A reader emailed me and asked if James Madison said much about judicial review during the Constitutional Convention in 1787.
My response is as follows:
Sir,
First, we have to remember that Madison went into the convention with opinions that were more Nationalist in nature, as compared to his later opinions at the end of the convention, and afterward. His daily correspondence with Jefferson, and the nature of the debates, transformed Madison. By the end of the convention, he was more of a "limited government" kind of guy.
Understanding that, we must place his comments and suggestions into context. The earlier in the convention his comments were more nationalistic, and the later in the convention (and after the convention) his opinions were more in line with what the new Constitution supported.
In May of 1787, at the beginning of the convention, during the first four or five weeks when little got done (they began to accomplish the task of creating the miracle that is the Constitution after Franklin's recommendation for prayer, and going down the street to the nearest church to accomplish such) Madison (still thinking from a nationalist point of view) felt the power of the state assemblies should be limited, and though he felt Congress should be the strongest branch, he also wanted to make sure there were adequate checks on Congress. Madison wasn't sure the courts were the best way to do that, not because of a fear of an activist court, but because he wasn't sure the courts would be willing to reject unconstitutional legislation.
Aside from those arguments early on, Madison said little about judicial review during the convention. Shortly after the convention, however, John Jay was sure to make mention of the practice. . . often. However, the federal court had been established as the weakest of the three branches, and Jay wasn't sure that judicial review would ever come to be. In fact, after his governorship in New York, Jay rejected an offer by Adams to return as Chief Justice because he felt the lack of position and power of the court was "beneath a man."
Though Madison mentioned the idea of judicial review very little, early on, he did suggest that Congress be able to "negative" State laws, a kind of "congressional review" of State laws. However, since the States have original authority over every issue, and because the idea behind the Constitution was to create a federal government that served the States, rather than control the States, the idea of the federal legislature deeming State laws unconstitutional was widely rejected by the other delegates.
The debate over whether or not the federal legislature could "negative" State laws was resolved by the creation of the Supremacy Clause in Article VI., which establishes the right of the States to "negative" unconstitutional federal laws (nullification), which would be U.S. laws not made in pursuance of the United States Constitution.
Some argue that Madison suggested the existence of a power of judicial review in his Federalist No. 39 and No. 44 essays, but Madison has also, during that same time period, been quoted from conversations and letters to fear judicial review because he felt such a concept would improperly exalt judges over legislators. Personally, in my readings of Federalists 39 and 44, I don't see the "judicial review" suggestion.
Of course, as you know, the one that really brought judicial review into the mainstream of thinking was John Marshall, in his opinion of the Marbury v. Madison case in 1803.
Even with Marshall's opinion in place, with the Federalists retreating to the stronghold of the courts (as Jefferson put it), judicial review really didn't kick into an out of control spiral until after the Civil War (though it did appear more often than it should have under the Marshall Court), where after the Bill of Rights being incorporated to the States (an idea by John Bingham, an Ohio representative that wrote the Equal Protection Clause) was rejected, the courts began to accomplish the "progressive" goal of incorporating the Bill of Rights to the States beginning with the Slaughterhouse Cases.
Today we have a court system totally out of control, acting as interpreters of the law rather than a system that is supposed to "apply" the law. Rather than applying the law to the cases they hear, today's courts apply their opinion to the laws in question, often overriding State laws in the process.
We have to remember the original intent was not for the federal government to be the controller of the States, nor was it supposed to be the guarantor of our rights. Our rights belong to us, and they are our responsibility to maintain and protect. In fact, if you look at the language of the Bill of Rights, the original intent becomes clear.
The First Amendment begins, "Congress shall make no law. . ."
The Second Amendment ends, "Shall not be infringed."
The Third Amendment begins, "No soldier shall. . . "
The Fourth Amendment's body includes the phrase, "Shall not be violated."
In other words, the Bill of Rights does not allow the federal courts to take cases on our rights to decide if they are constitutional, and the Bill of Rights does not call for the federal government to "guarantee" our rights. The Bill of Rights was written in a manner to tell the federal government "hands off," and "don't touch," when it comes to our rights.
Judicial Review is anchored in the idea that the government is supposed to guarantee our rights, and the federal courts are supposed to make sure the States are not stomping on those rights, but, despite Bingham's desire to incorporate the Bill of Rights to the States, laws regarding our rights are supposed to be up to the States, which is a part of government that is much closer to us than the federal government.
One final thought. A clue to show us the attitude of the Founding Fathers regarding our rights, and if the federal government should even be deciding if States are betraying our rights, exists regarding the first right enumerated in the First Amendment (Freedom of Religion), as indicated by Thomas Jefferson in his response to the Danbury Baptists. He told them that religion in s State issue. He told them that their plight with the Puritans had to be handled at the State level. In short, issues regarding religion were considered by Jefferson to be none of the federal government's business, and something that must be addressed at the State level. . . just like all of our other rights.
-- Political Pistachio Conservative News and Commentary
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