July 21 witnessed an abortive attempt to revive the Council of Revision, which would have empowered a panel of Supreme Court justices and the President to veto Congressional bills. Curiously, James Wilson and James Madison—the Convention’s and, later, The Federalist’s foremost advocates of the separation of powers—were also champions of the Council of Revision. Both said on July 21 that it would involve judges in vetoing laws on both Constitutional and policy grounds. Wilson argued that judicial review after bills became law was insufficient:
Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.
Elbridge Gerry saw the problem:
The motion was liable to strong objections. It was combining & mixing together the Legislative & the other departments. It was establishing an improper coalition between the Executive & Judiciary departments. It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests.
Gerry’s objection, which prevailed, emphasized one of the most interesting dynamics in the debate over the Council: what it revealed about judicial review. For Gerry, judges were decidedly not guardians of popular rights. That was the job of the legislature. By contrast, looking back on the debate, Madison would later tell James Monroe that the Council would have obviated the need for judicial review of Constitutional questions:
These Considerations remind me of the attempts in the Convention to vest in the Judiciary Dept. a qualified negative on Legislative bills. Such a controul restricted to constitutional points, besides giving greater stability and system to the rules of expounding the Instrument, would have precluded the question of a Judiciary annulment of Legislative Acts.
That is a significant shift. On July 21, Madison had by no means restricted the Council of Revision to “constitutional points.” One wonders whether that might have changed the debate. It certainly would have changed the course of judicial review: Because Congress could have overridden a veto by the Council of Revision, such an approach would have allowed the legislature to enact a law over judicial objections. Madison and Wilson would make one more run at the Council on August 15, failing again.
July 22 was a Sunday. On July 23, the Convention discussed another important Madisonian priority: that the proposed Constitution be ratified by the people, not the state legislatures.