Front Page Titles (by Subject) TEN: Progressivism and Political Science in America - Constitutionalism and the Separation of Powers
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TEN: Progressivism and Political Science in America - M.J.C. Vile, Constitutionalism and the Separation of Powers 
Constitutionalism and the Separation of Powers (2nd ed.) (Indianapolis, Liberty Fund 1998).
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Progressivism and Political Science in America
The constitutional theory of the United States down to the Civil War was dominated by the interaction between the two doctrines of the separation of powers and checks and balances, forming a complex pattern of opposition and interaction, until they both dissolved into a number of tactical political positions with little coherence or consistency. The confused picture of constitutional thought presented in the 1840’s and 1850’s is indicative of the extent to which neither of these old theories of constitutionalism any longer possessed the ideological fire of an earlier age. Both represented points of view fast becoming inadequate in the face of the tasks of government in the modern world. Yet at the end of the Civil War the formal Constitution of the United States still embodied that combination of the separation of powers and checks and balances which the men of 1787 had devised, and indeed it still does so today. It seemed, therefore, that the triumph of the Union over the Confederacy was a confirmation of the constitutional system not only against the threat of secession, but in its entirety. When Cooley published his Constitutional Limitations in 1868 the work of the Founding Fathers seemed more secure against attack than at any time since the Convention dispersed in 1787. More important, the Constitution, with its elaborate barriers to the exercise of effective governmental power, suited very well the aims of that group of flourishing big-business men who were to dominate politics in the latter part of the nineteenth century, giving to it the character of the age of the tycoon. The high point of this philosophy of government in an industrial age was reached, perhaps, in 1918, when in the child-labour case the Supreme Court invalidated as unconstitutional the attempt by Congress to limit the hours of work for children in factories to eight hours a day. Nevertheless, the Civil War did mark a turning-point in American political thought, for it ushered in a long, intense period of criticism and attack upon the established constitutional theory, of an unprecedented ferocity, conducted alike by practical politicians, journalists, and academics.
The growth of the trusts and the concentration of economic power, the wealth and political influence of a few men, and the nature of politics in what Lippmann has called the twenty dangerous and humiliating years between the death of Lincoln and the rise of Grover Cleveland, called into existence an impressive protest, a demand for reform that built up through the Granger, Greenback, and Populist movements to its climax in Progressivism. This was another of those great democratic revolts against power and privilege which had characterized the modern world since the mid seventeenth century, but now it was a revolt with a different ideological impulse. It was no longer an attack upon oppressive arbitrary rule taking the form of demands for freedom from government action, but a demand for government to act to deal with pressing economic and social problems. It was an attack upon a constitutional system that allowed these problems to be shelved, or indeed required them to be shelved. Thus although, as on earlier occasions, this democratic onslaught was directed at the system of checks and balances which entrenched privilege, it was no longer based upon the rival principle of the pure separation of powers; on the contrary it was directed equally against that doctrine, in its extreme form at any rate, as one of the factors making for an ineffectual and weak system of government. Changing attitudes towards the nature of freedom and the role of government in society demanded a new approach and a consequent rejection of the over-simplified theories of earlier liberal constitutionalists. The need now was for a system of government that would give expression to the growing demands for government action, a system in which the unity of the “powers” of government would be as important a consideration as their separation. As early as 1864 George H. Pendleton introduced into Congress the first of a long line of bills which proposed a closer relationship between the Congress and the Administration,1 and only fourteen years after the end of the Civil War the young Woodrow Wilson wrote his essay proposing the adoption of cabinet government in America.2
The attack upon the dominant constitutional theory at the end of the nineteenth and the beginning of the twentieth century fired, therefore, with both barrels. The attack upon privilege, and upon those constitutional checks and balances which, by denying majority rule, protected privilege, had something of the flavour of the Jeffersonian attacks upon the Constitution of a century earlier. They embodied demands for popular control over all the agencies of government not very different from those of John Taylor of Caroline, for they rejected entirely the concept of independent branches of government nicely balanced against each other. Franklin Pierce called the American Constitution “the most undemocratic instrument to be found in any country in the world today.”3 A Constitution containing so many checks and balances, he wrote, was a constant temptation to both President and Congress to usurp power.4 J. Allen Smith thundered against the monarchic and aristocratic elements in the Constitution, and against the legislative role of the judiciary.5 These undemocratic features should be replaced by an easier amending process and by the adoption of the initiative, the referendum, and the recall. Such devices would make it possible for the people to maintain their control over all the officers of government, legislative, executive, and judicial alike, as Theodore Roosevelt proclaimed to the Convention of the National Progressive Party in 1912.6
This aspect of the demand for constitutional reform did not, therefore, constitute a demand for the replacement of checks and balances by a straightforward system of legislative supremacy. Legislatures were more suspect in Progressive eyes than executive officers, and the best solution for the problems of modern government was seen to be the strengthening of executive power at State and Federal levels. Practical politicians like Robert La Follette were more concerned to establish popular control over all branches of government than to unite them. Thus most of the plans for the reform of State government did not propose the election of the executive by the legislature; they intended that more power should be conferred upon the executive to control and coerce the legislature.7 The separation of the branches of government and subjecting them to popular control resembled, therefore, the old Jeffersonian tradition, but they had in reality a different aim. They did not embody the Jeffersonian philosophy of minimal government, for the popular control of the agencies of government was intended to ensure that they acted harmoniously to achieve the aims of government, not that they should be prevented from acting at all. The other line of attack upon existing constitutional thought was, therefore, upon the “negative” aspects of the separation of powers.
The demand for “harmony” between the parts of the government was now heard as often, and as strongly, in the period between the Civil War and the First World War as it had been in Britain in the early nineteenth century. It was argued that the social and economic problems of modern society required concerted action by responsible governmental authorities, whereas the separation of powers made concerted action impossible, and blurred responsibility to the point where it disappeared altogether. The nature and consequences of a system of separated powers were subjected to critical analysis like that of Henry Jones Ford in his Rise and Growth of American Politics of 1898. A number of influences affected the nature of these analyses. The British system of parliamentary government, as described by Bagehot and later by Bryce, provided a new pattern of government as an alternative to the two stale philosophies of checks and balances and the pure separation of powers. The parliamentary system, as these writers depicted it, did not suffer from the disadvantages of cabinet government of the sort that the Founding Fathers had rejected in 1787; and the reformers at the turn of the century were looking for a very different performance from their government from that expected by the eighteenth-century conservatives who created the United States Constitution. The British system could be portrayed as a more modern, democratic, and effective system of government than the Federal Constitution, which a century before had been able to claim superiority in all these respects over the rejected British model. Nevertheless, there were very few Americans who were prepared wholeheartedly to accept the British pattern of parliamentary and cabinet government in its entirety. Indeed, it was in many respects incompatible with the measures of direct government and popular election that characterized Progressive constitutional theories. The importance of this influence, therefore, lay more in its embodiment of the essential qualities of co-ordination and coherence than in any direct effect upon institutional development.
