The Evolution of Judicial Review Part Two: The Constitutional Convention

 

Table 1: Judicial and Legal Aspects of the Four Plans Developed at the Constitutional Convention

Aspects	The Virginia Plan (Randolph) [1]	The South Carolina Plan (Pinckney) [2]	The New Jersey Plan (Paterson) [3]	The New York Plan (Hamilton) [4]
Federal Judiciary Structure	Bifurcated with multiple supreme tribunals and an indeterminate number of inferior courts.	Bifurcated with a single supreme tribunal and an indeterminate number of inferior courts.	Bifurcated with a single supreme tribunal and an indeterminate number of inferior courts.	Bifurcated with a single supreme tribunal and an indeterminate number of inferior courts including a number of specialty courts.
Nomination/Appointment Process	Judges are appointed by the national legislature.	Judges are appointed by the Senate.	Judges are appointed by the national executive.	Judges are nominated by the national executive and subject to confirmation by the Senate.
Judicial Tenure	Judges remain on the bench during good behavior without set term limits.	Judges remain on the bench during good behavior without set term limits.	Judges remain on the bench during good behavior without set term limits.	Judges remain on the bench during good behavior without set term limits.
Judicial Salaries	A fixed salary which cannot be altered during the tenure of a judge.	A fixed salary which cannot be altered during the tenure of a judge.	A fixed salary which cannot be altered during the tenure of a judge.	A fixed salary which cannot be altered during the tenure of a judge.
Federal Supremacy Clause	Yes	Although, plan presented by Charles Cotesworth Pinckney did not possess a federal supremacy clause, he supported the development of such a clause [5]	Yes	Yes
Jurisdiction	The supreme court would exercise only appellate jurisdiction in all cases of national concern. Original jurisdiction would be vested in the inferior federal courts.	The supreme court would have original jurisdiction in cases of impeachment, and in cases affecting ambassadors or other public ministers the Jurisdiction. In all other federal cases they would exercise only appellate jurisdiction.	The supreme court would have appellate jurisdiction in all federal questions except impeachments.  The only time the supreme court would have original jurisdiction would be in cases of impeachment.  In all other federal cases original jurisdiction would vest in the inferior courts with trials being adjudicated according to common law.	The supreme court would have original jurisdiction in prize and capture cases only, and appellate jurisdiction in revenue cases only.   All other questions would be left to the national courts created by Congress in the various states to address topics of national interest.
Power of Judicial Review	Yes, of federal laws only. Under this plan the national executive and the national judiciary combined to form a council of revision. The power to override conflicting state laws rested with the national legislature.	No, under this plan the power to review acts of the national legislature was vested in the national executive.	None specified.	No under this plan the power of review is left to the chief executives of the several states.
Size	Determined by the legislature.	Determined by the legislature.	Determined by the legislature.	Constitutionally mandated.

 

 On matters of judicial appointments, Governor Randolph of Virginia and General Charles Cotesworth Pinckney of South Carolina [6] favored the idea of granting exclusive power over national judicial appointments to the national legislature. Conversely, James Madison, William Paterson, and James Wilson opposed giving the legislature control over judicial nominations, initially preferring to impart the power over national judicial nominations to the national executive. Compare: the ninth resolve of Governor Randolph’s Virginia Plan [7], advocating vesting the authority over judicial nominations in the national legislature against the fifth resolve of The New Jersey Plan [8] presented by William Paterson. The New York Plan presented by Alexander Hamilton, the only delegate from New York to attend the entire Convention brokered a compromise in that under his plan the members of the supreme court would be appointed by the national executive but would be subject to confirmation by the national legislature.[9]

Another aspect of the proposed judiciary provoked an intense debate that reflected the diversity of views on the part of the delegates attending the Convention was jurisdiction. For example, the New Jersey Plan[10] proposed by William Paterson provided the proposed high court with only appellate jurisdiction, while Virginia Plan [11] advanced by Edmund Randolph granted the supreme tribunal original jurisdiction in cases involving the national interest.  Robert Yates’ summary of Judge James Wilson’s speech comparing and contrasting the Virginia and New Jersey Plans of governance offer a clear summation and contrast between the views of the major participants at the Convention on jurisdictional questions related to national judiciary, see: (Max Farrand, 1 The Records of Federal Convention of 1787 pp. 260-261) (4 vols.) (Max Farrand ed., rev. ed. 1966). Of all the plans presented Hamilton’s proposal was by far the most restrictive in that it would have granted the supreme court original jurisdiction in only prize and capture cases, while, extending its appellate competence to cover only revenue cases, see: Max Farrand, 1 The Records of Federal Convention of 1787 291-292 (4 vols.) (Max Farrand ed., rev. ed. 1966).

