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195 Annals Am. Acad. Pol. & Soc. Sci. iii (1938)

handle is hein.cow/anamacp0195 and id is 1 raw text is: FOREWORD FIFTY-FIVE men sat through a hot summer in Philadelphia in 1787 and produced the Constitution of the United States. They were wise men, and some of them were farsighted men. But they could no more picture their nation in 1937 than we can picture it in 2087. They could not even know that the gov- ernment set up under their plan would work; indeed, some of them feared it would not. But it has worked, and with a degree of success which has exceeded the hopes of the most sanguine of those citizens who sat in the session in Philadelphia one hundred and fifty years ago. That a machine with so many moving parts as our federated government would develop some friction was inevitable. But only once has the friction interfered seriously with our normal functioning as a nation. One may hope and believe that the bloodshed in the war between the states has strengthened the joints which, at that time, were in danger of breaking. Why has such a machine worked so well for a century and a half? Certainly not because we are a homogeneous people; we vary from pole to pole in race, religion, traditions. Certainly not because of identity of interests; industrialist and agrarian did not see eye to eye in 1787, nor do they in 1937. Without falling into dogmatic over-generalization, it may be fairly claimed that part of the success of our complex plan of government is due to the position occupied by our courts, and especially our system of federal courts. They have been accepted by the coun- try at large as the authoritative and the last word upon controversies which arise between individuals, between the citizen and his government, and between the units of government itself. The judges, being human, have not always been learned, nor have they always been wise. But they have been, almost without exception, honest and fair. They have had the confidence of the citizens in the past and they have it today. In the shaping of our governmental development under the Constitution, the decisions of our courts, then, are of tremendous importance. Constitutional history becomes largely judicial history. Indeed, when one looks at the wording of the original Constitution and examines the body of judicial precedents which has grown up about the clauses in it which have been most involved in litiga- tion, one is more and more impressed with the importance of the judicial in- crustations upon the original language. For anyone who holds the view that this is all judicial usurpation and that the plain words of the document are guide enough, it is sufficient answer to refer him to any of the papers following. He will see how the questions have come to the courts and how plain words no longer seem so plain when tangled in the web of intricate human problems. When last year the American Academy of Political and Social Science decided to participate in the celebration of the 150th anniversary of the drafting of the Constitution, a committee, composed of Dr. James T. Young, chairman, Mr. Clinton Rogers Woodruff, and Mr. Victor Rosewater, was appointed by the president of the Academy to decide the manner of such participation. The undersigned was requested to put the committee's decision into effect. The papers presented in subsequent pages are the result. The entire judicial history of our Constitution would fill volumes. Obviously, in such a publication as this, the field must be delimited somehow. The re- spective fields for state and federal action have received much public attention iii

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