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9. Judicial Review and Judicial Powers

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 a bill becomes a law it must 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. It is important to note that the Council gives the Executive and Judiciary joint prior review before a bill becomes a law.

On three separate occasions— June 4, July 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's position on the role of the Judiciary. At the heart of the objection to the Council was that the Executive alone should have the power to review legislation before it became law. And in doing so, 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 simultaneously bestowed on the judiciary the power of subsequent review or to exercise a judicial review after policy has been jointly made by the Legislature and the Executive.

On June 4, Gerry opposed giving the judges the power of prior review because they have the power of "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 agst. 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 was making the Expositors of the Laws, the Legislators which ought never to be done. " Strong agreed that the distinction between 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." Mr. G. 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." And 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."

It is often remarked by judicial scholars that Article III of the Constitution makes no mention of judicial review. This is true. So, the presumption is that the Framers didn't intend to establish judicial review otherwise they would have put it in the Constitution. Thus the question, 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 and then in a law review article by Edwin Corwin.

The evidence suggests that the Framers recognized what we now call judicial review, but were serious about the distinction between policy and constitutional review.

On August 27, Johnson moved to "insert the words 'this Constitution and the' before the word 'laws.'"

Mr. Madison 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.

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.