staatstheorie and the new american science of politics

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Staatstheorie and the New American Science of PoliticsAuthor(s): Sylvia D. FriesSource: Journal of the History of Ideas, Vol. 34, No. 3 (Jul. - Sep., 1973), pp. 391-404Published by: University of Pennsylvania PressStable URL: http://www.jstor.org/stable/2708960

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2/15

STAATSTHEORIE

AND THE

NEW AMERICAN

SCIENCE OF POLITICS

BY SYLVIA

D. FRIES

American

political

science

was,

since

its

inception

under the

aegis

of Francis

Lieber at the

University

of Carolina

and

later

at Columbia

College,

and

until

World

War

I,

dominated

by

the German idea of

the

state-the

state

whose

origin

is in

history,

whose

nature is or-

ganic,

whose essence is

unity,

whose

function is the exercise

of its

sovereign will in law, and whose ultimate end is the moral perfection

of mankind.

The

history

of

that idea

in the new American science of

politics

during

the

formative

years

of the

discipline

has much to tell

not

only

about the

character

of academic

political

thought during

those

years,

but about

the

vitality

of

America's

first

ideological

inheritance

as well.

The

German

idea

of

the state

originated

in the vision of

a

metaphysical unity

in

political

and

cultural

nationality

as evolved

by

Herder, Kant, and Fichte, which was then provided with its essential

contours

by

Georg

Friedrich

Hegel;

the dialectical

struggle

to realize

the absolute which

Fichte once

attributed to

individuals,

Hegel

as-

cribed to

civilization

in

its

quest

to realize

objectively

that

which

ex-

ists

subjectively

throughout

history-the

ideal state.

And the ideal

state,

or state as

Idea,

became for

Hegel

absolute reason

expressed

in

the

sovereign

national

will.

Hegel's emphasis upon

public

law and

historical evolution as the two

primary

means

by

which the state is

realized fostered the dual concentration of Staatswissenschaft on public

law and

the

systematization

of

juristic concepts,

on the one

hand,

and

political history,

on

the other.

German

political

science,

as

it was

developed

in

the

nineteenth

century by

Friedrich

J.

Stahl,

Johann

K.

Bluntschli,

Georg

Waitz,

Rudolph

von

Gneist,

Georg

Jellinek,

Johann Gustav

Droysen,

and

Heinrich

von

Treitschke,

while

certainly enjoying

the

variety

in

ap-

proach

reflected

in

the individual works of these

scholars,

was none-

theless permeated with those philosophical characteristics which we

have come to

associate

with

German Romanticism.

Primary

among

these were the

postulates

of

organicism

and

process

essential

to

Hegelian

metaphysics,

as

well

as the

fundamental

tenet of transcen-

dentalism-that

reality

is

ultimately spiritual. Acceptance

of a

system

of

thought

with

these

philosophical underpinnings required

of Amer-

icans a

controversion of

philosophical

tenets

deeply

rooted in

their

intellectual

ancestry,

viz.,

Cartesian

dualism,

Newtonian

atomism,

391

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/15

392

SYLVIA

D.

FRIES

and

Lockian

empiricism.

Most

significant

o

the

historian

of

political

thought,

however,

is

the

repudiation

f

eighteenth-century

ndividual-

ism

required

by

the

idea of the state.

The transferof German

political

thought

to the new

republic

oc-

curred

along

two

routes:

irst,

the

emigration

o the

United

States

from

Metternichean

Europe

of such

men as

Francis

Lieber

and Carl

Schurz.

It

was Lieber

who,

in his

On

Civil

Liberty

and

Self-Government

(Phila-

delphia,

1853),

Manual

of

Political Ethics

(Philadelphia,

1875),

and

inumerable

ectures,

systematized

on

appreciation

f

the

necessity

of

multiple

and

independent

institutional

and social

relations

to the

preservation

of

the

capacity

and

spirit

for

self-government.

Lieber's

political

philosophy

also

provided

a

bridge

betweenthe Americancon-

viction that moral rectitude

is

the

indispensable

element

in

political

conduct

and the view that the

moral

perfection

of

humanity

s the

right

basis

and end of

political

society

which had served

as the fundamen-

tal

premise

of German

political

philosophy

at

the start of the nine-

teenth

century. Secondly,

the German influence

was a

consequence

of

the matriculation f thousands

of

young

American

scholars

n Ger-

man universities

between

1820

and

1920,

the

largest

number

doing

so

in

the

1890's

when the universities

of

Berlin,

Leipzig,

Heidelberg,

and

Halle

were

among

the most

popular.'

The

signal pilgrimage

f

George

Bancroft-and

its

consequences

or Jacksonian

political

and

historical

thought-needs

no elaboration

here.

Many

of the

new

academic

pro-

fessionals

of

the

1870's and

1880's,

and the

young

men

who

were

re-

sponsible

for

defining

and

shaping

political

science

as an

integral

dis-

cipline

in this

country's

new

universities,

found intellectual

nurture,

not

to mention

relatively easy

and

inexpensive

access to

a

doctoral

degree,2

n the

universities

f

Germany.

The substance

and method

of

political

science

whichthose who had

studied

in German universities ntroduced nto the curriculaof

their

respective

American

nstitutions

eflected n

good

measure he

political

science

to

which

they

had been

exposed

abroad. The boundariesof

the

discipline

n

Germany

were

never

clearly

marked.

