History of the United States of America, from the Discovery of the Continent - Vol. 6

By George Bancroft | Go to book overview

CHAPTER X.
THE FEDERAL JUDICIARY.
AUGUST AND SEPTEMBER 1787.

THE resolution on the federal judiciary which went from the convention to the committee of detail purposely described the extent of its jurisdiction in vague and general terms. The very able lawyers on that committee, Rutledge, Wilson, Randolph, and Ellsworth, proceeding with equal boldness and precision, shrinking from aggressions on the rights of the states and yet entertaining efficient and comprehensive designs, brought in a report, which caused little diversity of opinion, and was held to need no essential amendment. But on one point they kept silence. A deeply-seated dread of danger from hasty legislation pervaded the mind of the convention; and Mason, Madison, and others persistently desired to vest in the supreme court a revisionary power over the acts of congress, with an independent negative, or a negative in conjunction with the executive. Though the measure had been repeatedly brought forward and as often put aside, Madison, on the fifteenth of August, proposed once more that “Every bill which shall have passed the two houses shall, before it becomes a law, be severally presented to the president of the United States, and to the judges of the supreme court, for the revision of each;”* the veto of the judges not to be overthrown by less than two thirds, nor, if the president joined them, by less than three fourths of each house. He was seconded by Wilson.

Charles Pinckney opposed the interference of the judges in legislation, because it would involve them in the conflict of

* Gilpin, 1332; Elliot, 428.

-348-

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