The Question in the Constitutional Convention.-The Constitution not only fails to confer express authority upon the courts to declare an act of Congress void, but no attempt was made to secure the insertion of language in the Constitution which would confer such power upon the courts. What occurred in the Convention may be seen by an examination of the proceedings of that body. The eighth resolution of Mr. Randolph's plan of a constitution read, "That the Executive, and a convenient number of the national judiciary, ought to compose a Council of Revision,12 with authority to examine every act of the National Legislature, before it shall operate, and every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said involving more than twenty dollars, without a jury trial. The court held that this violated the 7th Amendment of the Constitution of the United States, which provides that in any suit at common law where the amount in controversy exceeds twenty dollars, the right of trial by jury shall be preserved; and that the act also violated the State Constitution, which provided the right of trial by jury shall be "inviolate." Subsequently the proceedings against Judge Huntington, who had been elected Governor of the State, were abandoned, but they were prosecuted against Judges Pease and Todd. The proceedings were first had against Judge Pease, who was impeached upon three grounds. After a trial which lasted several days he was unanimously acquitted of the first charge. On the second charge he was also acquitted; the vote standing fifteen for conviction and nine for acquittal. On the third charge he was acquitted, the vote standing sixteen for conviction and eight for acquittal, the Constitution requiring the concurrence of two-thirds for conviction in such cases. ceedings against Judge Todd were then dismissed. Cooley's Constitutional Limitations, 7th ed., 229, note. The pro 12 The Constitution of New York, adopted in 1777, provided for a Council of Revision consisting of the Governor, Chancellor, and the Judges of the Supreme Court, to which all bills were submitted. It is probable that Mr. Randolph's provision was suggested by that of the New York Constitution. Chancellor Kent pays the following tribute to the Council of Revision: "The control which the judicial power of the State had, until the year 1823, over the passing of laws by the institution of the Council of Revision, anticipated in a great degree the necessity of this exer· cise of duty (by the courts). A law containing unconstitutional provisions was not likely to escape the notice and objection of the Council of Revision and the records of that body will show that many a bill which had heedlessly passed the two houses of the legislature was objected to and defeated on Constitutional grounds. 1 Kent, 491, 11th ed. council shall amount to a rejection, unless the act of the National Legislature be again passed, or that of a particular legislature be again negatived by so many of the members of each branch.''13 This plan only provided that the executive together with a convenient number (how many would that be?) of the national judiciary (presumably meaning the Supreme Court) should constitute a Council to review every act before it should operate, and that the dissent of the council (not the judges only, but the whole Council) should amount to a rejection. This did not amount to conferring power on the judiciary to pass upon the constitutionality of legislation. This resolution was considered by the Convention in the Committee of the Whole, and Mr. Gerry at once expressed doubts whether the judiciary ought to form a part of the Council of Revision, as they will have a sufficient check against encroachments of their own department by their exposition of the laws, which involved the power of deciding on their constitutionality. In some States, he said, the judges had actually set aside laws as being against the Constitution. This was done, too, with general approbation. It was quite foreign from the nature of their office to make them judges of the policy of public measures. He then moved to postpone the consideration of the resolution, and proposed that the Executive alone have the right to negative a legislative act. Mr. King seconded this motion and observed "the judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation." Mr. Wilson favored giving the Executive and judiciary jointly an absolute negative. At this point the Convention passed the motion of Mr. Gerry to postpone the consideration of the resolution of Mr. Randolph, so the Convention did not further consider the matter of a joint Council of Revision till a later day.14 When Mr. Wilson moved a reconsideration of Mr. Randolph's resolution, and Mr. Madison seconded it, and spoke for it at some length.15 Various members spoke briefly on the motion. Mr. Pinckney opposed the judges having 13 Journal, 62. 14 Journal, 102. 15 Journal, 121. 14 a negative; so did Mr. Dickinson. The committee then. voted on the motion of Mr. Wilson, and it resulted in Connecticut, New York and Virginia voting for it, and Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina and Georgia against it. Ayes 3; nays 7.16 Mr. Wilson moved "that the supreme national judiciary (that meant all the supreme judges) should be associated with the Executive in the revisionary power." This was the same motion (except as to the number of the judges) which had been defeated. Among other things in support of his amendment, Mr. Wilson said, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the judges in refusing to give them effect. Let them have a share in the revisionary power, and they will have an opportunity of taking notice of those characters of a law, and of counteracting, by the weight of their opinions, the improper views of the Legislature."'17 This motion was seconded by Madison, who favored it in a lengthy speech. Mr. Ellsworth and Mr. Mason approved it: Mr. Gerry, Mr. Strong and Mr. Gorham opposed it. Mr. Gouverneur Morris spoke in favor of it. Mr. Luther Martin opposed it. He considered the association of the judges with the Executive as a dangerous innovation, as well as one that could not produce the particular advantage expected from it. A knowledge of mankind and of legislative affairs can not be presumed to belong in a higher degree to the judges than to the Legislature. As to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the Executive in the revision, and they will have a double negative.18 Mr. Rutledge thought the amendment should be adopted.19 The question being put the motion was lost by three to four. Thus, a second time the Convention voted against joining the judiciary with the 16 Journal, 123. 19 Journal, 405. Executive and to give them power to revise acts of Congress. At a much later period in the Convention, Mr. Madison moved to amend one of the articles in the report to the Committee of Detail so it would read, "Every bill which shall have passed the two Houses shall, before it become a law, be severally presented to the President of the United States, and to the judges of the Supreme Court, for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that House in which it shall have originated."'20 Another short debate occurred. Mr. Mercer disapproved the doctrine that the judges, as expositors of the Constitution, should have authority to declare a law void, He thought laws ought to be well and cautiously made and then be uncontrollable.21 The amendment being voted on, it was lost by a vote of three to eight, the same vote that the original amendment was defeated by. This was the third and the last time the matter was voted on in the Convention. It had been defeated three times, had occupied much of the Convention's time, and many of the ablest men in that body had debated it. Why the question of giving the judiciary alone the power to pass on the constitutionality of legislative acts was not submitted to the Convention does not appear. There is nothing in the proceedings of the Convention to indicate that such a motion was made, or even desired, but two reasons, at least, suggest themselves why such a motion was not made. The friends of the measure may not have desired it to pass in that way, or they may have thought if it did pass it would be opposed in the State conventions, and possibly cause strong opposition to the Constitution. The Question in the State Conventions.-In some of the State conventions called to consider the ratification or rejection of the Constitution, some of the members expressed themselves in favor of the courts exercising such 20 Journal, 533. 21 Journal, 538. power. In the Connecticut convention Oliver Ellsworth, afterwards chief justice of the Supreme Court, said: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overstep their limits the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality are to be made independent, will declare it to be void. "'22 In the Virginia Convention, John Marshall said upon this question: "If the United States were to make a law not warranted by any of the powers enumerated it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void. To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such protection.23 Charles Pinckney in the South Carolina Convention used this language, in referring to the Supreme Court: "It would be their duty not only to decide all national questions which should arise within the Union, but to control and keep the State judicials within their proper limits whenever they shall attempt to interfere with its power.24 In the convention of Pennsylvania James Wilson, who had been a member of the Constitutional Convention and afterwards became a justice of the Supreme Court of the United States, said, "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law. 1725 Luther Martin, a member of the Convention from Maryland, delivered an address to the 22 Elliot, vol. 2, 196. 23 Elliot, vol. 3, 553. 24 Elliot, vol. 4, 258. 25 American Historical Review, vol. 13, No. 2, 284. |
