3 5MAHMP: Why was the Judiciary included in the structure of the Federal Government?
Have you ever wondered why the Framers chose to include a judicial branch in the structure of our federal government? How did the original Supreme Court compare with the Court we are familiar with today?
The Supreme Court envisioned by the Founding Fathers was far different from the one which we are familiar with today. In fact, the Articles of Confederation, under which the country functioned in 1786, did not even include a judicial branch at all. Critics of the Articles of Confederation argued for the need of a stronger federal government which included an executive and a judiciary branch. George Washington, in a letter to Benjamin Harrison, described the Federal Government as designed under the Articles of Confederation as “half-starv’d” and “limping.” Influenced by the writings of Montesque, James Madison did more than just complain about the Articles of Confederation. He authored a federal government that included three branches. It was introduced as the “Virginia Plan” at the Constitutional Convention.
One aspect of the Virginia Plan, that was hotly debated, was the proposal for the creation of a counsel of revision. The “Council of Revision” mentioned in the plan would join with the judiciary and the Executive, the person we refer to as the President, together to provide oversight of the legislature with the potential to veto any legislation that had been passed.
Antifederalists warned that the inclusion of the judiciary in the Council of Revision, or perhaps the creation of the judiciary as a separate branch of the federal government at all, would eventually lead to a tyrannical seizure of power by the third branch. In his Notes on Convention, James Madison reported the following comments by noted Antifederalist Elbridge Gerry: “Mr. GERRY doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality.”
However, antifederalists were not lone voices in objecting to the Judiciary’s involvement in policy review Rufus King, who would be the Federalist Party’s candidate for Vice President in 1804 and 1808, as well as its Presidential Candidate in 1816, stated: “Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.”
The concept of a Council of Revision debated several times, but ultimately, it was rejected and the Executive was given the singular responsibility for reviewing legislation passed by the Congress. The Executive was given a power the delegates called a “negative.
Although he was successful in leading the opposition to the Judiciary’s participation in a Council of Revision, Elbridge Gerry ultimately refused to sign the Constitution. He cited reasons including his belief that the third branch, to use his words, “will be oppressive.”
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