Rather,

scholar-

ship

in

history

and

political

science

during

the second half of

the

nineteenth

century represented

a

confluenceof several traditions:

he

metaphysical-historical

approach

to

social science

derived from

'Charles

F.

Thwing,

The

American and

German

University

(New

York,

1928),

40.

2Laurence

R.

Veysey,

The

Emergence of

the

American

University (Chicago,

1965),

130-31.

Among

the German trained

who returned to

become

leading figures

in

the

discipline

were: James

B.

Angell,

William

A.

Dunning,

Andrew

D.

White,

Theodore

D.

Woolsey,

John W.

Burgess,

William M.

Sloane,

Woodrow

Wilson,

Anson

D.

Morse,

Charles

K.

Adams,

William

W.

Folwell,

Bernard

Moses,

Herbert B.

Adams,

George

G.

Wilson,

Edmund

J.

James,

Charles

Gross,

Richard

Mayo-Smith,

Munroe

Smith,

Clifford R.

Bateman,

FrankJ.

Goodnow,

and JeremiahJenks.



4/15

STAATSTHEORIE

AND AMERICAN

POLITICS

393

Hegel

and

German

romanticism

generally;

natural

science;

and

the

Austinian

school of

analytical

jurisprudence.

The first and

second

of

these

traditions

had their ultimate roots in

philosophical

idealism

and could

be

distinguished

by

their

emphasis

on

comparative

institu-

tional

and constitutional

analysis,

on

the critical

method and

re-

search,

and on

seminar

teaching.

However,

the

single

most

prevalent

conception

borrowed

by

American

political

scientists

from

the

Germans

was the idea of the state.

This

conception

served

as

the

focus of

not

only

the

major

theoretical

efforts of

the

discipline,

but

of its structure

as

well.

During

the

formative

period

of the

discipline

in

America the

German

approach

served

as an alternative

within which

political

in-

quiry

could

be

developed

without

its

prior

subservience

to

moral

philosophy.

At

Yale,

for

example,

it

was

Theodore

Dwight

Woolsey

who as both

professor

and

president

introduced

students

to

political

science.

Francis Lieber's

Civil

Liberty

and

Self

Government,

and

Woolsey's

own

lectures,

preserved

in

Political

Science,

or the

State

Theoretically

and

Practically

Considered

(New

York,

1878)3

were

the

basis of his course. Woolsey, a Liberal Republican,

shared

with Lieber

a

conception

of

the state as

agent

for

the moral betterment

of man

which

rested,

philosophically,

on Kantian

foundations.

At

Brown

the

task

of

inaugurating

studies in

political

science

fell to

E.

Benjamin

Andrews

(appointed professor

of

history

and

political economy

in 1882

and

president

in

1890),

undoubtedly

Gustav

Droysen's

most

de-

voted

disciple

in the

United

States.

At Harvard

political

science

was

not

freed from

the

tutelage

of historians until

the

1890's,

but

the

sub-

ject was taught largely as institutional history by a prominent group

of

historians,

all

of

whom had received

graduate

training

in

Germany:

Henry

Adams,

Albert Bushnell

Hart,

Ephraim

Emerton,

Archibald

Coolidge,

and

Charles

Gross. These

men assured

that

an

institutional

approach

to

history,

and

an historical

approach

to

politics,

not to

mention

the

heavy

hand

of

Teutonism,

would

prevail

during

the

1870's and

1880's.

In

1890-91,

Ephraim

Emerton

complained,

there

was

hardly

a

course

in the

catalogue,

save

History

I and

those

given

by Emerton, which did not smack of Verfassungsgeschichte. 4

While

few

colleges

and

universities

failed to

offer some

instruction

3John C.

Schwab,

The

Yale

College

Curriculum,

1701-1901,

Educational Re-

view,

22

(June, 1901);

George

A.

King,

S.

J.,

Theodore

Dwight

Woolsey:

His Political

and Social

Ideas

(Chicago,

1956),

41-43;

Anna

Haddow,

Political Science

in

American

Colleges

and

Universities

(New

York,

1939),

114-15.

4Ephraim

Emerton,

History:

1838-1929,

in

Samuel

E.

Morison,

ed.,

The De-

velopment

of

Harvard

University

Since the

Inauguration

of

President

Eliot. 1869-1929

(Cambridge, Mass., 1930), 159; Albert B. Hart, Government: 1874-1929, ibid.; Har-

vard

University,

The

Harvard

University

Catalogue

(Boston,

1871-1903).



5/15

394

SYLVIA

D.

FRIES

in

political

science

and

history

by

the

turn

of

the

century,

the earli-

est,

most

ambitious,

and most

self-conscious

efforts

to

institutionalize

political science were made by Germantrainedscholars

at

the

Uni-

versity

of

Michigan,

The Johns

Hopkins

University,

and

Columbia

University.

The

German influencewas

in

evidence

at

the

University

of

Michigan

from

the

very

beginning,

when

the

university

was

or-

ganized

under

the German

plan

of

facultygovernment.

Henry

P.

Tap-

pan,

appointed

chancellor

in

1851,

expressed

his

scorn

for

the

pro-

ductive

professions

and

his

enthusiasm

for the Prussian

university

system,

which

sustained

his

vision

of

a learned

class of

men

highly

cultivatedin letters and science who would elevate society with their

knowledge

hrough public

ectures

under he direction

of an elite

cor-

poration. 5

Such

sentiments won

him

dismissal

by

a

suspicious

Board

of

Regents

in

1863,

and German influence

lapsed

until 1871

when

James

Burrill

Angell accepted

the

presidency

f

the

University.

