Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/441

 CH. XXXVIII.] of all written constitutions. It would declare, that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do, what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath, which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring, that those limits may be passed at pleasure. That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions—a written constitution—would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

"The judicial power of the United States is extended to all cases, arising under the constitution. Could it be the intention of those, who gave this power, to say, that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument, under which it arises. This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

"There are many other parts of the constitution, which serve to illustrate this subject. It is declared, that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution declares, that 'no bill of attainder or ex post facto law shall be passed.' If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims, whom the constitution endeavours to preserve? 'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

"From these, and many other selectious, which might be made, it is apparent, that the framers of the constitution contemplated that  structure they may repose with safety, while they perceive in it a faculty, which is only set in motion, when applied to; but which, when thus brought 55