The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1923-10-24
BY LOWELL MELLETT

never was decided by yes and
mo" vote in the convention which
framed the Constitution.
There were men in the convention
who would have voted yes and men
who would have voted no and many
men who were obviously confused.
Put the opportunity never was offered
for O clear-cut decision
Curiorsly enough, however, a prop
osition very like the one now pro-
l,osed by Senator La Toilette as a
b cans of checking the excessive power
o. the courts was offered by James
Madison with the idea of strengthen
ing the power Of the courts-and was
voted down.
La Toilette would make It possible,
vhen TIE Supreme Court has declared
an act unconstitutional, to re-pass It
and thereby end airy question OF its
oonstitutionality. Madison proposed
mitted to the Supreme Court. as well
as the President, and If either disap-
proved Of any law, Congress would
have to re-pass II by a two-thirds vote
or else II would be void.
Court Strengthened
Throughout the proceedings Of the
convention Madison endeavored to
provide some such power for the
Judges and In this he was assisted by
some Of the ablest members. II they
had conceived that the Federal courts
would assume the right to kill acts Of
Congress on the ground Of unconstitu-
tjcnality 1t is doubtful II they would
have spent as much time laboring TO
strengthen the courts.
The constitutional convention got
under way in the latter part of May,
1897. AS early as June II voted
down a proposal that the Federal Gov
eminent inc. ide a council Of revision,
composed Of the President and the
Supreme Court judges to pass on all
laws enacted by Congress. The CON
vention voted instead. to 2-voting
by states-that the veto power should
rest solely in the President.
Madison Raised Question
Aug. is Madison brought the ques-
ton up again in the form Of the mo-
ton suggested above. II was voted
down. TO 5, Virginia, Delaware and
Maryland voting for II. Charles Pinck-
ney OF South Carolina voiced his OPP
position 10 interference Of judges in
the legislative business"
John Francis Mercer OF Maryland,
9 greeting with Pinckney. remarked
Judges are expositors Of the law and
should have no authority to declare
a law void. Elbr,dge Gerry OF Massa-
chusetts called attention to the fact
II was much the same proposition that
had been voted down In June. Gerry
consistently opposed this measure in
all its forms, though he is quoted as
saying: TN some States the Judges
had actually set aside laws as being
against the Constitution This was
done, too. with general appreciation.
John Dickerson. saying he was
strongly impressed with Mr.. MERGERS
remark as to the power OF the Judges
TO set aside law. declared he thought
no such power ought 10 exist
George Mason, Virginia, on the
other hand. seemed to have no doubt
the Judges would be able TO declare
laws unconstitutional. "In their ex-
pository capacity as judges" he said.
they would have a negative. They
could declare an unconstitutional law
void"
Relied on Congress
On another occasion Gerry, oppos-
ing the council OF revision, said: ut
was making statesmen Of the Judges
and setting them up as guardians OF
the people" He relied for his part,
he said. on the representatives of the
people as guardians of their rights
and interests.
Through the debates there ran a
note OF fear on the part OF some men,
bers the Legislature might become too
strong, fear OF democracy somewhat
like that recently expressed by U. 8.
Solicitor General James NJ. Beck be-
fore q bankers' convention in Atlantic
City.
seeking a postponement of the ques-
ton after its defeat was assured, said
he couldn't agree that the judiciary,
which is part of the executive"
should be bound to say that direct
violation of the Constitution was law.
Roger Sherman, Connecticut, an
nounced he disapproved OF Judges
meddling in politics or parties, aS he
conceived would be tho case II the
Supreme Court judges shared in the
veto Of laws.
Still later, James Wilson Of Penn
sylvania, afterward a member of the
United States Supreme Court,
brought the proposal up once again.
by John Rutledge Of
South Carolina and oliver Ellsworth
Of Connecticut, that proceedings were
being delayed. prevented reconsidera-
ton. A motion to postpone, so that
It might be brought up at a later
Say, was defeated. only Maryland and
Delaware supporting it.
Veto Solely With President
This same day. Aug. 16. the conven-
ton voted to lodge the veto power
solely in the executive. Hugh William
son Of North Carolina, remarked that
there was no danger in this. He pre-
rerred it, he said, to admitting the
judges into the business of legislation.
Which was about the last word said
on the subject In the convention that
framed the United States Constitution.
Or, at least, the last word found in the
official reports Of it's proceedings.