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There was thus a trade-off to be weighed and paid. One could impair the strict theory of separated powers that the first state constitutions had endorsed.

The opponents of the council of revision predictably held that the only way that judges could participate in legislation was in their proper judicial capacity, and not as an advisory body.

If judges participated in making laws, that might compromise their capacity to adjudicate them in subsequent proceedings.

Perhaps most important, the opponents of the council declared that the judiciary already possessed the capacity to declare laws unconstitutional.

The concept of judicial review, though still novel and only partly formed, was something that the Framers already grasped.

The defeat that Madison suffered on these points did not lead him to reject his opinions. If one department objected, a legislative override would need a two-thirds vote; if both objected, a three-quarters vote.

That qualification would preserve the principle of ultimate legislative supremacy, admittedly exercised under tough super-majoritarian rules.

Madison reaffirmed this point in the next paragraph of the Observations, which addressed the dawning recognition of the doctrine of judicial review.

This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.

Madison recognized the inherent existence of judicial review, but his analysis questioned whether the judiciary should be the final voice on the constitutional validity of statutes.

The first concerned the future uses of legislative power in a commercial and territorially expanding republic.

The second was related to the fundamental problems of federalism that had troubled Madison ever since he entered the Continental Congress in Madison had a very modern conception of the future uses of legislative power.

He understood that legislatures would henceforth form the institutional locus within which multiple economic and social interests would try to bend public power to their own benefit.

The business of colonial legislatures had been far more parochial. They enacted few general-purpose statutes; most of their work involved answering petty petitions that emanated from counties, towns, and interested individuals.

They were not developing turnpikes and canals or providing for the building of bridges. In many ways, legislatures were still adjudicatory bodies that spent a great deal of time resolving local disputes.

But once Americans had to govern a vast terrain stretching from the Atlantic to the Mississippi, the local knowledge that amateur lawmakers had carried to their provincial capitals would no longer suffice.

National legislators had to acquire national knowledge. Although Madison hoped some members of Congress would aspire to serve more than one term, he rightly foresaw that each biennial Congress would bring major rotations in membership.

Even though the Constitution did not require it, rotation in office remained the pervasive practice until the late nineteenth century. Each biennial session created its own educational cycle, as new members arriving from widely scattered districts learned the complexities of public policy on a national scale.

Indeed, nothing better indicates how much our political world differs from theirs than this basic disparity in the importance of incumbency.

Any political scientist working today assumes that reelection is the dominant motive shaping the behavior of our representatives. That presumption was manifestly not the case in the political world of the founders.

It also demonstrates why he felt few qualms about blurring or crossing the boundary between the distinct realms of legislation and adjudication, as the council of revision manifestly would have done.

The language of that Clause was soon silently strengthened. The principle underlying the Supremacy Clause resolved a problem that had long vexed Madison.

From the start of his congressional career, he actively worried about how the states could be persuaded, encouraged, or coerced to fulfill their federal obligations.

It was rather that the states should adapt all those measures to local conditions, acting in effect as administrative arms of Congress.

In the early s, Madison believed that Congress should have the authority to compel states to do their duty. Although Congress never pursued this idea, Madison was still contemplating the advantages of coercing delinquent states in Yet once the Convention began, Madison concluded that schemes of coercion were more likely to provoke civil conflict rather than orderly governance.

The negative on state laws, which was modeled on the veto power the king had previously exercised over the colonies, became the next solution to this problem.

The power would vest in Congress, but the council of revision would in turn use its limited negative to ensure that Congress acted appropriately.

Once these two provisions were eliminated, the default option for policing conflicts over federalism fell to the federal judiciary, or more specifically to the Supreme Court.

Madison remained unconvinced that this was the best means to ensure that the states would conform to the new federal system.

Privately, he still viewed the negative on state laws as a better mechanism than judicial enforcement. He laid out his rationale in a lengthy letter to Jefferson, written a month after the Convention adjourned:.