Continental European influence was also of great importance at a time when French and German scholarship was much admired in America. In particular the Continental concern with administrative law seemed relevant at a time when a need was felt for new institutional developments, and when there was a growing interest in Civil Service reform and the problems of bureaucracy. The development of new patterns of government regulation through commissions, first in England and in the individual American States, and then in the form of the Interstate Commerce Commission, led to a questioning of the old triad of governmental powers. A new awareness of the importance of political parties, and the role of the political “boss” in the United States, led people to re-evaluate older constitutional theories, which had concentrated almost exclusively upon the formal legal institutions of government. All these factors led, therefore, to a searching examination of older constitutional dogmas, and so to a questioning of the separation of powers. In retrospect the over-all impression of these new approaches to the problems of government seems, at first glance, to represent an outright rejection of the doctrine. Yet the assertion, by Professor Dwight Waldo, that American reformers showed an “almost complete lack of sympathy” for the principle of the separation of powers, is rather misleading.8 A close examination of the work of the giants of this period, Woodrow Wilson, Herbert Croly, and Frank Goodnow, does not support the view that they represent an undiscriminating rejection of the doctrine of the separation of powers and the values it set out to protect. These men certainly attacked the pure doctrine as intellectually indefensible and practically unworkable, as well they might, but their work can also be seen as a passionate attempt to reinterpret an earlier constitutionalism in order to protect many of its values by incorporating them into a realistic and modern philosophy of government. These men, each in his own way, were seeking for solutions within the great stream of Western constitutionalism, of which the separation of powers and its related ideas had for centuries formed an essential part. None of these men was a proponent of absolutism, either of a single man, or of a representative assembly, or of a political party. Almost inevitably, therefore, their work becomes a reformulation of that problem of division and unity which has perplexed Western thinkers whenever the difficulties of a controlled exercise of power have been contemplated.
The thought of Woodrow Wilson illustrates very well the complexities of that strand of American thought that was influenced by an admiration for the English system of government. Wilson was deeply affected by Bagehot’s description of the English Constitution, and he used Bagehot’s method and followed his analysis closely. Nevertheless he had rather different aims from those which had inspired the English writer, and his interpretation of the English political system was, in the end, rather different from Bagehot’s; it was, indeed, a more balanced assessment of the working of parliamentary government than that of his master. Wilson did not describe the parliamentary system as a “fusion of powers,” for his intention in appealing to the model of English government was not to further a programme of legislative supremacy but to strengthen the executive power, and restore the balance between Congress and Executive, which in his opinion had been lost. Although in 1879, and again in 1884, he advocated the adoption of cabinet government in the United States, in his later works he was much more hesitant. His admiration for English government still shone through, but he used its example as an indication of the values which should infuse a modern system of government rather than as a pattern to be closely followed. Wilson ended his career, of course, as a practical exponent of a strong Presidency as an alternative to parliamentary government, and as the best means of providing leadership in the American system.
In his Congressional Government Wilson adopted the same device as Bagehot, of distinguishing between a “literary theory” of the Constitution and its actual operation in practice. The Constitution of 1787, he wrote, is now the form of government rather than the reality. That Constitution had embodied a system of checks and balances, but in practice all the niceties of constitutional limitations had been over-ridden and the Founders’ schemes of balance and distribution of power had been set at nought. The result of this transformation of the Constitution had been to establish “a scheme of congressional supremacy,” in which “unquestionably the pre-dominant and controlling force, the centre and source of all motive and of all regulative power, is Congress.”9 He applied Bagehot’s description of Parliament to the Congress: “it will enquire into everything, settle everything, meddle in everything.” Congress, Wilson wrote, had entered into the details of administration, taking into its own hands all the substantial powers of government, and had emerged predominant over its “so-called co-ordinate branches.”10 So far then, Wilson paralleled Bagehot in his method and in his conclusions. Both writers believed that the constitutional barriers to the exercise of power in their countries had been destroyed, and a scheme of legislative omnipotence established in which all effective power was concentrated in the representative assembly. Yet there is a strange paradox here. In 1865 Bagehot had used the American pattern of separated powers to illustrate the complete absence of checks to the power of the House of Commons in Britain; twenty years later, however, Woodrow Wilson used the pattern of English parliamentary government as an illustration of a desirable alternative to the concentration of all power in the American legislature. Why should Wilson admire a system of government which, according to his teacher Bagehot, embodied a “fusion” of the legislative and executive powers?
The answer is that Wilson did not accept the general description of the parliamentary system with which Bagehot commenced The English Constitution; rather he followed the description of the system in operation that Bagehot gave when describing the balance of power between Cabinet and Parliament. Wilson, that is to say, concentrated upon the elements of the system found in Earl Grey’s work, rather than upon Bagehot’s shaky attempts to characterize British government in general terms. The result was that Woodrow Wilson saw cabinet government as “a device for bringing the executive and legislative branches into harmony and co-operation without uniting or confusing their functions.”11 Here then was Wilson’s explanation of the paradox. The American system, which is formally a system of separated and balanced powers, actually results in the concentration and confusion of all powers in Congress; the system of cabinet government is a means of ensuring that the functions of government are kept separate but co-ordinated. The “hard and fast line” separating executive and legislature in America was intended, Wilson argued, to ensure the independence of each branch of government, but it had resulted instead in their isolation.12 The parcelling-out of power in the Constitution led to irresponsibility, and therefore enabled Congress to meddle in matters better left to the executive. On the one hand, the exclusion of the executive from all participation in the work of the legislature led to a distressing paralysis in moments of emergency, due to the lack of effective leadership; and on the other hand, rendered ineffective the attempts of Congress to exercise control over the departments.13
In his later work Wilson made this point even clearer. The attempt to establish checks and balances in the United States had failed, he wrote, because the system of separated powers had resulted in an impossible attempt to restrict the President to mere executive functions. Congress had been invested with the power of “governing,” whereas the real origin and purpose of representative assemblies had been to “consult” with the government in order to apprise it of public opinion.14 Thus the significant difference between the English and American legislatures was that the Congress had become part of the government, while in England Parliament had remained apart from it. “Parliament is still, as it was originally intended to be, the grand assize, or session of the nation, to criticize and control the Government. It is not a council to administer it. It does not originate its own bills . . . the duties of the ministers are not merely executive: the ministers are the Government.”15
Wilson’s view of the defects of the Constitution closely paralleled the views Jefferson had expressed in the Notes on the State of Virginia. The attempt to separate the powers of government had failed, and all power had resulted to the legislature. But whereas Jefferson, and other men in the period before the formation of the Constitution, looked to checks and balances to provide the barriers necessary against abuse of power by the legislature, Wilson believed that these checks and balances had also failed to control the exercise of power. Instead he looked to a new view of government functions; he thought in terms of the parliamentary functions of “government” and “the control of government,” rather than the old legislative-executive formulation. Nevertheless for a moment even Wilson harked back to the old dialogue between the separation of powers and mixed government. The analysis of any successful system of self-government, he wrote, would show that its only effectual checks consist in a mixture of elements, in a combination of seemingly contradictory political principles. “The British government is perfect in proportion as it is unmonarchical, the American safe in proportion as it is undemocratic.”16
Wilson’s attack upon the separation of powers was, therefore, much more subtle than Bagehot’s. He criticized the extreme separation of the personnel of government in the United States, and the belief that the functions of government could be kept in watertight compartments, in order to develop a more sophisticated separation and articulation of functions, which he saw in the system of parliamentary and cabinet government. In the last analysis he rejected Bagehot’s oversimplified views of the parliamentary system in favour of a combination of the virtues of harmony and balance, in much the same way as many of his contemporaries were doing in France. The insistence that the concentration of power was not the aim of reformers is to be found even more clearly in the work of Gamaliel Bradford. In The Lesson of Popular Government of 1899 Bradford did not advocate the adoption of cabinet government, but argued the necessity of a strong executive, which would have the function of formulating legislation and submitting it to Congress for approval; in other words, he wrote, “the veto should be applied the other way.”17 He supported the Pendleton proposals to allow members of the cabinet to speak in Congress, and used the pattern of the German Empire, with the difference, of course, that the head of government would be a popularly elected President, to illustrate the desirable relationships between the head of the government, members of the cabinet, and the legislature.18 For Bradford the danger of the American system was that the absolute and unchecked power of Congress had reduced the executive to becoming the “blind instrument” of any order the legislature might choose to give.19 This danger could only be met by restoring the balance of power between the branches of government. The keynote of his work, he wrote, was to further “the effective separation of the executive and legislative power,” and to prevent the absorption of all power by the legislature.20 Bradford clearly stated the view that the “proper” separation of the legislative and executive functions could only be achieved through an attack upon the particular method of separating the powers of government embodied in the Constitution. Neither Wilson nor Bradford was interested in a crude attack upon the separation of the functions of government; on the contrary, they showed a deep concern for the values the doctrine of the separation of powers had embodied, which could only be safeguarded by a balanced system of government in place of the pattern of legislative domination that they abhorred.
