Judge Hooper on the By-Laws
by Ellis Parker Butler
Our eminent jurist, Justice of the Peace Lem Hooper, noticed the frown of worry on Court-Officer Durfey's brow and beckoned to him.
"What is it now, Durfey?" he asked; "what is troubling the massive intellect under the red-thatched dome today?"
"This new thing they're talkin' of amending onto the Constitution of the United States, your honor," said Durfey; "this Amendment Number Something-or-Other, Judge, to forbid the employmint of child labor here and yon. Not that I mind it, your honor. I've no wish that my kids should lift up the shovel and the pick before they git throo learnin' the national dance of Norway in the public schools. I'll not be needin' them to fetch home their wages whilst I keep my pull with Boss Casey of my ward. No, sir! I was only wonderin' if, by the time Amendment Number Nine Thousand Six Hundred and Siven has been piled onto the Constitution, that palladium of our rights and liberties won't, maybe, be a mite overloaded."
"Like the camel, Durfey? Like the camel that caved in under the last straw?"
"Or like the shelf in my cellar, Judge," said Durfey, "on which I laid up everything I took a notion I wanted to have handy. The first hundred thousand things I put onto it was worth savin', Judge, but the shelf was so convenient and easy to put things on that it would take me eight men's lives to find anything on it this minute, and the common title for it in my little home is now 'Papa's heap of junk.' When everything is loaded onto the Constitution --"
"What Constitution?" asked Judge Hooper.
"Is there more than one, Judge?" asked Durfey with surprise.
"That was what I was wondering, Durfey," said Judge Hooper. "Did you ever hear of the Monroe Doctrine, Durfey? I see nothing about it in the Constitution of the United States, but it is one of the few things you could get the boys to go out and fight for so soon after the big trouble we had awhile back. The Turks can take Smyrna and run every Christian lady through a sausage machine and we only yawn and say we wish they'd send us better dance music over the wireless now that we've got the new battery in working order, but if Japan took ten acres of swamp in Mexico we'd go forth and fight.
"As soon as the Constitution said every sane male negro was a citizen with a vote, one-fourth of America forgot it and hardly a negro there has voted since, Durfey. Some of the white folks got the idea that that Amendment was but an unimportant by-law, as you might say -- one of Grandpa Constitution's noisy but weak-limbed grandchildren, and they went right on running their part of the country as if the first Article of the Constitution said: 'This is a white-man's country, By-Laws to the contrary notwithstanding.' You could amend the Amendment to the Constitution until you were blue in the face, Durfey, but the jim-crow streetcars in Helena, Arkansas, would be jim-crow cars still. You could tag an Eighty-Second Amendment onto the Constitution compelling the white folks to let the dark folks ride in the streetcar ahead of the trailer, Durfey, but the only change would be that both the trailer and the car ahead would be jim-crow cars. You put up a shelf in your cellar, Durfey; do you keep your plane and your saw on it?"
"I do not!" said Durfey. "I keep them on the top shelf in the china closet nearby the kitchen."
"I bet!" said Judge Hooper, grinning. "They're what you need every day, hey? And when you had amended the contents of the cellar shelf with too many By-Laws it was no place for the apple of your eye. The shelf was no longer the place for grandpa and his sons when it became the roosting place of all the little grandchildren. And I shouldn't wonder if that was what is happening to the Constitution, Durfey. Maybe there's something coming to pass that will make us like unto Great Britain; maybe the Great Unwritten Constitution is getting to be the real guy and the Written Document, with all its Amendments, becoming the By-Laws appended thereto. Seems like, sometimes, Durfey!
"Any time when enough States want to amend the written Constitution, Durfey, they can do it, but they can't amend the Unwritten Constitution that is bred into the base of the brain of the people. That Constitution sticks! It grows as the people grow, and it sloughs off its dead wood when the time comes, and you can't nail a branch onto it with a By-Law or pry one off with a Written Amendment.
"In the codes of all the States and cities and towns and villages of these broad and beautiful United States, Durfey, there are anywhere from ten thousand to ten million laws, but the reason you and I and decent men are fair to middling honest and straight is because of fifty or a couple of hundred words somebody spoke to us, when we were kids. We go by our Unwritten Constitutions -- you and I -- Durfey, and the By-Laws don't bother us. A By-Law may tell me when to keep the lid on my garbage can, Durfey, but it is not the fundamental law that tells me how to live my life; that law is unwritten. And I should not wonder, Durfey, if -- a hundred years from now -- the constitutional lawyers, when they rise in court, would be saying 'Your Honor, it is a well-known and recognized right, guaranteed by the Unwritten Constitution --' and getting away with it."
"Do you believe that, Judge?" asked Durfey seriously.
"I do! I do, indeed, Durfey," said Judge Hooper; "a good lawyer can get away with almost anything."