THE GREEN BAG There is neither space nor need to go over the history of the adoption of the Consti tution and the discussions in the State Conventions. The popular conception was always and everywhere the one so brusquely declared by Hamilton above. No other conception was possible to a people which had just carried through triumphantly a struggle, for what they, perhaps mistakenly, regarded as constitutional rights, against the imperial parliament of Great Britain. That struggle began, as John Adams de clares, with Otis's argument in 1761 against any constitutional right in Parliament to authorize the writs of assistance and his effort to have the act, if construed as authorizing them, held void. For that victorious people any rule, that the constitu tional courts might not award litigants their constitutional rights because of danger of conflict with the legislature, would have been impossible. Their history and con ditions had made the constitutions in America so far as they affect private rights, bodies of law, whatever they may be else where. Hamilton recognized this. So, he apparently thought, did everybody else, and there was only need for the brief and em phatic declaration above quoted from the Federalist. What would Judge Clark say as to that North Carolinian "Hu Williamson" who appeared as that State's delegate on the day of assembling, stayed stoutly through all the work of the Convention and put his strong signature to the proposed Federal Constitution when it was done? Did Wil liamson think these four refusals to admit the judges into a share in making all laws, to pass upon their policy, as well as their constitutional legality, were four denials of the latter power? After all four of these votes had been taken, on August 22, in debating the proposed forbidding of ex post facto laws, when Wilson said there was no need, that such laws violated the first principles of legislation and would never be proposed, Williamson declared: "Such a
prohibitory clause is in the constitution of North Carolina, and, though it has been vio lated, it has done good there and may do good here, because the judges can take hold of it. ' ' The italics are the present writer's, not Madison's. The matter was too much a matter of course for even such silent com ment at that time. Doc. Hist. Vol. Ill, P- 593The discussion on the four votes on Randolph's Sec. 8 has so fully shown the minds of the framers that it seems only necessary to appeal to what has been said as an answer to the other arguments advanced by Mr. Trickett as well as by Judge Clark, that if they had meant to clothe the court with such a power they would not have left it so dependent on Congress for its organization, jurisdiction, and emoluments, and the judges subject to impeachment by Congress. The argument is utterly inconclusive. It may be urged with at least equal force that, perceiving the latent political effect of the power in question, they meant to guard against its political development by placing the judges under the power of Congress, as Morris warned them they had done. President James's complaint in his James town address is precisely that the court has gone too far in supporting Congressional legislation instead of overturning it; that it has departed too greatly from the letter of the Constitution already, and will totally lose the respect of the people by going farther, if a new Constitution is not made. His objection is not that too much power was given the court, but that, while nomi nally a check upon Congress, in fact it has not been one. Mr. Trickett and Judge Clark seem inconsistent With themselves in their claim that the political weakness of the court, its subjection to legislation as to its appellate jurisdiction and as to its organization, and the liability to impeach ment by Congress shows that there could not have been any intention to give the power to judicially annul legislation. The
