In the lexicon of the Constitutional Convention of 1787, the legislative branch of government, with its "cabals," "passionate proceedings" and "usurpations," was a clear and present danger to the public liberty.
The executive branch -- ever grasping for power, "intriguing," bribing legislators with jobs and favors -- fared no better. Give an executive half a chance, it was said, and he would become a despot, a crazed Cataline or Cromwell.
But search in vain the debates of the convention for comparable concerns about the third branch -- the judiciary. When the delegates talked about judges, they could barely contain the gushing.
Judges, said Oliver Ellsworth of Connecticut, bring "wisdom and firmness" to government. "Perspecuity" is their hallmark, said James Madison. Judges, agreed George Mason of Virginia, consider laws "only in their true principles," In Great Britain, James Wilson of Pennsylvania said, "the security of private rights is owing entirely to the purity of her tribunals of justice."
Thus, while the delegates consumed months devising controls to place on the legislative and executive branches, the time consumed by the intermittent debates on the judiciary would fit into a few days. Moreover, the quest was less for ways to control judges, than for ways to protect them from the wrath of elected branches.
The power of the federal courts to overrule elected branches of government -- a subject of perennial hand-wringing in the 20th century -- wasn't even debated in the convention: It appears to have been taken for granted. The question was not whether judges should have this power, but how best to give them the freedom to exercise it.
The result was the only branch of government that can make decisions without fear of being vetoed by another branch, the institution with the fewest limits on its authority, the least definition of its mission and the most secure jobs.
The result was the Supreme Court of the United States as it exists today.
The convention turned to the judiciary in earnest after approving the "Great Compromise" on July 16, creating a Senate in which each state was ranked equally and a House based on proportional representation. Settlement of this issue allowed the convention to finally move forward, commencing the serious business of building the other institutions of the government.
The judiciary, lost in the earlier battles in the convention, now took center stage.
What had judges done to deserve all the respect they were accorded in the convention? The better question was: What had the other branches done to lose it? Executives had been tarnished by the conduct of the royal governors of the colonies and by the specter of monarchy. Elected assemblies in the states, once the great hope of America, were, in the eyes of many of the delegates, betraying their trust throughout the country with their "pernicious" laws against the rights of property.
Even as the delegates were meeting in Philadelphia, their views were being reinforced by what they were reading in the newspapers about the Rhode Island case of Trevett v. Weeden.
In September 1786, a cabinetmaker in Rhode Island named John Trevett went to John Weeden's butcher shop in Newport and handed him a wad of Rhode Island currency to pay off his debt. Because the paper money was nearly worthless, Weeden, like many other merchants in that era, refused to accept it, demanding hard money instead. In so doing, Weeden broke the law. But when Trevett hauled him into court to have it enforced, the judges declared the law invalid -- on the grounds that it denied the accused the right to a jury trial.
An outraged Rhode Island legislature summoned the judges to "render their reasons for adjudging an Act of the General Assembly unconstitutional and so void." The judges, themselves outraged at being asked to account for their decision before the legislative branch, informed the legislature that "they were accountable only to God and their own consciences." "We derived our understanding from the Almighty," declared one of the judges, "and to Him only are we accountable for our judgement."
The legislature had the last word: That spring it declined to reappoint the errant judges, dismissing them from office.
The action of the Rhode Island legislature was mild compared to others. Eighteenth century judges had been whipped for their rulings by insurrectionists in the Regulator movement in Georgia. They had been beaten and terrorized by the Shaysites in Massachusetts. In Pennsylvania, more gentle but equally effective methods had been used: There, legislators displeased with judges simply cut their salaries to the bone, starving them out of office or into compliance.
As the Constitutional Convention took up the judiciary, one of its first decisions, a unanimous one on July 18, 1787, was to endow judges with life terms -- they "shall hold their Offices during good Behaviour . . . . " The second related decision, made the same day, was to prohibit the Congress from cutting the pay of sitting judges. Neither action provoked significant debate.