There were, therefore, in the period before the First World War, two major objectives in the Progressive attack upon the Constitution. The main effort was directed at an attempt to ensure the responsibility of the parts of government to the people through the mechanisms of direct control; in addition an intellectual assault on the Constitution by Wilson and others stressed the need to achieve an effective, harmonious relationship between the branches of government. These two aims of democracy and harmony were by no means mutually exclusive; they were shared in varying degrees by all the reformist elements, but they embodied different approaches to institutional solutions which were to a large degree incompatible. The harmony of purpose in a system of parliamentary government resulted from the direct responsibility of the government to the elected legislature, whereas the use of the initiative, referendum, and recall, and the direct election of executive and judicial officials as well as members of the legislature, did not combine easily with the principles of the parliamentary system. The most impressive attempt to draw together and integrate these various strands of Progressive constitutional doctrine was made by Herbert Croly, journalist and, for a time, confidant of Theodore Roosevelt. Croly’s concern for popular control and effective, co-ordinated government, resulted in a subtle and sensitive approach to the problems of constitutionalism. The role of the separation of powers in a modern constitutional State was one of his major concerns in his Progressive Democracy of 1915. In this work he was at pains to refute the charges that Progressivism was an extremist attack upon constitutionalism itself, and this led him to attempt a conscious reformulation of the doctrine of the separation of powers in the American context.
With that American genius for finding ever new combinations of the ideas of Jefferson and Hamilton, Herbert Croly had a vision of a government closely subjected to popular control, which would follow a positive national policy for the solution of pressing economic and social problems. Croly looked for direct popular control of the organs of government, which would be separated and functionally distinct, and in this respect his view was little different from that of Jefferson or Taylor, although the instruments of popular control were to be different. Croly rejected outright, just as the Jeffersonians had done, any theory of checks and balances which endowed the branches of government with an independence both of the people and of each other, and he was insistent upon the necessity of a separation of the functions of government. Yet Croly vehemently rejected Jeffersonianism in its attachment to extreme individualism, and in its insistence upon a strictly limited, negative, role for government. His was a philosophy of strong national government, opposed to the particularism of the Jeffersonians. This philosophy led him to an attack upon the extreme doctrine of the separation of powers, and to demand unity and harmony in the system of government, but he was no crude, outright opponent of all that the doctrine stood for. He understood very well that a separation of functions among the agencies of government must form the basis of any constitutional system, but he looked for a formula which would ensure that this necessary separation did not result in stagnation.
Croly’s Progressive Democracy began with an analysis of the history of the Federal Constitution, attributing its fragmented structure to the all-pervasive fear of power in America, including the fear of the power of the people themselves. The Founders, Croly argued, had evaded the problem of rationalizing the exercise of popular power by subjecting it to rigid, effective limitations, and by dividing the government against itself. The proper way to rationalize the power of the people in his view was to accept frankly the danger of violence, and to reorganize the State so that “popular reasonableness will be developed from within rather than imposed from without.”21 Thus Croly rejected that philosophy which gave the agencies of government an independence allowing them to restrain or evade popular control, yet he certainly did not reject constitutionalism. “Constitutionalism necessarily remains,” he wrote, “but the constitutions are intrusted frankly to the people instead of the people to the constitutions.”22 Thus progressive democracy did not mean that the people would assume all the functions of government, nor that they would dispense with orderly procedure. “Progressive democracy would cease to be progressive in case it departed for long from the use of essentially orderly methods; and excessive concentration of power in the hands of the electorate might be as dangerous to order as would any similar concentration in the hands of the executive or the legislature.”23
Croly’s belief in popular control did not lead him to an assertion of legislative supremacy. Indeed he judged the traditional American suspicion of legislative assemblies to have been fully justified by the record of history. Their “meagre powers of self-control” made it impossible to entrust them with complete legal authority over the property and lives of citizens. Legislative omnipotence, Croly believed, was far from a truly democratic form of government. The power of that many-headed monarch, “King Demos,” must be divided. Popular sovereignty brings with it the necessity for the division of power, but the power is distributed, not for the purpose of its emasculation, but for the purpose of its moralization. There must be, therefore, proper provision for the co-ordination of these distributed powers, and it is here that we reach the crux of Croly’s criticism of the Constitution. The Constitution provided for the separation of powers, but it did not provide for the co-operation of the powers it had divided, although their co-operation was as necessary and desirable as their separation.24
Thus Croly, the twentieth-century Progressive, rejected alike the checks and balances of the Federalist and the pure separation of powers of the later Jeffersonian critics of Federalism. The Federalist edifice of the Constitution he likened to “some elaborate masterpiece of artificial constructive genius, such as a Gothic cathedral”; on the other hand he saw the effects of the Jeffersonian philosophy as having reduced State governments “to a bed of liquid clay . . . an indiscriminate mass of sticky matter, which merely clogged the movements of every living body entangled in its midst.”25 Both these philosophies were designed to rob government of the power of positive action and were both, therefore, unacceptable. Yet Croly was by no means happy with the character of the popular Progressive movement, for he saw that the instruments of direct government it proposed were too much inclined towards the “democratic” rather than the “harmonious” pole of the reform movement. In this they reflected too much the philosophy of the early nineteenth century, instead of that of the twentieth. At first glance these instruments might seem to make for the emancipation of government from the bondage of the rigid constitution of checks and balances, but, said Croly, they might from another point of view merely add one final comprehensive check to the network of personal and legal checks which had formerly reduced the States to stagnation.26 The extreme proponents of direct government, he wrote, had the same automatic faith in their system that the Fathers had had in the checks and balances of the Constitution; they devote little attention to the problem of creating a more powerful and efficient mechanism of legislation and administration. Here, then, is the central principle of Croly’s Progressivism; he did not wish, by establishing popular control of the executive and the legislature, to destroy in either of them the will and power to act effectively. On the contrary, he wished to reinforce both of them, to build up their power, but to render it responsible to the people.27
