Attachment 2572
It is a singular fact that the most significant single piece of evidence that the Framers excluded the judiciary from policymaking—rejection of their participation in a Council of Revision of legislation—went unnoticed by bench and bar until it was called to their attention by a political scientist, Benjamin F. Wright.
Not the least remarkable aspect of judicial neglect of this history is that it should finally be invoked by Justices Black (1965) and Douglas (1968), oblivious to the shattering effect that it has on their own sweeping policymaking decisions.
Edmund Randolph proposed in the Convention that the President, “and a convenient number of the National Judiciary, ought to compose a council of revision” to examine every act of Congress and by its dissent to constitute a veto. When his fellow Virginian George Mason argued for judicial participation in the presidential veto, he recognized that judges already 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 further use to be made of the Judges, of giving aid in preventing every improper law.
A similar differentiation was drawn by James Wilson:
Quote:
Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet be not so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power [in order to “counteract” ] the improper views of the Legislature.
Despite the fact that the proposal had the support of Madison, and, therefore, of perhaps the most influential trio in the Convention, it was rejected for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking. Nathaniel Gorham saw no “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.” Elbridge Gerry, one of the most vigorous advocates of judicial review, opposed judicial participation in the Council:
It was quite foreign from the nature of ye office to make them judges of the policy of public measures . . . 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.
Source: Government by Judiciary: The Transformation of the Fourteenth Amendment (1997).
