The Courts and a secret "Shadow Government"?
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In 1914, the constitutional historian Horace Davis proposed that the absence of any explicit reference to judicial review in the Constitution could be ascribed to its tacit rejection by most Convention delegates. These delegates presumably kept judicial review out of the Constitution to prevent excessive federal authority at the expense of state and local governments. In 1938, Charles Beard challenged Davis's thesis by documenting how the majority of convention delegates advocated judicial review at one time or another in their careers. If they could be quoted as having supported judicial review on later occasions, Beard argued, they cannot be assumed to have opposed it at the Convention. Seeking a compromise between Davis and Beard's position, Edward Corwin correctly observed in 1963 that the doctrine of judicial review existed in ovo during the midseventeen eighties (Doctrine, 623), suggesting that most, if not all, delegates were still groping for answers about the possibility of implementing judicial review. Whatever doubts they might have had about judicial review during the Convention abated after it was implemented.
Charles Haines shared Corwin's thesis and even went so far as to hint the possibility of a conspiracy among delegates with a better sense than others of how judicial review might be used to guarantee federal sovereignty. Without venturing to identify these delegates, he proposed as early as 1932 that there had been method in their silence:
Unfortunately, nobody has tried to reconstruct the effort to adopt judicial review by these "shrewd men of affairs" during the first two years of our republic.
Today, many constitutional historians share Beard's assumption that judicial review was taken for granted at the Convention and therefore did not need to be written into the Constitution. Others, however, have gravitated to the contrary thesis that judicial review was only adopted as an instrument of constitutional authority by Chief Justice John Marshall's 1803 Marbury v. Madison decision. Still others have settled once again into an intermediate position that many delegates might have been aware of judicial review at the Convention, but that its potential benefits very gradually came to their attention over subsequent years, and without any conspiracy having been involved. As Thomas Reed Powell has recently explained, quoting Topsy from Uncle Tom's Cabin, "It [judicial review] just 'growed.'" (3). With marvelous serendipity Hamilton argued its benefits in chapters belatedly added to The Federalist, and its recognition crept into portions of the Judiciary Act and early Supreme Court decisions, but not until Marbury v. Madison did its potential use become obvious. As a result, the single most important instrument of federal sovereignty cropped up almost of its own accord, an afterthought of the Supreme Court almost two decades later.
The alternative view that judicial review might have been sought by some of the Convention delegates but was excluded from the Constitution in order to improve the chances of ratification has never been seriously explored. Leonard Levy, who subscribes to judicial review's belated discovery, mentions this conspiratorial supposition but quickly rejects it because it "lacks evidentiary basis" and because a postponement strategy would have provided too "precarious a foundation" for constitutional law to have been intended by our founders (99). Presumably, the delegates at the Convention were almost entirely ignorant of judicial review when they drafted the Constitution and would not have sought a system of government whose authority would later be enforced by something they did not understand. As the cornerstone of Constitutional law, judicial review was therefore first brought to light by Marshall when he established the right of the Supreme Court to veto federal laws found incompatible with the Constitution.
What I try to demonstrate in the following pages is that a close examination of Convention proceedings does in fact provide ample evidence that a small group of delegates shaped the Constitution to permit the later adoption of judicial review, but that they did this without making any specific provision for judicial review, probably to avoid both judicial review's explicit rejection at the Convention and the Constitution's rejection by state ratifying conventions. Like Madison's illfated notion of congressional review, judicial review would have been perceived as a nationalist strategy to produce centralization at the expense of state sovereignty. Just as Madison's proposal was repeatedly defeated at the Convention, judicial review could be expected to be voted down either at the Convention or, once incorporated into the Constitution, at state ratifying conventions through the rejection of the Constitution in its entirety. As it stands, the Constitution barely gained passage in several of the ratifying conventions, and the issue of judicial review might well have tipped the balance against its acceptance. Delegates who supported judicial review at the Convention were fully aware of this likelihood, so it was their prudent choice to resort to a postponement strategy.
Many delegates did in fact oppose judicial review, and, as both Corwin and Levy have insisted, most other delegates were only beginning to fathom its potential use as an instrument of federal sovereignty. However, as I shall try to demonstrate, there was in fact a small minority who already recognized the potential benefits of judicial reviewdelegates with more than ordinary expertise in the law (James Wilson, William Paterson, and John Dickinson) and four of the eight delegates with experience as judges under the Articles of Confederation (John Rutledge, Roger Sherman, Oliver Ellsworth, and William Samuel Johnsonthe latter three from Connecticut). A careful examination of the records of the Convention suggests that this small nucleus of delegates fell into a tacit, loosely coordinated strategy of making early preparations for judicial review while preventing its discussion in order to facilitate its later adoption, not having been rejected in Convention deliberations.
When the Committee of Detail was chosen to draft the Constitution, three of its five members Wilson, Rutledge, and Ellsworth belonged to this nucleus, and as a majority these three probably led committee deliberations in honing the language needed in the Constitution to permit a vertical integration of state and federal courts for later giving the Supreme Court the power of judicial review to overturn state laws. By late August, Rutledge and Johnson gained the passage of additional amendments for this purpose, and Wilson quickly and perhaps spontaneouslytried to cap their successes by proposing an amendment overlooked by Constitutional historians that would in fact have installed judicial review in the Constitution itself. However, for reasons left unexplained in Madison's Notes, Wilson suddenly withdrew his amendment without acknowledging his intentions. It is my supposition that Wilson was brought to his senses by others in the nucleus, who, like the opponents of judicial review, sought to keep judicial review off the agenda, but with the entirely different purpose of postponing its adoption until the Constitution was ratified. Two years later, in the first session of the U.S. Senate, Ellsworth led debate in obtaining the passage of the Judiciary Act, in which a long involuted sentence in Section 25, probably drafted by Ellsworth himself, mandated judicial review more or less as intended at the Convention.
Was it entirely a coincidence that the Constitution's wording upon the judiciary, by most accounts the vaguest in the entire document, was said by Gouverneur Morris to have been the most jealously defended by unnamed delegates? Or that Madison warned against judicial review when Johnson and Wilson proposed their amendments on August 27? Or that Robert Yates, another Convention delegate experienced as a judge, vigorously warned against the threat of the Constitution as a potential judicial takeover in a series of pamphlets subsequent to the Convention? Or that George Mason, John Randolph, and Luther Martin, fellow delegates who actively participated in Convention proceedings upon the creation of the judiciary, likewise warned of a judicial takeover at their respective state ratifying conventions? Or, in contrast, that at the same time Wilson and Ellsworth enthusiastically defended judicial review at their state ratifying conventions? Or that Ellsworth initiated proceedings to put judicial review into law as soon as possible when the first Congress convened in 1789? Probably not. Yet there has been no systematic effort to trace the origins of judicial review as the outcome of a postponement strategy despite the obvious contradictions that persist in otherwise trying to explain these origins. As a result, the most interestingand perhaps the most importantchapter in the history of judicial review has by and large been overlooked.
2. The Origin of Judicial Review
The use of judicial review to impose the authority of federal courts over both state and federal law was unknown, even unthinkable, at the time of the Constitutional Convention. Judicial review was just beginning to be recognized as a power of state courts, but not as a power of federal courts to overturn both state and federal laws. The relatively primitive authority of courts to overturn particular laws in favor of others was just coming into practice, but this experience offered little preparation for the use of judicial review as an instrument of federal sovereignty. This was an entirely new application of judicial review, and we should not be surprised that convention delegates were unaware of its potential use. In fact, the issue of judicial review had arisen as an issue only a few times in the decade preceding the Constitutional Convention, most notably in New Jersey's Holmes v. Walton case decided in 1780. However, no record of opinion was transcribed for Holmes v. Walton, and it turns out that its justices were falsely accused of having resorted to judicial review (Crosskey, 948; Berger, 40; and Levy, 93). The implications of judicial review were almost as nebulous in other relevant cases, including Trevett v. Weeden in 1786, Bayard v. Singleton in 1787, and the Ten Pounds Case of 178687. Moreover, these precedents applied to the exercise of judicial review in state courts rather than an integrated hierarchy of state and federal courts. The authority of state courts to resolve contradictions among state laws, either in or between particular states, was an entirely different matter from the power of a federal court to veto laws based on their accord with a federal constitution. Without the structure and hierarchy provided by federal authority, the full impact of judicial review exercised by the Supreme Court over state laws could hardly be anticipated.
Preceding the Revolutionary War, colonial laws could be appealed to the Privy Council for a final determination, but there was no clear and binding precedent in English legal history for the veto of laws passed by Parliament itself, since England's common law tradition emphasized Parliament's freedom to pass laws almost completely without judicial constraint. And of course there was no precedent for the veto of laws in conflict with a written constitution, since no such constitution existed. English courts had therefore been limited to a subordinate role in choosing among laws pertinent to given cases, and their decisions could be reversed upon Parliament's passage of new and more relevant laws. The problem was comparable in the former American colonies after the Revolutionary War. Of course, state constitutions and the Articles of Confederation served as written constitutions, but both state and national courts continued to play subordinate roles to their respective legislatures. Federal courts were appointed by Congress, and their decisions could be rescinded by Congress. Their assignment was limited to the adjudication of particular cases without permanently overturning any laws in favor of others. The modest independence they possessed in exercising judicial review was treated as a vestigial benefit from the successful effort of the seventeenth century English jurist, Sir Edward Coke, to emphasize common law precedents. However, by the end of the eighteenth century, even Coke's limited use of judicial review was considered archaic, and Blackstone's bias in favor of parliamentary authority was accepted as the appropriate means of fostering democracy both in Europe and the New World.
In codifying a loose alliance among the American states, the Articles of Confederation took this new and fashionable principle of legislative dominance to an unprecedented extreme. Our nation's sovereignty was almost exclusively vested in Congress, executive authority was all but eliminated, and the national judiciary was reduced to subordinate status as an appendage of legislative government. According to Article IX of the Articles of Confederation, framed in 1778, the jurisdiction of national courts was restricted to admiralty disputes, and Congress appointed these courts for deciding particular cases. For settling disputes among the states, Congress appointed temporary jointcourts with judges from all the states involved. However, like Parliament, Congress enjoyed the power of final appeal: "The united states in congress assembled shall also be the last resort on appeal in all disputes and differences . . . that . . . arise between two or more states concerning boundary jurisdiction or any other cause whatsoever." (Commager, 113italics added) This meant that Congress, whenever it pleased, could revoke decisions of the temporary federal courts which it had created. Only with the political ferment of the early 1780s was it discovered that parliamentary authority alone was insufficient to defend both property rights and legal precedent from the pressure politics of angry populist majorities. As a result, such statesmen as Washington, Hamilton, and Madison wanted to resurrect an executive authority that would be less autocratic than British royalty but strong enough to offset the vulnerability of state legislatures to populist factions. To reinforce this executive authority, they felt it necessary to impose a federal veto over state laws and to create a permanent judiciary able to participate in the veto of federal law. Judicial review would not be implemented per se, but Supreme Court justices would participate along with the President on a council of revision entrusted with rejecting unconstitutional federal laws. Nowhere was it suggested that this power might be given to the courts alone or extended to the veto of state laws as well.
However, such a veto was desperately needed. Most of our nation's political and economic difficulties under the Articles of Confederation resulted from the central government's lack of sovereignty over separate states. Without genuine coercive power, it was unable to collect fiscal levies, settle interstate lawsuits, or eliminate trade wars and unfair interstate tariffs. It could not establish effective diplomatic relations with England, nor could it prevent France and Spain from annexing western lands. It could not stop Rhode Island from printing and circulating a worthless paper currency, and it was forced to resort to invasion when the Shays's rebellion erupted in western Massachusetts.
Washington, Hamilton and Madison felt the only way to eliminate these problems was to unite the excolonies in a stronger federationas much as possible a single nation. Madison emphasized this necessity both in his June 26 speech to the Constitutional Convention and in Number 10 of The Federalist. To impose centralization, Madison argued, the first priority was to bring both state and federal legislative bodies under more effective control, but the structures he proposed excluded judicial review. He wanted to check Congressional excesses by combining the executive and judicial branches in a council of revision empowered to veto unacceptable federal laws, and he wanted to check the excesses of state assemblies by giving Congress the comparable power to veto unacceptable state laws. Federal legislature would predominate over state legislatures, and the countermajoritarian authority of the executive and judicial branchesbut primarily the executive branchwould be imposed as the ultimate and highest stage in this hierarchy.
As Madison explained in his correspondence with Jefferson, Washington, and Edmund Randolph preceding the Constitutional Convention, he felt the single most useful, if potentially controversial, modification in the Constitution would be to give Congress the authority to veto state laws in conflict with the laws and treaties of the federal government (Papers, IX, 318, 36871, and 3828). To guarantee federal sovereignty, he proposed, Congress should be able to review all laws passed by state legislatures and to declare null and void those of them found in conflict with federal policy. In a speech at the Convention on June 8, Madison once again emphasized the absolute necessity of this veto power: "This prerogative of the General Govt. [the congressional veto of state laws] is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political system" (1 Farrand 165). Equipped with the power of review, Congress could impose a consistent rule of law upon the nation as a whole without entirely curtailing the autonomy of particular states. In turn, Congress would be held responsible to a council of revision composed of the President and chosen members of the Supreme Court. Just as Congress could reverse state laws, the council of revision could reverse laws passed by Congress. With the help of this tandem combination of veto powers, both the rule of law and a modicum of federal sovereignty could be guaranteed despite populist control of legislative assemblies at the state and federal levels. The egalitarian benefits of legislature could be retained at both levels, but these would be effectively offset by giving central government final authority in the rule of law, and by establishing at the federal level the power of veto vested in the President and judiciary.
These two central features of Madison's planthe congressional veto of state laws and the veto of federal laws by a council of revisionwere respectively incorporated into Articles 6 and 8 of the Virginia Plan which Randolph submitted to the Constitutional Convention on May 29, 1787. However, both were decisively rejected by fellow delegates afraid of a nationalist takeover. The council of revision was defeated by significant margins on June 4, June 6, July 21, and August 15. Congressional review was unanimously accepted on May 31, but on June 8 it was reconsidered and defeated by a 73 margin, with only Virginia, Pennsylvania, and Massachusetts voting in the affirmative. Twice again, on July 17 and August 23, it was introduced for reconsideration, but in both instances it was defeated, respectively by 73 and 65 margins. The core of Madison's plan was thus repudiated by the very delegates assembled to establish a stronger national government. Madison remained convinced, however, that effective centralization was impossible without imposing adequate constraints upon state and federal legislatures.
