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resolution and letter submitted to the States by the Congress of the Confederation, in April; and that in establishing the Federal judiciary, the Convention aimed to create a tribunal which should enjoy the like prerogative, with the added power of setting aside acts of Congress inconsistent with the Constitution.
It has been shown also that there were cogent reasons why such a tribunal should be formed, because, apart from the necessity for some authority to veto State legislation antagonistic to Federal legislation, there existed the pressing need for the creation of some power to curb attempts of the States to overthrow the recent treaty with Great Britain, or by legislation to interpret, nullify, or restrict its terms. Madison from the beginning advocated some negative upon State legislation, if the new Union was to be anything more than a league. When that was found impracticable, both Madison and Wilson urged as a compromise that the national executive or the executive and the judiciary compose a Council of Revision, analogous to the Council of Revision in New York, which should have power to veto laws, that were not only unconstitutional but also, as Wilson said, "dangerous," "destructive, “yet not so unconstitutional as to justify the judges in refusing to give them effect."ı The New York
' constitution of 1777 created such a council, composed of the governor, the chancellor, and the judges of the Supreme Court, with a suspensive veto of laws repugnant to the constitution, or inconsistent with the public good. This system had been in operation in New York
Farrand, Record of the Convention, ii., 73.
for ten years, but was recognized as unwise. It persisted until the Convention of 1821, without a single dissent, voted its abolition. Mercer approved the proposed Council of Revision because he, in common with a large class of persons, disliked to have judges, sitting as such, declare laws void, --conclusive proof that the judiciary in fact exercised the power.
At this point, attention should be directed to the cardinal misinterpretation of Senator Owen, Judge Walter Clark, and their followers.
In the Senate August 4, 1911, Senator Owen read from Judge Clark's address the following passage:
A proposition was made in the convention-as we now know from Mr. Madison's Journal—that the judges should pass upon the constitutionality of acts of Congress.' This was defeated June 5, receiving the vote of only two States. It was renewed no less than three times, i.e., on June 6, July 21, and finally again for the fourth time on August 15; and though it had the powerful support of Mr. Madison and Mr. James Wilson, at no time did it receive the votes of more than three States. On this last occasion (August 15) Mr. Mercer thus summed up the thought of the convention: He disapproved of the doctrine that the judges, as
* This was a proposition to give the executive and the judges a qualified negative on acts of the national legislature before they took effect; not to confer upon courts power to nullify unconstitutional laws. The idea was borrowed from the New York Council of Revision.
Jefferson understood this plainly. He wrote Mr. F. Hopkinson from Paris, March 13, 1789: “I approved the qualified negative on laws given to the executive, which, however, I should have liked better if associated with the judiciary also, as in New York” (Documentary History of the Constitution, vol. v., 159). He wrote in the same strain to Madison, December 20, 1787.
expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be incontrovertible.
Prior to the Convention, the courts of four States—New Jersey, Rhode Island, Virginia, and North Carolina—had expressed an opinion that they could hold acts of the legislature unconstitutional. This was a new doctrine never held before (nor in any other country since) and met with strong disapproval. In Rhode Island the movement to remove the offending judges was stopped only on a suggestion that they could be "dropped" by the legislature at the annual election, which was done. The decisions of these four State courts were recent and well known to the Convention. Mr. Madison and Mr. Wilson favored the new doctrine of the paramount judiciary, doubtless deeming it a safe check upon legislation, since it was to be operated only by lawyers. They attempted to get it into the Federal Constitution in its least objectionable shape—the judicial veto before final passage of an act, which would thus save time and besides would enable the legislature to avoid the objections raised. But even in this diluted form, and though four times presented by these two very able and influential members, this suggestion of a judicial veto at no time received the votes of more than one fourth of the States.
The incorrectness of such inferences must be evident. The paramount demand was for an authority that should prevent constant friction between the States and the Union with respect to legislation and the interpretation of treaties. Plan after plan was proposed and rejected. The theory of a Council of Revision
* Congressional Record, 3704.
had few supporters. Then came Luther Martin's resolution, as the germ out of which evolved section 2, Article VI. of the present Constitution. Nothing can be plainer than that in accepting Martin's resolution, which, be it observed, was unanimously accepted, the Journal says, “nem. con.,"—the Convention expressly intended that the courts of each State should be competent to decide whether a State law contravened the laws of the United States or treaties made by it, and that the State tribunals should be required to hold every such law of the State null and void. This solution was in perfect accord with what the Congress of the Confederation had in mind when in the previous April it had resolved that the States could not “of right pass any act or acts” derogatory to a treaty made by the Confederation. But as because of local sentiment State courts might fail to live up to their obligations, the Martin resolution underwent change after change until it took the noble, impressive, and adequate form of the supreme law clause of the Constitution—the clause that, under the guidance of minds like Marshall, Story, and Webster, has made the government not a league, but a nation. Yet according to Senator Owen and Judge Clark, the members of the Convention, men of the highest abilities, did all this unwittingly. Study the process by which the edifice was built, and the Owen-Clark theory will be rejected with scorn. The theory is unhistorical, a figment of the imagination of those who would strip the Federal judiciary of expressly conferred power.
The "judicial veto," which according to Judge Clark
never received more than the votes of one fourth of the States, was a proposed veto by the executive and the judiciary combined and it was not a final veto but a qualified or suspensive veto which received the votes of not more than one fourth of the States. The veto would have been applicable not only to unconstitutional laws, but to laws which, if not unconstitutional, would have been “dangerous” or “destructive" to the public welfare.
The proposition four times defeated was not, as Judge Clark assumes, one to give courts power to set aside unconstitutional laws. The thing which met this signal disapproval was the plan to create a Council of Revision consisting of the President and the judges, with a qualified negative upon all bills passed by Congress.
The debates in the Convention nowhere show that it refused to confer upon courts power to declare legislation unconstitutional. On the contrary, whenever the subject of a Council of Revision was under consideration the members of the Convention recognized the existence of such a power in the State judges, and their main reason for not creating a Council of Revision was that the judges independently had authority to declare unconstitutional laws void.
VIEWS OF MEMBERS OF THE CONVENTION
According to Professor Charles A. Beard of Columbia University, of the fifty-five members of the Convention present at some of its meetings, there were twenty-five "whose character, ability, diligence,