One other short exchange, however, confirmed the Framers’ position regarding the role of federal judges within the new Constitution. On August 27, William Samuel Johnson proposed that the courts’ jurisdiction should not only include “cases arising under” federal laws, but under “this Constitution” as well. Madison feared that this language might give to the federal judiciary the power to expound the Constitution in cases that were not “of a judiciary nature.” He argued that “the right of expounding the Constitution, in cases not of this nature, ought not to be given to that department.” Once again, Madison was affirming the principle that judges, when they are acting in their capacity as judges, should not be involving themselves in political matters. Their power of expounding the Constitution is limited to the judicial context of deciding criminal proceedings and lawsuits. They should not be giving their opinions about a law (even on the important question of whether or not it was constitutional) outside of that judicial context. Other delegates dismissed Madison’s fear. While agreeing with Madison in principle, they nonetheless believed that the construction of the clause would make it obvious that it related only to cases “of a judiciary nature,” and Johnson’s amendment passed unanimously.
The Council of Revision never made it into the final draft of the Constitution, but the successive debates leading up to its ultimate demise are illuminating. They reveal the Framers’ opinions and presumptions regarding judicial review, a power that has become the Court’s most visible and controversial function. Almost all of the Framers who spoke on the subject argued as if it were a matter of course that judges would have the power to exercise judicial review and strike down federal laws that were unconstitutional. Yet all of the Framers—whether they approved of involving the judiciary in the president’s veto power or they opposed it—were in agreement that, when judges struck down laws in the process of adjudicating, they could only nullify laws on the basis of their constitutionality. Judges, when they are acting in their capacity as judges, have no legitimate say in whether they believe a law is just or unjust, or whether it is sound or foolish policy. Their judgment of a law’s validity is confined only to whether it conforms to the Constitution, and their forum for judging is confined to the ordinary activities of the courtroom.