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Interpreting and Preserving the Constitution
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 endeavors 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 selections which might be made, it is apparent, that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it?
This oath certainly applies in an especial manner to their conduct in their
official character. How immoral to impose it on them, if they were to be