Two months into the Convention, the delegates could finally see a light at the end of the tunnel. Delegates had debated the resolutions presented by the delegation of Virginia, amended them, and debated them again. Before sending the revised amendments to a Committee of Detail that would create a rough draft of the Constitution, however, James Wilson and James Madison fought unsuccessfully to restore a constitutional provision they thought critical – a Council of Revision.

Council of Revision

Although the plan had been rejected twice, Wilson and Madison once again proposed that a Council of Revision be added to the Constitution. Consisting of the executive and judicial branch, the Council would be called upon to assess the constitutionality of legislation before becoming law. Madison explained that “experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex.” He believed that this tendency “was the real source of danger to the American Constitution.” Madison urged his colleagues to protect against this grave threat by allowing the judiciary to fortify the president in defending against the overreach of the legislature.

Despite Wilson and Madison’s passionate (and repeated) argument for the Council of Revision, a number of other delegates raised serious concerns. Elbridge Gerry argued that the Council would establish an “improper coalition” between the president and the judiciary. It would be a violation of the separation of powers. Luther Martin pointed out that not only would it be dangerous to mix the powers of the two branches, but that it would be inappropriate for judges to be involved in making laws. The judiciary’s role was to exposit the laws, not make them. On July 21st, Wilson and Madison’s motion was narrowly defeated by a 4-3-2 vote.

Ratification

Finally, on July 23, the delegates began to discuss ratification of the new Constitution. Oliver Ellsworth and William Paterson motioned to refer the Constitution to the state legislatures for ratification.

The debate heated as several delegates voiced their disagreement. George Mason explained his belief that the Constitution should not be sent to the legislatures, but “to the people with whom all power remains that has not been given up in the Constitutions derived from them.” He feared that if the Constitution was only ratified by the state legislatures – and not the people – it would be subject to criticism and easily reversed. Madison echoed Mason’s concern, explaining “the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution.” For the Constitution to become the supreme law of the land – transcending all other laws and pacts – it must be ratified by the people.

Mason, Madison, and others in disagreement won out, and Ellsworth and Paterson’s motion was defeated 7-3. The delegates then voted 9-1 that, once approved by the Continental Congress, the Constitution would be sent to assemblies chosen by the people for ratification.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Posted in Countdown to the Constitution


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