Power of Congress to Declare Peace

In the course of the discussion which has been aroused in Congress by the proposal to declare hostilities with Germany at an end by joint resolution, Senator Thomas of Colorado has brought forward evidence showing that on one occasion the Convention which framed the Constitution voted down unanimously a motion to vest Congress with the power to make peace. This evidence is good so far as it goes, but it does not support all of Senator Thomas\u27s deductions from it, nor indeed has he given an altogether complete account of it. The proposal in question was made and rejected by the Convention on August 17, 1787.1 One ground for its rejection was that the making of peace would naturally fall, not to the Executive, as Senator Thomas would have it, but to the treaty-making body, which was, by the plan at that date before the Convention, the Senate alone.2 And the principal argument which was offered against the proposal Senator Thomas ignores altogether. It was the argument made by Ellsworth and repeated by Madison, that! it should be more easy to get out of war than into it --the obvious deduction being that the, making of peace ought therefore to be lodged with a less cumbersome body than Congress. The Convention were apparently unacquainted with the single-track mind

The Supreme Court and the Fourteenth Amendment

It was formerly the wont of legal writers to regard court decisions in much the same way as the mathematician regards the x of an algebraic equation: given the facts of the case and the existing law, the outcome was inevitable. This unhistorical standpoint has now been largely abandoned. Not only is it admitted that judges in finding the law act not as automata, as mere adding machines, but creatively, but also that the considerations which determine their decisions, far from resting exclusively upon a narrowly syllogistic basis, often repose very immediately upon concrete and vital notions of what is desirable and useful. The very considerations, says Holmes in his Common Law, which judges most rarely mention and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less, traceable to views of public policy in the last analysis. Holmes has in mind of course the common law, but his argument is equally to the point in the study of our American constitutional law. ·A great and growing part of this law is, like the common law, judge made. It is true that constitutional limitations are generally referred to some clause or other of the written Constitution. But this after all is a circumstance of which too much may be made very easily. Given a sufficient hardihood of purpose at the rack of exegesis, and any document, no matter what its fortitude, will eventually give forth the meaning required of it. Nor does this necessarily mean that the law is a nose of wax, to be moulded according to the caprice of the hour. What it does mean is that the institutional character of the law rests, partly upon the conception of precedent as binding, but much more largely-and it may be added, much more securely-upon the fact that views of policy themselves tend to become institutional in social and political theories

The Dissolving Structure of Our Constitutional Law

Accepting the Clausewitz thesis that war is only an extension of policy, we are free to say that the politicians have created chaos in these latter days in a rather wholesale way. But that is another story. The World Revolution is not my topic, but the comparatively limited revolution which we have been witnessing in our own country the last few years in consequence of the New Deal and more recently of the war. How has this revolution affected conceptions of governmental power in the United States; how is it to be evaluated in terms of American Constitutional Law? For Constitutional Law has always been the most distinctive feature of the American system of government, the result of a unique infusion of politics with jurisprudence, of current opinion with established principles. Today this remarkable product of American political genius appears to be undergoing a fundamental revision—even to be in process of dissolution

THE SUPREME COURT\u27S CONSTRUCTION OF THE SELF-INCRIMINATION CLAUSE

The Fourth Amendment of the Constitution reads as follows: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. The so-called self-incrimination clause of Amendment V reads as follows: No person * * * shall be compelled in any criminal case to be a witness against himself