Note 334 — Chapter III

It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin: Doctrine of Judicial Review, 10-11; Beard: Supreme Court and the Constitution, 16-18; McLaughlin: The Courts, the Constitution and Parties, 32-35.)

In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Convention of 1787: Farrand, i, 97.) Rufus King of Massachusetts—later of New York—was of the same opinion. (Ib. 109.)

On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." (Ib.)

Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." (Ib. ii, 93.)

George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (Ib. 78.)

Gouverneur Morris of Pennsylvania—afterwards of New York—dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (Ib. 299.)

Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. (Ib. i, 100-01.)

James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconstitutional "did not go far enough"—the judges should also have "Revisionary power" to pass on bills in the process of enactment. (Ib. ii, 73.)

Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconstitutional laws. (Ib. 76.)

John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void." (Records, Fed. Conv.: Farrand, 298.)

John Dickinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." (Ib. 299.)

Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." (Ib. 298.)

The above is a condensed précis of all that was said in the Constitutional Convention on this vital matter.