Several years ago the Supreme Court of the United States touched off a flood of controversy when it made two attempts to breathe life and meaning into the constitutional injunction that “Congress shall pass no law respecting an establishment of religion.” In the first case, Everson v. Board of Education, a bare majority decided that a New Jersey township did not violate the injunction when it permitted the use of public funds to pay the transportation charges on common carriers for children attending public and Catholic schools. But in the second case, McCollum v. Board of Education, a majority of eight decided that the Constitution was violated when the Board of Education of Champaign, Illinois, made provisions for a short weekly period of religious instruction to be given during school hours to children whose parents requested that they be permitted to attend these classes. The instruction available during the school year 1945–1946 was either Roman Catholic, Jewish, Protestant or Interdenominational, the instructors being provided at no expense to the Board of Education by the religious groups concerned.

I want to dissent initially from the rather constricting frame of reference that Schubert has established in his paper. He has every right in the world to set rhetorical snares, but I have no intention of walking into them. If I may summarize, Schubert asserts that he is a spokesman for a radical new direction in the study of public law, claiming that the old ways are moribund. He further urges that we should look with envy at the creative function of the social psychologists who supplied the Supreme Court with the banners it carried in Brown v. Board of Education while we were bumbling around with historical and philosophical trivia. He concludes that instead of wasting our time with talmudic disputations on whether the Supreme Court reached the “right” or the “wrong” decisions in specific cases, we should settle down to build a firm “scientific” foundation for our discipline.

Not the least amusing aspect of this indictment is that I find myself billed as the defender of the ancien régime, as the de Maistre of public law. Therefore, for the benetfit of the young and impressionistic, let me break loose from Schubert's rhetorical trap: I too think that much of the research done in public law—and, for that matter, in political science generally—has been trivial.

Three decades have elapsed since the first president of the American Political Science Association at its inaugural meeting described the objects and purposes that it should pursue. Some of his successors have discussed various details of this program and others have reviewed the results achieved. Due recognition has been accorded to the significance of historical backgrounds, legal systems, and political theory. In addition, emphasis has been placed upon the importance of an understanding of the government as it actually functions. Hence, much of the work of this Association and its members has been devoted to the investigation and exposition of those customs, procedures, and institutions which, with or without any recognition by constitution or statute, exercise a profound influence over governmental organization and function.

It is natural that during this period significant changes should have appeared in the scope of Political Science and in the character of the techniques employed, with resulting differences in data and conclusions.

May 20,1936, was a date of importance in Cuban history. Not only was it the thirty-fourth anniversary of the birth of the Cuban Republic; it marked the first time in seven years (as many Cubans maintain) that a completely constitutional government had control of the island's political destinies. On May 20 of this year occurred the inauguration of Miguel Mariano Gómez y Arias, sixth “regularly elected” president of Cuba, son of the Republic's second president, and the man who, at least nominally, will be at the helm of the Cuban ship of state in the immediate future.

It may be assumed at the outset that any government based on the democratic principle should, regardless of the form it may take, reflect existing public opinion. The actual method by which expression may be given to the will of the people is of secondary importance. We have relied, in the past, and are still relying on representative institutions for the performance of this prime function of democratic government. Although satisfactory results have, on most occasions, been obtained, numerous instances are on record in which the action of the people's representatives has been at variance with definitely formulated public opinion. Such instances have been pointed to by critics as indicating serious defects in the working of the representative system.

To remedy these defects the devices known as the initiative and referendum were conceived and incorporated into many state constitutions. These instruments of government enable the voters, by means of the ballot, to supplant or supplement laws enacted by their representatives by laws of their own making. They were designed not to overthrow representative government but to prevent its diversion from its proper sphere of activity. When legislation does not seem to conform to public opinion the people may, by direct exercise of the law-making power, correct the error by popular vote, and the result is to be taken as the final word in determining what the will of the people really is on the subject in point. Public opinion is thus to find expression in the will of the electorate through the balloting process.

Tocqueville observed, “I know of no country in which there is so little independence of mind and real freedom of discussion as in America.” Moreover, he continued, “Freedom of opinion does not exist in America.” With the United States committed to a war (not to be called a crusade) against terrorism, these words from Tocqueville seem apt. If indeed the world changed on 11 September 2001, perhaps it became Manichean. Good versus evil, civilization versus barbarism, modernity versus medievalism, freedom versus fundamentalism, us versus them: These are the terms of political discourse. In the new order, you are either with the United States and the World or you are against it. Time to decide. War abhors ambiguity.

There is no aspect of contemporary politics more significant than the remarkable growth and extension of the movement for direct legislation in America. While various phases of the referendum, such as advisory voting, the adoption of constitutions and their amendments and of local charters and laws have been of common use since the colonial period, the unrestricted use of the initiative and referendum whereby the people are given unlimited control of machinery for the enactment of constitutional and statutory law, is a very recent development. Prior to the last decade it was scarcely looked upon as a permanent feature of our governmental system. It smacked of Populism and found its supporters chiefly among certain faddists who sought by this means to secure, at least in a limited degree, the adoption of their political nostrums.

But the problem of the referendum in America is no longer an academic one; for scarcely is there a state in the Union but must seriously consider the incorporation of this principle into its fundamental law. From its beginning in the single state of South Dakota, ten years has seen its spread through ten western commonwealths and the question of its adoption is now pending before the people in as many more states.

Perhaps the two most important constitutional events during recent years are the establishment of the South African Union and the struggle in Great Britain over the budget and with reference to the powers of the House of Lords. Both of these events are excluded from treatment here—the South African Union is discussed somewhat fully in another part of this Review; the British constitutional struggle is still in progress, and cannot be satisfactorily treated at the present time.

However, with reference to the South African Union it may be well to call attention to the movement away from loosely-constructed federal states. In the United States the state governments have steadily tended to become of less importance as compared with the national government, but this change has necessarily been produced not so much by textual changes in the constitution as by judicial interpretation. By the German imperial constitution of 1871 a fairly centralized federal organization was established, and since 1873 when the federal legislative power was extended over the whole field of civil law there have been no important extensions of federal power by textual changes in the constitution; but here as in the United States the federal power has increased at the expense of the states in a manner not shown by changes in the written instrument of government. “The most important and most weighty interests of the nation are common to all and must be cared for in a uniform manner, and all branches of public law and political life stand in a close and indissoluble relation the one to the other, so that by the logic of facts particularism must give place to unity, the common will must to an ever increasing extent displace the separate wills of the individual states.”