Debates in the Federal Convention of 1787
by James Madison
Saturday, July 21
Mr. Williamson moved, “that the Electors of the Executive should be paid out of the National Treasury for the service to be performed by them.” Justice required this, as it was a national service they were to render. The motion was agreed to, nem. con.
Mr. Wilson moved, as an amendment to the tenth Resolution, “that the Supreme National Judiciary should be associated with the Executive in the revisionary power.” This proposition had been before made and failed; but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort. The Judiciary ought to have an opportunity of remonstrating against projected encroachments on the people as well as on themselves. It had been said, that the Judges, as expositors of the laws, would have an opportunity of defending their constitutional rights. There was weight in this observation; 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. Let them have a share in the revisionary power, and they will have an opportunity of taking notice of those characters of a law, and of counteracting, by the weight of their opinions, the improper views of the Legislature. — Mr. Madison seconded the motion.
Mr. Gorham did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on the Judges for their opinions.
Mr. Ellsworth approved heartily of the motion. The aid of the Judges will give more wisdom and firmness to the Executive. They will possess a systematic and accurate knowledge of the laws, which the Executive cannot be expected always to possess. The Law of Nations also will frequently come into question. Of this the Judges alone will have competent information.
Mr. Madison considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary Department by giving it an additional opportunity of defending itself against Legislative encroachments. It would be useful to the Executive, by inspiring additional confidence and firmness in exerting the revisionary power. It would be useful to the Legislature, by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity, and technical propriety in the laws, qualities peculiarly necessary, and yet shamefully wanting in our Republican codes. It would, moreover, be useful to the community at large, as an additional check against a pursuit of those unwise and unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged against the motion, it must be on the supposition that it tended to give too much strength, either to the Executive, or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended, that, notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
Mr. Mason said, he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the revisionary power would be of little avail.
Mr. Gerry did not expect to see this point, which had undergone full discussion, again revived. The object he conceived of the revisionary power was merely to secure the Executive department against legislative encroachment. The Executive, therefore, who will best know and be ready to defend his rights, ought alone to have the defence of them. The motion was liable to strong objections. It was combining and mixing together the Legislative and the other departments. It was establishing an improper coalition between the Executive and Judiciary departments. It was 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 and interests. It was making the expositors of the laws the legislators, which ought never to be done. A better expedient for correcting the laws would be to appoint, as had been done in Pennsylvania, a person or persons of proper skill, to draw bills for the Legislature.
Mr. Strong thought, with Mr. Gerry, that the power of making, ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken in passing the laws.
Mr. Gouverneur Morris. Some check being necessary on the Legislature, the question is, in what hands it should be lodged? On one side, it was contended, that the Executive alone ought to exercise it. He did not think that an Executive appointed for six years, and impeachable whilst in office, would be a very effectual check. On the other side, it was urged, that he ought to be reinforced by the Judiciary department. Against this it was objected, that expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was, that the Judges in England had a great share in the legislation. They are consulted in difficult and doubtful cases. They may be, and 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. The influence the English Judges may have, in the latter capacity, in strengthening the Executive check, cannot be ascertained, as the King, by his influence, in a manner dictates the laws. There is one difference in the two cases, however, which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives, and such power for means of defending them, that he will never yield any part of them. The interest of our Executive is so inconsiderable and 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. He was extremely apprehensive that the auxiliary firmness and weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations, than from any other source. It had been said that the Legislature ought to be relied on, as the proper guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition, no check will be wanted. On the former, a strong check will be necessary. And this is the proper supposition. Emissions of paper-money, largesses to the people, a remission of debts, and similar measures, will at some times be popular, and will be pushed for that reason. At other times, such measures will coincide with the interests of the Legislature themselves, and that will be a reason not less cogent for pushing them. It may be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil; yet it is found to be unable to prevent it altogether.
Mr. L. Martin considered the association of the Judges with the Executive as a dangerous innovation; as well as one that 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. And as to the constitutionality of laws, that point will come before the Judges in their official character. In this character they have a negative on the laws. Join them with the Executive in the revision, and they will have a double negative. It is necessary 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. Besides, in what mode and proportion are they to vote in the Council of Revision?
Mr. Madison could not discover in the proposed association of the Judges with the Executive, in the revisionary check on the Legislature, any violation of the maxim which requires the great departments of power to be kept separate and distinct. On the contrary, he thought it an auxiliary precaution, in favor of the maxim. If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, 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 and distinct, it was proposed to add a defensive power to each, which should maintain the theory in practice. In so doing, we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the Legislature, and in the Executive Councils, and submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of their Constitution which had been universally regarded as calculated for the preservation of the whole. The objection against a union of the Judiciary and Executive branches, in the revision of the laws, had either no foundation, or was not carried far enough. If such a union was an improper mixture of powers, or such a Judiciary check on the laws was inconsistent with the theory of a free constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.
Colonel Mason observed, that the defence of the Executive was not the sole object of the revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the constitution of the Legislature, it would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect, not only of hindering the final passage of such laws, but would discourage demagogues from attempting to get them passed. It has been said (by Mr. L. Martin), that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply, that in this capacity they could impede in one case only the operation of laws. They could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, that did not come plainly under this description, they would be under the necessity, as Judges, to give it a free course. He wished the further use to be made of the Judges of giving aid in preventing every improper law. Their aid will be the more valuable, as they are in the habit and practice of considering laws in their true principles and in all their consequences.
Mr. Wilson. The separation of the departments does not require that they should have separate objects; but that they should act separately, though on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object.
