Chapter 11: The Judiciary

With time running out, the delegates make a cursory pass at framing the third branch of government, the Judiciary. Again the “Virginia Plan” proves helpful with its Eleventh Resolve:

That a national Judiciary be established to consist of One Supreme Tribunal.
The Judges of which to be appointed by the second Branch of the National
Legislature, to hold their offices during good behavior.

The primary duty of the Tribunal, as defined by Alexander Hamilton, will lie in checking the laws passed by the Legislature to make sure they comply with the “intent” of the Constitution.

No legislative act contrary to the Constitution can be valid…It therefore is the
duty of the courts of justice…to declare all acts contrary to the Constitution void.

Some favor completing this check immediately after the President’s approval, but most feel this would infringe on the independence of the Legislature. Hence new laws will first go into effect and later be reviewed in response to “appeals” from state and local courts.

The last issue relates to the composition of the Tribunal. The “Virginia Plan” calls for a “Council of Revision” comprising the President and several senior judges. But the Anti-Federalists fear this would hand even more power to the Executive branch, and so membership is left undefined in Article 3, which simply announces a “Supreme Court:”

The judicial Power of the United States, shall be vested in one Supreme Court, and
in such inferior Courts as the Congress may from time to time ordain and establish.

The weary delegates now head to closure. On September 5, a “Committee of Style and Arrangement” is formed to draft the final Constitution. It is led by the President of King’s College, Dr. William Johnson, and includes James Madison, Alexander Hamilton, Rufus King, and Gouvernor Morris, the latter given primary credit for the wordsmithing. Final resolutions here include acceptance of a “small standing army” even in peacetime; a requirement that the President be native born; an oath for all officials to “swear to uphold the constitution;” the choice of New York as the site of the new Capitol; and a definition of what constitutes “treason.”