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 Gov^r Morris was surprised that any defensive provision for securing
the effectual separation of the departments should be considered as an
improper mixture of them. Suppose that the three powers, were to be
vested in three persons, by compact among themselves; that one was to
have the power of making, another of executing, and a third of judging,
the laws. Would it not be very natural for the two latter after having
settled the partition on paper, to observe, and would not candor oblige
the former to admit, that as a security ag^{st} legislative acts of the
former which might easily be so framed as to undermine the powers of the
two others, the two others ought to be armed with a veto for their own
defence, or at least to have an opportunity of stating their objections
ag^{st} acts of encroachment? And would any one pretend that such a
right tended to blend & confound powers that ought to be separately
exercised? As well might it be said that If three neighbours had three
distinct farms, a right in each to defend his farm ag^{st} his
neighbours, tended to blend the farms together.
M^r Ghorum. All agree that a check on the Legislature is necessary. But
there are two objections ag^{st} admitting the Judges to share in it
which no observations on the other side seem to obviate, the 1^{st} is
that the Judges ought to carry into the exposition of the laws no
prepossessions with regard to them. 2^d that as the Judges will
outnumber the Executive, the revisionary check would be thrown entirely
out of the Executive hands, and instead of enabling him to defend
himself, would enable the Judges to sacrifice him.
M^r Wilson. The proposition is certainly not liable to all the
objections which have been urged ag^{st} it. According (to M^r Gerry) it
will unite the Executive & Judiciary in an offensive & defensive
alliance ag^{st} the Legislature. According to M^r Ghorum it will lead
to a subversion of the Executive by the Judiciary influence. To the
first gentleman the answer was obvious: that the joint weight of the two
departments was necessary to balance the single weight of the
Legislature. To the 1^{st} objection stated by the other Gentleman it
might be answered that supposing the prepossession to mix itself with
the exposition, the evil would be overbalanced by the advantages
promised by the expedient. To the 2^d objection, that such a rule of
voting might be provided in the detail as would guard ag^{st} it.
M^r Rutlidge thought the Judges of all men the most unfit to be
concerned in the revisionary Council. The Judges ought never to give
their opinion on a law till it comes before them. He thought it equally
unnecessary. The Executive could advise with the officers of State, as
of war, finance &c. and avail himself of their information & opinions.
On Question on M^r Wilson's motion for joining the Judiciary in the
Revision of laws it passed in the negative--
Public-domain text, read in full here on John Shaqi.
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