In this desire to build up both the executive and legislative powers, and to render them directly responsible to the people, Croly was therefore faced with a reformulation, not a rejection, of the separation of powers. In all three of the principal departments of government, he wrote, there are essential functions to be performed that must be delegated to selected men, under conditions which make both for efficiency and for their individual independence and self-respect. The Founding Fathers had been quite justified in keeping the powers of government distinct, and in seeking to balance one against the other, but they had been mistaken in the methods they adopted for preserving or readjusting the balance. The division of the democratic political system into three parts had the twofold role of providing for the necessary specialization of the functions of government, and of enabling the people to perform the function of recreating a unity between them. The people must themselves retain the responsibility of maintaining an ultimate unity.28
Here, then, in the demand for specialization, control, and unity without the “system of equilibrium,” we have a formulation of the problem of government almost exactly in the terms Sieyès had used in 1795, but now infused with all the urgency engendered by the needs of a twentieth-century industrial democracy. Croly’s answer to the institutional problem was that both the legislative and administrative branches of government should be “aggrandized” in a way that would lead neither to legislative nor executive omnipotence. The plan which most closely approximated this aim, at the State level at any rate, was, in his view, that proposed by the People’s Power League in Oregon. This plan concentrated the power of effective political leadership, together with the responsibility of formulating and aiding the passage of legislation, in the Governor. This popularly elected official would have the right to sit in the single legislative assembly, to vote, to introduce bills and to advocate them on the floor of the House, although he would not possess a veto. Thus, said Croly, the administration would indeed become the government “in the English sense of the word.”29 At the same time the legislature would be reformed by a number of remarkable measures that would make it an effective balance to the great power of the Governor, who would himself be subject to recall. Thus Herbert Croly, in the most subtle and impressive of the Progressive attacks upon the existing constitutional structure, reformulated the idea of the separation of powers in order to create a “genuine” balance between an executive and a legislature subject to popular control, and to reformulate their functions. It was an attempt to bring the doctrine up to date and to avoid the sterility it had come to represent. He sought for an alternative to earlier constitutional theories, but he was well aware of the values these older theories of government had embodied, and he wished to perpetuate them without becoming committed to the negative view of government by which they had been accompanied. He summed up his view of the structure of government in this way: “Government has been divided up into parts, because no one man or group of men can be safely intrusted with the exercise of comprehensive government functions; but within the limits of a necessary and desirable separation of powers a partial reunion may be permissible and useful.”30 Thus towards the end of that great upsurge of criticism which was the Progressive movement its most fluent representative recognized the essential continuing content of Western constitutionalism, and the problem of how to articulate the parts of government in a system of controlled power.
‡Both Woodrow Wilson in his Congressional Government and Herbert Croly in Progressive Democracy had been largely concerned with a critique of the separation of powers that focused upon the allocation of the functions of government among its various parts. Another strand of thought was directed, however, specifically at the threefold formulation of the functions of government, and this eventually led to questioning the usefulness of the concept of government functions itself. This was the trend of thought associated with the growth of the study of public administration. Woodrow Wilson played a significant role in this aspect of intellectual development also, although the name most associated with the movement is that of Frank J. Goodnow. A number of influences can be seen at work in the emergence of this concern with public administration as a separate branch of study. Interest in the French and German writers of the late nineteenth century had focused, in America, upon the literature of administrative law and practice. Woodrow Wilson pointed, in 1887, to Prussia as the country in which administration had been studied and “nearly perfected.”31 The emphasis in German thought upon the twofold distinction between administration (Verwaltung) and government (Regierung), and the corresponding French formulation by Ducrocq and Duguit, provided a ready alternative to the division of functions established by Montesquieu. Second, the campaign in America to end corruption in the public services evolved into a demand that these services should be “taken out of politics.” The Progressive demand for the strengthening of the executive branch of government, that it should cease to be a “mere executive” and should become a government in the English sense, associated with, if not dominant in, the field of policy-making, strengthened the feeling that only the elected members of the “executive” should be involved in policy decisions, leaving appointed officials to put these decisions into effect with impartial, expert efficiency. Finally, the hesitant development of government regulatory commissions provided reformers with an instrument which they claimed could be an efficient method of government control free from all the disadvantages of the normal procedures of government action.
In an article on “The Study of Administration” in 1887 Woodrow Wilson drew upon the experience of Continental writers, and upon the political demands for Civil Service reform in America, to suggest that the study of administration should be developed in the United States, building upon the Continental experience, but adapted to the different environment. Administration, Wilson wrote, is “a field of business,” removed from the hurry and strife of politics, a part of political life only in the sense in which machinery is a part of the manufactured product.32 Politics sets the tasks for administration, but having set them it should not be allowed to meddle with the carrying out of those tasks; politics should not be able to “manipulate the offices” of administration. Wilson argued that, as administration was apart from politics, apart even from constitutional law, the Federal Constitution-makers had rightly ignored this sphere of government, concerning themselves only with the “political” branches, with Congress and the Presidency. Thus, consistently with his viewpoint in Congressional Government, he denied the existence of a strict functional division between the legislature and the “chief executive,” but at the same time he laid the basis of a new and potentially rigid functional distinction between the political branches and the administrative agents of government. And, paradoxically, he employed the same criterion for the distinction of functions in this sense as had been used in the eighteenth century to make the distinction he was rejecting—the generality of law. “Public administration,” he wrote, “is detailed and systematic execution of public law. Every particular application of general law is an act of administration.”33 Here, then, was a strange metamorphosis. The opponent of the separation of powers had merely shifted the spectrum a little, and the old ideas were being applied in a slightly different way, in a slightly different context, but to very similar ends, to keep the exercise of power in its “proper” sphere, and operating through the “proper” channels.
