one thing they have done is important: it is to emphasize that attention must be paid to the way that constitutional decisions are made. The method is important in and of itself.

To put the question in present context, how, one might ask, can the questions of presidential power to condition federal contracts and to impound appropriated funds be answered by reference to the method preferred by these counter-revolutionaries? Should, first of all, the Supreme Court concern itself with the question? It is difficult to see why it should not, in a proper case involving the issue of whether a given contractor, otherwise qualified, should get a contract if he refuses to agree to the non-discrimination clause, or the issue of whether the people of, say, the state of Mississippi are to be denied appropriated funds because of failure to integrate the public schools. Of course the problem is "political" in that it involves difficult questions of public policy-what constitutional question doesn't?-but the issues are clear-cut, the deprivation substantial and personal, so that the question of "standing" should occasion no difficulty. Would this be a case calling for judicial selfrestraint? Hardly, for it is a conflict among those very political branches of government that would answer the question otherwise. To say that self-restraint should be exercised is to uphold the power— which may be quite all right as a result, but surely it should come after a fuller deliberative process. One does not have to believe that the Court should get into every controversy that might develop in the American polity to maintain that the question of executive power in our constitutional system is a proper issue for judicial cognizance.

If, then, a proper case got to the Supreme Court, what would the counter-revolutionaries have to suggest by way of method? The answer is not readily apparent, once one delves below the level of exhortation. As a whole, this group of critics tends to become somewhat mystical when they attempt to prescribe proper judicial method. They are far better at description and at picking holes in judicial logic. 55 What of their prescription? It is that the justices should resort to "reason" qua reason and produce thereby "impersonal principles" of constitutional law. What those principles might be and just how "reason" is to assist in determining them is not said.

This, quite obviously, will not do. One need not be a cynic, or

See, e.g., many of the essays in the several volumes of THE SUPREME COURT REVIEW, published by the University of Chicago.

labelled as one, or to be thought of as unthinkingly and unheedingly approving a given Court decision because, say, a Negro was the plaintiff or some other civil-rights issue was before the Court, to assert that the counter-revolutionaries have helped only little in their criticism, however constructively intended it may have been. One need not be a votary in either the Frankfurter or the Black group. It is possible to maintain that neither the mechanical jurisprudents nor the legal realists nor those whom I have termed the counter-revolutionaries have produced a useful and adequate conception of the adjudicative process. In this respect, legal thinking in America has not moved much beyond Oliver Wendell Holmes when he published The Common Law in 1881.

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If that be so, then it is important to ask if anyone has gone beyond Holmes, if anyone else has built upon the intellectual shambles left by the legal realists so as to produce a jurisprudence useful and meaningful in A.D. 1965 and the future. The short answer to that is "no." One or two have tried, some others have recognized the need, but no one yet has made the breakthrough to new insights and a new synthesis. And that is the core of the problem. To summarize: the legal realists exploded the notion of an automatic jurisprudence; the counter-revolutionaries have now demonstrated that the legal realists went too far, that rules are important, even if not conclusively so, that law is an ordering device, and that judicial method is important. Justice should be done, say the counterrevolutionaries, but it also must be shown to be done. Judges are human, and some of them doubtless only too human, but the process by which they reach their results is an important element in and of itself. The need is evident for a new synthesis.

In such a synthesis, the libertarians-those who uphold the Court in its civil liberties and civil rights decisions of recent years and who applaud its activism-also have a contribution to make. These "ritualistic liberals," to use Professor Sidney Hook's label, or "knee-jerk liberals," to use the more opprobrious term of columnist William S. White, these "wooden liberals" who tend to count "one up" or "one down" for their causes, depending on

"Perhaps the person who has done most toward creating new jurisprudence is Professor Myres S. McDougal of the Yale Law School. See, e.g., MCDOUGAL & ASSOCIATES, STUDIES IN WORLD PUBLIC ORDER (1960) (collection of previously-published essays dealing with the application of "policy science" to the law).

the result in a given case, require that attention be paid to the results, to what happens in an instance of constitutional adjudication. For after all, such cases have important consequences for actual people, people beyond the immediate litigants, and the results thus are important. Important, yes, but not the whole of the matter. Accordingly, the synthesis that is necessary must come from a fusion of the teachings of three disparate groups: the legal realists, who revealed the complexity and the uncertainty of the decisionmaking process; the counter-revolutionaries, who have pointed out that rules and the process itself are important; and the libertarians (the activists), who show that the results of the process are important in that a significant impact is made upon the value position of the American citizenry.

This brings the discussion back to the question posed before the digression on method began: what are the considerations relevant to the determination of a constitutional problem? I know of no one who has provided a satisfactory answer to that question. If it is reduced to its present context, however, it may be a bit more manageable: what are the considerations relevant to determination of the issue of presidential power over appropriations? The following may be suggested, not as a definitive listing but as an indication of the complexity of the problem.

