by Peter Irons
During the weeks that followed the submission of the draft Constitution by the Committee on Detail, the delegates laboriously slogged their way through every clause of every article, taking literally hundreds of votes on motions to strike or add words and phrases. The convention devoted little of its time to the Supreme Court, which was dealt with in Article III, about halfway through the lengthy document. The delegates finally reached this article on August 27, and almost hurried their way through it, with little discussion or debate. They agreed to vesting “the judicial power of the United States” in a Supreme Court “and in such inferior courts” as Congress might create. They also agreed to give the Supreme Court jurisdiction over “all cases under laws passed by the legislature of the United States,” and to “controversies” between states, “between a state and citizens of another state,” and “between citizens of different states.” Through this jurisdictional scheme, the delegates intended to place all cases that did not arise solely within a single state into a federal judicial forum. Although only a few delegates voiced their underlying concerns on this issue, these jurisdictional provisions obviously reflected fears that state judges might be biased against out-of-state litigants or against the federal government itself.
During the debate on August 27, William Johnson of Connecticut, a noted scholar with degrees from Yale and Harvard, who would shortly become president of Columbia, offered an amendment to change the provision to give the Court jurisdiction over “all cases arising under this Constitution and laws” enacted by Congress. Some delegates may have considered this a trivial change, or simply one that was assumed, but Madison rose to object. He recorded himself as doubting “whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that department.” Madison did not define what he meant by “cases of a judiciary nature,” but he presumably intended to prevent the Supreme Court from issuing advisory opinions on constitutional questions, a power that some delegates had suggested giving the Court in earlier sessions. At any rate, the delegates promptly passed Johnson’s motion without dissent, “it being generally supposed that the jurisdiction given was constructively limited to cases of a judiciary nature,” Madison recorded approvingly.
With hardly any debate, the delegates approved the creation of a branch of the national government with sweeping jurisdiction and awesome—if still untested—powers to strike down laws of both the states and Congress. Many delegates, in fact, seemed unaware that they had granted these powers to the national judiciary. During the extended debate over proposals to join the president and Supreme Court into a “Council of Revision” with power to veto laws passed by Congress, Madison proposed on August 15 a complicated scheme to allow Congress to override such vetoes. His motion, by far the most complicated of any on this issue, would have entangled members of all three branches in the business of the others.
During the debate that followed, as Madison reported, John Mercer of Maryland “disapproved of the doctrine that judges as expositors of the Constitution should have the authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontrollable.” John Dickinson of Delaware was “strongly impressed” with Mercer’s comment. “He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.” No other delegate rose to suggest a substitute for Madison’s proposal, but his notion of involving the Supreme Court in deciding the constitutionality of legislation before it took effect—giving it, in other words, the power of issuing advisory opinions—never came close to passage. On this particular motion, Madison lost by a vote of eight states to three. Later on, the convention voted to give Congress the power to override presidential vetoes by a two-thirds vote of both the House and Senate. The delegates left the Supreme Court out of these battles among the other two branches of the national government.
A majority of the delegates in Philadelphia shared Madison’s “Federalist” belief in a strong national government, with varying degrees of intensity. At the same time, every delegate represented his state and was loath to hand over to the new government they were framing the essential powers of the states. Yet in designing the judicial branch of government, the delegates added to its sweeping jurisdiction in Article III the additional power to make the Constitution and federal laws “the supreme law of the land,” binding every state judge to their enforcement.
This provision, which became the Supremacy Clause of Article VI, first took shape in Madison’s proposal in the Virginia Plan to give the national legislature a “negative” over state laws that contravened the “articles of Union.” Debate over this proposal continued for almost three months, from its introduction on May 29 until August 23, when the delegates finally buried it. During that final debate, Roger Sherman of Connecticut proclaimed a congressional veto power over state laws to be “unnecessary; the laws of the general government being supreme and paramount to the state laws according to the plan, as it now stands.” That plan, submitted by the Committee on Detail on August 6, provided that federal laws “shall be the supreme law of the several states” and would prevail over contrary state laws. Madison finally gave up. “He had been from the beginning a friend to the principle” of a congressional veto, he recorded himself as saying, but he now agreed to the “modification” in the draft Constitution. Hugh Williamson of North Carolina added, in words that Madison might have taken as a slight, that further discussion of his proposal “was a waste of time.”
There is some irony in the fact that the strongest statements on judicial review, on both sides of the question, came from delegates who did not sign the final document. John Mercer of Maryland, who first took his seat on August 6, the day the Committee on Detail submitted its draft Constitution, rose to speak for the first time two days later. Madison recorded his short and sour remarks: “Mr. Mercer expressed his dislike of the whole plan, and his opinion that it never could succeed.” Shortly after declaring on August 15 that he “disapproved of the doctrine” that judges could declare laws unconstitutional, Mercer left Philadelphia without any farewell remarks, and later campaigned—without success—against ratification of the Constitution in Maryland.
