U. S. Constitution

BULWARK OF THE REPUBLIC--Burton J. Hendrick--Little, Brown ($3.50).

England has its Royal Family, the U. S. its Constitution. Both have been much amended, even temporarily abrogated (though in the U. S. only partly). Which is the more sacred it would be difficult to say, but it would be harder to imagine England without its Royal Family than the U. S. without its Constitution. Last week, as in every week since President Roosevelt announced his intention of "revivifying" the Supreme Court, the Constitution was front-page news. In Washington and Philadelphia publicity-wise politicians were making capital of the grand old document's 150th anniversary. And last week appeared a timely, eminently readable history of the U. S. Constitution to show thoughtful readers what lay back of the headlines.

Author Hendrick was no petty popularizer, rushing into print to meet a political opportunity or beat the Liberty Bell. Neither New Dealers nor Republicans could make resounding political copy of his book, but New Dealers are sure to like it better. The burden of Mr. Hendrick's epic song is: Fear not. The Constitution has survived much worse storms than this one, is not really so much a bulwark as a life-raft--"a living and fluid instrument, built not for an age, but for all time, responsive to the needs of a changing world." He reminds gloomy headshakers that the U. S. Government has outlasted every European form of the last 150 years.

The Constitution's history, as Mr. Hendrick reads it, is "from Nationalism to Nationalism." In 1787 the Founding Fathers compromised on a nationalistic form that was a body-blow to the Jeffersonians, State Righters, disbelievers in a strong central government. Today the Constitution is again the instrument of aroused Nationalism. "The new American government now in process of formation . . . really amounts to an attempt to create a new American world. . . . What may fairly be said is that the five decisions rendered [by the Supreme Court] on April 12, 1937, create a new United States. . . .

"The reign of Congress is now so sweeping that the Republic, in matters of industry, perhaps of agriculture, has become an integrated nation. Or possibly it should be said that, if these pronouncements do not in themselves create such a new society, others will presently do so, for the same process of reasoning, and the same spirit of accommodation to events, that have extended the meaning of the Constitution to this point can easily push it into new fields." The Federal Government has already assumed responsibilities undreamed of a few generations ago: "It gives financial relief to millions of unfortunates; it clears the slums in cities, assists the people in building homes, pays off the mortgages on the farm, constructs roads, parks, bridges and transportation systems for localities, subsidizes Federal theatres, promotes literary and scientific research, furnishes amusement for the masses, and finances lighting plants and an infinite variety of public works."

Every U. S. schoolboy is supposed to know the Constitution and its Amendments, so Author Hendrick scarcely needs to remind his readers that although the Constitution is sacred, it is not untouchable. He points out that amendment is not the protracted and ticklish process it is popularly supposed. Most of the amendments were ratified within a year. And as proof that amendments do not always serve the turn they were called for, he cites the 14th and 15th, now dead letters (in the South) as far as their original intention (to give Negroes equal civil rights with whites) is concerned. Clarifying the Constitution is not always done by Congressional amendment or interpretations by the Supreme Court. Greatest constitutional decision, observes Author Hendrick, was rendered by Grant when he forced Lee's surrender at Appomattox.

Author Hendrick starts his story in 1785, with the meeting at Mount Vernon under Washington's auspices which started the ball rolling for the Constitutional Convention in Philadelphia two years later. Reason for the Mount Vernon meeting was a trade dispute between Virginia and Maryland. In those early days, as all through the Revolution, only a small minority (led by Washington) thought of themselves as citizens of the U. S. The slow growth of a national spirit was quickened when England cracked down on U. S. trade, hoping thus to force the erstwhile colonies back to the fold, but succeeding only in convincing them that they must band closer together for mutual protection. The Constitution, the States' bulwark against malice domestic and foreign levies, did not burst like Athene full-panoplied from the head of Jove. At times in the Convention's angry labors it looked as though the Constitution would never be born at all. When it did appear, it was a compromising infant that did not exactly suit anybody. Said Washington: "The warmest friends and the best supporters the Constitution has do not contend that it is free from imperfections; but they have found them unavoidable and are sensible, if evil is likely to arise therefrom, the remedy must come hereafter. ... I do not think we are more inspired, have more wisdom, or possess more virture, than those who will come after us."