Mr. Gerry had rather give the Executive an absolute negative for its own defence, than thus to blend together the Judiciary and Executive departments. It will bind them together in an offensive and defensive alliance against the Legislature, and render the latter unwilling to enter into a contest with them.
Mr. Gouverneur Morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws. Would it not be very natural for the two latter, after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that, as a security against legislative acts of the former, which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence; or at least to have an opportunity of stating their objections against acts of encroachment? And would any one pretend, that such a right tended to blend and confound powers that ought to be separately exercised? As well might it be said that if three neighbors had three distinct farms, a right in each to defend his farm against his neighbours, tended to blend the farms together.
Mr. Gorham. All agree that a check on the Legislature is necessary. But there are two objections against admitting the Judges to share in it, which no observations on the other side seem to obviate. The first is, that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them; the second, that, as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and, instead of enabling him to defend himself, would enable the Judges to sacrifice him.
Mr. Wilson. The proposition is certainly not liable to all the objections which have been urged against it. According to (Mr. Gerry), it will unite the Executive and Judiciary in an offensive and defensive alliance against the Legislature. According to (Mr. Gorham), it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious; that the joint weight of the two Departments was necessary to balance the single weight of the Legislature. To the first objection stated by the other gentleman it might be answered, that, supposing the prepossession to mix itself with the exposition, the evil would be over-balanced by the advantages promised by the expedient. To the second objection, that such a rule of voting might be provided, in the detail, as would guard against it.
Mr. Rutledge thought the Judges of all men the most unfit to be concerned in the Revisionary Council. The Judges ought never to give their opinion on a law, till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of state, as of War, Finance, &c., and avail himself of their information and opinions.
On the question on Mr. Wilson’s motion for joining the judiciary in the revision of laws, it passed in the negative, — Connecticut, Maryland, Virginia, aye — 3; Massachusetts, Delaware, North Carolina, South Carolina, no — 4; Pennsylvania, Georgia, divided; New Jersey, not present.
The tenth Resolution, giving the Executive a qualified veto, requiring two-thirds of each branch of the Legislature to overrule it, was then agreed to nem. con.
The motion made by Mr. Madison, on the eighteenth of July, and then postponed, “that the Judges should be nominated by the Executive, and such nominations become appointments unless disagreed to by two-thirds of the second branch of the Legislature,” was now resumed.
Mr. Madison stated as his reasons for the motion: first, that it secured the responsibility of the Executive, who would in general be more capable and likely to select fit characters than the Legislature, or even the second branch of it, who might hide their selfish motives under the number concerned in the appointment. Secondly, that in case of any flagrant partiality or error in the nomination, it might be fairly presumed that two-thirds of the second branch would join in putting a negative on it. Thirdly, that as the second branch was very differently constituted, when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that there should be a concurrence of two authorities, in one of which the people, in the other the States, should be represented. The Executive magistrate would be considered as a national officer, acting for and equally sympathizing with every part of the United States. If the second branch alone should have this power, the Judges might be appointed by a minority of the people, though by a majority of the States; which could not be justified on any principle, as their proceedings were to relate to the people rather than to the States; and as it would, moreover, throw the appointments entirely into the hands of the Northern States, a perpetual ground of jealousy and discontent would be furnished to the Southern States.
Mr. Pinckney was for placing the appointment in the second branch exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people, for so high a trust.
Mr. Randolph would have preferred the mode of appointment proposed formerly by Mr. Gorham, as adopted in the Constitution of Massachusetts, but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive, as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniences will proportionally prevail, if the appointments be referred to either branch of the Legislature, or to any other authority administered by a number of individuals.
Mr. Ellsworth would prefer a negative in the Executive on a nomination by the second branch, the negative to be overruled by a concurrence of two-thirds of the second branch, to the mode proposed by the motion, but preferred an absolute appointment by the second branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary, it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses and intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.
Mr. Gouverneur Morris supported the motion. First, the States, in their corporate capacity, will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote, the Judges ought not to be appointed by the Senate. Next to the impropriety of being judge in one’s own cause, is the appointment of the Judge. Secondly, it had been said, the Executive would be uninformed of characters. The reverse was the truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive, in the necessary intercourse with every part of the United States required by the nature of his administration, will or may have the best possible information. Thirdly, it had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of jealousy in the present case. He added, that if the objections against an appointment of the Executive by the Legislature had the weight that had been allowed, there must be some weight in the objection to an appointment of the Judges by the Legislature, or by any part of it.
Mr. Gerry. The appointment of the Judges like every other part of the Constitution, should be so modelled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union as the Senate. It appeared to him, also a strong objection, that two-thirds of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress, and the appointments of Congress have been generally good.
Mr. Madison observed, that he was not anxious that two-thirds should be necessary, to disagree to a nomination. He had given this form to his motion, chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.
Col. Mason found it his duty to differ from his colleagues in their opinions and reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive and Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary Department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate, and require some precautions in the case of regulating navigation, commerce and imposts; but he could not see that it had any connection with the Judiciary department.
On the question, the motion being now, “that the executive should nominate, and such nominations should become appointments unless disagreed to by the Senate,” Massachusetts, Pennsylvania, Virginia, aye — 3; Connecticut, Delaware, Maryland, North Carolina, South Carolina, Georgia, no — 6.
On the question for agreeing to the clause as it stands, by which the judges are to be appointed by the second branch, — Connecticut, Delaware, Maryland, North Carolina South Carolina, Georgia, aye — 6; Massachusetts, Pennsylvania, Virginia, no — 3; so it passed in the affirmative.