Editor’s Summary: Madison moved that all bills ought to be submitted not just to the President, but to the Supreme Court for approval, something that was done in England to insure that laws were both soundly written and Constitutional (this was not the first time this was raised in the Convention). Wilson seconds the motion. Pinkney “opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.” Mercer sided with Pinkney against the motion. “It is an axiom that the Judiciary ought to be separate from the Legislative: but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. 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 uncontrollable.” Dickenson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. The Justiciary of Arragon he observed became by degrees, the lawgiver. Sherman disapproved of Judges meddling in politics and parties. Previously voted down it was again. Morris wanted a stronger veto for the President (such as a required 3/4ths rather than 2/3rds override, or even an absolute veto) in order to check such legislative corruption as the issuing of paper money to finance wars, or as in the Ephori at Sparta and Cromwell in England, the development of the imposition of a tyranny by the legislative branch, to be followed by the rule of one man. Morris’ motion for a 3/4th override passed. Steve Farrell
Art: VI. Sect. 11. (1), (2) Agreed to nem. con.
Art: VI Sect. 12. 1, (3) taken up.
Mr. STRONG moved to amend the article so as to read — “Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the Govt. which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases”
Col. MASON, 2ds. the motion. He was extremely earnest to take this power from the Senate, who he said could already sell the whole Country by means of Treaties.
Mr. GHORUM urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them.
Mr. GOVERNr. MORRIS opposed it as unnecessary and inconvenient.
Mr. WILLIAMSON. some think this restriction on the Senate essential to liberty, others think it of no importance. Why should not the former be indulged. he was for an efficient and stable Government but many would not strengthen the Senate if not restricted in the case of money bills. The friends of the Senate would therefore lose more than they would gain by refusing to gratify the other side. He moved to postpone the subject till the powers of the Senate should be gone over.
Mr. RUTLIDGE 2ds. the motion.
Mr. MERCER should hereafter be against returning to a reconsideration of this section. He contended, (alluding to Mr. Mason’s observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that Treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of Treaties in Great Britain; particularly the late Treaty of Commerce with France.
Col. MASON. did not say that a Treaty would repeal a law; but that the Senate by means of treaty (4) might alienate territory &c, without legislative sanction. The cessions of the British Islands in (5) West Indies by Treaty alone were an example. If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.
On (6) question for postponing Sec: 12. it passed in the affirmative.
N. H. ay. Mas. ay Ct. no. N. J. no Pena. no. Del. no Maryd. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. (7)
Mr. MADISON moved that all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law (8)
See the motion at large in the Journal of this date, page 253, and insert it here.” (9)
[“Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.”]
Mr. WILSON seconds the motion
Mr. PINKNEY opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.
Mr. MERCER heartily approved the motion. It is an axiom that the Judiciary ought to be separate from the Legislative: but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. 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 uncontrollable.
Mr. GERRY. This motion comes to the same thing with what had been already negatived.
(10) Question on the motion of Mr. Madison.
N. H. no. Mass. no. Ct. no. N. J. no. Pa. no. Del. ay. Maryd. ay. Virga. ay. N. C. no. S. C. no. Geo. no. (11)
Mr. GOVr. MORRIS regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative Assemblies. He suggested the idea of requiring three fourths of each house to repeal laws where the President should not concur. He had no great reliance on the revisionary power as the Executive was now to be constituted [elected by the (12) Congress]. The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the National legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring 3/4 to repeal would, though not a complete remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities. —
Mr. DICKENSON was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. The Justiciary of Arragon he observed became by degrees, the lawgiver.
Mr. GOVr. MORRIS, suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side. The most virtuous Citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded against. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylvania points out the many invasions of the legislative department on the Executive numerous as the latter *(13) is, within the short term of seven years, and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments against it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome where the Aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative Authority to usurp on the Executive and wished the section to be postponed, in order to consider of some more effectual check than requiring 2/3 only to overrule the negative of the Executive.
Mr. SHERMAN. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties. We have gone far enough in forming the negative as it now stands.
Mr. CARROL. when the negative to be overruled by 2/3 only was agreed to, the quorum was not fixed. He remarked that as a majority was now to be the quorum, (17). in the larger, and (18) in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controlling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.
Mr. GHORUM saw no end to these difficulties and postponements. Some could not agree to the form of Government before the powers were defined. Others could not agree to the powers till it was seen how the Government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost everywhere fixed in the United States.
Mr. WILSON; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Government from the legislature swallowing up all the other powers. He remarked that the prejudices against the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, King and Tyrant, were naturally associated in the minds of people; not legislature and tyranny. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded against the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department.
Mr. RUTLIDGE was strenuous against postponing; and complained much of the tediousness of the proceedings.
Mr. ELSEWORTH held the same language. We grow more and more skeptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.
The question for postponement passed in the negative: Del: & Maryd. only being in the affirmative.
Mr. WILLIAMSON moved to change ” 2/3 of each House” into ” 3/4 as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the President alone, to admitting the Judges into the business of legislation.
Mr. WILSON 2ds. the motion; referring to and repeating the ideas of Mr. Carroll.
On this motion for 3/4 . instead of two thirds; it passed in the affirmative
N. H. no. Mas. no. Ct. ay. N. J. no. Pena. divd. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. no. (15)
Mr. MADISON, observing that if the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes &c, proposed that or resolve” should be added after “bill” in the beginning of sect 13. with an exception as to votes of adjournment &c. — after a short and rather confused conversation on the subject, the question was put & rejected, the States (16) being as follows,
N. H. no. Mas. ay. Ct. no. N. J. no. Pena. no. Del. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo. no. (17)
“Ten (18) days (Sundays excepted)” instead of “seven” were allowed to the President for returning bills with his objections N. H. & Mas: only voting against it.
The 13 Sect: of art. VI as amended was then agreed to.
1. See ante.
2. The word “was” is here inserted in the transcript.
3. The words “was then” are here inserted in the transcript.
4. The transcript uses the word “treaty” in the plural.
5. The word “the” is here inserted in the transcript.
6. In the transcript the vote reads: “New Hampshire, Massachusetts, Virginia, North Carolina, South Carolina, Georgia, aye — 6; Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, no — 5.”
7. This paragraph is stricken out in the transcript.
8. Madison’s direction concerning the motion is omitted in the transcript and the following sentence is inserted: “Mr. Madison moved the following amendment of Article 6, Section 13.” 9
9. See ante.
10. The words “On the” are here inserted in the transcript.
11. In the transcript the vote reads: “Delaware, Maryland, Virginia, aye — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, North Carolina, South Carolina, Georgia, no — 8.”
12. The word “the” is omitted in the transcript.
*13. The Executive consists at this time 14 of abt. 20 members.
14. The phrase “consisted at that time” is substituted in the transcript for “consists at this time.”
15. In the transcript the vote reads: “Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye — 6; New Hampshire, Massachusetts, New Jersey, Georgia, no — 4; Pennsylvania, divided.”
16. The word “votes” is substituted in the transcript for “States.”
17. In the transcript the vote reads: “Massachusetts, Delaware, North Carolina, aye — 3; New Hampshire, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no — 8.”
18. The transcript does not italicize the word “Ten.”
Editor’s note: I’ve updated archaic spelling and eliminated Madison’s shorthand (in the speeches, but not elsewhere).
This version of “Madison’s Notes” with summary, Copyright © 2010 Steve Farrell and The Moral Liberal