Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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The Council of Revision & Judicial Review

Judicial Power

It was precisely on account of this potential expansion of the judicial authority that other members wanted to prevent judges from being involved in the veto power. Gorham again insisted: “As judges, they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures”; therefore, it should not be deemed their prerogative to judge the laws according to those extraneous considerations, either before or after they were passed. Gerry agreed, and he could hardly suppress his annoyance that this question was again revived after it had already “undergone full discussion.” Involving the judiciary in the making of laws “was making statesmen of the judges, and setting them up as the guardians of the rights of the people.” The job of legislation should be done by the people’s representatives, Gerry said. 

Ellsworth and Madison both tried to counter the suggestion that judges had no distinctive expertise that might contribute to the crafting of good legislation. Ellsworth insisted that judges “will possess a systematic and accurate knowledge of the laws, which the executive cannot be expected always to possess.” He believed that they would also be peculiarly schooled in the law of nations. 

A Double Negative for the Judiciary

Luther Martin considered the proposal for a Council of Revision a “dangerous innovation,” and he utterly rejected the suggestion that judges had any specialized knowledge that could help the legislature do their job better:  “A knowledge of mankind, and of legislative affairs, cannot be presumed to belong in a higher degree to the judges than to the legislature.” He repeated the common refrain that the judges already had the power to strike down unconstitutional laws. If they were also given the opportunity to join in the veto power, “they will have a double negative” on the laws. Martin then added a fresh reason to reject the motion. “It is necessary,” he insisted, “that the supreme judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating against popular measures of the legislature.” It was the politician’s job to risk unpopularity by taking a stand on public policy issues. The authority of the judges, on the other hand, depended on the public’s perception that they expounded the laws in an impartial and apolitical manner. This perception would be lost if judges were asked to participate in the political process. Finally, Martin asked how the council of revision was supposed to work in practice: in what proportion would the judges vote with respect to the executive power? Gorham took up that challenge and added it to the mounting objections to the council of revision: “as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands.” Not only would a council of revision give judges a “double negative” over legislation, but it would also have the effect of removing the veto power out of the hands of the executive altogether. 

Later, Madison tried to alter the provision vesting the veto with the Executive by adding the judiciary into the mix. In order to forestall the objection that a multitude of judges would overwhelm the single executive and effectually remove the power of the veto from the president, Madison suggested that any legislative bill should be subject to the revision of the other two branches separately; and “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,” so that the legislature could try, if it chose, to pass the bill into law with a supermajority. Madison’s proposal was rejected again by a 3-to-8 majority. 

The proposed council of revision, which had been proposed, defeated, and resurrected so many times that summer, at last became only a footnote in the history of the Constitutional Convention.