456

THE GREEN BAG

If his proposition were true that on June 5, June 6, July 21, and August 15 the Federal Convention refused to give this power, which was subsequently assumed, the express terms in the Constitution are not strong enough to meet his argument. It is not, however, true. The votes on June 4, June 6, July 21, and August 15 were upon a quite different proposition, and the debate on them conclusively shows that, so far as the Constitutional Conven tion was concerned, the judicial power to pass on the constitutionality of acts of Congress was intended and believed to have been conferred. "The Documentary History of the Fed eral Constitution" published by the De partment of State in 1900: is within the reach of the humblest library. Its Volume iii, is a reprint with all erasures and inter lineations of Madison's Journal of the Debates in the Convention. The citations below are to Vol. iii, of this official publi cation. No proposal resembling the one de scribed by Judge Clark was made on June 5, but on June 4, 1787, Sec. 8 of Randolph's proposals for a Federal Constitution came up for consideration in committee of the whole. Doc. Hist. Ill, p. 54. It appears on page 18 of the same volume. It was substantially unchanged on the three sub sequent occasions mentioned by Judge Clark when it came before the Convention. It reads as follows : "8. Res'd, that the Executive and a convenient -number of the National Judi ciary ought to compose a council of revi sion with authority to examine every act of the National Legislature before it shall operate and every act of a particular legis lature before a negative thereon shall be final and that the dissent of the said Coun cil shall amount to a rejection unless the act of the National Legislature be again passed, or that of the particular legislature be again negatived by — of the mem bers of each branch."

This "proposal" coming up on June 4, Committee of the Whole, on motion of Gerry of Massachusetts, was postponed by vote of six states to four, in order to take up a sub stitute offered by him that the executive alone be given such powers. This propo sition also failed. In the debate Gerry said, "In some states the Judges had actually set aside laws as being against the Constitution. This was done, too, with general approbation. It was quite foreign to the nature of the office to make them judges of the policy of public measures." Doc. Hist. Ill, p. 55. As appears from page 76 of the same volume, on June 6 James Wilson moved a reconsideration of this postponement of Sec. 8. He was supported warmly by Madison, as was quite natural, the propo sition being supposed to have really ema nated from Madison. The latter has pre served his own speech, p. 77. It seeks to meet the objections, first, that such par ticipation in making the laws will bias the judges in passing on them; and, second, that the departments of government should be kept distinct. The functions of passing on the Constitution as on other laws was assumed throughout, and his effort was to show that this proposed veto power would not interfere with that function. July 2ist, Wilson again brought forward the same proposition as an amendment to a later clause of Randolph's plan and as an additional means for the judges to preserve the independence of the Judiciary. Madi son's account of the debate, pp. 390-399, is extremely interesting. It shows conclu sively that both those who favored and those who opposed the proposition regarded it as something wholly distinct and different from the ordinary functions of a judge. Both sides agree that as judges they will have a negative on the constitutionality of legislation when it comes up in cases before them. (See especially Martin's speech, p. 395 and Mason's, p. 397.) Mason, the Virginia planter, seems es