With the defeat of Madison's strategy, an entirely different strategy emerged at the Conventionboth excluded from debate and kept from any kind of vote that would have prevented its later implementationto defend federal sovereignty by means of judicial review rather than congressional review. This substitution ultimately meant granting the Supreme Court the power to review and veto (or "negative") both state and federal laws, thus vesting in the Supreme Court alone the function of both Congress and the council of revision as described by the Virginia Plan. In the case of state laws, judicial review would first be performed by state supreme courts, and then, for those laws accepted by these courts as being constitutional, an appeal could be made for a final determination by the federal Supreme Court. Though such an arrangement might be more attenuated, its advantages would include a significant reduction in the number of state laws submitted to review at the federal level and a better modulated balance between state and federal sovereignties. Only state laws that were appealed to the Supreme Court after their acceptance by state courts could be vetoed, so state as well as federal judiciaries would play a role in their rejection.
However, as earlier indicated, this use judicial review to help defend national sovereignty was unknown at the time. Convention delegates who sought to impose judicial review only gradually came to recognize their objectives and how they might be implemented. They also recognized that if judicial review were submitted to a vote at the Convention, it was just as likely to be defeated as Madison's plan for congressional review. Even if judicial review were accepted and incorporated into the Constitution, its threat to states rights would probably have led to the rejection of the Constitution at state ratifying conventions the following year. It is my thesis that these delegates therefore strove to exclude judicial review from debate, postponing its adoption until Congress established inferior federal courts subsequent to the ratification conventions as specified by Article III. At first these delegates resorted to a strategy of omission, leaving gaps in the description of the judiciary to be filled at a later time, but toward the end of the Convention they added wording whose interpretation both encouraged and justified the inclusion of judicial review once the time came to establish these courts. Especially important was the aforementioned amendment Wilson proposed on August 27 that would have fully incorporated judicial review into the Constitution itself. After Wilson withdrew his amendment, John Dickinson proposed a substitute amendment with portions of Wilson's wording that could later be used to justify the establishment of judicial review by Section 25 of the 1789 Judiciary Act. On August 27, it seems, Wilson briefly considered adding judicial review to the Constitution, but then chose to continue the original postponement strategy, setting the stage for the Judiciary Act two years later.
Once the Constitution was accepted by state ratification conventions, the 1789 Judiciary Act was enacted, giving the Supreme Court its "vertical" authority over state laws by permitting state court decisions to be appealed to the federal Supreme Court for a final dispensation. As a concession to antinationalists, state judiciaries were given exclusive original jurisdiction: only those laws which state courts reviewed and accepted as being constitutional could be appealed to the federal Supreme Court. If state courts rejected a law as being unconstitutional, it could not be reexamined by the federal Supreme Court. Nevertheless, the Supreme Court was granted final jurisdiction at least in accepting the constitutionality of state laws, and this alone, it turns out, provided adequate defense of federal sovereignty, if with less authority than what Madison had sought by means of congressional review. Sixteen years later, Chief Justice Marshall's famous 1803 Marbury v. Madison decision likewise imposed the Supreme Court's "horizontal" power of veto over federal laws passed by Congress. The presidential veto could be exercised during the passage of a law, but once a law was signed by the President, only the Supreme Court could review and overturn it. This final power of review granted to the Supreme Court was already implicit in both the "arising under" clause of Article III in the Constitution and the first clause in Section 25 of the Judiciary Act, but it was Marshall's decision that set the stage for its acceptance as official federal policy.
The postponement in imposing judicial review apparently emerged both by chance and by design. As earlier indicated, the concept of judicial review in determining whether laws accord with a written constitution was just beginning to be understood by the time of the Convention. As a result, the possibility of substituting judicial review for congressional review in order to guarantee federal sovereignty was almost inconceivable to most delegates at the Convention. At first the steps taken that permitted the later imposition of judicial review seem to have been unintended, certainly by the majority of Convention delegates. However, to the extent that a small minority of delegates fell into a cooperative strategy toward this end, their effort may be described as having been at least partly deliberate, as much a matter of serendipity as preconcerted planningcall it an accidental conspiracy. These delegates apparently forsaw the benefits of judicial review earlier than others and possessed the tactical flexibility to make the necessary moves toward its potential implementation at a later date. They cannot be said to have brought into play an intricate strategy they fully understood, but there is ample evidence that they strove to keep possibilities open once judicial review seemed advantageous.
On August 13, Dickinson of Delaware, who played a cooperative role in setting the stage for judicial review, recommended the pragmatic value of makeshift innovations based on experience:
Experience must be our only guide. Reason may mislead us. It was not reason that discovered the singular & admirable mechanism of the English Constitution. It was not reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give [sic] a sanction to them. This is then our guide. (2 Farrand 278)
3. The Principal Architects of Judicial Review
If a strategy to postpone and thus improve the chances of implementing judicial review emerged during the Convention, it was either ignored or opposed by the founders usually credited with having forged the Constitution. Such figures as Washington and Franklin did not address themselves to the issue of judicial review beyond Franklin's criticism of the committee of revision: "it would be improper to put it in the hands of any Man to negative a Law passed by the Legislature because it would give him the controul of the legislature" (1 Farrand 109). His comment was probably intended to apply to judges as well as members of the executive branch. Hamilton's input at the Convention was mostly counterproductive. Portions of his wording to describe the judiciary in his abortive Hamilton Plan seem to have been incorporated into the first draft of the Constitution, but his recommendation that the power of review over state laws be exercised by state governors was totally disregarded by fellow delegates. Hamilton was discouraged by the hostile reception to his June 18 speech and by his isolation and unavailing minority status in the New York delegation. He therefore departed from Philadelphia on June 29 and stayed away, except for brief visits, until early September, when the success of the Constitutional Convention was virtually guaranteed. As a result, he was absent when the wording of Articles III and VI was debated on the powers of the judiciary. His principal contribution came later, when he belatedly added six insightful chapters upon the federal judiciary (Numbers 78 to 83) to the 1788 bound edition of The Federalist. These were valuable in anticipating the Judiciary Act, but his arguments should not be treated as having been guidelines which were followed in drafting it, since the essential features of judicial review were already familiar to the Convention delegates who were responsible for relevant portions in the Constitution and who would later play a role in framing the 1789 Judiciary Act.
Madison was ambivalent about judicial review and more often than not opposed to it. Throughout the Convention and most of his subsequent career, he harbored serious doubts about judicial authoritydoubts which can possibly be traced to his Princeton education in theology rather than the law, as compared to the legal training of such classmates as Oliver Ellsworth, William Paterson, Luther Martin, and Aaron Burr. At the Convention, Madison sought to create an effective but circumscribed judiciary by restricting the veto of Supreme Court justices to their participation on the council of revision. As he explained in a letter to James Monroe in 1817, thirty years later, he had advocated this plan at the Convention at least partly to avoid giving the Supreme Court an exclusive and final power to review federal laws (3 Farrand 424). Ironically, he wanted to curtail the power of the judiciary by limiting it to a role on the council of revision, while Luther Martin and others wanted to do this by keeping it off the council of revision. Their goals were the samea strong but constrained judiciarybut their strategies were entirely different. On June 20, 1787, at an early stage in Convention proceedings, Jefferson had written Madison from France, explaining that judicial review would be more selective, and therefore more practical, than congressional review as a check upon state laws (Papers, X, 64). Jefferson did not clarify whether he felt that state or federal courts should be used, and there is no evidence that Madison discussed Jefferson's proposal with those who promoted judicial review at the Convention.
On July 23, Madison seems to have conceded the inevitability of judicial review ("A law violating a constitution established by the people themselves, would be considered by the Judges as null & void"), but on August 27 he expressed his doubts, and twice again, on August 28 and September 12, he reaffirmed his preference for congressional review over judicial review. On the latter occasion, for example, he argued that state tariffs might be controlled by the federal government through the jurisdiction of the Supreme Court as "the source of redress." Nevertheless, he warned that in his own opinion, ". . . this was insufficient. A [congressional] negative on the State laws alone could meet all the shapes which these could assume" (2 Farrand 589also 93 and 430). Madison wanted to create effective federal courts without the power of judicial review, and he remained critical of judicial review during the Convention and throughout his later career (3 Farrand 136, 516, 523, 527).
Less eminent were the half dozen delegates who may be identified as having actively sought to implement judicial review during the two years spanning the Constitutional Convention, the 1788 state ratifying conventions, and the First Congress of 1789. As already indicated, these included James Wilson of Pennsylvania, John Rutledge of South Carolina, William Paterson of New Jersey, and Roger Sherman, Oliver Ellsworth, and William Samuel Johnson of Connecticut. All but Wilson and Rutledge belonged to the original leadership of the smallstate coalition, and Rutledge helped to bring the small southern states into this coalition by early June. For business reasons, Paterson left the Convention on June 29, and Ellsworth on August 24, but their support was firm and they would later work to impose judicial review in the 1789 Congress.
James Wilson began as a close ally of Madison and later played an effective role in the federalist coalition which combined the smallstate leadership with most of the leadership of Madison's original coalition. Wilson was widely respected for both his legal education in Scotland and his expertise in the law, reputed to be best in America. His importance at the Convention was also enhanced by his friendly relations with Rutledge and by his personal friendship with Robert Morris, reputed to be the principal financier of the Revolutionary War. Through Morris, who hosted Washington during the Convention, Wilson could work in a productive relationship with Madison and others of the Virginia delegation.
John Rutledge, a hero of the Revolutionary War and the former governor of South Carolina, played an important role as a southern delegate in Madison's coalition who was able to balance his regional allegiance with his recognition of South Carolina's shared interests with northern small states. Preceding the Convention, Rutledge engaged in business relations with Wilson, and for the first few weeks of the Convention he resided at Wilson's house in Philadelphia. This association, combined with his tactical alliance with the Connecticut and New Jersey delegations, undoubtedly helped to bridge the gap between the large and small state interests in the final stages of the Convention.William Paterson had served as New Jersey's Attorney General when judicial review was first brought to public attention in the 1780 Holmes v. Walton case decided in New Jersey. He also seems to have been on friendly terms with Ellsworth since their association in a Princeton debating club (Brown, 20). His jocular letter to Ellsworth during the Convention could only have been written by an old friend (4 Farrand 73).
Connecticut's three delegates, Roger Sherman, Oliver Ellsworth, and William Samuel Johnson, consistently worked as a team during the Convention. Sherman and Ellsworth were close friends, and all three had served on the Connecticut Supreme Court. Their effective cooperation with each other in convention deliberations was perhaps the most obvious in their campaign to impose the July 16 Connecticut Compromise which provided for Senators elected by state legislatures and Representatives by popular ballot. To seal this compromise, they enlisted the support of southern states in exchange for their own support on the slavery issue, Ellsworth by having given two ringing speeches supportive of slavery. Without these linked compromisesthe tacit agreement on slavery and the Connecticut Compromisethe entire Convention would probably have failed. Later the three Connecticut delegates worked together to establish a federal judiciary they could accept. At first they had resisted modifications that would strengthen it, but they reversed themselves once the Connecticut Compromise gave small states the share of power they demanded in the federal government. Sherman had more or less taken the lead when they opposed a strong judiciary, but Ellsworth emerged with a leadership role of his own when they changed their minds and supported it. Sherman stated as late as August 15 that he disapproved of judges "meddling in politics and parties," but Ellsworth had much earlier advocated strengthening the judiciary, for example declaring on July 21 his full support of the council of revision promoted by Madison:
The aid of the Judges will give more wisdom & firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive can not be expected always to possess. Of this the Judges alone will have competent information. (2 Farrand 73)
As the senior member of the Connecticut delegation, Sherman was conspicuous in debate and addressed most of the issues on which the Connecticut delegation were in full agreement. Johnson rarely took the floor, but he enjoyed the singular status of having received an honorary Ph.D. in law from Oxford. He may also be credited with having proposed the key amendment that set the stage for the Supreme Court's judicial review of both state and federal law. Finally, Ellsworth turns out to have played a pivotal roleperhaps the most important of allin having participated on the Committee of Detail that first drafted the Constitution and in having later taken the lead in drafting and forcing the passage of the 1789 Judiciary Act. Like Sherman, Ellsworth had served on the Continental Congress's Court (or Committee) of Appeals, the predecessor of the Supreme Court under the Articles of Confederation. During Ellsworth's service with this Committee, its failure to resolve the celebrated Olmstead Case (in which Wilson served as counsel for General Benedict Arnold) exposed the central government's inadequate sovereignty over state governments. At the Convention, Ellsworth played a subordinate role to Sherman and remained silent in floor debate until his proposal was unanimously accepted on June 20 to remove the word national from the Constitution. Its connotations of central authority offended smallstate delegates, so the problem could be resolved, Ellsworth suggested, by identifying the political entity to be created as "the United States." Capital letters would be added to the nation's generic description first used by Paine and later in both the Declaration of Independence and the Articles of Confederation, thus giving the new coalition of states its appropriate name linked with its historic origins. Soon Ellsworth was in the thick of debate leading to the Connecticut Compromise, his particular version having finally been adopted, and toward the end of July he was elected to the Committee of Detail.