Angell

had

taken two

years graduate

work

in

Paris

and

Munich,

and it was

his recommendations

o

the

Board

of

Regents

that led to

the establish-

ment

of the

Michigan

School

of

Political Science

in

1881. Charles

KendallAdams,a facultymemberat Michigan ince 1863,servedas its

first

Dean.

The

School's course

offeringsgave

prominence

o

political

and

constitutional

history. Crowning

the

whole

was a

series of

courses

in

topics

which resembled

closely

the

substanceof

Staatswis-

senschaft:

the idea of

the

state,

the

nature

of the

individual,

ocial

and

political rights,

the

history

of

political

deas,

the

government

of

cities,

theories and

methodsof

taxation,

comparative

onstitutional

aw,

com-

parative

administrative

aw,

and

the

history

of

modern

diplomacy.

The characterof the courses andthe methodof instruction, Adams

promised,

will be

essentially

he

same

as

those

offered

and

given

n the

Schools of

Political Science at

Paris,

Leipzig,

Tubingen,

and

Vienna. 6

At The Johns

Hopkins

University

the

launching

of

historical

and

political

studies was

the

work

of

German

trained

scholars.

Austin

Scott,

who

instituted

the

American

history

seminar in

1876,

had re-

ceived

his

doctoratethree

years

earlierfrom

the

University

of

Leipzig.

He

regarded

he

development

f

constitutionsas the

gradual

manifesta-

tion of historicallyevolved egal principles.Scott's youngercolleague,

Herbert

Baxter

Adams,

assumed the task

of

furthering

he

discipline

at

Johns

Hopkins University

after Scott left for

Rutgers

in

1883.

A

student

of JohannK.

Bluntschli's,

under

whomhe

had taken

the

Ph.D.

5Portions

of

Tappan's University

Education

(1850)

are

reprinted

in

Richard

Hofstadter

and Wilson

Smith, eds.,

American

Higher

Education:

A

Documentary

History,

2

vols.

(New

York,

1961),

11,

488-511.

6Charles

K.

Adams,

The

Relations

of

Political Science to National

Prosperity,

an Address delivered at the opening of the School of Political Science

at the

University

of

Michigan,

3

October

1881

(Ann

Arbor,

1881),

19-20.



6/15

STAATSTHEORIE AND AMERICAN POLITICS

395

at

the

University

of

Heidelberg

in

1876,

Adams

had been

immersed

in

German

history

and

political

science

ever

since his

Amherst

days

when the Kantian

Julius

Seelye inspired

the

young

man to

abandon

journalism

and

to turn his talents

to the

study

of

history.

Richard

T.

Ely

wrote of

Adams,

the

strongest

influence on

his

growing

mind

was that

of

Bluntschli to

whom

history

was

merely

a handmaid to

politics. 7

For two

decades at

Hopkins

the

work done

in

history

and

political

science

(not

organizationally

separated

until

1911)

bore

the

impress

of

Adams'

mentor,

who

had

enjoined

his

pupil:

the com-

munity

is

a

preparatory

school

for

the

state 8-an

injunction

which

was reinforced

in

the

Baltimore seminar rooms

by regular

use

of the

writings

of

Sir John Robert

Seelye

and the

English

Germanists,

Edward

A.

Freeman,

William

Stubbs,

and

Sir

John

Henry

Maine.

The German

influence

dominated in

the

person

of

Herbert

B.

Adams

and

survived into the

twentieth

century

with the

addition

to the staff

of Westel

W.

Willoughby

who,

although

not

trained in

Germany,

be-

came

an

articulate

spokesman

for

the

Rechtstaat

in America.

The

undisputed

leader in the

movement

to institutionalize

political

science

was

John

W.

Burgess

of the

Columbia School of

Political

Sci-

ence. When the

School

opened

in

1880

its

faculty

was

composed

al-

most

entirely

of

German

trained

scholars,

including

a small

group

of

students who had met

with

Burgess

for

informal

post-graduate

study

while

he

was at

Amherst

College

and

who,

like

Burgess,

had

gone

to

Germany

to do

graduate

work

(Burgess

had studied at

Berlin,

Leipzig,

and

Gittin-gen).9

The

system

of

graduate

instruction

in

political

science at

Columbia

was,

according

to

Burgess,

modeled

upon

the

Imperial University

of

Strassbourg,

which

had

a

separate fac-

ulty

for

Political

Science,

and

the Ecole Libre

des Sciences

Politiques

at

Paris. 10 The

program

reflected all

those elements

for

which

the

German

science

of

politics

was

then

noted:

emphasis

on research

and

publication,

training

for the

professoriate,

use of

the

historical and

comparative

methods,

and

concentration

upon

the

legal

and

constitu-

tional

aspects

of

politics.

Political

science was

recognized

as a

separate

discipline

during

the

formative years only at the University of Michigan and at Columbia

7Richard

T.

Ely,

A

Sketch

of

the Life

and

Services

of

Herbert

Baxter

Adams,

in

John

M.

Vincent,

ed.,

Herbert Baxter

Adams:

Tributes

of

Friends

(Baltimore,

1902),

39.

81bid.,

40.

9From

Amherst:

George

H.

Baker,

Charles

S.

Smith,

Frederick

W.

Whitbridge,

and Munroe

Smith;

also,

Richmond

Mayo-Smith

and Clifford Bateman. John W.

Burgess,

Reminiscences

of

an

American

Scholar

(New

York,

1935).

