Saturday July 21, 1787
Mr. WILLIAMSON moved that the “Electors of the Executive should be paid out of the National Treasury for the Service to
be performed by them." Justice required this as it was a national service they were to render. The motion was agreed to Nem
Mr. WILSON moved as an amendment to Resolution 10. “That the supreme National 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 against 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.
Mr. MADISON 2nded. the motion.
Mr. 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 defense, 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.
Mr. ELSEWORTH approved heartily of the motion. The aid of the Judges will give more wisdom and firmness to the
Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive can not be expected
always to possess. The law of Nations also will frequently come into question. Of this the Judges alone will have competent
Mr. MADISON considered the object of the motion as of great importance to the meditated Constitution. It would be useful
to the Judiciary department by giving it an additional opportunity of defending itself against Legislative encroachments. It
would be useful to the Executive by inspiring additional confidence and firmness in exerting the revisionary power. It would
be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity and
technical propriety in the laws, qualities peculiarly necessary, and yet shamefully wanting in our republican Codes.
It would moreover be useful to the Community at large as an additional check against a pursuit of those unwise and unjust
measures which constituted so great a portion of our calamities. If any solid objection could be urged against the motion, it
must be on the supposition that it tended to give too much strength either to the Executive or Judiciary.
He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding
this cooperation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had
evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the
American Constitutions, and suggested the necessity of giving every defensive authority to the other departments that was
consistent with republican principles.
Mr. MASON said he had always been a friend to this provision. It would give a confidence to the Executive, which he would
not otherwise have, and without which the Revisionary power would be of little avail.
Mr. GERRY did not expect to see this point which had undergone full discussion, again revived. The object he conceived of
the Revisionary power was merely to secure the Executive department against legislative encroachment. The Executive
therefore who will best know and be ready to defend his rights ought alone to have the defense of them.
The motion was liable to strong objections. It was combining and mixing together the Legislative and the other departments. It
was establishing an improper coalition between the Executive and Judiciary departments. It was making Statesmen of the
Judges, and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the
people as the guardians of their Rights and interests. It was making the Expositors of the Laws, the Legislators which ought
never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pennsylvania, a person
or persons of proper skill, to draw bills for the Legislature.
Mr. STRONG thought with Mr. Gerry that the power of making ought to be kept distinct from that of expounding, the laws.
No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they
had taken, in framing the laws.
Mr. Govr. MORRIS. Some check being necessary on the Legislature, the question is in what hands it should be lodged. On
one side it was contended that the Executive alone ought to exercise it. He did not think that an Executive appointed for 6
years, and impeachable whilst in office would be a very effectual check. On the other side it was urged that he ought to be
reinforced by the Judiciary department. Against this, it was objected that Expositors of laws ought to have no hand in making
them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined
by an attention to facts.
The truth was that the Judges in England had a great share in the Legislation. They are consulted in difficult and doubtful
cases. They may be, and some of them are, members of the Legislature. They are or may be, members of the privy Council,
and can there advise the Executive as they will do with us if the motion succeeds. The influence the English Judges may have
in the latter capacity in strengthening the Executive check can not be ascertained, as the King by his influence in a manner
dictates the laws.
There is one difference in the two Cases however which disconcerts all reasoning from the British to our proposed
Constitution. The British Executive has so great an interest in his prerogatives and such powerful means of defending them
that he will never yield any part of them. The interest of our Executive is so inconsiderable and so transitory, and his means of
defending it so feeble, that there is the justest ground to fear his want of firmness in resisting encroachments. He was
extremely apprehensive that the auxiliary firmness and weight of the Judiciary would not supply the deficiency. He concurred
in thinking the public liberty in greater danger from Legislative usurpations than from any other source.
It had been said that the Legislature ought to be relied on as the proper Guardians of liberty. The answer was short and
conclusive. Either bad laws will be pushed or not. On the latter supposition no check will be wanted. On the former a strong
check will be necessary: And this is the proper supposition. Emissions of paper money, largesse to the people, a remission of
debts and similar measures, will at some times be popular, and will be pushed for that reason At other times such measures
will coincide with the interests of the Legislature themselves, and that will be a reason not less cogent for pushing them. It
may be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The
press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether.