The leading proponent of the “doctrine” that Mercer rejected was Elbridge Gerry of Massachusetts, a professed opponent of the “excesses” of democracy. Early in the convention, Gerry argued strenuously against Madison’s proposal that the Supreme Court take part along with the president in a “Council of Revision” to pass on all state laws. Gerry insisted that judges should be independent of the other branches of government in “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” of the state. “This was done too with general approbation,” Gerry added.
From the perspective of political theory, it makes sense that an opponent of democratic “excesses” made the strongest defense of judicial veto power over laws passed by democratically elected legislators. Not a single state at the time of the Philadelphia convention elected the judges of its highest court; most often, the men who received judicial appointments represented the social and financial elite whose interests they furthered. But it made far less sense that the first delegate who proposed making the Constitution and statutes passed by Congress the “supreme law” of the land was a leading advocate of state sovereignty. William Paterson, a lawyer trained at Princeton, and a dandy who emulated the manners and dress of the emergent American aristocracy, submitted the New Jersey Plan to the convention on June 15. His nine resolutions to “revise, correct, and enlarge” the Articles of Confederation included the formation of a national government with a single legislative body, in which each state would have one vote. This was simply a duplicate o
f the Congress established under the Articles of Confederation. Paterson also proposed an executive of several men—he left the number blank—whose members could be removed by Congress “on application by a majority” of state governors. These provisions of the New Jersey Plan were directly opposed to the “Federalist” notion of the Virginia Plan and were intended to maintain state control over a weak national government. But for reasons that Paterson never explained to the convention, he also proposed that “all acts” of Congress “shall be the supreme law of the respective states” and that “the judiciary of the several states shall be bound thereby in their decisions, anything in the respective laws of the individual states to the contrary notwithstanding.”
Paterson dearly had no intention of placing the federal judiciary in a position of “supremacy” over the states. He envisioned a Congress in which the states—particularly the smaller states like New Jersey—dominated the federal government, and in which the national executive had very limited powers. Paterson’s proposal that “all acts” of Congress would be the “supreme law” of the states hardly threatened state power, especially since his plan limited the jurisdiction of federal judges to cases that involved impeachments, piracies, treaties, and “collection of the federal revenue.” But in his choice of words, Paterson—unwittingly for sure—gave the advocates of a strong national government the design of a judicial battering ram that would knock down hundreds of state laws over the next two centuries.
When the Committee on Detail submitted its draft Constitution to the delegates on August 6, it adopted Paterson’s “supreme law” wording with little change. But the committee’s draft, of course, also proposed a Congress with sweeping powers over the states. With hardly another word on the convention floor, the delegates approved the Supremacy Clause in their final vote on September 12, 1787. The ultimate irony of the Constitution is that the provision giving the Supreme Court a veto power over state laws, the most important power it exercises, was first proposed by a vehement advocate of state sovereignty. To compound this irony, George Washington nominated William Paterson to the Supreme Court in 1793, a position he held until his death in 1806. Paterson remained a firm advocate of constitutional supremacy during his judicial service, ruling in one case that “every act of the legislature repugnant to the constitution is absolutely void.”
Over the past two centuries, historians have debated and politicians have declaimed over the question of “judicial review” of federal and state laws. Exercising this power, the Supreme Court has struck down hundreds of laws as contrary to the Constitution. Depending on the prevailing political winds, critics of “judicial supremacy” have come from both the left and right. During the early New Deal years of Franklin Roosevelt’s presidency, the “Nine Old Men” on the Supreme Court were excoriated by the left for striking down state and federal laws designed to revive an economy crippled by the Great Depression. Two decades later, critics on the right mounted a campaign to “Impeach Earl Warren” and curb the Court’s jurisdiction, to punish the Chief Justice and his colleagues for “putting Negroes in the schools and taking God out,” as one southern politician complained. More recently, critics of “judicial activism” have come from both sides of the political spectrum. Opponents of abortion rights denounced the Supreme Court for exercising the power of judicial review to strike down criminal abortion laws, while supporters of affirmative action programs criticized the Court for ruling that cities cannot “set aside” a portion of public construction funds for minority-owned firms. judicial review of legislaton is a sword that cuts on both sides of its sharp blade, a fact the Framers clearly understood when they inserted the Supremacy Clause in the Constitution.