'IJohn W.

Burgess

to

Professor Walter

Willcox,

4

July

1916,

quoted

in

Ralph

G.

Hoxie,

A

History of

the

Faculty

of

Political

Science,

Columbia

University

(New

York,

1955),

12ff.



7/15

396

SYLVIA

D.

FRIES

University.

In

most

institutions,

as

at

Johns

Hopkins,

political

sci-

ence

was

joined

with

history.

At

Yale

instruction

n

political

science

emerged

from

the old

moral

philosophy

ourse,

while

at Brown

politi-

cal science was

regarded

administratively

s oneof the socialsciences.

Insofar

as

political

science

during

he

period

could

have been charac-

terized

by

a

residue of

strong

moral

impulse

and the

historical

perspective,

German

influences

could

only

have served

to reinforce

those

tendencies,

for the

German

theory

of the

state

was

in

itself

in-

formed

by

the

Kantian

heritage

and

the

historical

school.

While

German

political

science,

itself

having

no clear

institutional

domain,

could

not

provide

he American

scholars

with

a

useful

model

of

organi-

zational

structure,

t did

provide

a

conceptual

ramework roundwhich

the

discipline

might

be built.

When it came to

providing

the new science

with a

literature,

however,

the Germanbranchoffered

abundant

resources.

Unlike

the

young

American historical

profession,

which was then bound to

ob-

serve

(in

word,

if

not

always

in

deed)

the canon of

primary

evidence,

the road

to

eminence

or the

aspiringpolitical

scientist

was

paved

with

the

volumes

of well established authorities. Less troubled

than

their historian

colleagues

by possible

interference

of

theory

with

experience,

the scribes

of

political

wisdom

needed

only

to

gloss

the

writings

of

the German

greats,

of

whom

Bluntschli,

von

Mohl, Gneist,

and

Jellinek were the most

favored,

and

to

translate this

knowledge

into the American reatise

on

representative

overnment,

omparative

constitutions,

etc. One such

author

was Jesse

Macy,

whose

principal

works-Our Government

(Boston,

1885),

The

English

Constitution

(New

York,

1897),

Political Science

(Chicago,

1913),

and

Comparative

Free

Government

New

York,

1915)-were

well

endowed

with the

conventional

truths of the

English

Germanists

and

mid-nineteenth-

century

German

political thought.

In

his Political

Science,

for ex-

ample,

Macy

advanced he German

doctrine

of the

sovereign

state as

an

organic

community

arising

from

the

nation,

itself an

ethnic

and

psychic

community

ounded

ultimatelyupon

kinship.

Macy's

elaboration

of the

doctrine of the

state

followed

closely

the

path

set

out

by

Bluntschli

and reaffirmed

by

John

W.

Burgess

in

that

he

too

insisted

upon

a

distinction

between state

and

government.

Since

the

state is the

essential

organ

for human

perfection,

the

eighteenth-century

notion

that individuals

xist

in

an

adverse relation

to

political

authority

must

be

replaced

by

an

appreciation

f the iden-

tity

of

interest

of state

and

individual.1

Macy's

treatment

of the

rela-

tionship

of state

sovereignty

(which

was a

precondition

of

the

his-

torically

evolved

state)

and

public

law

is

all the

more

interesting

Jesse

Macy,

Political Science

(Chicago,

1913),43.



8/15

STAATSTHEORIE

AND AMERICAN

POLITICS

397

because

it involved a

noteworthy difficulty

in

definition

and

reasoning

which

appears

again

and

again

in

the work of

his

contemporaries.

On

the

one

hand,

Macy accepted

the

postulate

of

the

positive sovereignty

of statehood

as a

necessary

attribute of the state

in

its historical

devel-

opment.

But,

on the

other

hand,

in

human

society

law

is

not

positive;

it rests

upon

conscience,

or

the sense

of

right

and it is the

very

nature

of law to limit the

power

of the

sovereign. 12

However,

if

law is

a manifestation of the common

will

of the

people,

inasmuch

as

law

must conform to the more or less

permanent

habits and

customs

of the

people,

and

if

the

state

. . .

is

the

agency

for

expressing

and

carrying

into effect the common

purpose,

then

public

law

and

state

sovereignty

must be

essentially

identical.13

Macy

was reluctant

or

un-

able to surrender

total

responsibility

and

authority

for

public

law

to the

sovereign

states,

however

morally perfect.

In the

Anglo-

American

tradition,

traceable to the seventeenth

century

at

least,

civil

law had

originated

with the individual

citizen

prior

to the

state.

This

ambiguity

between

individualism and statism was

brought

into

sharp

relief

in

the work

which

Macy

co-authored

with

John

Gannaway,

Comparative

Free Government

(New York, 1915).

The Civil

War

presented

a

profound

challenge

to American

political

theorists,

informed as

they

were

by

the

utterances

of

both

Calhoun

and

Webster. When

Macy

and

Gannaway

discussed the

po-

litical

identity

of the

United

States,

they

did so

in

nationalistic

terms:

The United

States has

a

government

whose

powers

are dividedbetween

the

Nation

and

the

States.

But it is a

government

of

the

federal

type

and not

a

mere confederation.

. .

.

Sovereignty

resides

in

the state as

a

whole

[i.e.,

the Union] and not in the commonwealths i.e., the individual tates] that

compose

t.

Whatever

may

have been the constitutional

ight

of

Congress

with

respect

to

slavery

in the

Territories

or the Constitutional

ight

of

a

State to

secede,

the outcome

of the

struggle

was

the absolute

supremacy

f the

Union. ..