The insistence that administration lies outside the sphere of politics, and that there are therefore two distinct fields of activity, the laying down of broad plans of action, and the execution of the plans by administrators, provided the basis for a new functional division. This idea fitted well into nineteenth-century psychological theories, and was consistent with the dominant trends of political thought at the end of the century. The Idealist conception of the will of the State and its expression tinged much of the thought on administration in this period. Robert La Follette described experts and commissions as “simply the executive or administrative branch of the people’s will.”34 Wilson himself was by no means simple-minded on this point. He acknowledged that the administrator had a will of his own, at least in the choice of the means of accomplishing his work. Nevertheless, the distinction, between the State will and its realization in action, lay behind the whole structure of thought in this period of the development of “public administration,” and it can be clearly seen in the work of Frank Goodnow, the most influential of the early writers. Thus Goodnow could write that the administrative system had been utilized wrongly by politicians for their own ends, in order to “influence the expression of the state will, and sometimes to cause the formal expression of the state will to be at variance with the real state will.”35
The political functions of the State, said Goodnow, group themselves naturally under two heads, “which are equally applicable to the mental operations and the actions of self-conscious personalities.”36 The activities of the State consist either in operations necessary to the expression of its will, that is politics, or in the execution of that will, administration. In line with the Continental European thought upon which this distinction was based, Goodnow rejected the autonomy of the judicial function, subsuming it under the general heading of administration. Thus there was a return to an older theory of government functions, a duality rather than the triad of powers which had been evolved during the eighteenth century. Yet there were of course vital differences between this new formulation of politics and administration and the early modern distinction between legislation and execution. “Politics” was a much wider concept than “the legislative power,” embracing the need for leadership in the formulation of policy, for securing the passage of legislation, and for the oversight of execution. The dualism between a legislating people and a ruler who executes did not fit Goodnow’s twentieth-century conception of government, and indeed he attacked the categories of the old doctrine of the separation of powers which embodied it. Like Woodrow Wilson, he was concerned with the maintenance of a harmony between the parts of government, so that the idea of a sharp division between the functions of President and Congress was repugnant to him. He was also aware that, however precise and rigid the analytical distinction between the functions of government, it is impossible to be so precise about the practical division of these functions between the agencies of government.37
Goodnow’s sophistication in the treatment of the distinction between the functions of government did not prevent him from becoming embroiled in the difficulties which flow from the attempt to draw precise lines between politics and administration. He did not wish merely to draw intellectual distinctions but also to apply them to practical political life. He was concerned to ensure that, although “politics” should oversee the execution of the State will, and therefore exercise some control over “administration,” the former should not exceed the limits necessary to ensure the attainment of its legitimate purposes. To ensure this the administrator must be given the same degree of independence that judges have enjoyed.38 This clearly involved an attempt to distinguish the “proper” area of administration in institutional terms as well as in the conceptual field of government functions, in fact to establish a form of separation of powers, and it is here that Goodnow’s language becomes confused and confusing. Earlier he had defined administration as “the execution of the state will,” but at this point he drew a distinction between the administrative function and the executive function. Till recently, he writes, these two have been confused. The executive function must, in the nature of things, be subordinated to politics, but this is not true of an “administrative authority,” which he now defined as “an authority discharging that part of the function of administration not distinctly of an executive character.”39 The confusion of vocabulary here reflects a deeper difficulty, for Goodnow’s distinction between politics and administration had broken down almost as soon as he attempted to use it.
Goodnow attempted to escape from this difficulty by further defining the areas of government action which should be kept out of politics as fields of activity of a semi-scientific, quasi-judicial, and quasi-business or commercial character. These areas, together with “the function of establishing, preserving and developing the governmental organization,” should be protected from the improper intervention of the political branches. Thus in effect Goodnow had shifted the emphasis of the theory of the separation of powers from a concern with the division of power between the legislature and executive, to an attempt to define distinct spheres for the political and administrative branches of government. Whilst admitting that it was impossible to draw strict boundaries between the functions of government he nevertheless wished to isolate these two areas from one another. It is not surprising, therefore, that many American students of public administration ignored Goodnow’s intellectual reservations, and set about the creation of an administrative machine which was to be expert, impartial, and out of the reach of the political branches of government. The disputes which later evolved concerning the nature of the independent regulatory commissions well illustrate the problems implicit in Goodnow’s ideas.
The critiques of the separation of powers generated by the reform movement in America had focused both upon the structure of legal institutions and upon the conceptual basis of the Montesquieu doctrine, but there was a third area in which this period saw a change in the treatment of this long-studied aspect of political theory. There was now a new awareness of the role of political parties and their impact upon the institutional structure. It is this awareness which helps to explain some of the more paradoxical aspects of the attack upon the separation of powers by men who were deeply concerned with institutional controls over the exercise of power. Those reformers who were less concerned about the problem of harmony in government nevertheless joined in the attack upon the separation of powers. They did so because they believed that such an attack was an essential prerequisite to the restoration of the desired balance in the American system of government. It was the rigid separation of powers, they argued, that had given rise to the powerful State and local party machines, that had resulted in the emergence of the “bosses” who exercised an unrestrained, irresponsible power in the political system. If the power of the bosses was to be broken then a new institutional pattern must be adopted; the party must be recognized as a part of the governmental system and subjected to popular control, or else the centre of political power must be located elsewhere in the system.
The formal separation of the powers of government had led, in their view, to a political system which was so complex, and so irresponsible, that it had necessitated the growth of strong political machines to knit together that which had been so carefully distributed by constitutional fiat. Party organization, wrote Henry Jones Ford, is the “connective tissue” which enfolds the separate organs of government and enables popular sovereignty to exercise a unified control over them.40 Both Wilson and Goodnow made the same point. But the nature of the system of separated powers gave rise to the peculiar American party system in which power was concentrated in the hands of men who stood outside the formal governmental structure. “A decentralized legal government has been replaced by a centralized extra-legal government,” wrote Albert Kales in 1914.41 The fragmentation of legal power, the proliferation of elective offices, and the complication of the machinery of government reached the point where even the very intelligent elector could neither understand it, nor apportion responsibility for government action or inaction. The consequence was the rise of the “politocrat,” the expert in politics who could “advise” the voter, and who could most effectively operate the machinery of government from a point outside it: the political boss. Both Ford and Goodnow argued that with all its faults the American party system played an essential role in government by counteracting the divisive effects of the extreme separation of powers.42 Nevertheless, Goodnow felt that the recognition that party is an essential organ of the political system necessitated that it should be integrated into the legal structure of the State, and made responsible by means of primary elections.43 On the other hand Woodrow Wilson wished to make legislatures and executives the real bodies politic, and therefore to do away with the necessity for such powerful political organizations.44 The proper articulation of the parts of government, the proper “separation of powers,” was thus bound up with the nature and characteristics of the party system.
The half-century between the Civil War and the First World War witnessed an extensive and elevated discussion of constitutional theory in the United States, of a quality and an intensity which bears comparison with the period of the great debate between Federalists and Jeffersonians. Emphasis upon reformist thought should not lead us to forget the numerous defenders of the status quo, of whom Lowell, Snow, and President Nicholas Murray Butler should be mentioned.45 The various criticisms that inspired the attack upon the Constitution were given coherence by their association with an active political movement which deeply influenced American life; but when, at the end of the War, Progressivism ceased to play this important role, the coherence of the ideological attack upon accepted constitutional theory vanished with it. Criticism of the separation of powers continued unabated, of course, and the various strands of earlier reformist thought continued to exert considerable influence. But there was a disintegration in the coherence of these attacks which was comparable to the fragmenting of constitutional thought following 1825.
