Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/725

candour be admitted to be wholly satisfactory, or conclusive on the subject. It is rather the argument of an able advocate, than the reasoning of a constitutional statesman. In the first place, a bill of rights (in the very sense of this reasoning) is admitted in some cases to be important; and the constitution itself adopts, and establishes its propriety to the extent of its actual provisions. Every reason, which establishes the propriety of any provision of this sort in the constitution, such as a right of trial by jury in criminal cases, is, pro tanto, proof, that it is neither unnecessary nor dangerous. It reduces the question to the consideration, not whether any bill of rights is necessary, but what such a bill of rights should properly contain. That is a point for argument, upon which different minds may arrive at different conclusions. That a bill of rights may contain too many enumerations, and especially such, as more correctly belong to the ordinary legislation of a government, cannot be doubted. Some of our state bills of rights contain clauses of this description, being either in their character and phraseology quite too loose, and general, and ambiguous ; or covering doctrines quite debatable, both in theory and practice; or even leading to mischievous consequences, by restricting the legislative power under circumstances, which were not foreseen, and if foreseen, the restraint would have been pronounced by all persons inexpedient, and perhaps unjust.^[1] Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires

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1. 2 Kent's Comm. Lect. 24, p. 6, (2d edition, p. 9,) and note id.; 1 Lloyd's Debates, 431, 432.