History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle FramersCurtis, George Ticknor
History
History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle Framers
Curtis, George Ticknor
Constitutional history -- United States
But this point connected itself with the question, whether the
executive should be surrounded by a council, and the latter
proposition again involved the consideration of the precise relation
of the executive to the legislative power. That a negative of some
kind upon the acts of the legislature was essential to the
independence of the executive, was a truth in political science not
likely to escape the attention of many of the members of the
Convention. Whether it should be a qualified or an absolute negative
was the real, and almost the sole question; for although there were
some who held the opinion that no such power ought to be given, it was
evident from the first that its necessity was well understood by the
larger part of the assembly. In the first discussion of this subject,
the negative was generally regarded as a means of defence against
encroachments of the legislature on the rights and powers of the other
departments. It was supposed that, although the boundaries of the
legislative authority might be marked out in the Constitution, the
executive would need some check against unconstitutional interference
with its own prerogatives; and that, as the judicial department might
be exposed to the same dangers, the power of resisting these also
could be best exercised by the executive. But an absolute negative for
any purpose was favored by only a very few of the members, and the
proposition first adopted was to give the executive alone a
revisionary check upon legislation, which should not be absolute if it
were afterwards overruled by two thirds of each branch of the
legislature.[31]
But inasmuch as this provision would leave the precise purposes of the
check undetermined, and in order, as it would seem, to subject the
whole of the legislative acts to revision and control by the
executive, some of the members desired that the judiciary, or a
convenient number of the judges, might be added to the executive as a
council of revision. Among these persons were Mr. Madison and Mr.
Wilson. The former expressed a very decided opinion, that, whether the
object of a revisionary power was to restrain the encroachments of the
legislature on the other departments, or on the rights of the people
at large, or to prevent the passage of laws unwise in principle or
incorrect in form, there would be great utility in annexing the wisdom
and weight of the judiciary to the executive. But this proposition was
rejected by a large majority of the States, and the power was left by
the committee as it had been settled by their former decision. These
proceedings, however, do not furnish any decisive evidence of the
nature and purpose of the revisionary check.
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