 

The right of the national government to override state laws that conflicted with national laws caused some controversy. Benjamin Franklin, James Madison, and Charles Cotesworth Pinckney supported the inclusion of a federal law supremacy clause as a means through which national laws could be enforced uniformly, see: Max Farrand, 1 The Records of Federal Convention of 1787 162-164 (4 vols.) (Max Farrand ed., rev. ed. 1966). Conversely, Elbridge Gerry of Massachusetts and Hugh Williamson of North Carolina opposed the inclusion of a supremacy. Gerry contended that such a grant of power to the federal government was unnecessary on the grounds that he believed remonstrance from the national government to the offending state would be sufficient to keep them in check, and if they remained obdurate that the nation government could use justifiable force to bring about compliance with national laws. Conversely, Williamson argued that such a grant of power to the national government would impinge on the ability of the states to develop their own laws and policies, id: Max Farrand, 1 The Records of Federal Convention of 1787 165 (4 vols.) (Max Farrand ed., rev. ed. 1966).

Between July 24 and July 26, 1787, the delegates to the Constitutional Convention submitted the following resolutions concerning the judiciary to the Committee of Detail

11. Resolved that a national Judiciary be established To consist of One supreme Tribunal. The Judges of which to shall be appointed by the second Branch of the national Legislature. To hold their Offices during good behaviour. To receive, punctually, at stated times a fixed compensation for their services in which no enerease or diminution shall be made so as to affect the Persons actually in Office at the time of such enerease or diminution.

12. Resolved that the national Legislature be empowered to appoint inferior Tribunals.

13. Resolved that the jurisdiction of the national Judiciary shall extend to cases with respect to the collection of the national revenue: impeachments of any national Officers: arising under laws passed by the general Legislature, and to such other questions which as involve the National peace and harmony. (Jensen, Kaminski, & Saladino, 1976, pp. 259-260)

Those delegates favored the inclusion of a supremacy clause won the debate over inclusion after agreeing to leave the details related to the article to the Committee of Leftovers, (The Brearly Committee) tasked with developing proposals to resolve outstanding issues that could not be resolved by the Committee of Detail. Neither of the drafts submitted to the Committee of Style by the Committee of Detail on August 6, 1787, or September 10, 1787, contained provisions for supremacy clause [12], or judicial review.  Interestingly, the topic of judicial review was never raised during the debates of the Constitutional Convention. The only mention of the subject occurred in the notes taken by James Wilson during the proceedings of the Committee of Detail as illustrated by the following passage found in the second volume of The Records of Federal Convention of 1787.

COMMITTEE OF DETAIL IV

 

…. <Insert the 11 Article>

 

(All laws of a particular state, repugnant hereto, shall be void, and in the decision thereon, which shall be vested in the supreme judiciary, all incidents without which the general principles cannot be satisfied shall be considered, as involved in the general principle.) (Max Farrand, 2 The Records of Federal Convention of 1787 p. 144) (4 vols.) (Max Farrand ed., rev. ed. 1967, 144).

 

 

The Brearly Committee decided to include a supremacy clause within the final draft of the proposed constitution, an explicit provision for judicial review was ultimately omitted from the final versions of the text that became Articles II, III, and VI of the Constitution of the United States. The final versions of Article II, Section 2, Paragraph 2[13]  Article III,[14] and Article VI, Clause 2[15] of the Constitution of the United States concerning the appointment of federal judges and the jurisdictional competence of the Supreme Court of the United States, and the supremacy of federal  laws were produced by the Committee of Style, and approved by the Convention as a Committee of the Whole reflected the compromise reached by the Committee of Leftovers, (The Brearly Committee) tasked with developing proposals to resolve outstanding issues.