The structure of the judiciary was more controversial. Under the Articles of Confederation, there had been no national court system, although all the states had judiciaries. Madison's Virginia Plan -- the starting point for the convention -- called for a supreme court at the top, which would rule on major national questions and on disputes among the states, and a system of lower federal courts "dispersed throughout the Republic," guarding the Constitution and federal law against encroachments from the states.
A supreme court was clearly a necessity -- no one argued against it. But as much as the delegates respected judges, the notion of a phalanx of lower federal judges based in the states was too much. Roger Sherman of Connecticut objected that the system would be too expensive. "The people will not bear such innovations," Pierce Butler of South Carolina said. "The states will revolt at such an encroachment," he declared.
Seeing that he was overwhelmed, Madison came forward with a compromise: Rather than mandating the creation of lower courts in the Constitution, he proposed a clause simply authorizing Congress to create them, when and if it pleased. It passed easily and became part of the Constitution.
Madison also had proposed an idea that, though familiar then, would shock modern sensibilities about government 200 years later. He proposed that some members of the judiciary join with the executive branch in a "Council of Revision" -- modeled after a similar institution in Virginia -- to consider the constitutionality of all bills passed by Congress and veto them if necessary.
This would have brought federal judges squarely into the legislative process, one of the reasons the convention defeated it. It "was combining and mixing together the legislative and the other departments," said Elbridge Gerry of Massachusetts, "establishing an improper coalition between them." It would improperly "make them judges of the policy of public measures," he said.
The other reason for the defeat of the Council of Revision was that, as Luther Martin of Maryland said, it would give judges a "double negative" on acts of Congress, allowing them to consider the constitutionality of legislation first as part of the legislative process and a second time when laws came before them in their capacity as judges.
The idea of judicial review -- of courts expounding on the constitutionality of laws -- was thoroughly familiar to the delegates in the convention. One of them, George Wythe of Virginia, had authored one of the most celebrated defenses of judicial review while he was a judge in Virginia. "If the whole legislature . . . should attempt to overleap the bounds prescribed to them by the people," Wythe had written, "I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal; and, pointing to the Constitution, will say to them, here is the limit of your authority, and hither you shall go, but no further."
The debate on Madison's proposed Council of Revision demonstrated that the delegates assumed the Supreme Court would have that power. Judges, said Martin, "will have a negative on the laws." They will be able to "declare an unconstitutional law void," Mason said. "In some states," said Gerry, "the judges had actually set aside laws as being against the Constitution. This was done . . . with general approbation." In the new government too, they will have "a power of deciding on their constitutionality."
"A law violating a constitution established by the people themselves," said Madison on July 23, "would be considered by the judges as null and void."
The most troublesome aspect of the judiciary was the question of who would appoint the judges. One group of delegates, especially those from the small states, which were now to have disproportionate power in the Senate, favored letting the Senate appoint the judges. The Senate, said Roger Sherman, "would be composed of men nearly equal to the Executive and would of course have on the whole more wisdom."
Another group, mostly large-state men, favored judicial appointments by the executive. Appointments by the legislatures "have generally resulted from cabal, from personal regard or some other consideration than a title derived from the proper qualifications," Edmund Randolph of Virginia said. The senators, said Gouverneur Morris, will will choose their judges "from the flattering pictures drawn by their friends."
Madison had originally favored letting the Senate appoint judges. But after the compromise on July 16, he changed his tune because the Senate the convention had now created was not the Senate that Madison originally envisioned. Now it represented the states, not the people; and the large states and southern states would be outnumbered in it.
On July 18, Madison proposed a middle ground: that the executive appoint judges with Senate concurrence, as was done in Massachusetts. This, he said, "would unite the advantage of responsibility in the executive with the security afforded in the second branch against any incautious or corrupt nomination by the executive."
On July 22, the convention called the roll. By a vote of 6 delegations to 5, it gave the Senate the sole power to appoint the judiciary -- a decision that would stick until September, in the waning weeks of the convention.
NEXT MONDAY: The Presidency