The

UnitedStates

is not

merely

a

Confederation.

The

doctrine of

sovereignty

which

is

implied

by

the authors'

treatment

of the constitutional

issues of the Civil

War is one

which

regards

sov-

ereignty as 1) alienable, and 2) an attribute which may be acquired

by

force. At

the

same

time, however,

The Nation can exercise

only

thos

powers

that are

specificallydelegated

to it

by

the Constitutionor

are

necessarily

implied

either

by

the

definite

grants

or

by

the Constitution

s a

whole.

In

the case of the states

the denial

of

power

must be

affirmatively

hown

1bid., 51,77,

78.

l

3Ibid.



9/15

398

SYLVIA

D. FRIES

before

its

exercise can

be

considered

nvalid.

The

states

are antecedent

to

the

Nation

and

originallypossessed

all

power.14

James Garner, whose Introduction to Political Science (1910)

is

impressive

among

the

efforts

of his

contemporaries

in

its

thorough-

ness

and

evident

mastery

of

its

subject,

advanced

a

theory

of

state

sovereignty

which

was,

by

his own

admission,

essentially

Georg

Jel-

linek's;

that

is,

sovereignty

is absolute

and

unlimitable,

or sov-

ereignty

.

.

.

can be

bound

only by

its

own

will,

that

is,

it

can

only

be

self-limited. '5

Neither

the

laws

of

nature,

the

principles

of

morality,

the

laws

of

God,

the

dictates of

humanity

and

reason,

the law of

na-

tions, nor the fear of public opinion can serve to limit sovereignty

unless

the state so

chooses

to limit

itself.16

Is such

a

thing

as

indi-

vidual citizen

sovereignty

possible

then?

And if

so,

how

meaningful

is

the

authority

of

the individual

in

face

of,

or

acting through,

the au-

thority

of the state? Garner

attempted

to deal with this

problem

by

insisting

upon

a distinction not

of

degree

(as

the

divided

sovereignty

of Federalism

requires)

but

a

distinction

of kind.

Sovereignty

can

exist

in several forms:

titular

sovereignty,

legal

sovereignty

embodied

in that determinate authority which is able to express in a legal for-

mula

the

highest

commands

of the

state,

and

political

sovereignty

which

may

be said to be the whole mass of

the

population,

including

every person

who contributes

to

the

molding

of

public opinion.

The

essential

sovereign

is the will of the

people

expressed

through

legally

constituted

channels.

.

.

17

The

distinction between

legal

and

political

sovereignty

does not rest

upon

the

principle

of

divided

sov-

ereignty,

but

rather

upon

the

distinction

between

two

different

mani-

festations of one and the same sovereignty through different chan-

nels. 18 But

Garner's

explication

of

sovereignty

remained

bound

to

an

hypothesis-the

state

in

law,

or

as

it

ought

to

be,

rather

than

the

state

as it

might

become:

a

political

society

in which

political

sovereign

(sovereign

de

facto)

and

legal

sovereign

have

lost

their

original identity

of

purpose.

In

sharp

contrast

to the

flexible,

albeit

ambiguous,

nature of

the

above

works is

Bernard

Moses' and William Crane's Politics

(1884).

Moses and Crane presented a relatively intemperate adaptation of

German

political

thought.

In

tone as

well as

in

content

their volume is

singular

among

the

political

writings

of this

period

in that it more

14Jesse

Macy

and John

Gannaway,

Comparative

Free Government

(New

York,

1915),

3-11.

'5James

W.

Garner,

Introduction

to Political

Science:

A Treatise

on

the

Origin.

Nature,

Functions.

and

Organization

of

the

State

(New

York,

1919),

251.

16Ibid.,

53.

17Ibid.,

240---45.

18Ibid.,

42.



10/15

STAATSTHEORIE AND AMERICAN

POLITICS 399

clearly

mirrors

the

Macht-Politik

of the Second

Reich than

any

other

contemporary

American

effort.

When all

the

semantic

exercises

are

done,

the state survives either on

citizen virtue

or on

absolute

power.

In

terms of the American democratic

faith,

in

terms of those

Puritans for

whom the

beckoning

frontier

lay

less

beyond

the

setting

sun than within

the

dark recesses

of the

soul,

one

simply

could not

have it both

ways.

It is thus

somewhat ironic that

an

American

book written

as an

introduction

to the

study

of

constitutional

law

should

have as one of its

major

effects an

attempted

destruction of

the

principle

of

legitimacy

in

political

power.

Crane

and Moses labored

under

no such

ambiguities

as those which

burdened

the

writings

of

Macy

and Garner.

Here

again

is a

theory

of

the state-but this

is

not

the

benign

state of

a

Theodore

Dwight

Woolsey,

ever circumscribed

by

the

dictates of

moral

law.

This is the Machtstaat-the

sovereign

nation,

the

legal

person,

the

social

organism

for the concentration

and distribution of

political power

in the

nation. '9

Within the

state

sovereignty

is tantamount to

absolute,

unlimited

power.

To Austin's

principle

of

the ultimate

dependency

of

sovereign power

upon

the

consent, implied

or

expressed,

of

the

people,

the

authors

of Politics

added the notion of

irresistible force

from

above.

Moreover,

they

adopted

the

German

concept

of

the state

as

personality,

having

a

will

and

power

of

its own.20

Only

when

writing

about

government

as

the chief

instrument of

the

state

were

Crane

and

Moses

willing

to

make

any

concessions

to the

vox

populi.

