The Activist

by Lawrence Goldstone

  The Massachusetts constitution also contained provisions that seem to both allow and restrict judicial review, although the latter is more firmly asserted than the former. Article XXX gave a somewhat ambiguous blessing to judicial oversight. “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”15 But Article XX explicitly stated, “The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”16 Both Virginia and Massachusetts specifically recommended that judges hold office for as long as they exercised “good behavior,” which also meant that they would never be answerable to the people at the ballot box. It seems likely, therefore, that the legislators of each state would have been leery of granting lifetime appointees the uncontrolled power to review laws they themselves had passed.

  Certainly, many of the delegates to the Philadelphia Convention arrived envisioning a role for the judiciary in enforcing a separation of powers. Still, given the confusion even in those states where some form of judicial oversight was present, the exact role that the judiciary might play in providing a check on the legislature was by no means clear.

  While judicial oversight was mentioned by a number of delegates in the course of the debates, “judicial review” in the modern sense was never discussed at all at the Convention. The power of the judiciary to overturn an act of the legislature that it considered in violation of the Constitution was raised almost exclusively with regard to the court’s participation in a “council of revision,” in which the Supreme Court, with the executive, would essentially sign off on every congressional act.17 But granting the Court a limited veto power over Congress is not at all the same thing as ceding it final authority to “say what the Constitution means.” Vetoes can, after all, be overridden by the same body that passed the law; whereas, once declared unconstitutional, a law can only be reinstated by amendment. The judiciary’s role in the legislative process was deliberated extensively ( judicial checks on the executive did not come up at all), and from these discussions it is indeed possible to get a sense of whether or not the delegates favored the far different review power as later enunciated in Marbury.18

  Judicial veto was divided into two distinct questions. The first, which occupied the preponderance of the debate, was based in section 8 of the Virginia Plan, which proposed that the Executive and “a convenient number of the National Judiciary” comprise a council of revision “with authority to examine every act of the National Legislature before it shall [become law].” If the council rejected the law, and it could do so on any grounds it chose, the legislation would be returned to Congress.19

  This council of revision, then, was to have the same role as is currently enjoyed exclusively by the president in striking down legislative acts. The Virginia Plan provision had not specified whether the council’s veto power was to be limited simply to laws that ran counter to the Constitution, or whether it should have a much broader application, including any law deemed “unjust,” and each interpretation had a number of powerful adherents. In either case, however, a veto might ultimately be merely a holding action against the legislature in which, as is the case today, a super-majority could then reinstate the measure.

  The second question, which was never extensively discussed, applied specifically to the judiciary and was confined simply to whether or not a court had the right to refuse to enforce a law that it considered counter to the Constitution. While the distinction between “refuse to enforce” and “strike down” seems trivial, it was far weightier in 1787, when the judicial system was not hierarchical and it was by no means assured that even the Supreme Court’s refusal to enforce an act of the legislature would have anything but local impact.

  The Virginia Plan proposal for a council of revision first came to the floor on June 4. Elbridge Gerry, a maverick from Massachusetts, opened the debate by questioning whether the judiciary should be part of such a council. The national courts, he asserted, “will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality.” Gerry’s remarks are invariably cited as proof that delegates favored judicial review, sometimes but not always with the admission that Gerry himself refused to sign the Constitution.

  To show how sweeping this power could be, Gerry added, “In some States the Judges have actually set aside laws as being agst. [state] Constitutions.” Instead, Gerry proposed that “the National Executive shall have a right to negative [sic; the word meant “negate” or “veto” at the time] any Legislative act which shall not be afterwards passed by parts of each branch of the national Legislature.” What is significant in this motion is that in saying “any Legislative act,” Gerry seems to have proposed that the national executive be empowered to strike down state as well as federal laws.

