The other proposal that the Framers rejected—the “Council of Revision”—reveals their expectations that judicial review would be exercised over unconstitutional federal actions as well as state actions. This council would have been formed from “a convenient number of the National Judiciary” and the president; together they would have shared a veto power over proposed legislation from Congress.
Incorporating this kind of council into a constitution, Madison thought, would not only enable the executive and judiciary to protect themselves from encroachments by the legislature, but it would assist the legislature itself to craft laws that were more consistent with the public good. Consequently, when Madison was drafting his own plan of government to submit to the Constitutional Convention in 1787, he included a resolution “that the Executive and a Convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate,” and any bills vetoed by this council would have to be repassed by an unspecified proportion in Congress before they could become law.
The proposal for a Council of Revision was first debated in the Committee of the Whole on June 4. Elbridge Gerry immediately attacked the proposal with the two objections that would repeatedly doom this measure each time it was resubmitted (and the proposal was resurrected on numerous occasions throughout the summer). First, Gerry did not think that the judiciary should have anything to do with the veto power, “as they will have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being against the constitution. This was done, too, with general approbation.” Gerry was saying that state courts had already adopted the practice that we recognize as judicial review: striking down laws that were contrary to their own state’s constitution. He expected that the federal judiciary would have the same power; therefore, they did not need the additional power of blocking laws before they were passed.
Gerry had another reason for objecting to a Council of Revision: judges were unqualified to judge the merits of laws before they were passed. He argued: “It was quite foreign from the nature of their office to make them judges of the policy of public measures.” Judges were supposed to be experts in the law; politicians were supposed to be masters of public policy. Since the expertise required for each was different, the authority to perform these functions should be placed in different hands.
The delegates’ discussion segued into the question of whether the veto power should be absolute or whether it should be qualified. Once the Committee of the Whole rejected the proposal for an absolute veto, they returned to the subject of the Council of Revision. They chose (by a vote of 8-to-2) to grant the veto power to the executive alone, excluding the judiciary from this function, and they decided that a two-thirds vote in each branch of the legislature would be necessary to pass a vetoed bill into law. Wilson and Madison were both so attached to the idea of a Council of Revision that the decision to vest the veto in the hand of the executive inspired them reopen the question two days later, which they would proceed to do repeatedly over the course of the debates, despite repeated defeats.
Wilson acknowledged that there “was weight” in the observation that judges, in their ordinary capacity, could already defend their own prerogatives through judicial review, yet he insisted that “this power of the judges did not go far enough.” When judges struck down laws, it was only on the basis of their unconstitutionality. “Laws may be unjust, may be unwise, may be dangerous, may be destructive,” Wilson pointed out, “and yet may not be so unconstitutional as to justify the judges in refusing to give them effect.” However, if judges, along with the president, were able to veto laws before they were passed, then they would be able to nullify laws for these other compelling reasons; they would no longer be limited to negating only unconstitutional laws.