C. The Relevant Factors

1. The Need for Contextual Analysis.-Presidential power over expenditure of appropriated funds must be seen, first of all, in the context in which it arises. A requirement exists for contextual analysis of any constitutional question. Without such an approach, commentary on constitutional problems tends to turn into relatively sterile exegeses of doctrinal texts of an order not significantly different from those medieval scholastics who allegedly worried about such pseudo-questions as how many angels may dance on the point of a needle. The context surrounding the problem of shared power over appropriations contains at least two subsidiary questions: (a) are there other examples of power being exercised by the Executive in situations where Congress has express constitutional power? and (b) what is the social milieu in which the problem arises? Both merit brief attention.

As the late Professor Edward S. Corwin noted in his leading

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text on the presidency, the history since 1787 has been one of the aggrandizement of the powers of the Executive. What the President has done in impounding funds fits into a pattern of other action which collectively makes up a marked trend toward greater executive and administrative power. The following may be suggested as illustrative instances, although far from an exhaustive listing, of executive activities within the area of congressional constitutional power:

(a). Control over public lands. Repeated assertions by the President that he had the right to withdraw public lands from private acquisition was upheld by the United States Supreme Court in 1915, Congress never having repudiated the practice.58 The Constitution, it will be recalled, states in article IV that Congress is the organ with power over public property.

(b). Control over other public property. Despite article IV and despite the absence of any specific authorizing statute, President F. D. Roosevelt in 1938 transferred fifty "over-age" destroyers to Great Britain in exchange for ninety-nine-year leases on certain military bases.59 The action was justified by an opinion from the then Attorney General, a document in itself a remarkable instance of the manner in which government lawyers can find a legal basis for an action deemed desirable and necessary by the President.

(c). Control over federal contracts. The contracting power, while not mentioned in the Constitution, is an inherent power of the national government. As such, it would seem that ultimate power in this area lies in Congress. There are a number of ways in which the Executive exercises control over contractual matters in the absence of prior congressional approval. Noted above was the practice of placing certain conditions upon award of contracts and the practice of withholding certain funds that Congress wanted to spend contractually. Others include the "blacklist," that is, a list of business firms that are barred for various reasons from obtaining contracts; Defense Manpower Policy No. 4, under which contracts are funnelled into "labor-surplus" areas; the procurement process itself, whereby by far the greatest amount of procurement dollars are spent under "negotiated" rather than "advertised bid" contracts

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CORWIN, THE PRESIDENT: OFFICE AND POWERS (4th ed. 1957). "United States v. Midwest Oil Co., 236 U.S. 459 (1915).

"See 34 (Supp.) AM. J. INT'L L. 183 (1940).

"See United States v. Tingey, 30 U.S. (5 Peters) 115 (1831).

despite the clear statement by Congress of preference for the latter; the administration of certain other statutes, such as, for example, the Contract Adjustment Act of 1958;61 that statute calls for publicity being given to decisions of Contract Adjustment Boards, but the Pentagon interprets this to mean that they merely have to make the decisions available; this is done by filing them and producing them when asked for, but not announcing them; and, finally, "weapon system" procurement, not authorized by statute, but nonetheless often used.62

(d). Administration by contract. This is a system of calling upon profit and non-profit corporations and organizations to perform a considerable amount of the public administration of the government, administration which Congress had thought was to be accomplished by public officials but which in fact is done by contractor employees. Among other things, this has the result of circumventing certain civil service laws.63

(e). The stockpiling program. A program started by Congress for the purpose of helping national defense was apparently turned by the administrators into a system whereby the prices of the goods being stockpiled were stabilized and kept high.64

(f). The "executive privilege" doctrine, which had its inception in a "temporary" emergency-type measure but which now has so proliferated as to keep from Congress many documents and other information about activities in the Executive Branch.65

(g). By far the most evident and the most extreme measures

172 Stat. 972, 50 U.S.C. §§ 1431-35 (1958).

"For discussion, see Miller & Pierson, Observations on the Consistency of Federal Procurement Policies With Other Governmental Policies, 29 LAW & CONTEMP. PROB. 277 (1964); Miller, Administrative Discretion in the Award of Federal Contracts, 53 MICH. L. REV. 781 (1955).

See Dupré & Gustafson, Contracting for Defense: Private Firms and the Public Interest, 77 PoL. Scr. Q. 161 (1962); Miller, Administration by Contract: A New Concern for the Administrative Lawyer, 36 N.Y.U.L. REV. 957 (1961); Washington Star, March 5, 1965, p. 1, cols. 3-4 (discussion of House Civil Service Commission report on "contracting-out”). 64 See SUBCOMM. ON NATIONAL STOCKPILE And Naval PetROLEUM RESERVES, SENATE COMM. ON ARMED SERVICES, 88TH CONG., 1ST SESS., INQUIRY INTO THE STRATEGIC AND CRITICAL MATERIAL STOCKPILES OF THE UNITED STATES 36-45 (Comm. Print 1963). This draft report met subcommittee opposition, with three senators opposing it. However, the point made in the textual discussion does not seem to be disputed by any of the three dissenters.

For discussion, see Kramer & Marcuse, Executive Privilege-A Study of the Period 1953-1960, 29 GEO. WASH. L. REV. 623 (1961).