Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/511

constitutional provisions.^[1] What, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them?^[2] The states are by the

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1. Cohens v. Virginia, 6 Wheat. R. 415; id. 402 to 404, ante, Vol. I. §§ 266, 267.
2. Mr. Madison, in the Virginia Resolutions and Report, January, 1800, says, that "cases arising under the constitution," in the sense of this clause, are of two descriptions. One of these comprehends the cases growing out of the restrictions on the legislative power of the states, such as emitting bills of credit, making any thing but gold and silver a tender in payment of debts. "Should this prohibition be violated," says he, "and a suit between citizens of the same state be the consequence, this would be a case arising under the constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States." [p. 28.] Mr. Tucker in his Commentaries uses the following language: "The judicial power of the federal government extends to all cases in law and equity arising under the constitution. Now, the powers granted to the federal government, or prohibited to the states, being all enumerated, the cases arising under the constitution can only be such, as arise out of some enumerated power delegated to the federal government, or prohibited to those of the several states. These general words include what is comprehended in the next clause, viz. cases arising under the laws of the United States. But, as contradistinguished from til at clause, it comprehends some cases afterwards enumerated; for example, controversies between two or more states; between a state and foreign states; between citizens of the same state claiming lands under grants of different states; all which may arise under the constitution, and not under any law of the United States. Many other cases might be enumerated, which would fall strictly under this clause, and no other. As, if a citizen of one state should be denied the privileges of a citizen in another; so, if a person held to service or labour in one state, should escape into another and obtain protection there, as a free man; so, if a state should coin money, and declare the same to be a legal tender in payment of debt, the validity of such a tender, if made, would fall within the meaning of this clause. So also, if a state should, without the consent of congress, lay any duty upon goods imported, the question, as to the validity of such an act, if disputed, would come within the meaning of this clause, and not of any other.