Prior to exploring the constitutional ratification debates, I wanted to explore the constitutional convention debates regarding the judiciary. Although I was unable to find any evidence related to the living v. dead letter argument, the information I have read is informative regarding judicial interpretation. The Federal convention used the Virginia Plan as the starting point for a federal judiciary which would “consist of one or more supreme tribunals and inferior tribunals to be chosen by the legislature.” The supreme tribunal was to be the final appeals court, hear cases of, “piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other State applying to such jurisdictions may be interested, or which respect the collection of National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.”
Madison also wanted a council of revision which would have been made up of the “executive (president) and a convenient number of national judiciary,” responsible for reviewing federal and state laws prior to enactment. The council could revise or veto laws they deemed unconstitutional. I do not remember previously reading about the council of revision proposal. I agree with the majority of those who were against the council as the council would defeat the goal of separation of powers. This would tie together the executive and judiciary branches in a way superseding the legislature. This power would further restrict the legislature, of which of the House was the only branch democratically elected, significantly watering down the voice of the people.
During the debates regarding the council of revision there were several interesting points made related to judicial review. James Wilson, Federalist and one of the original Supreme Court justices, in favor of a council stated “Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.” In this argument, Wilson was stating judges would be able to neutralize the effects of laws written by the legislature if they had the ability to revise laws prior to implementation. In regards to judicial review, Wilson is iterating a law may be “unjust” and even “destructive” but not unconstitutional. This view leans towards a strict construction of the Constitution versus a broader, liberal approach. Although not in position as a Supreme Court justice during these debates, he is stating the judiciary’s duty is to determine if a law is constitutional, not the laws impact or justness.
Elbridge Gerry, Democrat-Republican, who opposed the council of revision believed “…it (council of revision) was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as guardians of their Rights & Interests.” Gerry was concerned the council would negate the separation of powers; establishing an inappropriate association between the executive and judiciary. Gerry’s view also maintains the judiciary has no place legislating and similar to Wilson’s view judges must limit their role in constitutional interpretation.
The convention would eventually author Article III, without the council of revision, and need to defend their final decision during the ratification debates. I am looking forward to reviewing the Federalist and Anti-Federalist papers again.
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