The Constitution's struggle for existence began from the moment of its birth. Jefferson, highly disapproving its federalizing philosophy, did his best, as President, to weaken it. "In the twenty-five years following the Philadelphia Convention there was scarcely any time when the Western frontier, in whole or in part, from Vermont to Louisiana, was not in danger of separating from the new government." Not until 14 years after its beginning did the Supreme Court (under John Marshall) declare a law of Congress unconstitutional. By developing his famed theory of "implied powers" Marshall strengthened the national power, weakened the rights of the States. When Nullification reared its head, Webster's reply to Hayne, Andrew Jackson's stout Old-Hickoryism, and the Missouri Compromise for a while kept the rending Union together. But with Northern Abolitionists and Southern Secessionists both trying to tear the Constitution apart, it took four years of Civil War and half a million lives to prove that it was indestructible.

"The verdict of the Senate in 1868, sitting as a Court of Impeachment [on unpopular President Andrew Johnson], put a quietus on another heresy that had broken out periodically since 1787. It was now determined, for all time, that impeachment was a trial, not to settle a political argument, but to establish crime." Had Johnson's impeachment succeeded, says Author Hendrick, the Presidency "would have been so diminished, would have so become the sport of legislators, that the constitutional fabric would have been shaken almost beyond repair." The U. S. would have had a government comparable to England's Parliamentary system, where the Executive and Judiciary would have had to command a two-thirds majority of both Houses. And the impeachment failed by one vote!

From 1865 to the present the Constitution's history has been "that of an instrument framed to fit a particular type of social and industrial society suddenly called upon to meet the issues of an entirely different order of life." Hence the rise of corporation lawyers, the warping of the 14th Amendment's "due process" clause from its intended protection of Negroes to its actual protection of corporations. "It had accomplished nothing for its expected beneficiaries, Rastus and Dinah, but might hold concealed blessings for transcontinental railroads and Standard Oil companies." Hence the growth in importance of the Supreme Court.

Do Presidents really "pack" the Court? Indeed yes, says Mr. Hendrick. As examples he cites Jefferson, Madison, Lincoln, Grant. Congress once packed it too, when it voted to limit the Court's membership to seven rather than let President Johnson fill the two vacancies. "That all Presidents 'pack' the Court by placing in it men sympathetic with their states of mind, the record shows." But Mr. Hendrick believes that in the long run the Supreme Court, no matter whether it is regarded as a packed trunk or a Pandora's box, reflects the changing voice, the unchanged spirit of the Constitution: "It is now a commonplace that the dissenting opinions of one generation [of Justices] become the prevailing interpretation of the next."

The Author, No New Dealer but a scholar-journalist who for 42 years has been a keen observer of the U. S. scene. Burton Jesse Hendrick has thrice won the Pulitzer Prize, twice for biographies (Life and Letters of Walter H. Page, 1922; The Training of an American, 1928), once for history (coauthor with Admiral William Sowden Sims: The Victory at Sea, 1920). Keen observers of the current literary scene considered that Bulwark of the Republic might well earn Author Hendrick prize No. 4.

A Yaleman born' (in New Haven, 1871) and bred (graduated 1895), he married a New Haven girl, got his first job as editor of the New Haven Morning News. From there he went to the New York Evening Post, then joined the staff of McClure's (with Lincoln Steffens, Ida Tarbell) at the height of its brilliance. After eight years of reformist muckraking. Hendrick's journalistic training was nicely balanced by 14 on the late, colorless World's Work. For the last ten years, bespectacled, stately-domed Author Hendrick has devoted himself to writing books. Others: Life of Andrew Carnegie, The Lees of Virginia.

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