Search results

The casual student of Western political history encounters sovereignty in a number of guises. In the stage of absolute monarchy, it was a personal endowment of princes; in the stage of democracy, it seems to be a collective endowment of the "nation" or the "people." In the latter period, moreover, a definition of law as the command of a sovereign becomes increasingly popular.These various contexts for sovereignty will already have suggested the protean possibilities of the general conception, but the student will have had little difficulty in sensing its generally anti-constitutional influence. Even popular sovereignty, which sounds the least dangerous, has had to be offset by opposing institutions in accounting for the relatively high constitutional morality of the democratic system.While, therefore, it is not surprising to find sovereignty again (and in a still different guise) when we examine the leading conceptions of American public law, one well may marvel to find it accorded a key position among them. For, strange to say, the sovereignty of the state is widely accepted as the cornerstone of a legal edifice which the lawyers themselves appear to have laid.

Most of the current discussion of collectivism (by which is meant all varieties of a state controlled economy) tends to center upon the question of its efficiency. Advocates of "free, enterprise" have consistently depreciated the capacity of a socialized economy to produce goods as cheaply as a capitalist economy. But whether socialism is, or is not, conducive to an efficient economic order, it represents a political order in which power may become so concentrated as to bd a threat to liberty. It is quite true that this danger may easily be over emphasized. We know that an economic order in which state interference is reduced to a minimum certainly does not preserve liberty. Hence it cannot be inferred that liberty is in inverse proportion to the amount of government interference. Nor can it be inferred without reservations that power always corrupts.

Erie v. Tompkins evidences decentralizing trends in our federal system in two different ways—one fairly obvious and relatively orthodox; the other neither obvious nor orthodox, but probably the more significant. The first aspect may be touched upon very briefly and the ramifications of the second explored more fully.The obvious side of Erie v. Tompkins lies in its rejection of a common law of the United States available for application by the federal courts in diversity cases. This conception was given expression by Story in Swift v. Tyson, and has been followed in many, if not most, of the succeeding cases building upon and expanding Story's doctrine.