow a phrase from an unpublished paper by Bertrand de Jouvenel, the law is the method by which potentia- beeomes potesten, by which power becomes au- thority, by which it acquires legitimacy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

Page 32 text:

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

Page 34 text:

parties and public corporations from Engiand, some- thing about making the bureaucracy responsible from the Cemeil $1?th in France, and from Western Ger- many something about how government may help make private economic power respensible through internal participation rather than external control. We cannot assume that if something must be done to make private power responsible the government must do it. The alternatives are not as we usually seem to think they are, between governmental control and letting private power run wild until its flamboyance is Checked by collision with other private powers. There are other ways of bringing power to the test of reason, ways that may do more to preserve the vitality and spontaneity of individuals and groups than the law can do. The law is general, and it is coercive. It is, therefore, a rather blunt instrument. Mr. Berle appeals to what he calls the ttPublic con- sensus. He says, iiDoes this inchoatc public consensus have any relatien to settled law? The anSWer must be that it does include settled principles of law. But it also includes capacity to criticize that law. From time to time it may demand changes in existing lawf' Mr. Berle finds the public consensus formed and represented by the influence of leading businessmen and i'the conclusions of careful university professors, the reasoned opinions of specialists, the statements of re- 30 sponsihle journalists, and at times the solid pronounce- ments of respected politicians? He goes on to say, I Fhese, and men like them, are thus the real tribunal to which the American system is Fmall y accountable. Taken together, this group, so long as its members are able to communicate their viewsJ becomes the forum of account: ability for the holding and use of economic power. Col- lectively they are the developers of public consensus, the men first sought to guide the formation of public opinion to any given application. At hrst blush it would seem that if economic power is now responsible to this tribunal, we do not need to con- cern ourselves very much with making economic power responsible. This tribunal exists. And though its mem- bers may have some little difficulty from time to time communicating their views, they are always in session, and always; presumably, engaged in holding American business responsible. The consensus, we are told, is always ahead of the law, but some of its principles are well Enough defined to be called inchoate law. The consequences of the violation of these standards may be serious. One result, Mr. Berle says, may be that Hthe standards set up by the conseusus will suddenly he made into explicit law in case of abuse of power?! Mr. Berle points to a wide range of issues on which businessmen are likely to find themselves in trouble if they do things which, though now thought to be legally permissable, violate the standards set up by the public consensus. We are weil acquainted with the notion that the insti- tutiens of this ceuntry operate within limits set by pub- lic opinion. The hourishing trade of public relations is a testimony to this fact. Presumably there are, and al- ways will be, leaders of public opinion. It may be that some of them are the kind of people that Mr. Berle appoints t0 the tribunal to which American business is accountable. Some doubt is cast on his selections, at least as far as Southern California is concerned, by a state- ment of Professor Gilbert Brighouse of Occidental col- lege that appeared in the L05 Angeles Times on October 28. Mr. Brighouse said that neither intelligence, honesty, industry, nor loyalty was necessary for business leader- ship. He said, ttOne of the greatest leaders in Southern California, for instance, is an imbecile. But, when they really need something done, this is the man they go to. But let us assume that the tribunal exists, no matter who its members are. Mr. Berle may be right in saying that businessmen had better watch out for it. But it must be admitted that today this tribunal is working rather erratically. Its Operation, in practice, is as in- explicable and unreliable as that of the Invisible Hand. In the helds with which I am more familiar than I am with business no such tribunal appears to exists, or, if