  Rufus King seconded Gerry’s motion. Madison, who had after all written the Virginia Plan and strongly favored a council of revision, maintained in his notes that King claimed “that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation,” thus indicating that King favored judicial review as well. Robert Yates of New York, however, who also took notes on the proceedings until he left in early July, reported in his journal that “Mr. King was against the interference of the judicial [as] they may be biased in the interpretation,” which has a different meaning entirely. King, according to Yates, “therefore [proposed] to give the executive a complete negative.”20

  As Gerry and King tried to limit the judiciary’s role in the council, James Wilson tried to push the power of shared control over the legislature still further.* He was “for varying the proposition in such a manner as to give the Executive & Judiciary jointly an absolute negative.” Another of the delegates cited as favoring judicial review, Wilson was here looking for a much broader power, a means by which the federal government could maintain control over the states, not a separation of powers within the federal government itself. He was joined by Hamilton in a motion to amend Gerry’s motion. “There was no danger they thought of such a power being too much exercised,” Madison noted, as Hamilton pointed out that “the King of G. B. had not exerted his negative since the Revolution.”

  After Gerry insisted that a veto without recourse was too extreme, Benjamin Franklin noted that in Pennsylvania, “the negative of the Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter.” He favored including the judiciary in the oversight function, since “if the Executive was to have a Council, such a power would be less objectionable.”

  Although no one had discussed the notion of granting judges an absolute veto over legislative action, which, in the end, is the essence of judicial review, the notion of one branch being able to frustrate the other two was clearly anathema to many of the delegates. Roger Sherman agreed with Gerry and Franklin, noting that he was “agst. enabling any one man to stop the will of the whole.” Gunning Bedford of Delaware pronounced himself against any check on the legislature at all. He thought it “sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the People were the best judges of what was for their interest, and ou
ght to be under no external controul whatever.” Even George Mason IV, who was later to frame a description of judicial review that would be very close to Marshall’s, presented an impassioned denunciation of granting a power without check. Raising the dread specter of hereditary monarchy, Mason insisted that “he never could agree to give up all the rights of the people to a single Magistrate.”21

  Voting at the Convention, as in the Confederation Congress, was by state, each of which was determined by a majority of its delegates. The motion to grant an absolute veto was defeated, 10 states to 0. While this vote specifically applied only to Gerry’s first motion, and thus to the executive alone, the idea of absolute veto, even in regard to a council of revision, had been thoroughly discredited and did not come up again. Apparent, then, is that this debate, which contained so many of the statements later cited by those who claimed that judicial review was an understood part of the judicial function, in fact proves just the opposite. The delegates seemed to perceive separation of powers as more of a game of rock–paper–scissors, with no one branch able to act with impunity against the other two.

  After the insertion of a clause providing the power to override a veto if two thirds of each house approved, Gerry’s second motion to provide a veto power to the executive alone passed 8–2, only Connecticut and Maryland against.22 Although proponents tried again the following day to reconsider the decision to exclude the judiciary from the veto process, in which Madison gave a long, impassioned speech defending his council of revision, the measure failed, 8–3.

  The question was not dead, however. On July 21, Wilson tried again, proposing once more “that the supreme Natl Judiciary should be associated with the Executive in the Revisionary power.” Wilson added that although “this proposition had been before made, and failed,” he was so certain of its worth that he “thought it incumbent on him to make another effort.”23

  Once again, as he soon made clear, Wilson was proposing not judicial review, but the ability to strike down laws on a completely subjective basis even if they conformed to the Constitution. “The Judiciary ought to have an opportunity of remonstrating agst. projected encroachments on the people as well as on themselves,” he went on. “It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights . . . but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect.” * Give the judiciary a share in the “reversionary power,” Wilson exclaimed, and they will “counteract . . . by the weight of their opinions the improper views of the Legislature.” Madison, desperate to save his council of revision, seconded Wilson’s motion.

  Nathaniel Gorham, who, like Gerry, King, and Caleb Strong, his fellow delegates from Massachusetts, opposed a council of revision, “did not see the advantage of employing the Judges in this way.” “Judges,” he asserted, “are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” He thought “it would be best to let the Executive alone be responsible, and at most to authorize him to call on Judges for their opinions.” Oliver Ellsworth, a judge himself, spoke next and felt that with their “systematic and accurate knowledge of the Laws . . . the aid of the Judges will give more wisdom & firmness to the Executive.”

  Madison continued to press for the council of revision as “useful to the Community at large as an additional check agst. a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities,” and Mason continued to voice his support of a council that “would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.”

