The power of the United States Judiciary Department to pass upon the constitutionality or validity of laws made by the Legislature, is one unknown to the unlimited imperial power of the Parliament of Great Britain, and has been a source of perplexity to the writers and legislators of that country, and of question recently in the House of Commons. The question cannot arise and never comes before the judiciary of that government, whether a law is within the parliamentary power. With us, however, the question often arises, and the judiciary decides whenever question is made as to whether a law is within the powers granted by the Constitution. In all our States the State judiciary has the same power to decide on the constitutionality of the laws and acts of the State government.
This system of giving the judiciary the right to define the extent of the powers of the government has with us met with almost universal approval.
CHAPTER III.
THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY.
Let us now retrace our steps and see what took place in the convention that made the Constitution, and what those that made it intended. Fortunately we have the journals of the convention that framed the Constitution; the minutes, until he left, of Mr. Yates, a delegate from the State of New York; and Madison’s full and careful report of all the proceedings, debates, and votes. From these sources we shall see that the makers intended, and that they considered they had made, a perpetual, consolidated, National Government.
The convention was called to amend the articles of the confederacy, and to it were sent most of the distinguished men of the country. The State of Virginia took an early and important part in the formation of the new government. Before the meeting of the convention, Madison wrote to Edmund Randolph, one of the delegates, that it would be well for him to prepare some propositions from Virginia, he in his letter suggesting what they should be. Immediately after the organization of the convention after the choice of Washington as the presiding officer and the establishing of standing rules, Randolph introduced a series of resolutions, which had been considered by his colleagues and were known in the convention as those of Virginia. They were in substance, that the articles of confederation should be corrected and enlarged; that the rights of suffrage in the national Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants; that the Legislature should consist of two branches, the first branch to be elected by the people of every State; that the Legislature should have supreme rights with coercive power against any member failing to perform its duty, and that there should be a national Executive and Judiciary.
These resolutions were referred to the next meeting. At that meeting Randolph, at the suggestion of Gouverneur Morris, who said that his subsequent resolutions did not agree with the first, moved that this first resolution, which was that the articles of confederation should be corrected and enlarged, should be postponed, which was unanimously agreed to. Randolph then proposed three other resolutions, the first two that a union merely federal and treaties between the States as sovereigns would be insufficient. The convention, after debate and other propositions, considering the first two resolutions unnecessary, passed the third, which was: “That a National Government ought to be established consisting of a supreme legislative, executive, and judiciary.” All the States present voted ay, Connecticut only no, New York divided—Hamilton ay, Yates no.[20] Yates in his minutes says Randolph in first proposing his resolutions, “candidly confessed they were not intended for a federal government; and that he meant a strong consolidated union.” Mr. Morris on the 30th observed that Randolph’s preamble as to amending the articles of the confederacy was unnecessary, as the subsequent resolutions would not agree with it.[21]
The votes in the convention were as in the confederacy, each State had one and voted as a whole. If the delegation of a State was equally divided, its vote was lost.