In the first two months of the Convention, all except Wilson among these delegates belonged to the smallstate faction opposed to a strong national government, but once the Connecticut Compromise was accepted they too became ardent nationalists. The impact of their recruitment favorable to the Constitution's eventual passage was later suggested by George Bancroft:
From the day when every doubt of the right of the smaller states to an equal vote in the senate was quieted, theyso I receive it from the lips of Madison, and so it appears from the recordsexceeded all others in zeal for granting powers to the general government. Ellsworth became one of its strongest pillars. Paterson of New Jersey was for the rest of his life a federalist of federalists. (4 Farrand 8889)
The benefits of this realignment were plain by early August, when these delegates (excluding Paterson, who had already left the Convention) joined in an expanded coalition with delegates from the largestate faction who accepted the Connecticut Compromise. Many of the original leadership in Madison's coalition were lawyers in their midthirties (or younger, as in Charles Pinckney's case) who were eloquent but relatively impatient of detail. Averaging at least a decade older (Sherman was sixtysix years old, Johnson sixty, Dickinson fiftyfive, Rutledge fortyeight, and Ellsworth and Paterson fortytwo), these smallstate spokesmen were less interested in expounding their views than in obtaining their objectives as guaranteed by the precise wording of the Constitution. The status and experience of Rutledge and the three Connecticut delegates as state supreme court justices also put them in a special elite at the Convention. Over half the fiftyfive delegates had legal experience, but not more than eight had served as court justices, four of whom belonged to this nucleus. Significantly, another state justice at the ConventionRobert Yates of New Yorklater wrote pamphlets attacking the Constitution because he felt it would eventually give too much power to the judiciary. With his background on the bench, he fully understood the importance of judicial review as a source of federal power. The only difference was that he opposed its implementation.
As the Convention advanced, these five delegatesRutledge, Paterson, Sherman, Ellsworth, and Johnsonfell into loose confederation with Wilson (who was fortyfive years old), working in combinations of two, three, and even four to set the stage for the eventual acceptance of judicial review. All were experts in lawfour of them (Rutledge and the three Connecticut delegates) with experience as justices of state supreme courts, two (Sherman and Ellsworth) with experience on the Continental Congress's Court (or Committee) of Appeals. The success of their effort benefitted from the participation of Wilson, Rutledge, and Ellsworth on the Committee of Detail which first drafted the Constitution, by the close teamwork among the Connecticut delegation, by the tactical alliance between Rutledge and the Connecticut delegation in bridging northern and southern smallstate interests, and by the personal friendships between Rutledge and Wilson and between Ellsworth and both Sherman and Paterson. The contribution of other delegates at the Convention seems to have been peripheral. Dickinson (the principal author of the Articles of Confederation) and Luther Martin of Maryland proposed amendments helpful to judicial reviewrespectively the "law and fact" and "supremacy" clausesbut neither of them seems to have been in the thick of the effort to impose judicial review. It can be speculated that Dickinson belatedly came to support the plan during the Convention, whereas Martin's angry departure in August probably resulted in large part from his unwillingness to accept this use of judicial authority as stipulated by his own amendment. The role of others is less definable. Hamilton and William Davie of North Carolina openly advocated judicial review, and many others made remarks at one point or another that may be construed as having expressed their support (Berger, 47119). However, none of them seems to have contributed to the preparations for judicial review's acceptance at a later time.
Certain steps needed to be taken to lay the groundwork for judicial review, and careful scrutiny of Convention records discloses the relatively close cooperation among Wilson, Rutledge, Paterson, Sherman, Ellsworth, and Johnson in taking them. Early in debate, Rutledge, seconded by Sherman, proposed an amendment to replace permanent federal appeals courts with state courts. At the time their purpose was to curtail the power of the central government, but, as already indicated, the use of state courts as federal appeals courts later turned out to be an important step preliminary to granting the Supreme Court the power of judicial review over state law. All but Wilson and Rutledge probably helped to draft the New Jersey Plan, portions of which would have given the Supreme Court appellate jurisdiction over state law, and it was Paterson who presented this plan to the Convention as a whole. As members of the Committee of Detail, Wilson, Rutledge, and Ellsworth participated in writing an initial draft of the Constitution whose wording emphasized giving Congress the needed latitude to bring state courts into the federal judiciary once the Constitution was ratified. Twice Wilson praised judicial and/or congressional review on the floor of the Convention, but only to be silenced by Rutledge and Ellsworth, apparently to keep the issue off the agenda. Rutledge and Johnson then proposed the two amendments whose wording lay the groundwork for the later adoption of judicial review. Wilson followed by proposing his amendment which, combined with theirs, would have brought judicial review into the Constitution by giving the Supreme Court appellate jurisdiction over state law, but then he withdrew it before it could be submitted to a vote. However, the "law and fact" portion of Wilson's amendment was resubmitted for a vote by Dickinson, and its passage helped to justify the later imposition of judicial review in the 1789 Judiciary Act. Johnson and Wilson were probably among the delegates mentioned by Gouverneur Morris as having fought to protect the exact wording upon the judiciary from stylistic revision in the final draft of the Constitution. It may be speculated that they wanted to avoid apparently harmless but substantive changes that might have justified preventing the adoption of judicial review at a later time. After the Convention, Wilson and Ellsworth went public at their respective state ratifying conventions by emphasizing the importance of judicial review. Finally, in the 1789 Senate, Ellsworth and Paterson played central roles in drafting a Judiciary Act which established the judicial review of state law, and Ellsworth took the lead in forcing the passage of this Act.
Perhaps coincidentally, four of these delegatesWilson, Rutledge, Paterson, and Ellsworthlater served on the Supreme Court, Ellsworth as Chief Justice from 1796 to 1800. In 1847, a half century later, John Calhoun singled out Ellsworth, Sherman, and Paterson for having created an effective system of federal governmentone in which centralization and the sovereignty of individual states were effectively balanced:
It is owing mainly to the states of Connecticut and New Jersey that we have a federal instead of a national governmentthe best government instead of the worst and most intolerable on the earth. Who are the men of these states to whom we are indebted for this excellent form of government? I will name them. Their names ought to be written on brass, and live forever. They were Chief Justice Ellsworth and Roger Sherman of Connecticut, and Judge Paterson of New Jersey. The other states further south were blind; they did not see the future. But to the coolness and sagacity of these three men, aided by others not so prominent, do we owe our present constitution. (Brown, 165)
If Calhoun was praising these three delegates for having strengthened the judiciary to guarantee a federalist balance between state and national sovereignties, he neglected the important roles played by Rutledge, Wilson, and Johnson. Unfortunately, none of these six delegates documented their activities, and they lacked the celebrity status later conferred on such figures as Washington, Franklin, Madison, and Hamilton. As a result, their loosely coordinated effort to introduce judicial review has been overlooked in constitutional history.
4. Early Debate at the Constitution
An independent judiciary with the power to check both state and federal laws was hardly attractive to most of the delegates who participated at the Constitutional Convention. Many were apprehensive of fullscale nationalism, and the possibility that it might be obtained by unleashing the federal judiciary as the final arbiter of state law would have been considered no less acceptable than the power of veto earlier granted to the Privy Council over colonial law. When Elbridge Gerry declared on June 4 that a few state courts "had actually set aside laws as being agst the [state] Constitution," [italics added] the tone of disbelief in his use of the word actually conveyed the unfamiliarity of most delegates with the possibility of using judicial review to offset the authority of legislature under constitutional government (1 Farrand 97).
They were willing to accept the role of judges in expounding laws and giving preference to some at the expense of others as originally advocated by Coke. However, they did not associate this capacity with the veto of laws in conflict with a state or federal constitution, or, one step further, with the Supreme Court's veto of state laws in conflict with the federal Constitution. Probably in response to Gerry's earlier remark, Wilson once again suggested the innovative possibilities of judicial review on July 21:
It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. (2 Farrand 73)Opposed to this view, Martin warned later in the day that the Supreme Court's power to interpret the law, coupled with its participation on the council of revision, would produce a "double negative" giving it too much control of federal laws (2 Farrand 76). Here the delayed exchange between Wilson and Martin might seem to have implied the common acceptance of judicial review as a veto of laws passed by Congress. However, George Mason challenged Martin's exaggeration of the judicial "exposition" of laws to the status of a veto. Mason's argument has been misconstrued to suggest that he shared Martin's assumptions (e.g. Berger 58, 161, 341), but this is simply not true. For a clarification of Mason's intended meaning, his words may be quoted with bracketed additions:
It has been said (by Mr. L. Martin) that if the judges were joined in this check on the laws [by the council of revision], they would have a double negative, since in their expository capacity of judges they would [already] have one negative. He [Mason] would reply that in this [double] capacity they could impede in one case [as judges] only the operation of the laws. [As members of the council of revision,] they could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not plainly come under this description [i.e. as having been submitted to judgment by the council of revision], they would be under the necessity as Judges to give it a free course [i.e. to abide by it]. (2 Farrand 78brackets and italics added)
The meaning of this passage as clarified by italicized portions was undoubtedly intended by Mason, but his intentions were obscured by awkward elisions either by Mason himself in explaining his ideas or by Madison in transcribing his remarks while he was speaking. Nevertheless, Mason entirely supported the council of revision, so his words cannot be interpreted to challenge its usefulness because of the excessive power it would grant the judiciary. In effect, Gerry had mentioned rumors of judicial review, Wilson had confirmed them, and Martin had argued that such a possibility would give judges a "double negative" if they served on the Council of Revision. As a member of the Virginia delegation who unanimously supported the council of revision (one of the most important features of the Virginia Plan), Mason responded with the argument, apparently true at the time, that the ability of judges to expound the laws from the bench should not be confused with the even greater power of particular judges when serving on the council of revision to declare these laws null and void. Only as members of the council of revision would they exercise this full power of veto. It is important to recognize here that Mason was defending judicial authority specifically on the council of revision, not through judicial review, which he vigorously attacked after the Convention. In fact, he probably shared Madison's strategy to limit the judicial role in the review process to the council of revision in order to prevent its more pervasive application through judicial review.
As earlier indicated, Madison's plan to curtail legislative excesses by imposing congressional review and establishing a council of revision was rejected by the Convention by midJuly. The President's veto of federal law remained the single countermajoritarian "negative" accepted by the Convention, but it was irrelevant to the question of federal sovereignty over state laws. States could continue to pass whatever laws they pleased, and these laws would remain on the books despite their potential conflict with federal laws, federal treaties, and the Constitution of the United States. Why had Madison's plan failed? Because largestate antinationalists such as Gerry of Massachusetts and Robert Yates and John Lansing of New York had fallen into a working coalition with smallstate delegates opposed to a largestate takeover. Together, they had blocked every effort to establish a strong central government based on the enlargement of the powers of the executive and judicial branches. If the substitution of judicial for congressional review escaped their condemnation, it was only because of its novelty. Judicial review was missing from the Virginia Plan and could be bypassed in floor debate as a new and untested innovation.
At the beginning most smallstate delegates wanted to give original federal jurisdiction to state courts in order to help curtail federal authority. They sought an appeals system from state to federal courts based on fact, not law, and they wanted not to expand federal jurisdiction, but to guarantee the primary role of state courts in the federal judiciary. Rutledge, Paterson, Sherman, Ellsworth, and Johnson possessed sufficient legal backgrounds to grasp the implications of judicial review as a more inclusive principle which might be incorporated into such an appeals system, but as long as they opposed centralization, they could hardly be expected to promote judicial review as an instrument for bringing it about. Only when the July 16 Connecticut Compromise united large and small states in a new and more inclusive coalition, did these delegates join in seeking a strong central government. At this point, however, they would necessarily have found themselves between the horns of a dilemma if they wanted to impose judicial review. The Convention was probably the most sympathetic body of American leaders that could be gathered for accepting such a new and innovative principle. But if judicial review were debated by the Convention and voted down, as it probably would have been, its later adoption would have been difficult, if not impossible. This was already the fate of congressional review, and prospects would have been the same for judicial review. Once defeated, its later resurrection as an amendment to the Constitution would have required a twothirds majority in Congress, or, even more difficult, threequarters support from state legislatures. On the other hand, if judicial review were accepted by the Convention and incorporated into the Constitution, its inclusion would probably have led to the Constitution's rejection at state ratifying conventions. Judicial review therefore needed to be postponed as an issue. It was best kept from debate and set aside until the Constitution was ratified, after which it could be discretely implemented by a simple majority of Congress.
Beneficial to this effort was the opposition to federal courts early in the Convention by the very smallstate delegates who would later be seeking to implement judicial review. As early as June 5, six weeks before the Connecticut Compromise, Rutledge proposed a motion, seconded by Sherman, to eliminate the creation of permanent inferior federal courts. Rutledge argued that the original jurisdiction of federal cases could be given to state courts, and then, if necessary, these cases could be appealed to the Supreme Court for a final determination (1 Farrand 124). Here Rutledge advocated the use of state courts to curtail federal authority and conceded the Supreme Court's review of specific cases, not its review of laws by which these cases might be judged. As a smallstate delegate, he wanted at this stage in the Convention to diminish federal authority relative to state authority, so he sought to give state courts original jurisdiction in the federal judiciary. In debate Rutledge fully acknowledged his intentions, but to maximize support for his amendment he worded it to reject permanent inferior federal courts without specifying the use of state courts as the obvious alternative. Delegates from Connecticut and New Jersey teamed up with those from Georgia and North and South Carolina in support of Rutledge's amendment, winning a narrow 5 to 4 victory over delegates from Virginia, Pennsylvania, Maryland, and Delaware (Dickinson included). Votes were divided, therefore discounted, in the Massachusetts and New York delegations, probably because Gerry of Massachusetts and Yates and Lansing of New York sided with Rutledge.
In a quick tactical maneuver, Madison and Wilson In a quick tactical maneuver, Madison and Wilson responded by proposing a compromise amendment, later described as the "Madison compromise," which let Congress establish temporary inferior courts as soon as it convened subsequent to the ratification of the Constitution (1 Farrand 125). As earlier indicated, Madison wanted a strong federal judiciary without the power of judicial review, and at this stage in debate Wilson shared Madison's objective. The two of them based their proposal on Dickinson's argument just before Rutledge's motion came to vote, that Congress should be given the authority to create the national judiciaryonce again a smallstate proposal probably intended to maximize the role of state courts. Madison and Wilson could anticipate support among convention delegates for such a compromise, since the appointment of temporary federal courts was already provided by the Articles of Confederation. Only the Connecticut and South Carolina delegations voted against their amendment, while New York's vote continued to be divided. As it later turned out, the postponement in the creation of "temporary" federal courts expanded to become a postponement in the creation of the entire appeals system. In effect, the choice to arrive at a permanent integration of state and federal courts was held over until after the ratification of the Constitution.