Mr. L. MARTIN. Considered the association of the Judges with the Executive as a dangerous innovation; as well as one
which could not produce the particular advantage expected from it. A knowledge of Mankind, and of Legislative affairs
cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of laws,
that point will come before the Judges in their proper official character. In this character they have a negative on the laws.
Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary
should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating against
popular measures of the Legislature. Besides in what mode and proportion are they to vote in the Council of Revision?
Mr. MADISON could not discover in the proposed association of the Judges with the Executive in the Revisionary check on
the Legislature any violation of the maxim which requires the great departments of power to be kept separate and distinct. On
the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments
on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be
superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of
powers and interests, as will guarantee the provisions on paper.
Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be
separate and distinct, it was proposed to add a defensive power to each which should maintain the theory in practice. In so
doing we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular
example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in
the legislature, and in the Executive Councils, and to submit to their previous examination all laws of a certain description, but
it was a part of their Constitution that the Executive might negative any law whatever; a part of their Constitution which had
been universally regarded as calculated for the preservation of the whole.
The objection against a union of the Judiciary and Executive branches in the revision of the laws, had either no foundation or
was not carried far enough. If such a Union was an improper mixture of powers, or such a Judiciary check on the laws, was
inconsistent with the Theory of a free Constitution, it was equally so to admit the Executive to any participation in the making
of laws, and the revisionary plan ought to be discarded altogether.
Col. MASON Observed that the defense of the Executive was not the sole object of the revisionary power. He expected even
greater advantages from it. Notwithstanding the precautions taken in the constitution of the Legislature, it would still so much
resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining
power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws; but
would discourage demagogues from attempting to get them passed.
It had been said [by Mr. L. Martin] that if the Judges were joined in this check on the laws, they would have a double
negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they
could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to
every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under
the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in
preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in
their true principles, and in all their consequences.
Mr. WILSON. The separation of the departments does not require that they should have separate objects but that they should
act separately though on the same objects. It is necessary that the two branches of the Legislature should be separate and
distinct, yet they are both to act precisely on the same object.
Mr. GERRY had rather give the Executive an absolute negative for its own defense than thus to blend together the Judiciary
and Executive departments. It will bind them together in an offensive and defensive alliance against the Legislature, and render
the latter unwilling to enter into a contest with them.
Mr. Govr. 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 against 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 defense, or at least to
have an opportunity of stating their objections against acts of encroachment? And would any one pretend that such a right
tended to blend and confound powers that ought to be separately exercised? As well might it be said that if three neighbors
had three distinct farms, a right in each to defend his farm against his neighbors, tended to blend the farms together.
Mr. GHORUM. All agree that a check on the Legislature is necessary. But there are two objections against admitting the
Judges to share in it which no observations on the other side seem to obviate. The first, is that the Judges ought to carry into
the exposition of the laws no prepossessions with regard to them. Second, 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.
Mr. WILSON. The proposition is certainly not liable to all the objections which have been urged against it. According [to Mr.
Gerry] it will unite the Executive and Judiciary in an offensive and defensive alliance against the Legislature. According to Mr.
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
first 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 second objection, that such a
rule of voting might be provided in the detail as would guard against it.
Mr. 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, etc., and avail himself of their information and opinions.
On question on Mr. Wilson's motion for joining the Judiciary in the revision of laws it passed in the negative: Massachusetts,
no; Connecticut, aye. New Jersey, not present. Pennsylvania, divided; Delaware, no; Maryland, aye; Virginia, aye; North
Carolina, no; South Carolina, no; Georgia, divided.
Resolution 10, giving the Executive a qualified veto without the amendment, was then agreed to nem con.
The motion made by Mr. Madison July 18, and then postponed, “that the Judges should be nominated by the Executive and
such nominations become appointments unless disagreed to by 2/3 of the 2nd branch of the Legislature," was now resumed.