Thus

the

authors

of Politics

granted

that the

government

of the

nation

. . . exists with the consent

of the

people

governed.

After

all,

in a broad

sense,

every

sov-

ereign government exists because of

the consent of the

governed,

for

if

all the

people

so

determine and so

act,

they

can

overthrow

any

form of

government

and

establish

any

other.

So here

we are

again,

confronted

with

an absolute

sovereign

state,

so distinct

from

any

other

political expression

that

it

has

an

organic

body

and

a

will, 21

and

yet

we

have also a

government,

a

mere

instrumentality

which

can be

overthrown

by

the

people.

How

sovereign

is a

government-or

state-which

cannot

carry

out

its

will

against

the wishes

of

the

people?

How meaningful is the authors' concession to the consent of the

governed

if

that consent

is

to be

measured

solely by

the absence

of

vio-

lent

revolution?

The efforts of Jesse

Macy,

James

Garner,

William

Crane,

and

'9William

W.

Crane and Bernard

Moses,

Politics:

An

Introduction

to

Comparative

Constitutional Law

(New

York,

1884),

1. Crane

and

Moses

employed

the

terms

sovereign

nation and state

interchangeably.

20Ibid.,

37-38,

40.

21Ibid.,

40.



11/15

400

SYLVIA

D. FRIES

Bernard

Moses

illustrate some

of the

new

political

scientists'

first

ventures

into

systematic

theory.

The

fact is that

nearly

all

their

works,

as

well

as

that of other

contemporaries,

were

explicitly

or

implicitly

structured

around the German

conception

of

the

sovereign

nation-

state,

and relied

heavily

on the authoritiesof German

political

science,

thus

showing

hey

felt

keenly

the need for such authorization.But

this

dependence

was

costly.

The

Americans

struggled

with

the

absoluteand

indivisible

sovereignty

position

when

they

found it difficult o

abandon

at

the same

time

the more traditional

commitment to

popular

sov-

ereignty;

hence the effort to

distinguish

between

the state as

a

political

power

or

authority independent

of

historical

accident or

individual

choice,

and

popularly

determined

overnment.

The

tension

between

absolute

sovereignty

and individual

r

popular

sovereignty

gave

way

to

evasive

ambiguity

or uncritical

accep-

tance

in

the

works of the

authors

cited

previously.

However,

John

W.

Burgess

and

Westel

W.

Willoughby

sought

to resolve

this

dilemma

directly

in their works.

Both

Burgess'

Political Science

and

Comparative

Constitutional

Law

(1890)

and The Reconciliation

of

Government

with

Liberty (1915),

well endowed with

supportive

ref-

erences

to

German

scholarship,

are infused with

the

author's

concern

for

a durable

marriage

of

individual

iberty

to

law;

the second

of

these

works

is

addressed

specifically

to this

problem.

Throughout

Political

Science

and

Comparative

Constitutional

Law

Burgess'

con-

ceptual

separation

of state from

governmentemerges,

not

surprisingly

by

now,

as

his

principal

means of

defending

ndividual

iberty

in the

presence

of absolute

state

sovereignty.

But here

Burgess'

exposition

goes beyond

that of his

contemporaries.

There are two

states:

the

ideal

state,

which

has all

humanity

for its

citizenry

(and

is

an essen-

tially

Hegelian

conception);

and

the

real

state,

or

the

concept

of the

state,

which

originates

in

history,

and is

the state

developing

and

approaching

perfection.

The

state

is all

comprehensive,

per-

manent,

and

absolutely

sovereign.

But the absolute

sovereignty

of

the state

is not to be

counterpoised

with individual

iberty;

rather,

the

absolute

sovereignty

of

the state-if

we

presuppose

he

modern

nationalpopularstate -is the source and guarantor,not the enemy

of

individual

iberty.

The idea of

liberty

is

the

idea of a domain

in

which

the

individual s referred to his

own

will and

upon

which

gov-

ernment

shall

neither

encroach

tself,

nor

permit

encroachments

rom

any

other

quarter.

This domain s not

inviolate

by

the

state,

for

the

state

is

the source of individual

iberty ;

the state is

necessarily

the

author

of

liberty

because

the

only

alternativeto

sovereign

authority,

which

determines

the

boundariesof individual

reedom,

is

anarchy.

The view of the state as both author and guarantorof liberty is, in



12/15

STAATSTHEORIE AND

AMERICAN

POLITICS

401

Burgess' judgment,

the

only

view which

can

reconcile

liberty

and

law,

and

preserve

both in

proper

balance. 22

Yet

another

stage

to

the achievement

of

harmony

between

liberty

and

law

is the

subject

of The Reconciliation

of

Government and

Liberty.

The

necessary prerequisites

for the

solution of the

problem

stated

in the title of

the book

are,

according

to the

author,

...

first,

the

organization

f

the

sovereign

power,

the

state,

back of

and

inde-

pendent

of

the

Government;

econd,

the delineation

by

the

sovereign

of

the

realmof

Individual

mmunity

gainst

governmental ower;

and

third,

the con-

struction

by

the

sovereign

of

the

organs

and the

procedure

or

protecting

he

realmof Individualmmunity gainst heencroachmentsf Government.23

In

practice

the

prerequisites

were met

only

in

those countries

which

had

clearly distinguishable

constitutional,

as

opposed

to

statutory,

lib-

erties;

the nearest to

qualify

was

the

United

States.