On July 18, the issue of the status of inferior courts was introduced a second time. Three smallstate delegatesSherman, Martin, and Pierce Butler of South Carolinarepeated their wish to grant state courts original jurisdiction, while three large state delegatesNathaniel Gorham of Massachusetts and Randolph and Mason of Virginiadisagreed, respectively because of precedent, because of the unreliability of state courts, and because of future uncertainty in the role of the courts (2 Farrand 46). This time the power of Congress to create inferior courts was confirmed by a unanimous vote, but, as before, without specifying whether these inferior courts would include state courts as well as federal appeals courts. This was an important choice, but it was excluded from the wording and thus postponed until Congress could establish these inferior courtsas it turned out, two years later with the 1789 Judiciary Act.
In retrospect, it seems clear that the Madison compromise came of desperation, not conspiracy, and that its success led to results entirely different from what anybody had anticipated. Once Congress was granted the power to create temporary federal courts, the possibility was salvaged of maintaining a strong federal court system, but as was later recognizedperhaps as early as midJulywhat turned out to be a twoyear delay in the creation of this system opened an important loophole for other modifications once the Constitution had been ratified. By limiting the Constitution's description of the federal judiciary to the Supreme Court alone, the Convention postponed the establishment of the rest of the federal judiciary, including Rutledge's proposal for giving state courts at least a portion of original jurisdiction. Also permitted was the Supreme Court's judicial review of state law as an afterthought that completed the package. Madison's compromise victory for federal courts thus paved the way for exactly what he wanted to avoidboth the inclusion of state courts in the federal judiciary and the imposition of judicial review.
On June 15, ten days after Rutledge's amendment, Paterson had presented the New Jersey Plan to the Convention as a substitute for the Virginia Plan which would be acceptable to smallstate and antinationalist delegates. The New Jersey Plan featured a couple of important proposals bearing upon the judiciary which were eventually brought into constitutional law. Proposition 5 defined the appellate jurisdiction of the Supreme Court, and Proposition 6, like Resolution 14 of the Virginia Plan, established an oath to guarantee the loyalty of state justices to the federal government. But most important, Proposition 2 formalized Rutledge's earlier suggestion by giving state courts original jurisdiction and the Supreme Court appellate jurisdiction in foreign and interstate legal disputes:
. . . all punishments, fines, forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the Common law Judiciaries of the State in which . . . [these offenses] . . . have been committed or perpetrated, with liberty of commencing in the first instance all suits & prosecutions for that purpose in the superior common law Judiciary in such State, subject nevertheless, for the correction of all errors, both in law & fact in rendering judgment, to an appeal to the Judiciary of the U. States. [Madison, 119] Here the hierarchy needed for the Supreme Court's power of judicial review over state law was suggested without mentioning the power of judicial review itself. Verdicts could be appealed, but not necessarily laws based on their constitutional validity. Those besides Paterson who participated in drafting the New JerPlan probably included Martin, Dickinson, and Lansing of New York as well as the three Connecticut delegates (1 Farrand 242). Martin's share in the authorship of Propositions 2, 5, and 6 has been speculated, and contributions from others were also highly probable (Clarkson and Jett, 92). On June 19 the New Jersey Plan was decisively rejected by the Convention as a whole after a passionate denunciation by Madison that swayed even the Connecticut delegation to switch its vote.On July 17, almost a month later (and one day after the Connecticut Compromise), Martin took advantage of momentum favorable to smallstate interests and reintroduced a portion of Section 6 in the New Jersey Plan which bound state justices by oath to federal treaties and legislative acts:That the Legi slative acts of the U. S. made by virtue & in pursuance of the articles of Union, and all treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants& that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding. (2 Farrand 28)
Martin's amendment was unanimously passed by the Convention and provided the basis for the supremacy clause in Article VI of the Constitution. Martin's intentions in proposing this amendment were relatively complex, but, as he later indicated at the Maryland ratification convention, they did not include granting federal courts judicial review over state law (3 Farrand, 206, 22223). The congressional review of state law had just been defeated for the second time after a brief but significant exchange in which its benefits were contrasted with those of judicial review by state courts. Sherman had argued that congressional review was unnecessary since state courts would be able to overturn laws "contravening the Authority of the Union," and in response Madison had expressed his doubt whether state courts could be trusted as "guardians of the National authority and interests." (2 Farrand 27). As soon as congressional review was voted down, Martin sought to neutralize Madison's objections by resurrecting the New Jersey Plan's supremacy clause to guarantee the loyalty of state justices to federal law. If state justices were loyal to the federal government, they could presumably make the final determination whether particular state laws were in conflict with federal authority. Martin later claimed he had also wanted to grant state courts original jurisdiction, thus by implication giving appellate jurisdiction to the Supreme Court (3 Farrand 2867). However, there was no explicit reference to such an arrangement in the supremacy clause as proposed by Martin on July 17. Moreover, Martin acknowledged that he had intentionally omitted state constitutions and bills of rights from the "contrary notwithstanding" phrase, so these could retain their priority over federal law in state court decisions. Unlike others in the smallstate leadership, he continued to oppose a strong central government and failed to recognize that granting original jurisdiction to state justices could eventually be used to justify the subordination of state courts to the federal Supreme Court.As a result of the Connecticut Compromise, most other smallstate delegates supported centralization by the end of July, so they no longer haggled over amendments to diminish federal authority. In the case of the judiciary, they could actually give a bigger role to federal courts by revising the structures they had advocated to maximize state authoritythe supremacy clause and the original jurisdiction of state justices. They had the additional advantage that many in their leadership were more familiar with the judiciary than most of the largestate delegates (Wilson excluded) and could implement the necessary modifications for bringing this about. But of course they were shifting to a new course, and their successful antinationalist tactics in earlier deliberations set the stage for their even more successful reversal of strategy that would benefit nationalization at the expense of state sovereignty.
5. The Committee of DetailThe first draft of the Constitution was written by the Committee of Detail over a period of ten days, between July 26 and August 6, during which the Convention as a whole took a vacation from proceedings. Participation on the Committee of Detail was limited to five members elected by the ConventionWilson, Rutledge, Ellsworth, Randolph, and Gorhamthree of whom belonged to the de facto coalition that later supported judicial review. Rutledge and Ellsworth were probably chosen to represent the southern and northern factions of the smallstate coalition, while Randolph, Wilson, and Gorham represented three of the four large states, respectively Virginia, Pennsylvania, and Massachusetts. New York, the fourth large state, was unrepresented at the Convention once Yates and Lansing left in protest on July 10, eleven days after Hamilton's departure. All five of these delegates had played constructive but supportive roles in their state delegations. Wilson had been overshadowed in floor discussions by Gouverneur Morris, Ellsworth by Sherman, and Rutledge by the often superfluous enthusiasm of Charles Pinckney. Gorham was probably chosen to split the difference between Gerry and Rufus King on the Massachusetts delegation, and Randolph to split the difference between Mason and Madison on the Virginia delegation. Gorham, a wealthy Boston merchant, had briefly served as president of the Continental Congress, and currently served as chairman of the committee of the whole at the Constitutional Convention. On the few occasions when Washington stepped down from the chair (for example to rally support for slavery), Gorham replaced him. Randolph had served as both Attorney General and Governor of Virginia, as a member of the legislative committee that had drawn up Virginia's constitution and bill of rights, and as the delegate honored with presenting the Virginia Plan to the Convention on May 29. Each member of the Committee of Detail except Gorham had benefitted from extensive legal experience, each was relatively uncontroversial among the group he represented, and they had all proven capable of effective compromise.
When the Committee of Detail was elected, three of its membersWilson, Randolph, and Gorhamcould be counted on to support the thrust of the Virginia Plan for imposing federal sovereignty with more effectiveness than would have been possible through exclusive dependence on judicial review by state courts as specified by Martin's initial version of the supremacy clause. Wilson had expressed his views to this effect on June 5 and July 21, and Randolph and Gorham on July 18. These three delegates also continued to advocate congressional review, as indicated by Wilson's remarks to the Convention on August 23 and by Randolph's list of five "Suggestions for Conciliating the Small States," a compromise proposal dated on July 10 which included as an option that the rejection of state law by Congress could be appealed to the Supreme Court for a final determination (3 Farrand 56). Randolph's suggestion combined congressional and judicial review in what might have amounted to a major revision of the Virginia Plan, but there is no evidence that anybody, Randolph included, followed up on such a possibility. Meanwhile, Ellsworth, as a smallstate participant on the Committee of Detail, supported both the council of revision and judicial review by state courts, while Rutledge, like Sherman and Martin, apparently supported an exclusive reliance on judicial review by state courts more or less as entailed by the supremacy clause and other portions of the New Jersey Plan.What seems to have happened during the Committee of Detail's sessions over the next ten days, as may be adduced from the subsequent record, is that Wilson, Rutledge and Ellsworth joined forces in working toward an entirely new alternativethe more inclusive use of judicial review through a vertical integration of state and federal courts. Obvious today, their shared process of discovery was in fact a momentous inspirationthat state supreme court decisions upon the constitutionality of state laws could be appealed to the federal Supreme Court for a final dispensation. Just as Proposition 5 of the New Jersey Plan permitted other verdicts to be appealed from state to federal courts, the judicial review of state laws by state courts could be appealed, and this appeals process could substitute for the principle of congressional review advocated by Madison. Such an arrangement would have been too new, too intricate, and too controversial to impose at the Convention, but the description of the judiciary in the Constitution could be kept as open as possible and tailored to permit and justify later modifications that imposed judicial review.
Of course there is no clear evidence that this strategy was in the works before the August 23 and 27 amendments of Rutledge, Johnson, and Wilson. However, the likelihood that it began to germinate within the Committee of Detail is indicated by the pains taken by this committee to grant Congress full power in creating an appellate judiciary but little if any power in curtailing its authority once it was created. The committee's modifications favorable to judicial review were subtle, yet persistent and ultimately successful. For example, preceding the Connecticut Compromise, smallstate delegates had wanted to grant state courts original jurisdiction of cases to be settled by the Supreme Court, while largestate delegates had favored a compromise guaranteeing the later creation of federal appeals courts with at least temporary status. Now, in the Committee of Detail, the emphasis on temporary shifted to postponed, since Congress could only make its temporary assignments following the acceptance of the Constitution by state ratifying conventions. This modification permitted a fusion of large and smallstate goals, both the later creation of a federal court system and the use of state courts for original jurisdiction.In retrospect, it seems obvious that this arrangement was intended for permitting Congress to bring state and federal courts into a vertical hierarchy, and it also seems probable that this hierarchy was intended for imposing judicial review to reinforce federal sovereignty. Such a possibility becomes apparent in light of Wilson's abortive August 27 amendment and Section 25 of the 1789 Judiciary Act, probably composed by Ellsworthboth of which linked judicial review with the use of state courts for original jurisdiction. Since Wilson and Ellsworth were knowledgeable in the lawmore knowledgeable, in fact, than most other delegates at the Conventionit seems likely that they already recognized while serving on the Committee of Detail how the postponed integration of state and federal judiciaries would benefit their subsequent effort to impose judicial review.
During the proceedings of the Committee of Detail, two fullscale preliminary drafts of the Constitution were composed in the handwriting of Randolph and Wilson, but often with marginal notes by Rutledge, the Committee of Detail's elected chairman. Randolph's draft (often described as the RandolphRutledge draft) seems the earliest, since it was roughly sketched out and significantly differed from the the Committee of Detail's final draft submitted to the Convention as a whole on August 6. Wilson's draft (often described as the WilsonRutledge draft) was much closer to the final draft in its content. It seems likely that Wilson and perhaps Randolph were chosen as amanuenses to transcribe the wording found acceptable by the group as a whole during these sessions. Wilson and Randolph are usually credited with having dominated committee proceedings because they authored these two drafts and because the Committee of Detail's final draft was exclusively in Wilson's handwriting. However, in light of debate on the floor once the Convention as a whole reconvened, it seems likely that Rutledge and Ellsworth's contributions were at least as important. Vigorous group participation can be adduced from Ellsworth's casual remarks as reported by his son to the historian, George Bancroft, several decades later:
One day, upon my reading a paper to him (in his illness), containing an eulogium upon the late Gen. Washington, which among other things ascribed to him the founding of the American Government, . . . he (Judge E.) objected, saying that President Washington's influence while in the convention was not very great; at least not much as to the forming of the present Constitution of the United States in 1787. Judge E. said that he himself was one of the five who drew up that Constitution. (Brown, 16970)
According to Farrand's version of Ellsworth's conversation (3, 3967), there were six authors altogether, including all members of the Committee of Detail except Randolph. Instead, both Madison and Hamilton were included, Hamilton's name probably having been confused with Randolph's because of its rhymed and similarly stressed initial syllable. Ellsworth was feeble and approaching death when he made his remark, so such a mistake was not unlikely. If this were the case, Ellsworth merely conceded Madison's ubiquitous role at the Convention and emphasized the shared participation of the Committee as a whole without specifying the relative importance of its particular members except as might be implied from his mistake about Randolph's name.
By far the most important of the Committee of Detail's modifications was the enlargement of Congress's mandate to create inferior federal courts as guaranteed by the June 5 Madison compromise. Both the Virginia Plan and Madison compromise had granted Congress simply the power to set these inferior courts in motion. In contrast, the Committee of Detail's three drafts gave Congress comparatively broad powers in the creation of the judiciary. The first of these, the RandolphRutledge draft, granted Congress the power to increase the Supreme Court's jurisdiction "to such other cases, as the national legislature may assign": But this supreme jurisdiction shall be appellate only, except inThe Committee of Detail's final draft of the Constitution also discouraged the use of federal appeals courts by emphatically stressing their temporary status: ". . . and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States" (2 Farrand 186italics added). This limitation was justified by the passage of Rutledge's June 5 motion against permanent inferior federal courts, and Rutledge and Ellsworth might well have insisted upon its being stressed in the Constitution. To emphasize this point, the words when necessary were added to the final draft of the Committee of Detail. They were later deleted by the Committee of Style, but without diminishing the impact of the phrase, from time to time, which was retained. What is absolutely important to recognize is that this emphasis on the use of temporary appeals courts encouraged the use of state courts for this purpose, since the temporary courts already appointed under the Articles of Confederation employed state justices who could just as easily fulfill their responsibility in state courts. The use of state courts as appeals courts could be temporary, but these courts would retain a permanent role in state government, permitting the appeal of cases from these permanent lower courts to a permanent Supreme Court. Why appoint temporary federal appeals courts to perform a temporary function when permanent courts could do the same thing on a continuing basis? Nobody can be quoted as having advocating the vertical integration of state courts and the federal Supreme Court because of their shared permanence, but the wording of the passage hardly discouraged such an interpretation.