The coherence of the attack upon constitutional doctrine diminished for a number of reasons. The strong presidencies of Woodrow Wilson and Franklin Roosevelt changed the institutional balance of power decisively in favour of the presidency, and the functions of that office could no longer be depicted as “merely executive.” The President now exercised the role of legislative leadership in domestic affairs as well as a greatly expanded role in foreign affairs and defence. The Progressive complaint of legislative omnipotence was, therefore, hardly appropriate any longer, but the problem of “harmony” between legislature and executive was not so easily solved by the “aggrandizement” of the Presidency. The demands for greater integration of the branches of government continued, in Congress through the Kefauver and Fulbright resolutions, and in the literature through a constant stream of proposals, ranging from the full acceptance of the parliamentary system, or the institution of a legislative-executive council, to the complex scheme recently put forward by Professor Herman Finer.46 At a more practical level the attempt to improve the co-ordination between the legislative and executive branches was concentrated upon measures, beginning with the Reorganization Act of 1939, which would provide the machinery for channelling information to the President, and would enable him to supervise efficiently relations with Congress and the internal structure of the Administration. The demand, mostly in academic circles, for a more responsible party system, also reflected the continuing concern about the ability of the American political organization to satisfy the needs generated by the institutional structure.
The complexity of the institutional changes in the post-war era, reflecting both the success and the failure of Progressive ideas, was accompanied by a recognition that the ideas behind the development of public administration were over-simple. As early as 1908 Arthur F. Bentley had criticized the basis of Goodnow’s politics-administration dichotomy,47 and by 1933 the enthusiasm for Goodnow’s formulation was already on the wane. It was, however, the experience of the regulatory commissions established under the New Deal that brought the problem of the separation of powers to the surface again. The commissions were attacked as a “headless fourth branch” of government that destroyed the constitutional triad of legislature, executive, and judiciary, and, by putting much of the area of administration outside the President’s control, contributed more disharmony to the American system of government. They were also criticized as combining legislative, executive, and judicial powers. In 1938 James M. Landis defended the “administrative process” against all these charges. It was the inability of the normal tripartite system of government to deal with the problems of an industrial society that called the administrative process into being, he argued. It enabled the government to achieve efficiency and responsibility whilst maintaining the traditional Anglo-Saxon balanced constitution. The commission form was an industrial pattern of organization adopted to meet the needs of an industrial society when the outmoded political divisions of Montesquieu had failed.48 The administrative process required a broad grant of power of the sort normally exercised by the whole government machine, which, in a sense, it had replaced.
However, the traditional attachment to the ideas of the separation of powers was very strong. The concentration of differing types of authority in one body gave rise to considerable misgivings. Even those who were sympathetic to the commissions demanded an “internal separation of powers” which would divide those officials who exercised judicial functions from those who prosecuted or those who exercised the rule-making function. In 1937 the President’s Committee on Administrative Management wished to incorporate all but the judicial functions of the commissions into the general structure of the executive departments.49 The Attorney-General’s Committee in 1941, however, looked rather towards a separation of function within the agencies, and the Administrative Procedure Act of 1946 largely achieved this. The development of the “administrative process,” therefore, made neither the values nor the problems of the separation of powers disappear. In one respect it merely moved the discussion from the arena of presidential-congressional relations into the arena of the commissions themselves; in another respect it made the divisive problems of the separated powers in America even greater. In the view of V. O. Key the autonomy of these “administrative” bodies mainly served to direct attention away from the attempt to fuse policy-forming and policy-executing functions in the same hands.50
Thus the various strands of thought of the Progressive era came to be rather frayed with the passage of time. In so far as the Progressive attack upon the separation of powers had been an honest attempt to reformulate it for the modern age, this doctrine also suffered from the change in the intellectual atmosphere. The burden of the Progressive attack, the negative aspects, remained, but the constructive attempts at a reformulation had little further impact. Nevertheless, the greatest threat to the reformulation of the doctrine came not so much from a direct attack upon it as from the developments in the study of politics itself, which seemed to make such a reformulation irrelevant through the impact of behaviourism upon the study of politics and administration. The consequences of this change in the approach of students of politics may be summed up as a change from an interest in “function” to an interest in “process.” The old arguments about the number of government functions, or their definition, now seemed irrelevant. This was a much more fundamental challenge than any earlier threat to the doctrine, for it struck at the vital concepts upon which it was founded. The change of interest can be likened to the dispute between French jurists about the “formal” and the “material” functions of government. The whole concept that the particular content of a decision made it either legislative, executive, or judicial in nature was rejected in favour of the study of the actual processes of government as the only question worth exploring. Luther Gulick expressed this view very clearly: “Whether an act is executive or legislative or judicial in character, is purely an institutional concept, and grows out of the practical division of work which happens to exist at a given time. It does not arise from the nature of the thing done.”51 Gulick rejected both the Montesquieu and Goodnow formulations of the functions of government. The nature of a “political” or a “non-political” act cannot be discovered by an examination of the act itself, he declared, “but only by an examination of that act in relation to social psychology.”52 Thus the organization of the tasks of government was a matter for practical politics and not to be settled by abstract arguments about function. Pursued with the vigour of the behaviourist this point of view seemed to leave little room for the ideas or the ideals of the separation of powers. That doctrine had concentrated upon the more formal aspects of government, whereas now the attention of students was focused upon “social forces.” The study of the pressure-group characterized this approach, for the pressure-group can switch its attention from legislature to “public opinion,” from cabinet minister to the press, from the courts to the political party. Similarly the case-study was a natural outcome of this approach, considering a particular incident or decision in all its ramifications, legal or formal, informal or extralegal. The study of administration, freed from its earlier orthodoxy, now approached its material in “situational terms,” each unique incident in government being seen as the result of a set of criss-crossing causes, with the realization that “informal organization” could be as important as, or more important than, that to be found on the organization charts.53
Political thought, at the academic level at any rate, had now reached a point in the United States comparable to that reached in both Britain and France in relation to constitutional theories like the separation of powers. In all three countries the view was being aired that only the day-to-day problems of government were worth investigation, that the attempts of political and constitutional theorists to make general statements about desirable systems of government were either irrelevant or incapable of giving any clear and useful guidance in practical terms. Yet we have seen that in both Britain and France, however level-headed this view might seem, it led to very serious problems, for it came into conflict with the ideas which lay at the very foundation of Western constitutionalism; to put it in an over-simplified way, the theory of government which justified day-to-day expediency came into conflict with the ideas behind the rule of law. In the United States the nature of the Constitution, and the vitally important role which the Supreme Court continued to play in American political life, might seem to have ensured that the problems confronting Britain and France in this respect did not arise, although America had its own dramatic confrontations; but fundamentally, in spite of its very different constitutional structure, a very similar problem had to be faced in the United States. The attempts of the Supreme Court to deal with the problem of the “proper” functions of the departments of government illustrate the way in which in America also the problems of constitutionalism and the separation of powers stubbornly refused to become irrelevant.
