Stalvey, J. Ben

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review12-1-1950THE NEW FEDERALISM; An Inquiry into theMeans by Which Social Power May be soDistributed Between State and People as to InsureProsperity and Progress. By Samuel Seabury. NewYork: E. P. Dutton and Company, Inc., 1950.J. Ben StalveyFollow this and additional works at: http://repository.law.miami.edu/umlrThis Book Review is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationJ. Ben Stalvey, THE NEW FEDERALISM; An Inquiry into the Means by Which Social Power May be so Distributed Between State andPeople as to Insure Prosperity and Progress. By Samuel Seabury. New York: E. P. Dutton and Company, Inc., 1950., 5 U. Miami L. Rev. 179(1950)Available at: http://repository.law.miami.edu/umlr/vol5/iss1/28BOOK REVIEWSinvaluable to lawyers, legislators, and laymen. Some 'nay be compellednot to agree with all of the general objectives or the specific proposals ofthe Simons plan, but all should admire Sirnons' sensitive skill in havingconcerned himself with fundamentals and having presented his theoriesconcisely in a context of policy discussion. Law teachers may with goodconscience prescribe this book for their students, for law case study shouldproceed frorr an understanding of policy problems.May Simons' incisive studies help us (who, I trust, will follow throughwith action-out-of-discussion, which is the essence of our democratic politicalprocess) to reverse the devastating tendencies in governmental tax policyof which he was a constructive critic.RicaRD A. HAUSLER ASSISTANT PROFESSOR OF LAWUNIVERSITY OF MIAMITin NEw FE)DERALISM; An Inquiry into the Means by Which Social PowerMay be so Distributed Between State and People as to Insure Prosperityand Progress. By Samuel Seabury. New York: E. P. Dutton andCompany, Inc., 1950. Pp. 311. $5.00.OF making books about the dangers inherent in Centralism, in "biggovernment," there is, or seems to be, no end. Beginning with the much-controverted exposition by Hayek and reaching its ridiculous zenith in JohnT. Flynn's effort to equate New Dealism, Fair Dealism, the "welfare state,"democratic socialism, and authoritarian Communism, the threat to free-dom from expanding governmental functions has been trumpeted to theworld, with an able assist from many newspaper editorialists and columnistsand radio commentators.judge Seabury's book is not to be classed with those of the aforemen.tioned writers. His writing is certainly not characterized by the irresponsibleshibboleths and generalizations which Flynn uses in his tirade. Nor is itbased on the type of economic analysis which Hayek employs. It is morein the nature of a theoretical and juridical presentation, based oil his inter-pretations of the concepts of law, sovereignty and federalism. It is describedin the publisher's blurb as "Judge Seabury's political testament . . - apermanent contribution to the thinking of our time."It is difficult to judge just when this "political testament" took shapein the mind of the author. Although there is very little of an explicitnature to indicate that Judge Seabury is attacking the New Deal and FairDeal in this country, there is certainly ample implicit evidence that the bookis primarily designed to discredit these trends. Yet the bibliographicalmaterials cited in the footnotes and listing of principal works consideredMIAMI LAW QUARTERLYantedate, for the most part, the advent of the New Deal. Only eighteentitles listed bear a publication date as late as 1933, the latest being 1942.There are some eighty titles bearing earlier publication dates, with the bulkof them being works published in the first quarter of the twentieth century.It would appear to this reviewer that this situation can be explained on thebasis of one or both of the following factors: (1) Judge Seabury virtuallydiscontinued readingafter the 1920's; (2) the writings of nineteenth andand early twentieth century authors provided a more satisfactory mediumfor authenticating the subjective conclusions reached. One obvious resultof such selection is that the current views of certain scholars are inaccuratelydepicted. For example, in his discussion of "Illusions as to the Sanctity ofMajority Rule" (Book II, Chapter 1) Judge Seabury takes Professor R. M.Maclver to task for his alleged blind adherence to the absolute validity ofmajority i'le, basing his attack on excerpts from Community, A SociologicalStudy, published in 1917. Professor Maclverhas authored many subsequentbooks and articles, any of which might have shed significant additional lighton the subject.The publishers describe Judge Seabury's work as "a closely reasonedanalysis of the dangers of our present national tendencies toward centraliza-tion and statism." (Note the utilization of the term "statism," which hasbeen successfully established, by frequent usage in editorial columns of cer-tain publications, as something extremely approbrious and dangerous). Theauthor himself has stated the solution to the problem of "centralization"and "statism," in his preface (p. 6) and throughout the treatise, by assert-ing that "the political state should be limited to the discharge of its politicalfunctions which affect the general and universal interests of individualsas individuals." Derivative from this concept, asserts Judge Seabury, is theprinciple that "industrial government should be self-government, and shouldfind its expression outside of the state through voluntary agencies of labor,capitalists and consumers operating under a New Federalism within whichrepresentation should be accorded upon a functional basis." (Ibid. and p.189).This pluralist conception of society, as Seabury recognizes, is an oldand sometimes honorable doctrine. In fact, the writer cites excerpts andsummaries from the writings of probably the two leading twentieth centuryexpositors of pluralism, G. D. H. Cole and Harold Laski (Note, particularly,Book II, Chapters II and III). However, he is careful not to follow thedoctrines of these two men too far, lest they lead to acceptance of someideas of some form of socialism. Mr. Cole is immedately identified withGuild Socialism. For many years prior to his recent death Mr. Laski wasgenerally recognized as the intellectual leader of the less conservative ele-ment of the democratic socialist British Labour Party. Their advocacy of"the wide dispersion of authority" as quoted by Judge Seabury (p. 195)from Laski's A Grammar of Politics, (p. 139) certainly cannot be inter-BOOK REVIEWSpreted as intended to "preclude its (the political state's) interference