The use of state courts for original jurisdiction was also encouraged by the vague reference to inferior courts and by the manner in which the Supreme Court's original and appellate jurisdictions were specified. In contrast to Article 9 of the Virginia Plan, there was no effort to identify the inferior tribunals to be granted original jurisdiction. Instead, in Article XI, Section I, of the Committee of Detail's final draft (equivalent to Article III, Section I, in the final draft of the Constitution), the wording specified "such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States" (2 Farrand 186italics added). Section 3 (Section 2 of the final draft) listed specific areas of jurisdiction, but there was no indication what courts would be assigned original jurisdiction. Moreover, the jurisdiction of inferior courts could only be deduced by the process of subtraction. First the full jurisdiction (both original and appellate) of the Supreme Court was listed:
Next the Supreme Court's original jurisdictions were listed: "In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original." Finally, the Supreme Court's appellate jurisdictions (i.e. the original jurisdictions of inferior courts) were deducted from this total: "In all the other cases beforementioned, it [the jurisdiction of the Supreme Court] shall be appellate, with such exceptions and under such regulations as the Legislature shall make" (2 Farrand 186italics added). Only by subtracting the second list from the firsteight items minus fourcould readers determine that the original jurisdiction of inferior courts would include, (a) cases arising under laws passed by Congress, (b) controversies between citizens of different states, (c) controversies between citizens and foreign states, and (d) controversies between citizens and foreign subjects. As earlier indicated, state justices were already involved in deciding these cases under the Articles of Confederation, so here too the participation of state courts would have seemed entirely appropriate. Remarkably, the laconic (but categorical) exclusionary wording in all other cases likewise compelled the establishment of inferior courts as soon as possible and implied by omission the possibility that these could be state courts. There was no wording to suggest otherwise.
The extent to which the Committee of detail wanted to stress the full authority of Congress to incorporate state courts within the federal judiciary was also indicated by the socalled assignment clause that followed the list of jurisdictions in the final draft of the Committee of Detail:
The RandolphRutledge draft had used the word assign in describing the power of Congress to increase or diminish the Supreme Court's original jurisdiction (2 Farrand 147). Later, in the WilsonRutledge draft, the word assign was used in a more emphatic construction that provided the basis for its use in Wilson's final preliminary draft (2 Farrand 173). However, the clause became entirely redundant once the role of Congress in creating inferior courts was stressed in the exceptions and regulations clause. Moreover, once the Supreme Court's full original and appellate jurisdictions were specified in the Constitution itself, the mandate of Congress to organize the judicial system was automatically tied to the "assignment" of establishing inferior federal courtsexactly the issue at stake in the New Jersey plan and June 5 and July 18 debates. Consequently, the assignment clause could be deleted, as it was by a unanimous vote on August 27, three weeks after the Committee of Detail submitted its preliminary draft of the Constitution to the Convention as a whole (2 Farrand 431). Nevertheless, the use of this clause in the Committee of Detail's final preliminary draft indicates the importance attached to it by at least a majority of this committee.
It should be emphasized that the deliberate use of omission and indirect reference in the Committee of Detail's final draft of the Constitution was probably intended in the spirit of compromise. The June 5 and July 18 amendments had not mentioned state courts, and the New Jersey Plan, which did, had been rejected in its entirety by the Convention. Moreover, there had been no second effort to submit to a vote the vertical integration of state and federal courts, such as Martin had made for the supremacy clause. Since the Official Proceedings of the Convention which were given to the Committee of Detail specified neither a mixed nor an exclusively federal judicial system, the Committee properly kept both possibilities viable. The choice could later be resolved, either during the Convention or when Congress fulfilled its mandate in appointing inferior courts. Randolph could accept this compromise as a holding action that deferred debate until others could join in resisting an integrated judicial system, and Gorham was possibly unaware of the full implications of what was transpiring. However, Wilson, Rutledge and Ellsworth must have taken full satisfaction with the wording of the final draft, since its postponement of a final decision could also be interpreted as having empowered Congress to integrate state and federal courts. And of course it was Ellsworth who subsequently took advantage of this wording once elected to the U.S. Senate by drafting the Judiciary Act to give the Supreme Court its power of judicial review over state laws, if on a permanent, not temporary, basis.
The continuing relationship among members of the Committee of Detail once debate resumed in the Convention as a whole bears close examination. Gorham's reduced participation in convention proceedings suggests the possibility that he played a relatively minor role in having drafted the Constitution. His spoken contributions, as tabulated based on Madison's records, actually declined by a third compared to his contributions during the equivalent period immediately preceding the Committee of Detail. Likewise, Randolph fell into hostile disputes with his fellow members of the Committee at least five times over the next fourteen sessions, suggesting that he had taken on the role of a maverick frequently at odds with the rest of the committee. Meanwhile, both Rutledge and Ellsworth's convention participation increased dramatically, respectively doubling and increasing by twothirds. In absolute numbers, Ellsworth's total of 53 spoken contributions from August 6 to August 23, when he left the Convention, exceeded Wilson's (49) and was surpassed only by Gouverneur Morris's (59) and Madison's (55). Others trailed at a distance: Mason (39), Sherman (36), Pinckney (34), Randolph (30), Rutledge (25), Mercer (23), Williamson (22), Gorham (20), King (18), Butler and Dickinson (16 apiece), etc. Silent during his first three weeks in attendance, Ellsworth became a major presence on the floor of the Convention. It may be conceded that most of his contributions were of minor importance, but their frequency and specificity suggest an intense proprietary concern in promoting the Committee of Detail's final draft of the Constitution he had a hand in composing.
On the two occasions when the veto power over state and federal laws was introduced in early August, the interaction among the Committee of Detail suggests that Wilson might have forgotten himself and broken a prior understanding to avoid debate on the issue. On August 15, for example, John Mercer (a friend of Martin and fellow delegate from Maryland) specifically attacked judicial review as a usurpation of legislative power:
He disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable. (2 Farrand 298)
On August 23, a comparable exchange occurred when Charles Pinckney of South Carolina introduced for the last time Madison's notion of congressional review over state laws (2 Farrand 390). Madison remarked that he had always supported the principle, but "thought the modification might be made better." There is no indication what he meant by "the modification," but he was very likely referring to the substitution of judicial review at a later time. Sherman, Mason, and Williamson repeated their longstanding objections to congressional review, whereupon Wilson once again seems to have forgotten himself, this time by launching into a defense of congressional review as "the keystone wanted to compleat the wide arch of government, we are raising." Once again Rutledge and Ellsworth came to the rescue. Rutledge chastised Wilson with the ominous warning, "If nothing else, this alone would damn and ought to damn the Constitution. Will any state ever agree to be bound hand & foot in this manner?" Rutledge neglected to mention how judicial review might be used as an alternative, but, as later became obvious, one of its most useful benefits would be its imposition of federal sovereignty on a more limited basis. Then Ellsworth added his important (but usually overlooked) explanation that there would also be serious technical difficulties in implementing congressional review, since all state laws would need to be reviewed either by Congress or by its appointed agents. Ellsworth left unspoken judicial review's primary advantage already mentioned by Jefferson in his June 20 letter to Madison, that it would eliminate this problem, since the only laws reviewed by the Supreme Court would be those appealed from inferior courts. Soon the vote was taken, and once again congressional review was defeatedas opposed to judicial review, which remained free and clear of having been rejected at the Convention.
For business reasons Ellsworth departed from the Convention by August 27, but both Sherman and Johnson took his place in floor proceedings. The day after Ellsworth's departure, Sherman spoke up five times, and on August 27 Johnson dropped his modest bombshell with his carefully worded amendment that granted the Supreme Court the authority to interpret the Constitution. It can be speculated that as usual Sherman, Ellsworth, and Johnson were acting as a team, and that Johnson's amendment could have been proposed by any of the three, or, for that matter, by Rutledge or Wilson. Except for Wilson, all of these delegates had held their silence when Gerry and Martin raised the issue of judicial review on June 4 and July 21. Twice again subsequent to the Committee of Detail's meetings, on August 15 and 23, the issue surfaced, but both times they succeeded in preventing its discussion. Then, when amendments upon the judiciary came under discussion on August 23 and 27, Rutledge and Johnson put through their two quick and easily overlooked amendments which made the necessary modifications to facilitate the later adoption of judicial review, and which did this without specifically referring to judicial review. On both occasions debate was minimal, so these amendments could be adopted almost as quickly as they were introduced. A third amendment, proposed by Wilson, would then have incorporated judicial review into the Constitution itself, but, again, it would have done this without having specifically referred to it by name or by the powers it granted. As earlier indicated, Wilson's amendment was quickly withdrawn without debate.
Considered in retrospect, the three amendments of Rutledge, Johnson, and Wilson suggest a major advance in strategy. In the Constitution's original draft submitted by the Committee of Detail, there was no explicit provision for judicial review and the possibility of vertical integration between state and federal courts was indicated only by omission. It was with Rutledge's August 23 amendment that Martin's supremacy clause was expanded to establish loyalty to the Constitution itself as a primary responsibility of all state justices. Indeed, Rutledge's careful sequence in his wording of the amendment gave the Constitution first priority among federal laws, statutes, and treaties to be granted supremacy by state judges, thus guaranteeing the role of state justices as officers of the court primarily responsible to the Constitution:
This Constitution & the laws of the U. S. made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the several States . . . (2 Farrand 389italics added)
This emphasis on loyalty to the Constitution itself had already been featured in Article 14 of the Virginia Plan ("bound by oath to support the articles of Union"), but it had been excluded in both the New Jersey Plan and Martin's amendment later identified as the Supremacy Clause. With his amendment Rutledge resurrected this portion of the Virginia Plan, but his purpose at this stage in the Convention was probably doubled, first to secure the loyalty of state officials to the federal government as Madison had first intended, but also to validate by this means the role of the state judiciary in the enforcement of the Constitution. Rutledge likewise eliminated Martin's antinationalist escape clause by including state constitutions in the "contrary notwithstanding" phrase that specified the state documents to be subordinated to the federal Constitution:
and the Judges in the several State shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding. (ibid.italics added)
Rutledge thus inverted the smallstate strategy of Martin's July 17 amendment by giving the federal Constitution final authority over all state laws, state constitutions included, but with state courts granted their authority in defending the Constitution. State justices would be obliged to veto both state laws and those portions of state constitutions they found in conflict with the federal Constitution. Once Rutledge's amendment was unanimously accepted, the only ingredients needed to impose judicial review by the federal Supreme Court were the vertical integration of state and federal courts and an appeals process granting the Supreme Court its final authority.
Just as Rutledge laid the groundwork for the judicial review of state law with his August 23 amendment, Johnson laid the groundwork for the judicial review of both state and federal law by his August 27 amendment four days later. Johnson very likely proposed his amendment in response to the adoption of Rutledge's amendment, since the two amendments respectively held state courts and the Supreme Court itself primarily responsible to the federal Constitution. Madison had set the stage for Johnson's amendment on July 18, when he resolved a relatively minor issue by proposing as a technicality, "that the jurisdiction [of the Supreme Court] shall extend to all cases arising under the national laws" (2 Farrand 46). The preposition under had been used in the supremacy clause, so its addition to Article III could be justified for having provided symmetry between Articles III and VI pertaining to the adjudication of national laws in both state and federal courts. When Madison and Gouverneur Morris likewise sought on August 27 to extend the Supreme Court's judicial power to all controversies "to which the US shall be a party," Johnson quickly responded by adding the Constitution itself as yet another subject of its judicial power. This modification might have seemed harmless enough, since it provided comparable symmetry between Articles III and VI by expanding Madison's "arising under" clause to feature the Supreme Court's loyalty to both the Constitution and national laws:
"The Judicial Power shall extend to all cases both in law and equity arising under this Constitution and the laws of the United States, and treaties made . . . under their authority . . ." (2 Farrand 430, 576italics added)Now the Supreme Court would exercise two presumably independent functions, of judging all federal law and of remaining loyal to the Constitution itself. However, once these two functions were combined, the Supreme Court would necessarily be in the position to judge the validity of federal law based on its agreement with the Constitution. Granted, this power was not specifically declared until the 1803 Marbury v. Madison decision, but wording that established the defense of the Constitution as the primary obligation of the Supreme Court left the possibility open to later interpretation.
Another important effect of Johnson's amendment, often overlooked, was that it gave identical status to the Constitution in both the federal Supreme Court and state courts, permitting an appeals arrangement between the two once state courts were granted original jurisdiction. Since both state courts and the Supreme Court were obliged to defend the supremacy of the Constitution, the state courts' judicial review of state laws possibly in conflict with the Constitution could be appealed for final dispensation by the Supreme Court. Exactly the same principles obtained at both levels, so the decision of lower courts could be reviewed on a comparable basis by the Supreme Court. The first of these two crucial amendments, by Rutledge, thus established the basis for judicial review of state laws as later guaranteed by the Judiciary Act, and the second, by Johnson, established the basis for judicial review of both state and federal laws in conflict with the federal Constitution, in the latter case as confirmed by the 1803 Marbury v. Madison decision.