The whole of

Burgess'

political

science

is built

upon

a

tension

between

the German

doctrine of the state

which,

like his

colleagues,

he

considered

the

cornerstone of modern

political

science,

and an

ideological

commitment to the individualism of traditional

Anglo-

American liberalism. At the heart of his efforts to distinguish between

the

state and

governments

lay

his

insight

that in

the

modern world the

theoretically

sovereign

voice

of the

people, qua

an

aggregate

of

in-

dividuals,

is

increasingly

muffled

by

the mechanisms of

politics

which,

developing

directions and

momenta of

their

own,

become ever

more

foreign

to the

aspirations

and fears

of their creators.

Had

Burgess

been able to

identify

an active

state,

distinguishable

from

government

in

its

concrete

political

role,

he

might

have solved

the

problem

which

rightly

concerned him and, in so

doing,

found a valid

application

for

Staatstheorie

to

American

politics.

While John

W.

Burgess

approached political

science

largely

as

an

Hegelian

historian,

Westel

W.

Willoughby approached

the

subject

as

a

jurist.

His first

major

effort,

An

Examination

of

the Nature

of

the

State

(1896),

based

upon

lectures he delivered at Stanford and Johns

Hopkins

universities,

has a

strong

juristic

slant

which

clearly

reflects

the

work of the

Austrian

jurist,

Georg

Jellinek,

whose Gesetz und

Verordnung

Willoughby

relied

upon frequently by

his own admis-

sion.24

Willoughby

argued

that

sovereignty

is

located

in

that

person,

22John

W.

Burgess,

Political

Science

and

Comparative

Constitutional

Law,

2

vols.

(Boston,

1890),

1,

49-56,

174-77.

23Idem,

The

Reconciliation

of

Government with

Liberty

(New

York,

1915),

289.

24Westel

W.

Willoughby,

An

Examination

of

the

Nature

of

the

State

(New York,

1896).



13/15

402

SYLVIA

D. FRIES

or

body

of

persons

. . . in

whose hands

rests the

power,

in the

last

resort,

to

impose

his

or its

will

in a

legal

manner

upon

the

whole

body

of

persons

that

constitute the state ; or those persons or bodies

are

the

sovereigns

who

have the

legal power

of

expressing

the

will

of

the

state. 25

But when

he turned

to

the

origin

and nature of

the

American

state

he

suggested

that

the

question

of

legality

was of minor

importance

in

comparison

with the

positive

development

of

po-

litical

authority

after

the event.

Thus:

. . .

we

can no

more

obtain

a final and

conclusive

answer to the

question

re-

garding

the

character of the

Union entered into

by

the American

people

in

1789, from the mere wordingof our fundamental nstrumentof govern-

ment,

than we can

from

purely

historical data.

... It is

quite

rational to

be-

lieve

that in order

to avoid the two horns of the

dilemma,

he

statesmen

of

that

period

purposely

declined o take an

unequivocal

osition.

Even

granting

that the constitutionat the time

of its

adoption

created,

and

was intended

o

create,

a

confederacy,

he

growth

of

national

eeling

and

the

interpretation

f

that instrument

by Congress

and

by

the

Supreme

Court

of

the United States .

.

. soon

placed

beyond

all

doubt

the

character of

the

union.26

Indeed,

contrary

to his earlier definition of

sovereignty,

Willoughby

declared that the state is not amenable to the

qualification

of

dejure

or non

dejure,

because

it is not a creature of

law....

the terms

dejure

and non

de

jure

are, however,

applicable

to

governments

(govern-

ment

being only

the

political machinery

of the

state).27

The

inspiration

for

Social Justice:

A

Critical

Essay

(1900)

and

The

Ethical Basis

of

Political

Authority

(1930)

came from Thomas

Hill

Green,

the current

spokesman

for Kantian

political

idealism

in

En-

gland.

The Ethical Basis

of

Political

Authority

consists of a critical

discussion

of

various

principal

theoretical

explanations

for

the exis-

tence

of

political

coercion,

such

as the

historical,

the

force,

the

in-

stinct,

the divine

right,

and

the

compact

theories. To

begin

with,

Willoughby

demands

that the

state have an ethical basis-and this

resting

on

Kantian foundations

rather

than the Puritan

legacy.

The

ethical

basis of

the

state,

in

Willoughby's

analysis,

is not

fundamen-

tally

different

from that which

was

posited by

Lieber,

Woolsey-and

Green.

That

is,

the state is

ethically

justifiable

when

it

guarantees

to

the

individual,

so far

as

possible,

all

those

services,

and

surrounds

him

by

all

those

conditions,

which he

requires

for his

highest

self,

that

is,

for

the

satisfaction of all

those desires which his

truest

judg-

ment

tells him are

good. 28

Indeed,

individuals are moral

entities,

25Ibid.,

280,

293.

26Ibid.,

270-71.

271bid., 25,

3-4.

28Idem,

The Ethical Basis

of

Political

Authority

(New

York,

1930),

245.



14/15

STAATSTHEORIE

AND AMERICAN

POLITICS

403

and

they

alone

can-indeed

must-be

held

responsible

for

political

actions.29 t

would

seem,

then,

that

if

moral

responsibility

or

political

actions

rests with

individuals,

hen

the final moral

authority

for

po-

litical

actions

must

also rest with

individuals.

