DEBATES IN THE PHILADELPHIA CONVENTION. It is asserted by those who contend that the Federal courts have no power to declare legislation unconstitutional, that a proposition was made in the convention that the judges should pass upon the constitutionality of acts of Congress, and that this proposition was defeated on four several occasions.* A perusal of the debates in the convention shows that this statement is without foundation. The proposition four times defeated was not one to give the courts power to set aside unconstitutional laws. The thing which met this signal disapproval was the plan to create a council of revision, consisting of the President and the judges, with a negative upon all bills passed by Congress. The debates in the convention nowhere show that it refused to confer upon courts power to declare legislation unconstitutional. On the contrary, as Mr. Dougherty says: "Whenever the subject of a council of revision was under consideration the members of the convention recognized the existence of such a power in the judges, and their main reason for not creating a council of revision was that the judges independently had authority to declare unconstitutional laws void."† The Constitution of New York at that time had a provision in it for a council of revision. But this plan did not confer upon the courts power to nullify unconstitutional laws, but gave the Executive and the judges a qualified negative on acts before they took effect. Jefferson, writing from Paris, on March 13, 1789, said: "I approve the qualified negative of laws given to the Executive which, however, I should have liked better if associated with the judiciary also, as in New York." "At different times in the session of the convention it was proposed to associate the federal judges with the executive in a council of revision or in the exercise of the veto power. At those times it was asserted," says Farrand, "over and over again, and by such men as Wilson, Madison, GouverGovernment by Judges," by Chief Justice Walter Clark, Cooper Union, 27 January, 1914. †Dougherty, p. 57. neur Morris, King, Gerry, Mason and Luther Martin, that the federal judiciary would declare null and void laws that were inconsistent with the Constitution. In other words it was generally assumed by the leading men in the convention that this power existed. Perhaps Madison expressed this in the best form * 'a law violating a constitution established by the people themselves would be considered by the judges as null and void.'"'* Mr. Wilson moved as an amendment 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. 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 not be so unconstitutional as to justify the judges in refusing to give them effect. Mr. Gerry did not expect to see this point which had undergone full discussion, again revived. The motion was liable to strong objections. It was combining and mixing together the legislative and other departments. It was making the expositors of the laws, the legislators, which ought never to be done. 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 framing the laws. Mr. L. 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. * * * And as to the constitutionality of laws, *The Framing of the Constitution, p. 156. that point will come before the judges in their proper 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. Col. Mason said that in their expository capacity of judges 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, which did not come plainly under this description, they would be under the necessity as judges to give it free course. He wished the further use to be made of the judges of giving aid in preventing every improper law. And others gave expression to like views.* STATE RATIFYING CONVENTIONS. That the Constitution conferred this power and that it was so understood in the States prior to its adoption is shown likewise by the debates in the ratifying conventions. In the first convention at Hillsboro, in 1788, General John Steele said: "The judicial power of that (the Federal) government is so well constructed as to be a check. There was no check in the old confederation. This power was in principle and theory transcendent. If the Congress make laws unconstitutional with the Constitution, independent judges will not uphold them, nor will the people obey them."t Spaight said: "The gentleman objects to the cognizance of all cases in law and equity arising under the Constitution and the laws of the United States. This objection is very astounding. When any government is established, it ought to have the power to enforce its laws, or else it might as well have no power. What, but that, is the use of a judiciary?"+ *Farrand, Records of Federal Convention, Vol. 2, pp. 72 to 78. Elliott, IV, p. 71. Elliott, IV, p. 139. Samuel Johnson said: "When Congress makes a law in virtue of their constitutional authority, it will be actual law. * Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void."* William R. Davie said: "For my own part, I know of but two ways in which the laws can be executed by any government. If there be any other, it is unknown to me. The first mode is coercion by military force, and the second is coercion through the judiciary. With respect to coercion by force, I shall suppose that it is so extremely repugnant to the principles of justice and feelings of a free people that no man will support it. It must, in the end, terminate in the destruction of the liberty of the people. I take it, therefore, that there is no rational way of enforcing the laws, but by the instrumentality of the judiciary. From these premises we are left only to consider how far the jurisdiction of the judiciary ought to extend. It appears to me that the judiciary ought to be competent to the decision of any question arising out of the Constitution itself. * * * It is necessary, in all governments, but particularly in a Federal government, that its judiciary should be competent to the decision of all questions arising out of the Constitution. * Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened. We are now to look for justice to the controlling power of the judiciary of the United States. † * * * It is true that North Carolina did not ratify the Constitution at its first convention at Hillsboro, but it was not on account of this provision but because Jefferson had advised the nine first State conventions to accept and the four latest to reject it until a declaration of rights was secured. When the second convention met in November, *Elliott, IV, pp. 187-8. 1789, two years after the adjournment of the Philadelphia Convention and after the debates in the Hillsboro Convention had been printed and extensively circulated, it ratified the Constitution and this took place after the Judiciary Act of Congress had been passed, conferring upon the courts in express terms the duty to exercise this power. Similar views were expressed in many of the other State ratifying conventions. Marshall, in the Virginia Convention, said: "To the judiciary you must look for protection from an infringement of the Constitution."* Oliver Ellsworth, in the Connecticut Convention on January 7, 1788, said: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, will declare it to be void. On the other hand, if the States go beyond their limits, if they make a law which is a usurpation upon the federal government, the law is void; and upright, independent judges will declare it to be so."t FEDERALIST. Hamilton, in the Federalist, clearly shows that "No legislative act contrary to the Constitution can be valid" and that the convention conferred authority on the Federal Courts to overrule State or Federal acts "which might be in manifest contravention of the Articles of Union." Thus the debates in the convention which framed the Constitution, the debates in the ratifying State conventions, the Judiciary Act of 1789, as well as the articles in the Federalist which were written while the Constitution was yet unadopted by the States, and for the purpose of securing *Elliott, III, 393. tFarrand, Vol. III, p. 240. |