The history of the attempts the Court has made to cope with the separation of powers between the departments of government must be seen as further proof of the difficulty, the impossibility perhaps, of applying the Montesquieu definitions of the functions of government. In 1816 Justice Story accepted the Montesquieu formulation of functions as part of American constitutional law,54 and from time to time this general position has been reaffirmed, but the practical problems of applying these criteria were soon recognized. In 1825 Chief Justice Marshall pointed to the difficulties involved in the delegation of power from one branch to another and formulated a self-denying ordinance against “unnecessary” judicial enquiry into this problem.55 The difficulty was also stressed in the Watkins case of 1842.56 It is in the twentieth century, however, that the Court has come hard up against the problems of the boundaries between the functions of government. The Court invalidated the National Industrial Recovery Act, in part because in its view the Congress had attempted to bestow a rule-making power on the President so wide in scope that it was “virtually unfettered.” Congress, the Chief Justice declared, was not permitted to transfer its “essential legislative functions,” although the need for the delegation of power to deal with a host of details had long been sanctioned by the Court.57 Yet apart from the Schechter decision it has apparently been impossible for the Court to find a formula which would enable it to distinguish “essential” from “inessential” legislative powers. In practice the grant of wide, virtually undefined powers to administrative authorities has been sanctioned. Furthermore, the Court has approved the combination of all three types of function in the regulatory commissions. American courts have retreated into the semantic maze of “quasi-legislative” and “quasi-judicial” powers, but in the opinion of one authority at least, these are merely “convenient fictions.”58 The fact is that any real attempt to apply the Montesquieu criteria would have prevented the government from meeting the demands put upon it in an efficient and effective fashion.
Judicial application of the doctrine of the separation of powers would seem, therefore, to have succumbed to the same forces as have made it seem irrelevant elsewhere. It has not been possible for the Supreme Court to apply the doctrine in any consistent way, but it would be quite wrong to suggest that the Court has abandoned the doctrine as an essential element in the American constitutional system. In recent years the Court has attempted to set limits to the power of congressional committees which try to exceed a proper legislative role, and in 1952, in the steel-seizure case, the Court reasserted the basic principle with impressive force. Denying the power of the President to seize the steel mills by Executive Order the opinion of the Court delivered by Justice Black stated: “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is a lawmaker.”59 Justice Frankfurter, concurring in the Court’s opinion noted that it had been fashionable in earlier years to find the system of checks and balances obstructive to effective government. “It was easy,” he continued, “to ridicule that system as outmoded—too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires.” The dangers of the concentration and abuse of power, though less in the United States than elsewhere, were still great. Although experience had shown that the content of the three authorities was not to be derived from “abstract analysis,” the restrictions implicit in the separation of powers were real, and a price worth paying for the safeguards they provide.60 Warning that what was at stake was the equilibrium established by the constitutional system, Justice Jackson summed up the Court’s philosophy of government. “The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based upon isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”61
Judicial recognition of these two apparently conflicting positions—the over-all rule of constitutionalism and the difficulty of drawing detailed boundaries—does great credit to the Supreme Court. This body, faced with the day-to-day problems of government, must make those practical compromises which circumstances seem to demand. But what has the academic student to say about this dilemma? As we have seen, the answer, in the inter-war period, seemed to be “Nothing.” However, in recent years two evolving trends of thought have somewhat changed this picture. They by no means constitute a reaffirmation of older constitutional theories, at any rate in the old forms, but they do indicate the continuing strength of old ideas, and of old concepts, and the difficulty of abandoning them.
In the first place, the concept of equilibrium has come to play a leading role in discussions about the nature of the political system. This ancient concept of balance, which has been the key to discussions about the limitation of power since the time of Plato, remains, with all its disadvantages, the most fruitful concept for the understanding and investigation of democratic systems of government. It is, of course, no longer simply a matter of the balancing of the parts of government against one another. The idea is used in relation to the balancing out of social forces, of parties and groups. These parties and groups no longer have the functional attributes that the classes had in the theory of the mixed and balanced constitution, for the triumph of the democratic ideal leaves no room for the view that particular virtues and capabilities attach to particular classes. Nevertheless the idea that power must be checked and balanced, by the pluralism of conflicting interests in a diverse society if by nothing else, remains a firm idea which the constitutionalist of the present day can grasp.
Second, in recent years a reappraisal of the concept of function in politics has been taking place. The mere investigation of “what actually happens,” although a vitally important part of political study, can never tell us very much about political systems without some framework upon which to hang this information. The theoretical tool which has seemed most useful to those political scientists interested in the comparative study of political systems is the sociologists’ technique of structural-functional analysis. There has been, therefore, a resurgence of interest in “function,” but in a much more sophisticated way than that of the eighteenth-century thinkers who wrote about the functions of government. Governments fulfil deep social functions without which society would no longer subsist. Thus political institutions have a role to play in social integration, functions relating to the maintenance of stability, the stratification and articulation of interests, and in relation to social communication, and many other things. This is the sociologists’ concept of function, and it may seem to have little to do with the categories of the separation of powers. Yet in the work of those political scientists who are most sociologically inclined we find a continuity with older ideas, which suggests that the gap between Montesquieu and modern sociology is not so great after all.
Structural-functional analysis is the technique used in the work entitled The Politics of the Developing Areas, edited by Gabriel Almond and James Coleman. The main theme of this study is the evolution of a framework that will enable differing political systems to be set alongside each other, through the use of analytical tools productive of meaningful comparisons. Gabriel Almond chooses as the most useful index of comparison the extent to which the structures in these varying political systems have become specialized in relation to the functions they perform.62 It is, of course, the history of the arguments over the centuries concerning the proper extent and means of the specialization of function that we have been surveying. Indeed, the history of Western constitutionalism is the history of the emerging specialization of government functions. Almond, however, is not concerned only with the formal structures of the “constitution” or of the political system. The time is long past when a student of politics could be content with the study only of legislatures, executives, and judiciaries. He is concerned with all the political structures to be found in a political system. Similarly, the concept of function he employs is much wider in scope than the old Montesquieu triad of “powers.” He distinguishes four “input” functions—political socialization and recruitment, interest articulation, interest aggregation, and political communication—which the structures of the political system must perform. The “output” functions, by which authoritative decisions are taken, he labels the rule-making, the rule-application, and the rule-adjudication functions. These last three, as he readily admits, are the old categories of the separation of powers, with the labels changed in order “to free them of their structural overtones.”63 The advantage of this change of vocabulary is that it avoids the semantic difficulties in which we become involved when we discuss the extent to which courts legislate or administer, or the way in which administrators legislate. As Almond points out, a great achievement of the literature of politics in this century has been to make plain the fact that the legislature is not the only rule-making body in the political system, but that executives make rules, that courts make rules, that bureaucrats adjudicate. Particular functions are not specific to a particular structure; each political or governmental structure may perform a number of functions.
We have seen, however, that the central principle of the pure doctrine of the separation of powers was that government functions could, and should, be specific to particular structures on a one-to-one basis; the legislative function should be exercised only by the legislature, the executive function should be exercised by the executive, and the judicial function only by the judges. It was the impossibility of achieving this in practice which, above all else, made the pure doctrine of the separation of powers an unrewarding doctrine to hold. But relatively few people have held to the doctrine in that form; certainly not for long once they were in a position of responsibility for the maintenance of government. The more successful varieties of the doctrine of the separation of powers have endured because they were grafted with the theory of balanced government, or one of its derivatives, to produce what Almond calls “the multifunctionality of political structures.”