 

The form of Article III that emerged from the Constitutional Convention endowed the Supreme Court of the United States with original jurisdiction in nine types of cases.

 

1.      Cases concerning federal questions.

2.       Litigation involving foreign dignitaries.

3.      Cases of admiralty and maritime Jurisdiction.

4.      Controversies to which the United States shall be a Party.

5.      Lawsuits between two or more States.

6.      Actions between a State and Citizens of another State; —

7.      Proceedings between Citizens of different States; —

8.      Disputes brought by Citizens of the same State claiming Lands under Grants of different States,

9.      And between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.[16]

 

In all other cases the Supreme Court of the United States was invested with appellate jurisdiction.[17]

 

Under the terms of Article VII, of the Constitution nine states had to ratify the text of nine states before the Constitution would enter into force. New Hampshire became the ninth state to ratify the Constitution approved the Constitution on June 21, 1788, nine months after the Convention closed. Despite the entry into force of the Constitution; adherents and opponents of the new Constitution understood that the failure of Virginia, New York, and North Carolina

to ratify the document would negate any effort to reform the weak confederal government into a stronger more centralized federal form.

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[1] MAX FARRAND 1 The Records of Federal Convention of 1787 20-22(4 vols.) (Max Farrand ed., rev. ed. 1966)

[2] For Pinckney’s Plan of government see: MAX FARRAND 3 The Records of Federal Convention of 1787 595-609(4 vols.) (Max Farrand ed., rev. ed. 1966)

[3] MAX FARRAND 1 The Records of Federal Convention of 1787 242-246(4 vols.) (Max Farrand ed., rev. ed. 1966)

[4] MAX FARRAND 1 The Records of Federal Convention of 1787 291-292(4 vols.) (Max Farrand ed., rev. ed. 1966) and MAX FARRAND 3 The Records of Federal Convention of 1787 619-630(4 vols.) (Max Farrand ed., rev. ed. 1966)

[5] See: MAX FARRAND 1 The Records of Federal Convention of 1787, 164(4 vols.) (Max Farrand ed., rev. ed. 1966).

[6] For Pinckney’s Plan of government see: MAX FARRAND 3 The Records of Federal Convention of 1787 595-609(4 vols.) (Max Farrand ed., rev. ed. 1967).

[7] MAX FARRAND 1 The Records of Federal Convention of 1787 20-22, at 21(4 vols.) (Max Farrand ed., rev. ed. 1966).

[8] MAX FARRAND 1 The Records of Federal Convention of 1787 242-246, at 244(4 vols.) (Max Farrand ed., rev. ed. 1966)

[9] MAX FARRAND 1 The Records of Federal Convention of 1787 291-292(4 vols.) (Max Farrand ed., rev. ed. 1966)

[10] MAX FARRAND 1 The Records of Federal Convention of 1787 242-246(4 vols.)(Max Farrand ed., rev. ed. 1966)

[11] MAX FARRAND 1 The Records of Federal Convention of 1787 20-22, at 21(4 vols.) (Max Farrand ed., rev. ed. 1966).

[12] Jensen, M., Kaminski, J. P., & Saladino, G. J. (Eds.). (1976). The Documentary History of the Constitution: Volume I - Constitutional Documents and Records, 1776-1787 (Vol. One) of Thirty-One. Madison, Wisconsin, United States of America: State Historical Society of Wisconsin.

[13] U.S. Const. art. II § 2, para. 2 (1788)

[14] U.S. Const. art. III  (1788) amended by U.S. Const. amend XI (1795).

[15] U.S. Const. art. VI, cl. 2 (1788).

[16] U.S. Const. art. III  (1788) amended by U.S. Const. amend XI (1795). The Eleventh Amendment restricted the ability of an individual to bring a lawsuit against a state by narrowing the circumstances under which a state could be sued by an individual.

[17] U.S. Const. art. III  (1788) amended by U.S. Const. amend XI (1795).