withindustry," which Judge Seabury says must be done (p. 195).In the process of developing his thesis, Judge Seabury analyzes thetraditional conceptions of the state, sovereignty and law. He attacks theclaim of some that sovereignty resides in the state. Instead, he says, sover-eignty is the source from which laws and states spring; the state and lawsare merely expressions of sovereignty (p. 38). Sovereignty itself "is nothingmore or less than social authority employed to define the rules of conductwhich men in every stage of their social development recognize in someform as having authority over them." (Ibid.) "It is the product of thepeople, not necessarily of the state ... a relation existing between the mem-bers of a commonwealth which includes the state." (p. 40). "The stateis a social body whose authority is limited to the sphere of action assignedto it by the sovereign power of the commonwealth which creates it anddefines its sphere of action." (p. 69). "In a primary sense sovereignty isthe only direct source of law; . . ." (p. 96). "Laws have existed beforestates, and have frequently sprung from sources other than states." (p. 106).Few present-day students of the science of politics and governmentwould question the need for careful and continuous re-examination of theclassical concepts of sovereignty, law, rights and even the state itself. Thereare some who maintain that the whole doctrine of sovereignty should bediscarded. Certainly most persons who look at the matter objectively recog-nize that the tenacious clinging to the claim of national sovereignty is amajor deterrent to the achievement of any effective international or worldorganization or understanding. Yet not nearly all students of the subjectwould agree with the use to which Judge Seabury has put his analysis ofthese doctrines.The conclusion reached from the analysis of these concepts is statedby the author in these words: "The new federalism contemplates a divisionor apportionment of the sovereign power partly upon a territorial basis andpartly, and especially insofaras it is operative within the industrial oreconomic sphere, upon a functional basis." (p. 139). Functional repre-sentation, he then concludes, is not suited to be incorporated into the struc-ture of the state (p. 204 f.). Therefore, the powers which have been usurpedby the state must be withdrawn from it, and the state, as merely one of thecorporate bodies in society, must be limited to action only in the politicalsphere. The affirmative functions of the state, then consist of: "(I) thepolice functions; (2) the functions requisite for the preservation of equalityof opportunity ... ; and (3) functions which the state must perform untilother agencies better adapted than the state to perform them come intoexistence, in order to do those acts which are necessary to promote thehealth, education and social convenience of the commonwealth." (p. 208).Following this statement of the classical doctrine of individualism, withits twentieth century modifications to fit the needs of large-scale capitalisticMIAMI LAW QUARTERLY"Iprivate enterprise," Judge Seabury points to the dangerous concomitantof the extension of the powers of the state in remedial labor and social re-lations. "The addition of these powers to the state's sphere of action hasalso been accompanied by a host of new evils, not the least of which hasbeen the abuse of the powers conferred, the vast horde of public servantsthat have been added to the public pay roll, the increased burdens upon thetaxpayers and the corruptions incident to these administrative activities."(p. 214). Like others of his contemporaries in this school of thought, heapparently concludes that there has been no abuse of powers, increasedburdens upon the taxpayers (consuming public), or corruption in thelarge-scale monopolistic control by "private" industry. In fact, he impliesthat, if the political state will withdraw into its shell of minimum "politicalfunctions," giving other functioning bodies a free hand, the problem willbe solved. "If the state will cease to make impossible cooperative effortswithin industry, such. cooperative efforts will express themselves. Theycannot be expected to express themselves when the whole sphere of actionin relation to them is preempted by the state. Wherever the state leavesany given field of action free from its regulatory powers, those who areactive within such field now prescribe their own rules and regulations."(p. 218). Thereupon, the trend toward socialism, with its accompanyingbureaucracy and inefficiency, will be effectively estopped.If this tendency toward socialism shall continue, industrial andpolitical evils will multiply. The effect of such a development will be toplace in the control of the state or its bureaucrats the multiple agencieswhich are now operating voluntarily thrqugh a very complicated sociallife. Rules of industry which are now flexible and capable of being easilyadapted to industrial conditions will become fixed and rigid .... Further-more, the existing system must result in increasing the army of unpro-ductive departmental officials, whose support is derived not from thewealth which they produce, but from the exactions which they are ableto make upon the industries upon which they are a burden, or upon thegeneral taxpayer. (p. 218 f.).To those who wish to have their position of anti-"statism" bolstered,this book is a valuable, if not permanent contribution. It is a mid-twentiethcentury restatement, with appropriate adaptions to fit current conceptionsof "individual initiative," of nineteenth century classical individualism. Tothe ardent advocate of the "welfare state" it will provide some insight intothe line of argument employed by those who are using doctrines of humanfreedom to justify opposition to cooperative planning for meeting the needsfor all men. To the scholar it will merely provide an interesting exampleof one type of rather shrewdly presented polemical writing.J. BE.N STALWEY PROFESSOR OFP GOVERNMENT

THE NEW FEDERALISM; An Inquiry into the Means by Which Social Power May be so Distributed Between State and People as to Insure Prosperity and Progress. By Samuel Seabury. New York: E. P. Dutton and Company, Inc., 1950.

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THE NEW FEDERALISM; An Inquiry into the Means by Which Social Power May be so Distributed Between State and People as to Insure Prosperity and Progress. By Samuel Seabury. New York: E. P. Dutton and Company, Inc., 1950.

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