The Journal of the Debates in the Convention which Framed the Constitution of the United States, May-September 1787. Volume 2Madison, James
History
The Journal of the Debates in the Convention which Framed the Constitution of the United States, May-September 1787. Volume 2
Madison, James
Constitutional law -- United States; Constitutions -- United States; United States. Constitution
M^r Wilson moved as an amendment to Resol^n 10. that the supreme Nat^l
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 ag^{st} 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 these characters of a law, and
of counteracting, by the weight of their opinions the improper views of
the Legislature.--M^r Madison 2^{ded} the motion.
M^r Ghorum 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
Judges for their opinions.
M^r Elseworth approved heartily of the motion. The aid of the Judges
will give more wisdom & 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.
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