Mr. MADISON stated as his reasons for the motion. (1) That it secured the responsibility of the Executive who would in
general be more capable and likely to select fit characters than the Legislature, or even the 2nd branch of it, who might hide
their selfish motives under the number concerned in the appointment. (2) That in case of any flagrant partiality or error, in the
nomination it might be fairly presumed that 2/3 of the 2nd branch would join in putting a negative on it. (3) That as the 2nd
branch was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be
composed of equal votes from all the States. The principle of compromise which had prevailed in other instances required in
this that there should be a concurrence of two authorities, in one of which the people, in the other the States, should be
represented. The Executive Magistrate would be considered as a national officer, acting for and equally sympathizing with
every part of the United States. If the 2nd branch alone should have this power, the Judges might be appointed by a minority
of the people, though by a majority of the States, which could not be justified on any principle as their proceedings were to
relate to the people, rather than to the States; and as it would moreover throw the appointments entirely into the hands of the
Northern States, a perpetual ground of jealousy and discontent would be furnished to the Southern States.
Mr. PINKNEY was for placing the appointment in the 2nd branch exclusively. The Executive will possess neither the requisite
knowledge of characters, nor confidence of the people for so high a trust.
Mr. RANDOLPH would have preferred the mode of appointment proposed formerly by Mr. Ghorum, as adopted in the
Constitution of Massachusetts, but thought the motion depending, so great an improvement of the clause as it stands, that he
anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments.
Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a
title derived from the proper qualifications. The same inconveniencies will proportionally prevail, if the appointments be
referred to either branch of the Legislature or to any other authority administered by a number of individuals.
Mr. ELSEWORTH would prefer a negative in the Executive on a nomination by the 2nd branch, the negative to be overruled
by a concurrence of 2/3 of the 2nd branch to the mode proposed by the motion, but preferred an absolute appointment by the
2nd branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting
unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better
knowledge of characters. He will be more open to caresses and intrigues than the Senate. The right to supersede his
nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.
Mr. Govr. MORRIS supported the motion. (1). The States in their corporate capacity will frequently have an interest staked
on the determination of the Judges. As in the Senate, the States are to vote, the Judges ought not to be appointed by the
Senate. Next to the impropriety of being Judge in one's own cause, is the appointment of the Judge. (2). It had been said the
Executive would be uninformed of characters. The reverse was the truth.
The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The
Executive in the necessary intercourse with every part of the United States required by the nature of his administration, will or
may have the best possible information. (3). It had been said that a jealousy would be entertained of the Executive. If the
Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of Jealousy in
the present case. He added that if the objections against an appointment of the Executive by the Legislature, had the weight
that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature, or by
any part of it.
Mr. GERRY. The appointment of the Judges, like every other part of the Constitution, should be so modeled as to give
satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not
conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him
also a strong objection that 2/3 of the Senate were required to reject a nomination of the Executive. The Senate would be
constituted in the same manner as Congress. And the appointments of Congress have been generally good.
Mr. MADISON, observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. He had given this
form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the
objection last made, and accordingly so varied the motion as to let a majority reject.
Col. MASON found it his duty to differ from his colleagues in their opinions and reasoning on this subject. Notwithstanding
the form of the proposition by which the appointment seemed to be divided between the Executive and Senate, the
appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will
prevent a disagreement to the first nominations.
He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the
Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be
properly brought into this argument. It would operate and require some precautions in the case of regulating navigation,
commerce and imposts; but he could not see that it had any connection with the Judiciary department.
On the question, the motion now being that the executive should nominate, and such nominations should become
appointments unless disagreed to by the Senate".
Massachusetts, aye; Connecticut, no; Pennsylvania, aye; Delaware, no; Maryland, no; Virginia, aye; North Carolina, no; South
Carolina, no; Georgia, no.
On question for agreeing to the clause as it stands by which the Judges are to be appointed by 2d. Branch; Massachusetts, no;
Connecticut. Aye; Pennsylvania, no; Delaware, aye; Maryland, aye; Virginia, no; North Carolina, aye; South Carolina, aye;
|Notes on the Debates in the Federal Convention
By James Madison
July 21, 1787
|The Illinois Conservative