Madison quickly recognized the implication of Johnson's wording that any federal law could be judged and rejected by the Supreme Court based on its constitutionality. Opposed to such an arrangement, he expressed his concern that judicial review might have been intended and suggested the Convention was "going too far" if this were the case. He argued that the power of the Supreme Court should be properly limited to "cases of a Judiciary Nature," i.e. those cases submitted by adversary parties for judicial determination (Berger, 216). He elaborated his objection that "the right of expounding the Constitution in cases not of this nature ought not to be given to that Department [the Supreme Court]." Others at the Convention whose identities remain undisclosed assured him that there was no threat of judicial review, since the Supreme Court's jurisdiction would of course be "constructively limited to cases of a Judiciary Nature." [italics added] By "cases of a judiciary nature," these delegates probably meant cases in which the law was applied, as opposed to cases in which the law itself could be vetoed. Swayed by the momentum of proceedings, Madison reluctantly joined in the unanimous vote supporting Johnson's amendment. However, as he warned, the combination of his and Johnson's amendments, both of which passed unanimously, did establish the basis for Marbury v. Madison, giving the Supreme Court the power to judge the constitutionality of federal laws. Perhaps because he was rattled by debate, Madison neglected to mention in his Notes the next major amendment under consideration once two minor revisions proposed by Rutledge were unanimously accepted. As summarized by the official Journal, but not by Madison himself, this overlooked but crucially important amendment offered by Wilson finally gave the Convention the opportunity to vote on an appeals system that integrated state and federal courts as proposed on June 5, July 18, and in the New Jersey plan. Delegates had voted against the New Jersey plan in its entirety; now they would be able to vote specifically on the vertical integration of state and federal courts, and in an arrangement whereby both laws and factual evidence adjudicated by state courts could be appealed to the Supreme Court. The official Journal mentioned this abortive amendment without disclosing its source, and, as already indicated, Madison altogether neglected to mention it, so its importance has been overlooked by constitutional historians. However, the amendment as described in the Journal can be conflated with its discussion by Morris and Wilson as reported by Madisonan exchange that otherwise seems disconnected with earlier proceedingsto establish Wilson's authorship as well as the full significance of his proposal: Journal:It was moved and seconded to agree to the following amendment. In all the other cases beforementioned original jurisdiction shall be in the Courts of the several States but with appeal both as to Law and fact to the courts of the United States, with such exceptions and under such regulations, as the Legislatures shall make. (2 Farrand 424)
Madison's Notes:
Mr. Wilson. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed. (2 Farrand 431)
Journal:
Here, at last, was the keystone that would have imbedded judicial review in the Constitution. It was far more significant than earlier proposals for integrating state and federal courts, since it specifically permitted state court decisions to be appealed to the Supreme Court and since its phrase "both as to law and fact" could be construed to permit the review of state laws based on their compatibility with the Constitution as guaranteed by the Rutledge and Johnson amendments that had just been accepted. Also significant was the probable authorship by Wilson since it was Wilson who responded to Morris's question about the "law and fact" clause" by explaining the intent of the amendment. The "law and fact" clause had not been mentioned in previous convention debate upon the judiciary, so Morris appropriately asked what it meant in the context of the amendment, and it was Wilson who responded by trying to reconstruct its intended meaning. Who but the delegate who presents an amendment with entirely new wording could be expected to clarify this wording to such an assembly?
In his response to Morris, Wilson also disclosed that the wording, "both as to law and fact," and thus probably the entire amendment, was chosen by the Committee of Detail, which he simply described as "the Committee." As explained earlier, those among the Committee who could support this amendment would have included Wilson, Rutledge, and Ellsworth, with Gorham having played a peripheral role and with Randolph opposed to such an addition to the Constitution. Perhaps disingenuously, Wilson argued that the wording seemed appropriate to the Committee because of its earlier use by the federal Court of Appeals, suggesting that it granted no broader powers than already exercised under the Articles of Confederation for judging the use of law as applied to facts. Nevertheless, a more threatening interpretation would have been possible if the "law and fact" clause could also have been interpreted to permit judgments upon law itself independent of fact, or as illustrated by fact, to be appealed from state to federal courts. With fact granted priority, appeals would primarily involve jury trials, but with law given priority, law itself could be appealed, and this would have entailed judicial review. Not surprisingly, the "law and fact" clause was familiar to both Ellsworth and Wilson, since Ellsworth had acted as a justice on the Court of Appeals, and Wilson as a lawyer who had appeared before it in the celebrated Olmstead case. Wilson had likewise used the words "law and fact" as the title of one of his early fragments in the Committee of Detail (2 Farrand 157). It therefore seems likely that Wilson himself, serving as the Committee's amanuensis, had drafted the amendment as a contingency whose controversial importance was fully recognized by Ellsworth and himself, and at least to an extent by others on the Committee.
That Wilson proposed such an amendment might have been surprising to some delegates, since he had been one of the two authors of the June 6 Madison compromise whose purpose was to avoid the use of the state judiciary for original jurisdiction. Now, however, he completely reversed himself, apparently because he felt that with the Convention's rejection of congressional review, nationalism would best be served by switching his allegiance to judicial review. Just as Rutledge, once a smallstate advocate, based his July 23 amendment on the Virginia Plan featured by the nationalists, Wilson, once opposed to smallstate objectives, was trying to resurrect a portion of the New Jersey Plan featured by the smallstate faction. By earlier standards, the two might have seemed to be rather dramatically switching roles, but their reversal was fully justified if they shared a new goal at this point in deliberations, the eventual imposition of judicial review as one of the principal means of guaranteeing federal sovereignty.
With the addition of Wilson's amendment, combined with the Rutledge and Johnson amendments, the principle of judicial review would have been fully written into the Constitution, though in a piecemeal arrangement that postponed its justification until later interpretation by the Supreme Court. As indicated in the Journal, Wilson's amendment was withdrawn after brief discussion without being voted upon. Why? Probably because it was considered too controversial. Everything would be lost if it were rejected by the Convention, or, worse yet, if it were incorporated into the Constitution, but only to rally an effective opposition at state ratifying conventions. As drafted by the Committee of Detail, Article III compounded by the Rutledge and Johnson amendments already gave Congress the implicit power to impose judicial review at a later time. Why let redundant explicitness jeopardize something already in the works?
It seems probable that Wilson spontaneously decided on August 27, perhaps without consulting the others, that the time was ripe to submit the amendment to the Convention for a final showdown in giving state courts original jurisdiction and thus permitting judicial review. Rutledge and Johnson's amendments had just laid the basis for judicial review by featuring the primary authority of the Constitution in both state courts and the federal Supreme Court. Now, despite Madison's admonitions, the keystone could be added, letting judicial review by state courts be appealed to the Supreme Court. However, as already indicated, Wilson withdrew his amendment from consideration. It may be speculated that Wilson took it upon himself to present the amendment, but that Rutledge once again exerted a restraining influence, as he had on August 15 and 23, and convinced Wilson to withdraw it for the purposes of expediency. Another possibility would be that Wilson did indeed act as a spokesman for others on the Committee of Detail, Rutledge included, but that other delegates, either friendly or hostileperhaps Dickinson or Morrisprevailed upon them to defer to Congress any final judgment in the matter. In either case, it seems likely that Wilson himself withdrew his amendment. Just as explicit reference to the vertical integration of state and federal courts had been excluded from earlier motions and amendments, Wilson was apparently convinced to carry on the strategy of omission even now, at the final stage of the Convention. As it turned out, Section 25 of the Judiciary Act would later serve the same purpose, and with better and more specific guidelines for determining the scope and procedures of judicial review.
In response to Wilson's remarks, Dickinson took the opportunity to propose a relatively narrow substitute amendment permitting appeals based on both "law and fact" without specifying whether state courts would be granted original jurisdiction. Once again, the full significance of Dickinson's amendment following that of Wilson is best clarified by collating the Journal and Madison's Notes, in this instance once Wilson withdrew his amendment as indicated in the Journal:
Here Dickinson seems to have tried to salvage as much of Wilson's amendment as possible based on Wilson's definition of the "law and fact" clause for later establishing judicial review pertinent to law alone. Dickinson's substitute amendment was unanimously accepted as what might have seemed a harmless component of the withdrawn amendment. His wording was probably found suitable in guaranteeing the full appellate authority of the Supreme Court regardless of who would be granted original jurisdiction. Whether state and federal courts were integrated, the principle would insure an effective appeals process, fact linked with the law, and if and when judicial review itself were imposed, with the law emphasized rather than fact, the wording of Dickinson's amendment would help to justify it. Meanwhile, those opposed to judicial review could support Dickinson's amendment as a technicality for improving the appeals process without mandating either judicial review or the fixed integration of state and federal courts.
Apparently, it did not occur any of the delegates that antinationalists would later challenge the Constitution because of a relatively superficial consideration, the possibility that jury trial verdictsas opposed to state and local lawscould be reversed by the Supreme Court based on the law and fact clause, thus imposing an extra burden on litigants to make their case again at a different location. However, everybody present at the Convention was hurrying to complete its business and eager to dispense with specific issues without exploring them too much in depth. The timing was perfect both to lay the foundation for judicial review and to postpone its implementation until Congress established inferior federal courts.
That instrument [the Constitution] was written by the fingers, which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which expressing my own notions would not alarm others, nor shock their selflove, and to the best of my recollection, this was the only part which passed without cavil. (3 Farrand 420italics added).
7. The 1788 Ratifying Conventions
Hence we see how necessary for the Union is a coercive principle. No man pretends the contrary: we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? A necessary consequence of their principles is a war of the states one against the other. I am for coercion by lawthat coercion which acts only upon delinquent individuals. (3 Farrand 241)
Nor did the possibility of judicial review go totally unnoticed by others around the country, and to at least a few it seemed a strategy might be in the works to impose judicial review at a later time. In a series of articles published in 1788 under the pseudonym of Brutus, Robert Yates explained at length how judicial review could lead to centralization in the federal government because of the gradual accumulation of legal precedents. The gradual accumulation of Supreme Court decisions would produce an exponential increase in the power of the judiciary, and sooner or later federal justices would be able to mold the government into almost any shape they pleased. In response Hamilton added the Numbers 78 to 83 essays of The Federalist, in which he challenged the likelihood that the courts would ever gain this much power. However, there was an unmistakable suggestion that he was not necessarily opposed to such an outcome, and he did declare his enthusiastic support of the vertical integration of state and federal courts:
. . . the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeals from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. (Federalist 81, 536). Moreover, Hamilton defended the necessity of judicial review:The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law, It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intentions of the people to the intention of their agents. (Federalist 78, 506).
As hoped and expected, opponents to the Constitution at the 1788 state ratifying conventions focussed on other issues than judicial review. The lack of a bill of rights and the appeal of jury trials to higher courts primarily dominated their attention. Nevertheless, Mason, Randolph, and Martin warned at their respective ratifying conventions against the likelihood of a judicial takeover. All three had participated in the Convention, and they were more suspicious than others of the possibility of a hidden agenda for imposing judicial review within the system of appellate jurisdiction yet to be established by Congress. Mason was perhaps the most persuasive of the three. On August 27, he had drafted notes suggesting his own modified plan to integrate state and federal courts for appeals exclusively based on law and not fact (2 Farrand 43233). However, in notes compiled in the final days of the Convention, he had included the absorption of state courts into the federal judiciary as one of the sixteen reasons why he refused to sign the Constitution: "The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate, and expensive, and justice as unattainable, by a great part of the community . . . and enabling the rich to oppress and ruin the poor" (2 Farrand 638). These state judiciaries would have been destroyed, he felt, through their loss of autonomy by having been incorporated into the federal judiciary. At the Virginia ratifying convention, Mason warned more specifically against the absorption of state courts into the federal judiciary:
What is there left to the state courts? Will any gentleman be pleased, candidly, fairly, and without sophistry, to show us what remains? There is no limitation. . . . The inferior courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please. . . . When we consider the nature of these courts, we must conclude that their effect and operation will be utterly to destroy the state governments; for they will be the judges how far their laws will operate. They are to modify their own courts, and you can make no state law to counteract them. The discrimination between their judicial power, and that of the states, exists, therefore, but in name. To what disgraceful and dangerous length does the principle of this go! . . . (3 Elliott 5212italics added)
In his brief response to Mason, Madison more or less conceded the extraordinary powers granted to the judiciary:
It may be a misfortune that, in organizing any government, the explication of its authority should be left to any of its coordinate branches. There is no example in any country where it is otherwise. There is a new policy of submitting it to the judiciary of the United States. (3 Elliott 532italics in the original) Monarchy had limited the power to explicate and make a final determination upon laws to the executive branch (i.e. itself), and the Articles of Confederation had taken Blackstone to the limit by having shifted this ultimate power to the legislative branch. Madison had sought during the Convention to prevent bias in either direction, but now, he acknowledged, however grudgingly, the explication and final determination of laws would be assigned neither to executive nor legislative authority, but to the judiciaryand for the first time in the history of western civilization. In effect, he disclosed here that the primary achievement of the Convention, though almost entirely kept from debate throughout its proceedings, was the imposition of judicial review to guarantee federal sovereignty.Because of his personal experience on the Committee of Detail, Randolph had even more reason than Mason to doubt the use of the judiciary implied by the Constitution. At the Virginia Ratifying Convention, Randolph declared, "The judiciary is drawn up in terrorhere I have an objection of a different nature. I object to the appellate jurisdiction as the greatest evil in it [the Constitution]" (3 Farrand 310). Like Mason and Gerry, Randolph had refused to sign the Constitution, but he was convinced by Washington, Madison, and others to reverse himself, probably in exchange for his appointment as our nation's first Attorney General. Nevertheless, he remained dubious of the provision for appellate jurisdictionexactly the feature of Article III left unresolved by the Committee of Detail. In comparable fashion, Luther Martin, the original author of the supremacy clause, solemnly warned at the Maryland ratifying convention against nationalization resulting from Rutledge's amendment to this clause:
. . . it [the Constitution] is now worse than useless, for being so altered as to render the treaties and laws made under the federal government superior to our [state] constitution, if the system is adopted it will amount to a total and unconditional surrender of that government, by the citizens of this state, of every right and privilege secured to them by our [state] constitution, and an express compact and stipulation with the general government that it may, at its discretion, make laws in direct violation of those rights. (3 Farrand 2867).Later confiding his doubts about the intentions of his fellow delegates at the Convention, Martin warned, "I most sacredly believe their object is the total abolition and destruction of all state governments, and the erection on their ruins of one great and extensive empire" (3 Farrand 2912). As Martin anticipated, an enlarged judiciary did eventually help to integrate the separate states into what could only have seemed an empire, if with better results than he anticipated.
