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4 Vand. L. Rev. 427 (1950-1951)
A Modern Supreme Court in a Modern World

handle is hein.journals/vanlr4 and id is 441 raw text is: A MODERN SUPREME COURT IN A MODERN WORLD*
It is all very well, indeed it is very good, to bear down on the fact that
the author of the Constitution was, and still is, We the People of the
United States. But there is more sentiment than explanation in it. We think
too much about who is the author of the Constitution. Of course it was not
the Convention of 1789, nor the First Congress which wrote the Bill of
Rights, nor the Thirty-Ninth which wrote the Fourteenth Amendment. It
was We the People, but even when we have recognized this, all we have done
is recognize that it is an ambulatory document. We the People did not drop
out of the picture in 1789, or in 1791, or in 1868 when We ratified the
Fourteenth Amendment. We kept pace with what We had said. But the
important question to ask has nothing to do with the author. The important
question is, To whom are We speaking?
When I turn to the Constitution, I am not really turning to a single
document, except typographically. For the Constitution is addressed to a
number of persons. In some places, to the Supreme Court itself; for instance,
in the Third Article on the judicial power. It is speaking to Congress in the
important section eight of the First Article where Congress' legislative
powers are set down; and also in section nine, which prohibits Congress to
pass bills of attainder, export duties and other things. Throughout the docu-
ment we find that different parts are addressed to different persons and
institutions, and the point I make is that they may interpret the words very
differently. Even the same word may mean different things when they are
addressed to different people.1 The person addressed determines the meaning
quite as much as the context, since it is he who will first give meaning to
the word or phrase on any particular occasion. In the interpretation of the
Constitution, this is of paramount importance, because here the courts must
pay the person addressed the respect due to an organ of government of equal
rank and dignity.
I propose to talk about the largest and vaguest, as indeed it is-also one
of the most important, phrase in the Constitution, due process of law. It is
*Parts of this article are based on an article in the Pacific Spectator in the fall of
1948 (2 PAC. SPEc. 361) and an address to the Association of American Law Schools in
December, 1948.
t Member, Choate, Hall & Stewart, Boston, Massachusetts; author, LioNS UNDER
THE THRONE (1947) ; A Better Theory of Legal Interpretation, 3 VAND. L. REv. 407
(1950), and other books and articles.
1. The Tidewater Transfer case is a good example. See Rutledge's concurring
opinion, National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. $82, 604, 69 Sup.
Ct. 1173, 93 L. Ed, 1556 (1949).

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