  Wilson’s proposal blurred the distinction between the courts deciding on the constitutional fitness of a law and giving judges a kind of executive power over the legislature. Elbridge Gerry once gain protested that the veto was a balancing mechanism in which judges should play no part. He “conceived of the Revisionary power as merely to secure the Executive department agst. legislative encroachment. The Executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them.” Judges should not be given veto power because this would “establish an improper coalition between the Executive & Judiciary departments . . . making Statesmen of the Judges and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests.” These are hardly the sentiments of a man who wanted the judicial branch to become the ultimate arbiter on constitutionality.

  Caleb Strong, another Massachusetts delegate, who would play a major rule in defining the judicial branch, agreed that “the power of making ought to be kept distinct from that of expounding the laws” and added that “judges in exercising the function of expositors might be influenced by the part they had taken in framing the laws.”

  Gouverneur Morris agreed that “the public liberty was in greater danger from Legislative usurpations than from any other source,” and while it was necessary certainly to provide a check on the legislature, “the question is in what hands it should be lodged.” The executive, Morris asserted, “appointed for 6 years, and impeachable whilst in office,” would not alone “be a very effectual check.” The alternative, however, which Morris preferred, was not to leave the power in the hands of the courts, but merely that the executive “be reinforced by the Judiciary department.” To support his argument, he turned to England, where “Judges had a great share in ye Legislation. They are consulted in difficult & doubtful cases. They may be & some of them are members of the Legislature. They are or may be members of the privy Council, and can there advise the Executive as they will do with us if the motion succeeds.”

  But even a combination of the executive and the courts might not be enough. “The interest of our Executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting encroachments.” Morris feared that “the auxiliary firmness and weight of the Judiciary would not supply the deficiency.” A council of revision “is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether.”

  The July 21 debates are often parsed selectively to demonstrate tacit acceptance of judicial review among the delegates. When read in their entirety, however, they once more lead to just the opposite conclusion. The delegates were certainly casting about in an attempt to assign the proper role for both the executive and the judiciary in preventing the legislature from usurping power. But a widespread fear of unbridled judicial authority dominated their thinking as well. Transferring unchecked authority to the Supreme Court to interpret the Constitution—judicial review, at least in the sense referred to by Justice Scalia—did not seem to be on anyone’s mind. Notable by its absence was a single specific proposal that approximated the judicial role that Marshall later staked out in Marbury.

  The closest proposal to Marshall’s subsequent formulation came from two non-signers. The first, ironically, was Luther Martin of Maryland, who was to become Marshall’s bitter ideological enemy.24 Ever the opponent of centralized authority, Martin considered “the association of the Judges with the Executive as a dangerous innovation; as well as one which could not produce the particular advantage expected from it. A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.” Martin, a ferocious Anti-Federalist, then enunciated the very position that the Federalist Marshall would seventeen years later. “As to the Constitutionality of laws,” Martin insisted, “that point will come before the Judges in their proper official character. In this character they have a negative on the laws.”25

  Madison, who could rarely bring himself to agree with Martin on the time of day, disagreed with him again here, e
ven though Martin had taken the very position that Madison would later espouse in his efforts to get the Constitution ratified. Combining the executive and judiciary in a council of revision, Madison insisted, was in no way a “violation of the maxim which requires the great departments of power to be kept separate & distinct.” In fact, Madison asserted, a council of revision would strengthen separation of powers. To support this counterintuitive position, Madison used the same argument of human nature as had Martin. “If a Constitutional discrimination of the departments on paper were a sufficient security to each agst. encroachments of the others,” he observed, “all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice.” Madison concluded that creating a council of revision with the executive and judiciary “did not blend the departments together.”26

  When Madison had taken his seat, George Mason, who, like Luther Martin, refused to sign the Constitution on September 17, rose and, after noting that “defence of the Executive was not the sole object of the Revisionary power,” proceeded to present the most direct case for judicial review that would be expressed in the entire four months.

  “Notwithstanding the precautions taken, in the Constitution,” Mason observed, “it would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws.” Mason refuted Martin’s assertion that allowing the judiciary to overturn laws passed by Congress would amount to “a double negative, since in their expository capacity of Judges they would have one negative.” Mason asserted that judges “could impede in one case only, the operation of laws. They could declare an unconstitutional law void.” If an “oppressive or pernicious law” was not unconstitutional, judges would be “under the necessity . . . to give it a free course.” Mason lamented this limitation on judicial oversight and hoped “further use to be made of the Judges, of giving aid in preventing every improper law.”