Judiciary Debates Heating Up

Midway through Week 13 of the Convention, James Madison introduced his plan to have the Executive and Supreme Court review and revise legislation prior to approval. This process would have been a significant challenge to the separation of the powers, creating an early interbranch practice.

“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, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.”

One of the Pinckney’s and Roger Sherman opposed the involvement of Judges directly in the legislative process due to the belief this would lead to involvement “in parties and politics.” Even though this proposal did not pass, since the implementation of the Constitution and the Supreme Court, politics have impacted decision-making. This seems almost irresolvable due to human nature and legal interpretation.

John Mercer of Maryland agreed with the proposal to limit “legislative usurpation and oppression,” believing the Executive and Judicial review would create “well and cautiously made” laws. Of note, Mr. Mercer and John Dickinson did not believe the Supreme Court should have the ability to declare laws unconstitutional.

Again the direct involvement of the Supreme Court, in legislative review, was ruled out.

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