Debating the Limits of the Judiciary: Prior and Constitutional Review

Major Themes at the Constitutional Convention

What was the original plan for a National Judiciary?

The Virginia Plan, introduced on May 29, called for the creation of a National Judiciary with judges holding office during good behavior. Another feature of the Virginia Plan proposed that before becoming a law, any bill passed by Congress be reviewed by the Executive branch and “a convenient number of the National Judiciary.” This “Council of Revision” would “have the authority to examine every act of the of the national Legislature before it shall operate, & every act of a particular Legislature before a negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National legislature be again passed, or that of a particular Legislature be again negatived by___________of the members of each branch.”

In his “Vices” Madison had indicated that two of the vices of the American system were the ability of state legislatures to pass multiple and mutable laws. The Council is his answer to these vices at both the state and national level. The Council would have given the Executive and Judiciary joint prior review before a bill became a law.

What powers should be delegated to the National Judiciary?

On three separate occasions— June 4July 21, and August 15—the delegates considered this novel Council of Revision proposal. Although the idea was abandoned, the reasons for doing so are vital for understanding the Framers’ position on the role of the Judiciary. At the heart of the objection to the Council was the conviction that the Executive alone should have the power to review legislation before it became law. Taking this position, the Framers excluded the Judiciary from having the power of policy review or what we might call prior review. That was a political function to be performed by the Executive alone. But the Framers did bestow on the judiciary the power of subsequent review. It could exercise a judicial review after policy had been jointly made by the Legislature and the Executive.

On June 4, Gerry opposed giving the judges the power of prior review because they would have “a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some of the States the Judges had (actually) set aside laws as being against the Constitution. This was done, too, with general approbation.” King concurred: “the Judges ought to be able to expound the law as it should come before them, free of the bias of having participated in its formation.” On July 21, Gerry repeated his objection to the Council: it would “make the Expositors of the Laws, the Legislators, which ought never to be done.” Strong agreed that the power of making laws ought to be distinguished “from that of expounding the laws.” Gorham thought “the judges ought to carry into the exposition of the laws no prepossessions with regard to them.” Gouvernor Morris argued similarly: “Expositors of laws ought to have no hand in making them.” And Luther Martin stated that the judges ought not to “have a double negative.” Finally, Rutledge thought “the Judges ought never to give their opinion on a law until it comes before them.” On August 15, Pinckney reiterated the same theme: he “opposed the interference of the judges in the legislative business; it will involve them in parties, and give a previous tincture to their opposition.” Sherman “disapproved of judges meddling in politics and parties, “and Williamson objected to “admitting the judges into the business of legislation.”

Did the Framers intend to give the National Judiciary the power of Constitutional review?

It is often remarked by judicial scholars that Article III of the Constitution makes no mention of judicial review. This is true. We might assume that if the Framers intended to establish judicial review, they would have put it in the Constitution Assuming this, we would be left to ask, where and when did judicial review make its appearance in our constitutional heritage? The conventional answer is that John Marshall, in Marbury v Madison, 1803, established judicial review. But if we need to find the exact words “judicial review” to establish judicial review, then the Marbury case isn’t good enough, because the phrase doesn’t occur there, either. The phrase “judicial review” does not make its appearance until the 1880s, in a law review article by Edwin Corwin.

The evidence suggests that the Framers did recognize what we now call judicial review. They thought of this review as occurring after laws were passed and signed by the executive, and only when judicial cases arose to challenge the constitutionality of the laws. A final discussion of the judiciary’s power of Constitutional review occurred on August 27. Considering Article XI of the draft of the Constitution submitted to the convention by the Committee of Detail on August 6, Dr. Johnson of Connecticutt moved to make an insertion in Section 3.  This section began, “The jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislture of the United States . . . .” Johnson moved to “insert the words ‘this Constitution and the’ before the word ‘laws.’”

Madison, according to his Notes, objected. He “doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the cases not of this nature ought not to be given to that Department.” Madison seemed to fear that Johnson’s motion would invite the Court to review laws independently of Constitutional challenges brought by appellants to the Court. The delegates dismissed this concern as immaterial:

The motion of Docr. Johnson was agreed to nem:con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.

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