Here

Willoughby

proves

inconsistent

by

arguing

on several occasions

that individuals

have no

natural

rights30

and

that

men can

be

regarded

as

having

moral

rights

and

duties

only

in

so far as

they

are

viewed

as

membersof

a

society. 31

We

can

agree

with

the

theorist

that

morality

s a

product

of

society;

but

can

one,

then,

set

apart

the moral

responsibility

of

the

individual

totally

from

that

of

society?

And in

particular,

if

the

individual

has

no

natural

right

to freedom 32

an he be held

ultimately responsible

or the

moral

quality

of the actions of the state

which is

the source of his

liberties?

Particularly

when the state is not

merely

the combined

political

authority

of an

aggregate

of individu-

als,

but

represents

an

act of a

People

rather than of

individuals

predicating

he

existence

of

a

common or

'General

will',

and

is

a

juristic person

having

a unified

will

and

purpose, 33

ow

can we

agree

that . . . the

State,

viewed

as a

person

or as an abstract

entity

can

not be

held

responsible

for its

own acts

... It

has

no

real

will

of its

own

.

.

.

morality applies only

to human individuals. 34

Willoughby's

response,

which served as his

general ustification

or social

control,

is

the

classical

idea,

revived

by Hegel,

that

the individual

an,

by recog-

nizing

the

justice

of the will

of

another

power,

make

that

will

his

very

own,

and

thus,

thoughobeying

t,

be

not coerced

by

it. 35

The

question

that

arises is: Could

Americans of

the

nineteenth

century

accept

such

a

political

philosophy-or

any

similar o

it-which

fused their multifariousaspirationsinto a general will and then

denied

them

the

primacy

over concerted

political

authority

to

which

their

eighteenth-century

nheritance

entitled

them? Could

a

political

philosophy

which served the needs

of

nation

building

and

unification

n

nineteenth-century

Germany

be

transported

o

Americaand still

retain

its

vitality?

John W.

Burgess

and

Westel

W.

Willoughby

oined

many

of their

peers

in

the

new

profession

n

an

attempt

to

build,

upon

the

Staats-

theorie which was to them the soundestfoundation or politicalsci-

ence,

a

philosophy

of

American

politics.

The difficulties

they

en-

countered

arose

ultimately

from

their

inability

to

apply

the German

idea of the state to the

American

political

tradition.On

the one

hand,

29Idem,

Social Justice. A

Critical

Essay

(New

York,

1900),

229-34;

The

Ethical

Basis

of

Political

Authority,

278-79.

30The

Ethical

Basis

of

Political

Authority,

337,

270,

284.

3'1bid.,

270.

32Social

ustice,

222.

33An

Examination

of

the Nature

ofthe

State,

124,

135-37.

34The

Ethical

Basis

of

Political

Authority,

277.

35Ibid.,

259-60.



15/15

404

SYLVIA

D. FRIES

there

was

the

sovereign

state of

German

political

science-absolute

and

self-limiting;

on

the

other,

stood the

sovereign

citizen

of

Ameri-

can

politics.

With

the

device

of

a

distinction

between

sovereign

state

and

government

Burgess

sought

to

preserve

the

sovereignty

of both

state

and

citizen.

Willoughby,by adopting

a

concept

of

the state

as

juristic

person,

sought

to

preserve

nviolate

he

private

or

social

realm,

and

finally

turned

to

T. H.

Green for

a

philosophy

which

would

rec-

oncile

the

nature

and

purposes

of both the

individual

and

political

authority

in

the

Kantian

dea

of freedom.

Unfortunately

he German

idea

that

one's

truest will

is

identical

with

that

of

society

remained

but a

minority

view;

few

outside

the

German

school were

willing

to

give

up

the

notion that at

some

time and at some

point

the

private

and

the

public

desires

may

collide,

and

when

they

do,

the

private

has a

claim

to

right

which

surpasses any

plea

of

legitimacy

from

public

au-

thority

or

a

general

will.

An

increasing

number

of

young

political

scientists toward

the end of

the

century-most

notably

Woodrow

Wilson,

A.

Lawrence

Lowell,

ArthurF.

Bentley,

and

J.

Allen

Smith-

abandonedStaatstheorie.

In

the

process

they

also

virtually

abandoned

theory,

or at

least

system building,

as the cornerstone

of

political

science. Instead

they

pursued

political

parties,

congressional

ommit-

tees,

or

economic

interests

through

the maze of

political

decision

making

andfoundactualitiesmore

vital,

not to mentionmore

pertinent

to

everyday politics,

han

abstractions.

By

World

War I

German

political

science had almost

completely

lost its

former influence

within the American

profession.

Both the

fundamental

imitation

in

the

applicability

of

German

concepts

and

methods to

American

politicalexperience,

and a

profoundchange

in

the character

of

American

social

thought

caused this decline. John

Dewey,

Thorstein

Veblen,

Justice

Holmes,

Charles

A.

Beard,

and

James

Harvey

Robinson

were

not the

only

ones

subject

to

what

Morton

White

has

styled

the revolt

against

formalism. 36 olitical

scientists,

jurists,

historians,

economists, writers,

poets,

and

artists

were

venturing

the

notion

that

law, form,

and

structure-and

in-

evitably

truth-do not determinethe

nature

of

human

experience

and

conductbutare, rather, hemselvesdeterminedbyhuman orces some-

times

inscrutable,

but

always

dynamic

and relative

o time

and

place.

Southern

Methodist

University.

36Morton

S.

White,

Social

Thought

in

America:

The

Revolt

Against

Formalism

(Boston,

1947).

staatstheorie and the new american science of politics

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