5
“The Country Must Finally Decide”
Surprisingly, it was not until August 20, after three months of delibaration, that any delegate raised the question of including a bill of rights in the Constitution. Many had thought about this issue, and talked about it over dinners in the surrounding taverns and in meetings of state delegations. All but two of the state constitutions that were adopted after the states declared their independence from England in 1776 contained “bills of rights” that protected citizens against arbitrary governmental power. Many of these constitutions included specific guarantees for rights of speech, press, and religion. The Virginia constitution, which James Madison had helped to draft, offered protection against unreasonable search or seizure, provided that defendants in criminal trials could not be forced to testify against themselves, and barred the state from infringing the freedom of the press. Pennsylvania, where the first colonial newspaper was published and which was settled by Quakers, who preached and practiced religious toleration, protected the freedoms of press and religion in its constitution.
Although a large majority of delegates came to Philadelphia with the resolve to create a strong federal union—one with “positive” powers to make and execute national laws—most also believed that the state governments should be primarily responsible for protecting citizens in the “negative” sense of barring legislators and executive officials from infringing their basic rights. Many of these “inalienable” rights—summed up as “life, liberty, and the pursuit of happiness” in the Declaration of Independence—had first been “enumerated” in the Magna Carta. The notion of listing such rights in a written constitution gained many supporters before and after the American Revolution. Few of those who advocated bills of rights in state constitutions, however, felt that the federal constitution they were creating should add to–or subtract from the–rights provided by the states.
Ironically, it was a delegate from the slave-owning state of South Carolina who first proposed a federal bill of rights. When the session opened on August 20, Charles Cotesworth Pinckney submitted thirteen “propositions” to the convention, asking that they be referred to the Committee on Detail. Pinckney, who rose the very next day to denounce proposals to give Congress the power “of meddling with the importation of negroes,” proposed that “the liberty of the press shall be inviolably preserved,” and that “no soldier shall be quartered in any house in time of peace without consent of the owner.” With changes only of wording, Pinckney’s proposals were incorporated—four years later—into the Bill of Rights as parts of the First and Third Amendments. But the delegates in 1787 referred them “without debate or consideration” to the Committee on Detail, from which they never emerged.
On September 12, three weeks after Pinckney offered his proposal, the Committee on Style submitted its draft of the Constitution, laying out in detail the “positive” powers of the three branches of the national government. Along with its draft, the committee appended a letter to the delegates. Noting that “the full and entire approbation of every state is not perhaps to be expected,” the committee expressed its hope that the draft Constitution “may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness.” George Mason of Virginia was not happy with the result. “ He wished the plan had been prefaced with a Bill of Rights,” Madison recorded his Virginia colleague as saying. Mason added that such a provision “would give great quiet to the people; and with the aid of the state declarations, a bill might be prepared in a few hours.” Elbridge Gerry of Massachusetts “concurred in the idea and moved for a committee to prepare a Bill of Rights”.
Only two delegates addressed Gerry’s motion. Roger Sherman of Connecticut spoke for the “localists” in the convention. “The state Declarations of Rights are not repealed by this Constitution.” he argued, “and being in force are sufficient.” Mason rose from his seat again. “The laws of the United States are to be paramount to state Bills of Rights,” he replied. These brief remarks, on both sides of this momentous question, barely scratched the surface of a question that later divided those who supported or opposed the ratification of the Constitution. Eager to conclude their deliberations, the state delegations—with the abstention of Grerry’s colleagues from
Massachusetts—unanimously rejected his motion.
Three days after deciding not to include a bill of rights in the Constitution, the delegates took their final vote on the provisions of the document they had labored to produce. On September 15, George Mason offered a motion that no “navigation act” regarding the shipping trade be enacted without the concurrence of two thirds of each house of Congress, rather than a simple majority as provided by the draft Constitution. Mason lost on this issue by a vote of seven states to three. Within seconds of the tally, Edmund Randolph sought and received George Washington’s permission to address the convention. Almost four months earlier, Randolph had yielded to Madison’s entreaties to introduce the Virginia Plan to the convention, prefaced by his own proposal that the Articles of Confederation “be so corrected and enlarged as to accomplish” their objectives of ensuring the “common defense, security of liberty and general welfare” of the confederated states. Randolph was bitterly disappointed with the results of the succeeding four months of debate and deliberation. Scribbling furiously to record his friend’s remarks. Madison wrote that Randolph de- nounced the “dangerous power given by the Constitution to Congress” and expressed “the pain he felt at differing from the body of the convention, on the close of the great and awful subject of their labors.”
Randolph knew that his fellow delegates were eager to submit the Constitution to the states for final ratification. Keenly aware that he spoke for a small minority, he nonetheless moved that “amendments to the plan might be offered by the state conventions, which should be submitted to and finallly decided on by another general convention.” Should his motion be rejected, Randolph said with obvious sadness, it would “be impossible for him to put his name to the instrument.” Randolph spoke to the convention not only as a single delegate but as the governor of Virginia, the state whose legislature had called for the Philadelphia convention. His introduction of the Virginia Plan had carried special weight because of his position.