Mr. WILSON seconds the motion.
Mr. PINCKNEY 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 s 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 has been already negatived.
On the question on the motion of Mr. Madison,—
Delaware, Maryland, Virginia, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, North Carolina, South Carolina, Georgia, no, 8.209
Mr. GOUVERNEUR 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 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 three fourths 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. DICKINSON 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 Aragon, he observed, became by degrees the lawgiver.
Mr. GOUVERNEUR 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
