The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1911-03-07

! vision with authority 10 IN ever
} act of the National legislature pc
fore It shall operate nen NJ
clause was reached on June 4tn, nj
Gerry expressed doubts as TO whethel
/ the judiciary ought to form q par
of this council. In this connection
Mr. Gerry expressed the belief ina
the power Of the judges inVotVsn Z
power Of deciding on the cons.itua Oh
aIity OF q law, and stated tnat H
some States the judges had ctua!
set aside laws as being against Che
Constitution" Mr.. Wilson, of Penn
~syIvania, favored the plan: DR.. FRANK
lin and Mr.. Sherman opposed It.. Ine
discussion took a wide range Ahd cen,
tered around the desirability OF a veto
lin any form. An amendment TO give
limited veto power to the Executive
only was adopted. On June 9th, Mr..
Wilson moved to reconsider the vote
by which the judges were denied the
veto power and h motion was Voteu
down. Again ON July 21st, Mr. VIII
son renewed his motion, which was
again voted down. In each or eneSe
| contests MT. Madison stood by MI.
| Wilson. The advocates Of giving an
absolute veto power to the JUDGES
seemed to dread the Legislature and
urged that the real damage to the
{ >oxBo 90 Oh
in the Legislature to absorb all power
in its vortex" The matter was dis
cussed fully and freely. The main
point Of the opposition to the PROPOSE
ton was not that there should be no
veto power anywhere, but that the
Judiciary should be not mixed with the
executive or legislative branches. and
that the veto should not be absolute.
But the men who either doubted the
ability or feared the poWer Of the
peoples representatives Were not yet
| willing to let the matter rest and
50 on August 18th, Mr.. Madison moved
to make the judges a part Of a u
ell revision This was Mr.. Wilson'S
old motion, three times defeated, in a
tslightly modified form. This time it
was proposed that if either the execu-
tive Or the judiciary should veto a
law, the objection could be overruled
by two-thirds Of each House, but If
both the executive and judiciary We
toed it, three-fourths of each House
| was required to overru1e the objec-
ton. Mr.. Pinkney seemed t. express
the views Of a majority Of the dele
gates when he opposed the interfer-
ence of the judges in the legislative
business" The motion was then final
ly killed, only three States voting for
1T. These efforts were all directed to-
| ward allowing the ourts to pass upon
a law before it should become effective.
After this, namely. on August 9th,
Mr.. Madison seems to have taken a
different view.
The committee Of details reported
La draft of a constitution on August
s. 1887. This draft consisted Of &XIII
Articles. Article x related to the
judicial power of the United States.
}Section 8 Of Article XI contained these
words: 1.-The jurisdiction of the Su-
preme Court shall extend to all cases
arising under the laws passed by the
Legislature Of the United States"
When this section was reached on
August 9th, it was amended so that
the clause just quoted read: 1.-The
judicial power OF the United States
hall extend to all cases, both in law
and equity. arising under this Consti-
tuition, the laws of the United States"
etc.
The final draft of the Constitution.
and as it was adopted, contained the
words quoted. The words under his
Constitution We're inserted on the
motion of Dr. Johnson. Mr.. Madison
doubted whether it was not going too
far to extend the jurisdiction Of the
court generally to cases arising under
the Constitution, and whether it ought
not to be limited to cases Of a judicial
nature In connection with these
proceedings of the Convention. the
| journal says: The motion Of DR..
| Johnson was agreed to, it being gen.
orally supposed that the jurisdiction
given was constructively limited to
eases of a judicial nature" There
seems to be no doubt that the senti-
ment of the Constitutional Convention
was to prevent the courts from ex-
ercising power of a legislative char
acter. This is true even though it
was stated more than once during the
Convention hat courts had the power
to declare an act unconstitutional. It
is exceedingly doubtful whether a ma
jority held such views; in fact. it is
almost certain that they did not.
There was no precedent for it; no
court on the face of the earth out
side of America had ever dared de-
clare a legislative act unconstitutional.
and it is unreasonable to suppose that