Next week is Constitution Week — 226 years ago, we ratified the nation’s governing document in Philadelphia
With the constitution the three branches of government were established.
But you may not know that we almost created a fourth.
The main question before the Founders was the proper balance of powers.
Virginia delegate James Madison was obsessively fearful that the will of a majority-directed legislature would swamp the decision-making and oversight powers of the executive and judiciary.
“Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex,” he said.
“This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.”
So he proposed a body that would be capable of reining in any laws the House and Senate put out.
It was called the Council of Revision.
The Council would comprise elements of the executive and judiciary, and would have the authority to, “examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final.”
If Council dissented, the law would be vetoed and sent back.
Future Supreme Court Justice (perhaps not coincidentally) James Wilson also supported the proposal:
“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.”
The pair tried three different times.
Luckily, all three times they were rebuffed.
Massachusetts delegate Elbridge Gerry pointed out the obvious flaw in the proposal: that it would turn judges into lawmakers. “He relied for his part on the Representatives of the people as the guardians of their Rights & interests,” he said.
South Carolina’s John Rutledge articulated the point the would become law: ” The Judges ought never to give their opinion on a law till it comes before them.”
On its final vote, the measure was narrowly defeated 4-3, with three de facto abstentions.
One amusing footnote is that 171 years later, in 1958, the French decided they needed such a council. But it took another 10 years for them to figure out exactly what it’s role should be.
Which maybe shows that, in this rare instance, Madison was probably wrong.
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