This change in vocabulary makes for clarity, and the analysis can be furthered by dividing the three governmental functions into sub-categories, such as the initiation, formulation, and authorization of rules, functions which again are not specific to a particular structure. But this use of a set of modified Montesquieu classifications does not in itself commit Almond and Coleman, or other political scientists who make use of it, to the positions which theorists of the separation of powers have adopted in the past, for this is merely a set of analytical categories with no necessary normative connotation. However, in so far as a general discussion of systems of government is not, and cannot be, “mere description,” but entails judgements about “stages of development,” or appraisals of the results political systems produce, and the values they promote, then the discussion inevitably takes on a normative content. Indeed, the interesting, and fascinating, fact about this particular, ultra-modern discussion by political scientists is that it is so clearly in the main stream of Western constitutional thought, as represented by the doctrine of the separation of powers. In fact, Almond and Coleman, in very different language, are engaged in a reformulation of constitutionalism very similar in spirit, although not in method, to that which their compatriots undertook during the Progressive era.
The comparison which they undertake of the political systems of Asia, Africa, and Latin America with Western political systems leads inevitably to a search for the distinguishing characteristic of “modern democracies,” and the placing of the non-Western systems of government in a framework that makes clear the extent to which they do, or do not, approximate to the Western democracies. For Almond it is the development of specialized regulating structures, such as legislatures, which characterizes the modern democratic system, together with the “peculiar pattern of boundary maintenance” between the sub-systems of the polity, and between the polity and the society. In very different, and more precise, language Almond is stating the principle of the partial separation of powers, expanded to take in a wider range of political phenomena, it is true, as it has been stated again and again over the centuries. As he puts it, “What is peculiar to modern political systems is the relatively high degree of structural differentiation (i.e. the emergence of legislatures, political executives, bureaucracies, courts, electoral systems, parties, interest groups, media of communication) with each structure tending to perform a regulatory role for that function within the political system as a whole.”64 In the concluding chapter of the book James Coleman takes this aspect of the analysis even further. He sets out the characteristics of the political systems under review, in order to demonstrate the extent to which they approximate to the democratic model. The democratic model, he says, assumes that governmental and political functions are performed by specific structures; for example, that rule-making is primarily by parliaments, and rule-application by controlled bureaucracies.65 The assessment of the extent to which the non-Western political systems approximate to the democratic model is made through judgements about the extent to which particular structures “over-participate” in government functions; that is the extent to which, for example, the army is involved in the rule-making function, or the executive “over-participates” in the rule-adjudication function. The more these systems approximate to the democratic model the less “over-participation” there is in the performance of governmental functions.66 Thus a “proper” level of specificity of function is equated with modern democracy—a proposition with which Montesquieu would have been fully in agreement. Almond and Coleman spread their net much more widely than did Montesquieu, or even James Madison, but when Madison, in No. 47 of the Federalist, explained his interpretation of Montesquieu he was putting exactly the same general point as his two modern American counterparts. Given all the differences in the two levels of analysis, it is the continuities and similarities which are so striking, rather than the dissimilarities in their positions. It is, perhaps, in the further elaboration of this new statement of an old position that we must look for a modern theory of constitutionalism.
[1. ]See Stephen Horn, The Cabinet and Congress, New York, 1960, for a full discussion of the history of these proposals.
[2. ]“Cabinet Government in the United States,” International Review, August 1879.
[3. ]Federal Usurpation, New York, 1908, p. 389.
[4. ]Ibid., p. 6.
[5. ]The Spirit of American Government, New York, 1907.
[6. ]Printed in G. H. Payne, The Birth of the New Party, 1912, p. 241.
[7. ]See Albert M. Kales, Unpopular Government in the United States, Chicago, 1914.
[8. ]D. Waldo, The Administrative State, New York, 1948, p. 105.
[9. ]Congressional Government (1885), New York, 1956, pp. 28 and 31.
[10. ]Ibid., pp. 49 and 53.
[11. ]Ibid., p. 92.
[12. ]Ibid., p. 109.
[13. ]Ibid., pp. 179 and 185–6.
[14. ]Constitutional Government in the United States, New York, 1908, pp. 14–15 and 54.
[15. ]Ibid., p. 84.
[16. ]Congressional Government, p. 154.
[17. ]New York, 1899, Vol. I, p. 362.
[18. ]Ibid., Vol. II, p. 354.
[19. ]Ibid., Vol. II, p. 349.
[20. ]Ibid., Vol. II, p. 78.
[21. ]Progressive Democracy, New York, 1915, pp. 38, and 40–41.
[22. ]Ibid., p. 225.
[23. ]Ibid., p. 226.
[24. ]Ibid., pp. 52, 227, 229, and 236.
[25. ]Ibid., p. 248.
[27. ]Ibid., p. 268.
[28. ]Ibid., p. 280.
[29. ]Ibid., p. 295.
[30. ]Ibid., pp. 364–5.
[31. ]“The Study of Administration,” Political Science Quarterly, June 1887, p. 204.
[32. ]Op. cit., p. 209.
[33. ]Ibid., p. 212.
[34. ]Quoted by Russell B. Nye, Midwestern Progressive Politics, East Lansing, 1951, p. 202.
[35. ]Politics and Administration, New York, 1900, p. 43.
[36. ]Ibid., p. 9.
[37. ]Ibid., pp. 7, 16, and 23.
[38. ]Ibid., pp. 26, 38, and 45.
[39. ]Ibid., p. 82.
[40. ]The Rise and Growth of American Politics, p. 215.
[41. ]Unpopular Government in the United States, Chicago, 1914, p. 23.
[42. ]Ford, op. cit., pp. 301–2; Goodnow, op. cit., p. 106.
[43. ]Op. cit., p. 134.
[44. ]Constitutional Government in the United States, p. 221.
[45. ]See E. R. Lewis, A History of American Political Thought from the Civil War to the First World War, New York, 1937, pp. 471 ff.
[46. ]H. Finer, The Presidency: Crisis and Regeneration, Chicago, 1960.
[47. ]A. F. Bentley, The Process of Government, Chicago, 1908.
[48. ]The Administrative Process, New Haven, 1938, pp. 1, 11, 13, and 15.
[49. ]Report, p. 41.
[50. ]“Politics and Administration,” in The Future of Government in the United States, ed. by J. D. White, Chicago, 1942, p. 146.
[51. ]“Politics, Administration and the ‘New Deal,’” Annals of the American Academy, Vol. 169, Sept. 1933, p. 62.
[53. ]G. A. Shipman, “The Policy Process: An Emerging Perspective,” Western Political Quarterly, Vol. XII, No. 2, June 1959, p. 541.
[54. ]Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), 329.
[55. ]Wayman v. Southard, 10 Wheat. 1 (1825), 45.
[56. ]Watkins v. the Lessee of Holman, 16 Pet. 25 (1842), 60–61.
[57. ]Schechter v. U.S., 295 U.S. 495 (1935), 529.
[58. ]F. E. Cooper, Administrative Agencies and the Courts, Ann Arbor, 1951, p. 29.
[59. ]Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), 587.
[60. ]Ibid., at pp. 593, 610, and 613.
[61. ]Ibid., at p. 635.
[62. ]Op. cit., Princeton, 1960, p. 11.
[63. ]Ibid., p. 17.
[64. ]Ibid., p. 18.
[65. ]Ibid., pp. 559–60.
[66. ]Ibid., pp. 560–7.