Among the six delegates who had promoted judicial review at the Constitutional Convention, Wilson and Rutledge were appointed to the Supreme Court, and Sherman was elected to the House of Representatives, then considered the more important of the two chambers. The remaining threeEllsworth, Johnson, and Patersonwere elected to the Senate, where the Judiciary Act was drawn up as specified by the June 5 Madison compromise. The central figure in the passage of the Judiciary Act turns out to have been Ellsworth, who was chosen with Paterson and six others (with two more added six days later) to serve on the ad hoc committee for drafting the Judiciary Act, described as Senate Bill No. I. This was the first such committee appointed by the new Senate, and its formation was the very first order of business on the first day of its First Session. Truly, the Judiciary Act was at the top of the Senate's agenda at its inception in 1789. Former Convention delegates appointed to this committee included, besides Ellsworth and Paterson, Richard Bassett of Delaware, William Few of Georgia, Caleb Strong of Massachusetts, and Paine Wingate of New Hampshire.
In retrospect, it should be recognized that Ellsworth quickly took a dominant role in the Senate. He forced the passage of every feature in Hamilton's economic program except for those minor changes he himself felt were important. He sponsored Madison's Bill of Rights in the Senate and singlehandedly sponsored and forced the passage of legislation which pressured Rhode Island into joining the union. John Adams praised Ellsworth as "the firmest pillar of his [Washington's] whole administration in the Senate," and Aaron Burr complained, "If Ellsworth had happened to spell the name of the Deity with two d's, it would have taken the Senate three weeks to expunge the superfluous letter" (Brown, 231, 225). Why, then, did Ellsworth make the Judiciary Act his very first task in the Senate? Why was this his dominant concern? The answer seems evident that he treated the Constitution as unfinished business without the Judiciary Act and that he swiftly worked to bring it to its completion. Because of his experience on the Committee of Detail, he was the most qualified in the Senate to promote the Judiciary Act, and he knew exactly what needed to be done. Now that the Constitution had passed muster at the state ratifying conventions, its less attractive enabling features could be imposed, the most important of which was judicial review as well as the organization of state and federal judiciaries. The Constitution itself had provided a central government based on an elaborate model of checks and balances, and now, with the Judiciary Act, this government would be able to defend its sovereignty through an interlocking hierarchy of state and federal courts with a Supreme Court at the top able to revoke state laws in conflict with the Constitution. It was thus the passage of the Judiciary Act which gave teeth to the Constitution and helped to preserve the nation from its powerlessness under the Articles of Confederation.
Amazingly, the 25th section of the Judiciary Act spelled out the principle of judicial review in just two sentences, the first a 307word explanation of the procedures of judicial review, and the second a brief amendment added during Senate debate which limited the application of judicial review to issues featured in the written opinions of lower courts. The heart of the Judiciary Act lay in the first of these sentences, since it outlined the circumstances and procedures for appealing state Supreme Court decisions upon state law to the federal Supreme Court for its final determination. Probably drafted by Ellsworth, this neglected keystone (and linchpin) of constitutional law defied both revision and effective opposition. It was neither discussed or amended by either the Senate or House of Representatives. Members of the latter body later proposed a number of changes for other portions of the Judiciary Act, but none that penetrated the wording of this particular sentence, perhaps the most important (certainly the most gnarled) provision in the history of constitutional law. Its labyrinthine precision guaranteed its obscurity, both specifying the necessary circumstances for judicial review and by means of its specification crowding from recognition the enormous powers thereby conferred:
It has been suggested that the assignment of original jurisdiction to state courts and appellate jurisdiction to the Supreme Court was a concession to antifederalists such as Richard Henry Lee. However, the exclusive use of state courts in the first instance had been featured as early as Rutledge's June 5 amendment, and it seems probable that Ellsworth was both willing and eager to bring this arrangement into the Judiciary Act. Antinationalists could take satisfaction in having granted state courts the power to initiate judicial review, but, as recognized by Yates, Mason and Martin, such an arrangement contained the seeds of even greater powers accruing to the Supreme Court over subsequent decades.
Fortunately, few challenged, or perhaps even fathomed, Ellsworth's sentence reduced to its essential components. Unlike the elegant lucidity of the Constitution's final draft crafted by Gouverneur Morris, Ellsworth's syntax repelled attention in the very act of establishing the federal government's defense of its sovereignty through judicial review. This opacity seems to have been typical of Ellsworth's legal style and was later ridiculed by Maclay because it resisted amendment except by imposing completely new wording:
This bill [a later bill upon consuls and viceconsuls] was drawn and brought in by Elsworth, and, of course, he hung like a bat to every particle of it. The first clause was a mere chaosstyle, preamble, and enacting clause all jumbled together. It was really unamendable; at least, the shortest way to amend it was to bring in a new one. (Maclay, 3689)The problem, Maclay suggested, very likely resulted from a peculiar lopsidedness in Ellsworth's talents: "Allpowerful and eloquent in debate, he is, notwithstanding, a miserable draftsman." In Section 25 of the Judiciary Act, Ellsworth apparently exceeded himself as a miserable draftsman, but with salutary results, since judicial review was less likely to be challenged and rejected than if explained in a simpler construction. The Constitution itself had been gracefully elucidated for the benefit of the American public. In contrast, the wording of Section 25 was delayed two years and then smuggled aboard in this fashion, an obscure rider to an elaborate bill for creating inferior courts as provided by Article III of the Constitution.
Signed by President Washington on September 24, 1789, just two years after the Constitution was adopted, the Judiciary Act effectively complemented Articles III and VI of the Constitution. Everything more or less fit. The Constitution set the general guidelines for the establishment of federal courts, while the Judiciary Act, more than twice as long, defined the relationship among state and federal courts with even greater precision than Articles I and II of the Constitution had defined the powers of Congress and the President. To offset the power of the Supreme Court, the initial review of both state and federal laws was limited to state courts, and the constitutional determination of these laws could only be appealed to the federal Supreme Court once state supreme courts found them acceptable. This discretionary authority of the state judiciary temporarily impeded centralization, but, as predicted by Yates, the accumulation of precedents through judicial review would later redress the balance. As to be expected, the court system was initially weakso weak, in fact, that John Jay, the first Chief Justice, resigned in disgust in 1795. Only a half dozen cases required judicial review by the Supreme Court in the decade following the passage of the Judiciary Act. Nevertheless, the accumulation of precedents since then has indeed expanded the veto of the federal judiciary over state and local laws, and to such an extent that Supreme Court rulings today bear an influence on every aspect of life in the United States.
The final ingredient in the system of law based on judicial review was supposedly added by John Marshall, Ellsworth's successor as Chief Justice, when he declared the Supreme Court's power of review over federal law in Marbury v. Madison (1 Cranch, 174). Marshall achieved this aim by denying the Supreme Court the right to issue a writ of mandamus, since the writ, established by Section 13 in the Judiciary Act, was not included in the Constitution and was therefore presumably restricted to the affairs of inferior courts as indicated by Article III's exclusionary wording ("in all other cases," etc.). The Constitution took precedence over the Judiciary Act (a mere law), Marshall explained, so he was obliged to declare Section 13 null and void. He accordingly announced his inability to issue a writ of mandamus which would force James Madison, Jefferson's new Secretary of State, to employ William Marbury, a lastminute political appointee of John Adams. The immediate victory went to Madison, but on more basic grounds the Marbury v. Madison decision was a stunning defeat to his vision of constitutional checks and balances, since it set the stage for the acceptance of the Supreme Court's final and irreversible power to veto federal law. During the Convention, Madison had tried to prevent any expansion of judicial authority that would make the Supreme Court the final arbiter of federal law and had expressed his serious reservations when Johnson added his amendment referring to the Constitution itself. Now Madison's worst suspicions were confirmed, and, ironically, in a case decided in his favor. Nevertheless, as Marshall pointed out, only the Supreme Court possessed the ability and credentials to determine the constitutional validity of specific federal laws. If it made its determination unfavorable to these laws, its negative opinion necessarily constituted their veto for being unconstitutional.
By means of his reasoning in the Marbury v. Madison decision, Marshall both affirmed the Supreme Court's right to submit federal law to judicial review and circumvented the probability that any Supreme Court decision favorable to Marbury would have been ignored by the Jefferson administration. In retrospect, however, his logic can be seen to have been almost blatantly defective in denying the Supreme Court the use of the writ of mandamus. Contrary to his arguments, Article III probably omitted mentioning this writ because it was understood as a residual power exercised by both the Supreme Court and inferior courts. It was a function of the judiciary, not an area of its jurisdiction, so it did not need to be listed with the eight areas of jurisdiction granted the Supreme Court in the Constitution. Moreover, Article III's presumably categorical restriction emphasized by Marshall, "in all the other cases," bore altogether different implications in its fuller context, "in all the other cases before mentioned." [italics added] Since the writ of mandamus was not among the areas of jurisdiction "before mentioned," it was necessarily excluded from the areas that were declared to be limited to inferior courts by the Constitution. Likewise, one or both of the principals, Marbury and Madison, fit the description of public ministers as specified in Article III, so the Supreme Court necessarily exercised original jurisdiction in the determination of their case. Even if Marshall's argument were valid, it would have been necessary, if cumbersome, for the Supreme Court to make its decision and then call upon an inferior court to issue a writ of mandamus based on its decision.
Nor should it be overlooked that Marshall was prohibited by Article III from declaring Section 13 unconstitutional without awaiting the appeal of its favorable review from inferior courts to the Supreme Court. Enforcing the writ of mandamus for the benefit of Marbury was entirely within Marshall's original jurisdiction, but his jurisdiction was appellate, not original, when it came to rejecting the writ for being unconstitutional. A decision supportive of the writ would first have been needed from a state supreme court, as provided by Section 25 of the Judiciary Act, and then it could be appealed to him for his final dispensation. But most important, Marshall denied Congress its right to incorporate the writ of mandamus into the Judiciary Act as justified by the exceptions and regulations clause of Article III: " . . . with such exceptions, and under such regulations as the congress shall make." (italics added) Amazingly, Marshall dispensed with this entire phrase, featured by the Committee of Detail to provide for enlarging the authority of the Supreme Court, as "mere surplusage" and "entirely without meaning" (Commager, 193). However, only four sentences later, at a different stage in his argument, Marshall declared, "It cannot be presumed, that any clause in the constitution is intended to be without effect." Indeed, he was correct here, but at the expense of his earlier argument against Congress's authority to include the writ of mandamus in the Judiciary Act. If an "effect," or intended application, were perceived in the exceptions and regulations clause rejected by Marshall, Section 13's guidelines for imposing the writ of mandamus could be recognized to have been fully constitutional as an "exception" that Congress had chosen to makeif, in fact, it were any exception at all.
Finally, of course, Marshall should have disqualified himself from judging the case, since he had served as Secretary of State in the final months of the Adams administration and had been personally responsible for the delay in giving Marbury his lastminute federal appointment. To this extent, at least, the litigation had arisen from negligence on Marshall's part, and yet he sat in judgment on the case! Nevertheless, the defects and fallacies in Marshall's judgment against the writ of mandamus were less important than his defense of the right of the Supreme Court to impose such a judgment. By declaring the writ of mandamus unconstitutional, he established the inevitability of judicial review over federal law. As originally intended, judicial review had been no more than implied in the Constitution, but its use was unavoidableas Marshall explained, and as Johnson and fellow delegates had planned when they added the "arising under" clause to Article III.
Paradoxically, it was only by reducing the Supreme Court's authority that Marshall could enlarge this authority to impose such a reduction. Among other potential contradictions was Marshall's veto of the writ of mandamus without having taken into account the comparable status of the writ of error for making appeals to the Supreme Court as required by Section 25. Both writs were missing from the list of powers granted by Article III, and both were first specified in the Judiciary Act, so both could have been declared unconstitutional by Marshall's logic. In other words, the judicial review of state lawsfar more important than the writ of mandamuswas no less susceptible to veto, as in fact Marshall himself argued when he had appeared as a lawyer before the Supreme Court in 1796 (Ware v. Hylton, 3 Dallas 199). However, now that he was elevated to Chief Justice, Marshall understandably wanted to preserve the vertical review of state law as well as adding its horizontal application to federal law. As a result, the intentional ambiguity of Article III pertained to both writs, but with entirely different implications leading to identical results. Because there was no indication whether state or federal inferior courts would be used, Section 25 of the Judiciary Act, including the writ of error, could be accepted as being constitutional, permitting the Supreme Court's judicial review of state laws. However, because of the exclusionary wording used to convey this ambiguity ("in all other cases," etc.), Section 13, including the writ of mandamus, could be found unconstitutional, thereby establishing the necessity of judicial review for federal law too. A double standard seems to have been imposed, in both instances favorable to judicial review. In effect, Marshall denied the Supreme Court the right to use the writ of mandamus because it had incidentally been excluded from the Constitution. But in rejecting it he laid claim to another and more important right, the judicial review of federal law, a right that had been intentionally excludedi.e. left open to interpretationso it could later be imposed.
Ill and in retirement when Marbury v. Madison was decided, Ellsworth had perhaps even more reason than Madison to be ambivalent about Marshall's line of argument, since he had played a central role in framing both documents Marshall found in conflict with each other. Marshall extended judicial review to federal law by misconstruing the exclusionary wording of Article III, which Ellsworth helped to draft, and Marshall did this in order to reject Section 13 of the Judiciary Act, whose original draft still exists in Ellsworth's handwriting. In and of itself, the writ of mandamus was relatively inconsequential, but it was indeed missing from the Constitution, so Marshall could use its absence to compel its exclusion from the powers exercised by the Supreme Court. By later specifying its use in the Judiciary Act, Ellsworth had ostensibly contradicted himself, and Marshall could use this potential inconsistency as the precedent he needed to justify the judicial review of federal law. Whether Marshall's interpretation was correct did not deprive him of the right to make it. Ellsworth himself had imposed the Judiciary Act in order to guarantee the Supreme Court's power to review state laws, and now Marshall challenged a very minor portion of this Act in order to help consolidate another of Ellsworth's principal objectives (as specified by the first clause of the Judiciary Act), the Supreme Court's power to review federal laws. So how could Ellsworth complain? Everything was finally in place, more or less.
