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Who Are the Fathers, 1 National Lawyers Guild Quarterly 287 (1938)


AS it is off to its second century and a half the youth of the Constitution is renewed. It is no longer the institution of 1787,1837,1868 or even of 1912. In 1938 it serves a very different national purpose from the instrument of the late year of grace 1936.

But what is the Constitution? A writing set down on parchment in 1787 and some twenty-one times amended? Or a gloss of interpretation upon a margin many times the size of the original page? Or a corpus of exposition which has almost obliterated the original text? Or "the supreme law of the land" as it is given currency by the United States Supreme Court? Or the voice of the people as it is newly made articulate by an aristocracy of judges? Or a collection of precepts to be drawn upon by the judiciary for sanction and rationalization? Or a piling up of the hearsay about its true meaning in precedent-Hughes, C. J., had it thus-and-so from Day, J., who had it from Harlan, J., who had it from the great Marshall himself? Or a cluster of abiding usages which hold government to its orbit and impose direction upon the course of legislation? Or "a simple and obvious system of natural liberty" whose command all affairs of state must obey? And is the Constitution enscrolled on parchment, written in the United States Reports, or engraved in the folk-ways of a people? Whatever it is, an enduring law is being accommodated to the passing times through the acts of men. The year 1937 acknowledged its debt to 1787 in paeans of praise to the Fathers; the year 19 3 8 skeptically inquires, "Who are the Fathers?"

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