Having reached a tentative agreement on the general framework for the executive and the judiciary departments, today the Convention considered whether the judiciary should be added to the executive to veto laws passed by Congress and the method by which judges should be appointed.
The session began with a noncontroversial motion by Hugh Williamson to pay from the national treasury electors of the executive for their service. “Justice requires it,” he said, “and it is a national service they are to render.” It was agreed to nem. con.
James Wilson then took the floor to propose an amendment to Resolution 10 of the Report of the Committee of the Whole, providing that the executive can veto “any legislative acts, which shall not be afterwards passed unless by two-thirds of each branch of the national government.” Wilson’s motion adds the judiciary to the executive in the “revisionary power.” He acknowledged the proposition had been made earlier and failed, but the issue is so important, he felt compelled to make another effort.
Arguments had previously been made that the judiciary is already empowered to expound on the law when cases come before them. But “this power does not go far enough,” said Wilson. “Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet not be so unconstitutional as to justify the judges in refusing to give them effect. Let the judges have a share in the revisionary power, and they will have an opportunity to take notice of these characteristics of a law, and of counteracting…the improper views of the legislature.”
Oliver Ellsworth and James Madison supported Wilson, Ellsworth asserting that the judges “will possess a systematic and accurate knowledge of the laws, which the executive cannot be expected to always possess.” This would be particularly true of international law. Madison believes inclusion of the judiciary in the veto process benefits both the judiciary and the executive branches. “It would be useful to the judicial department by giving it an additional opportunity of defending itself against legislative encroachments,” he said, and “useful to the executive, by inspiring additional confidence and firmness in executing the revisionary power.” Madison took it even further: it would even be “useful to the legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity and technical propriety in the laws…shamelessly lacking in our republican codes.”
Arguments against the proposition were formidable, but Elbridge Gerry was not pleased that this point had been raised again, having already “undergone full discussion.” As before, he opposes “combining and mixing together the legislative and the other departments.” It would “establish an improper coalition between the executive and the judiciary;” it was making statesmen of the judges;” and “set them up as the guardians of the rights of the people.” For Gerry, “the representatives of the people are the guardians of their rights and interests.”
Gerry was supported by Luther Martin and Nathanial Gorham. Both men doubt that judges possess any special knowledge about public policy. Moreover, the supreme judicial tribunal will be composed of more than one judge; adding them to the executive to veto legislation disadvantages the executive. As Gorham put it, “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.”
Luther Martin focused on the imbalance of power in the proposal. The judiciary will judge the constitutionality of laws when the laws “come before them 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.” Caleb Strong, an eminent lawyer who had assisted in drafting the Massachusetts constitution, closed the argument. “The power of making ought to be kept distinct from that of expounding the laws,” he began. “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.”
Wilson’s motion for “joining the judiciary in the revision of the laws” failed in a surprisingly close vote, 3 – 4 – 2. Immediately following the vote, the Convention approved nem. con. “giving the executive a qualified veto,” subject to a two-thirds vote of both houses.
Having exhausted arguments for and against the judiciary’s role in the veto process, the delegates spent the rest of the afternoon considering who should appoint judges. The Report of the Committee of the Whole assigned the responsibility to the 2nd branch of the government. Three days ago, Madison proposed an alternative - that they be nominated by the executive and that “such nominations become appointments unless disagreed to by two-thirds of the 2nd branch of the legislature.” The executive would, in general, he said, be more capable than the legislature to select the best people. It his selection was “flagrantly partial or in error,” the Senate would be in a position to end it.
Not everyone agreed. Ellsworth preferred the Senate nominate and the executive be empowered to veto the nomination; then permit the Senate to override the executive veto by two-thirds. The executive, he believes, “will be more open to caresses and intrigues than the Senate.”
Gouverneur Morris supported Madison’s motion. “If the executive can be safely trusted with the command of the army,” he said, surely he can be trusted with judicial nominations, but Madison’s motion failed, and the Convention favored the Report’s proposal by 6 – 3.