The difference between Madison's model and the final model as determined by the 1789 Judiciary Act followed by the 1803 Marbury v. Madison decision may readily be diagrammed:
The final model's upper "V" portion indicates the presidential veto as well as the judicial review of federal law as confirmed by Marshall's 1803 Marbury v. Madison opinion, while the vertical detour extending from the Supreme Court to state supreme courts and then state legislatures represents the judicial review of state law as defined by Section 25 of the Judiciary Act. As modified, the countermajoritarian veto became workable, if asymmetrical and of relatively precarious legitimacy. It turns out that the Supreme Court's power to review state law was guaranteed by a federal lawthe Judiciary Actwhich could be repealed or amended any time by a simple majority of Congress. Likewise, the judicial review of federal law was guaranteed a Supreme Court opinionMarbury v. Madisonwhich could be supplanted or modified by later opinions of the Supreme Court. Neither power of review, over state or federal law, was clearly granted by the Constitution itself, nor was either legitimized as an amendment to the Constitution. Paradoxically, as a result, the Constitution's effectiveness as our nation's primary legal contract has been guaranteed by a mere law and by a mere Supreme Court decision, both of which lie outside the Constitution itself. The effect has been tautologicalconstitutional government has provided the basis for the implementation of these laws; they in turn have served as bulwarks confirming our government's constitutional authority to do so.
The importance of Marbury v. Madison is generally recognized. However, the comparable importance of the Judiciary Act has often been overlooked in constitutional history, apparently on the assumption that the judicial review of state laws has been just as effectively guaranteed by the Constitution's supremacy clause, by the 1803 Marbury v. Madison decision, and by the due process clause of the Fourteenth Amendment of 1868. However, without Section 25 of the Judiciary Act, none of these documents would have specifically granted the Supreme Court the power to veto state laws. For example, without Section 25 the supremacy clause could actually have been interpreted to deprive the Supreme Court of its final power to exercise judicial review. As first intended by Martin, state justices's oath of loyalty to the Constitution would have established their full authority to overturn state laws without further review by any particular branch of the federal government. Section 25 reversed this effect by imposing an appeals system whose final authority was vested in the Supreme Court alone. Marbury v. Madison was even less useful in guaranteeing the Supreme Court the power of judicial review over state law. Marshall's decision did affirm the Supreme Court's power of judicial review over laws passed by Congress, but it bore no relevance to the veto of state law. Finally, the equal protection clause of the Fourteenth Amendment significantly expanded the Supreme Court's authority to protect individual rights from both state and federal government. However, without the Judiciary Act the Supreme Court would not necessarily have exercised final authority in this matter. State courts would have held coextensive and essentially independent authority, and their decisions would have retained independent validity as guaranteed by their judges' oath of allegiance required by the supremacy clause. There was no clear guarantee that these decisions could have been reversed by the Supreme Court, any more than state courts could have reversed the Supreme Court's findings. Even if the broadest interpretation of the Fourteenth Amendment's equal protection clause were granted, Section 25 provided an indispensable antecedent and established the procedures and circumstances by which judicial review at the state level could be appealed for a final judgment by the Supreme Court.
As for the Bill of Rights, it too became dependent on judicial review as guaranteed by Section 25. In the First Congress of 1789, Madison promoted the Bill of Rights as a protection of individual and states rights from federal interference as might be exerted by the Supreme Court. Just as there was a balance of power among the three branches of government, a twofold balance seems to have been envisaged between the Judiciary Act and Bill of Rights. Both dominated proceedings in the 1789 Congressthe Judiciary Act, promoted by Ellsworth, having originated in the Senate, and the Bill of Rights, promoted by Madison, having originated in the House of Representatives. Their linkage effectively established symmetry between the federal government's power of judicial review and the defense of personal and communal liberties from all branches of the federal government, the Supreme Court included.
The First Amendment's guarantee of free speech, for example, not only restricted the federal government from curtailing the free speech of individuals, but prevented it from interfering with state laws and judicial decisions that either supported or limited free speech. If state laws curtailed free speech, the Bill of Rights in its original formulation prevented the Supreme Court or any other office of the federal government from interfering with these laws. In effect, the Judiciary Act granted state and federal courts their joint authority to defend federal sovereignty, while the Bill of Rights designated both individual rights and the rights of state and local governments to be protected from this judicial partnership. Unexpectedly, however, the equal protection clause of the 1868 Fourteenth Amendment subverted this intention by expanding the Bill of Rights to protect individual liberties from state and local government as well as the federal government. The federal Bill of Rights became a universal standard of justice, and the Supreme Court necessarily assumed final authority in enforcing the application of the Bill of Rights at every level of government. For the first time, a single branch of the federal government, the Supreme Court, was empowered to prohibit all state and local lawseven, as it later turned out, individual, group, and corporate behaviorsfound in conflict with the Bill of Rights. Since virtually all human intercourse touches upon freedoms designated by the Bill of Rights, there was increased federal intrusiveness, exactly what many of our founders had fought to prevent when they first drafted the Bill of Rights.
They had wanted to guarantee an acceptable balance between state and federal sovereignties, not the total subordination of one to the other. Yet the effect of the Fourteenth Amendment has been beneficial. We enjoy genuine uniformity in the rule of law, and the integrated enforcement of the two countervailing principlesof judicial review ("countermajoritarian") and of inalienable rights ("egalitarian")has helped to complete the absorption of the separate states into a single nation.
Perhaps the most remarkable aspect of judicial review's postponed achievement was the effective cooptation of barriers intended to prevent it. Repeatedly, antinationalists tried to prevent the use of the judiciary as an agent of centralization. However, resulting from the federalist compromise, each of their preventative measures was later modified to reinforce the principle of judicial review, and usually with the active collaboration of their original authors. Rutledge and Ellsworth, for example, began as smallstate delegates opposed to enlarging the federal judiciary, but soon they reversed themselves and worked even more effectively toward its creation. Others who reversed themselves included Sherman, Wilson, Madison, and even Martin, who was eventually nicknamed the "Federal Bulldog" by Jefferson because of his ardent support of constitutional government once it had been launched. In all instances, their tactical victories against, became postponed victories for, judicial review. Rutledge's June 5 amendment dispensed with permanent inferior federal courts in order to defend state sovereignty, but it also led to an invaluable twoyear delay in the creation of "temporary" federal courts, as proposed by Madison and Wilson to prevent their total elimination. In turn, Madison and Wilson wanted to discourage the participation of state courts in the federal judiciary, but this twoyear delay imposed by their compromise was essential for letting this happen. The "temporary" status of federal courts later became permanent anyway, while the postponement in their creation led to the Judiciary Act, a law which brought about the absorption of state courts into a national court system dominated by the Supreme Court. Likewise, Martin's July 17 amendment to grant independent authority to state justices bound by state constitutions was later revised in the supremacy clause to guarantee the loyalty of these justices to a federal appeals process. It turns out that the imposition of judicial authority from below established a vertical conduit by which it could be even more effectively imposed from above.
Likewise, as already indicated, the Bill of Rights was designed to curtail federal interference in state affairs and the individual rights of citizens, but with the addition of the Fourteenth Amendment's equal protection clause the Supreme Court's powers were expanded as justified by its defense of the Bill of Rights. Each of these innovations was promoted as insurance to curtail the enlargement of the federal judiciary, but in time each produced exactly the opposite results. And with good cause. The Constitution would have been as ineffective as the Articles of Confederation in justifying the veto of state law unless the Supreme Court could be granted the full and necessary powers of judicial review. In the final analysis these powers were what mattered, and the maze of legal contradictions they necessitated was of subsidiary importance.
How could this Rube Goldberg contraption, this jerrybuilt hodgepodge of reversible safeguards and potentially incompatible laws, clauses, and judicial decisions have become the foundation of American constitutional law? At least in part because the relatively simple design for a central government sought by Madison and his supporters had been prevented by antinationalist convention delegates, and it had been impossible under the circumstances to impose an alternative with comparable safeguards against excessive decentralization. As disclosed by letters between Washington and Hamilton, the Constitutional Convention was in total disarray by early July, 1787 (3 Farrand 534, 5657). The most important features of the Virginia Plan were under attack, and prospects seemed inevitable that the Constitution would be just as ineffective as the Articles of Confederation. Obviously, some kind of a structure was necessary to veto state laws incompatible with federal prerogatives, and, since congressional review was found unacceptable, by default the role of the judiciary became the focus of the effort to salvage this responsibility. Yet the basic powers eventually granted to the Supreme Court by the Judiciary Act and Marbury v. Madison had been too innovative, and too threatening to many antinationalists, to have been accepted at the Constitutional Convention. These powers were therefore excluded from proceedings, setting the stage for their subsequent adoption on a piecemeal basis. Having not been rejected, they could later be imposed, paradoxically, by granting state courts federal authority in order to let the Supreme Court reverse state court decisions, and by depriving the Supreme Court of a specific authority, the writ of mandamus, in order to establish its final authority, if so disposed, to risk making such mistakes.
The piecemeal implementation of this convoluted strategy necessarily involved confusion, postponements, temporary expedients, and unexpected compromises. As might have been anticipated, it resulted as much from serendipity as from planning and synthesis. If an architectonic symmetry emerged, its realization transcended its frame and scaffolding. Like a thrown toy gyroscope, the organization of our nation's courts stabilized and found its own path independent of the energies that launched it, yet more or less as intended when thrown. Delegates who might have been willing to impose judicial review "lucked into" a postponement in the creation of inferior courts because of the June 5 Madison compromise. However, there was little they could do beyond crafting the language of Articles III and VI to permit its later adoption. As a result, nobody at the Convention could have predicted the outcome with any degree of confidence. Such individuals as Wilson, Ellsworth and Hamilton sought a strong judiciary based on the principle of judicial review, while others such as Yates, Mason, Randolph and Martin feared itsome longer than others. But none of them wielded the power to shape with exactitude the system of justice which would emerge over the next two centuries. Ellsworth had more of a hand than others in shaping the judiciary, but his contribution was fraught with the most contradictions.
Many basic questions remain unanswered. Those contemporary statesmen who painstakingly documented their contributions to statescraftMadison, Hamilton, Jefferson, and Adamsdid not play central roles. In contrast, those who helped to steer possibilities toward judicial review neglected to explain themselves for the benefit of posterity. Indeed, they seem to have avoided fully exposing their ideas to public scrutiny, and instead negotiated (or cabaled) in private. Like modern politicians, they did not feel compelled to clarify their objectives with the thoroughness that their strategy might otherwise have necessitated. Several were prevented from compiling their papers at the end of their careersEllsworth because of a prolonged terminal illness resulting from his diplomatic mission to France, Rutledge because of incurable insanity (its onset produced by his outrage with the Jay mission to England promoted by Ellsworth), and Wilson because of public disgrace as a fugitive from his creditors, dying in the care of his young bride in an obscure rural hotel. As a result, many of the steps taken in implementing judicial review can only be hypothetically reconstructed. Some modifications were plainly intended, but others seem to have resulted from the happy mixture of experience and accident first recommended by Dickinson.
Quite properly, opponents of the Judiciary Act suspected by 1789 that it contained the seeds of a nationalist takeover, but they did not know where to look. The issues they emphasizedtrial by jury, the relocation of trials, and an appeals system based on fact as well as lawwere relatively innocent of this subversiveness. Moreover, the Bill of Rights was adopted to safeguard individual rights from any misuse of federal power, and the Judiciary Act gave state courts sufficient authority to defend state sovereignty from federal intrusion. Nevertheless, widespread suspicions continued, and they were justified. Unmentioned by the Constitution and buried in Section 25 of the Judiciary Act was the culprit, a tangled recipe for judicial review that almost completely went without notice at the time. With the passage of the Act as a whole, this recipe took effect, and, as predicted by Yates, the trend toward unification could at last begin. The linchpin had been inserted and the Constitution given its defensible supremacy over state law. In statute as well as spirit, the United States was no longer a loose and powerless confederation, but a single nationeventually the most powerful in the world.
Today, the Supreme Court's ability to check both state and federal law is universally recognized. First intended to defend the federal government's sovereign authority, judicial review has taken on much broader applications, and with beneficial results. The rule of law prevails, and those who interpret it have been chosenas well as possible in a democracybased on merit. As predicted by Ellsworth at the Constitutional Convention, the selection and lifetime service of Supreme Court justices encourages both competence and integrity in the context of elective government. On the average wiser and better educated than elected officials, these justices have become our nation's guardians of last resort. When important laws are at stake, their role is paramount. There is no other nation in the history of civilization which has vested this much power in its judiciary.
Berger, Raoul. Congress v. the Supreme Court (Cambridge, Mass.: Harvard University Press, 1969).
Brown, William Garrott. The Life of Oliver Ellsworth (1905; repr. New York: Da Capo Press, 1970).
Commager, Henry Steele, ed. Documents of American History (New York: Columbia University, 1948).
Crosskey,William W.: Politics and the Constitution in the History of the United States, 2 vols. (Chicago: University of Chicago Press, 1953).
Elliott, Jonathan. The Debates in the Several State Conventions on the Adoption of the Federal Constitution, As REcommended by the General Convention at Philadelphia in 1787, 5 vols. (Philadelphia: Lippincott, 1936).Farrand, Max, ed. The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven: Yale University Press, 1936).
Haines, Charles Grove. The American Doctrine of Judicial Supremacy (Berkeley: University of California Press, 1932).
Hamilton, Alexander, James Madison, and John Jay. The Federalist (New York: Modern Library, 1937).
Levy, Leonard W. Original Intent and the Framers' Constitution (New York: Macmillan, 1988).
Maclay, William. The Journal of William Maclay (New York: D. Appleton & Co., 1890).
McMaster, John Bach, and Frederick D. Stone. Pennsylvania and the Federal Constitution: 17871788 (1888: repr. New York: DaCapo Press, 1970), p. 354.
Rutland, Robert A., et al., eds. The Papers of James Madison, 17 vols. (Charlottesville, Va: University Press of Virginia, 197579).
Warren, Charles. "History of the Federal Judiciary Act of 1789," Harvard Law Review 37 (192324).
posted by The Stark Raving Viking at 8/16/2008 11:31:00 AM
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