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§ 329. “Arising under this Constitution.”

The words “arising under this Constitution” are taken from the Constitution of the United States; the words “or involving its interpretation' are new, and seem to have been added, in the Adelaide draft of 1897, with the view of incorporating the result of judicial decisions as to the meaning of the preceding words.

“Cases arising under the Constitution, as contradistinguished from those arising under the laws of the United States, are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained in the Constitution itself, independent of any particular statute enactment Many cases of this sort may be easily enumerated. Thus ...... if a State should coin money, or make paper money a tender; if a person tried for a crime against the United States, should be denied a trial by jury, or a trial in the State where the crime is charged to be committed; . . … in these, and many other cases the question to be judicially decided would be a question arising under the Constitution.” (Story, Comm. § 1647.)

Substituting “Commonwealth” for “United States,” the above illustrations by Story are applicable to this Constitution; and many others may be given. Thus, if a subject of the Queen, resident in one State, were subjected in another State to any disability or discrimination in contravention of sec. 117; if a religious test were required as a qualification for any office or public trust under the Commonwealth; if the Commonwealth were to impose any tax on the property of a State, or vice versa; or if a question arose as to the rights of an officer of a transferred department under sec. 84: all these would be matters arising under the Constitution.

In Cohens v. Virginia, 6 Wheat. 264, it was contended that a case only arose under the Constitution where the plaintiff relied on some provision in the Constitution to support his case; but the Court refused to adopt this narrow construction. Marshall, C.J., in delivering the judgment of the court, said (at p. 379): “If it [the intention] be to maintain that a case arising under the Constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the Constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either.” It seems, therefore, that the words “or involving its interpretation” add little or nothing to the meaning of the preceding words, as construed by the courts of the United States.




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