It may be said that the Judicial authority under our new system will keep the States within their proper limits, and supply the place of a negative on their laws.

The answer is that it is more convenient to prevent the passage of a law, than to declare it void after it is passed; that this will be particularly the case where the law aggrieves individuals, who may be unable to support an appeal against a State to the supreme Judiciary, that a State which would violate the Legislative rights of the Union, would not be very ready to obey a Judicial decree in support of them, and that a recurrence to force, which in the event of disobedience would be necessary, is an evil which the new Constitution meant to exclude as far as possible.

Yet in the months after Madison drafted this impassioned letter, he accommodated himself to the constraints that the Constitution imposed. The critical passage illustrating his thinking appeared in Federalist The second half of this essay was devoted to a five-pronged assessment of the federal that is, state-based and national properties of the Constitution.

Near the close of this analysis, Madison raised the delicate question of the resolution of the inevitable controversies over the respective jurisdictions of the state and national governments.

It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government.

But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality.

Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

But the succinct statement of Federalist 39 defined the orthodoxy that Madison consistently defended. First, it demonstrates conclusively not only that judicial review was clearly part of the original meaning of the Constitution— its existence textually confirmed by the Supremacy Clause—but also that its main or more obvious use would involve questions of federalism rather than separation of powers.

Once one reaches the concluding essay, Federalist 51, it is striking how little Madison finally says about separation of powers.

He devoted only a single paragraph to the institutional workings of checks and balances; instead, the second half of the essay largely restates the ideas of Federalist 10, which said almost nothing about institutions but was devoted instead to the mischief-curing benefits of a multiplicity of factions in society.

Three decades later, in retirement at Montpelier, experience gave Madison a different framework for thinking about the role of the judiciary in the federal republic.

When George Washington began staffing the federal judiciary in , loyalty to the Constitution was the first criterion of appointment.

One had to have been part of the Federalist movement that supported ratification of the Constitution. Twelve years later, President John Adams made membership in the Federalist Party the first criterion for seats in the new circuit courts the Judiciary Act of had just created.

That rule presumed that this condition of tenure, reinforced by professional norms of behavior and republican honor, would maintain judicial independence.

The fidelity to the Constitution that Washington expected of the first generation of national jurists was more a minimal condition of recruitment than a hard test of political loyalty.

But the partisan tumult of the s raised the entry price of this fidelity. If one had reliable ways to know or test the political commitments of judicial appointees, Article III, if exploited quickly, would enable the Federalists to ensure their control of one branch of government for years to come.

The real logic of Article III thus promoted the opposite of judicial independence. One could argue, not all that perversely, that the judicial ambitions of the Federalist Party in anticipated the judicial ambitions of the Federalist Society almost years later.

Yet beyond the repeal of the Act and the failed impeachment of Justice Samuel Chase, Jefferson and Madison did not pursue a radical effort to reshape the federal judiciary.

High among the various explanations for their moderation was their avowed desire to restore a political system in which the contentious party loyalties of the s would dissipate and disappear.

The goal of the first party system, in their view, was to drive the Federalists into collapse, and then to restore a system in which organized national parties would play no part.

Under this presumption, using tenure during good behavior to stock the judiciary with loyalists was not their highest priority.

The best elaboration of these views came after Judge Spencer Roane tried to recruit Madison to support his proposition that the federal and state supreme courts acted on a level plane of authority, and that disagreements between them did not require an ultimate resolution.

Roane began forming these ideas in response to Martin v. Maryland the bank case, and Cohens v. Virginia , a contrived case involving the interstate purchase of lottery tickets that Chief Justice Marshall used to restate the principle of federal judicial supremacy.

That opinion decidedly echoed Hamilton by emphasizing the discretionary power the Necessary and Proper Clause invested in Congress. Madison had long conceded that the course of discussion since had legitimated the incorporation of a national bank.

But he still distinguished that particular precedent from the general doctrine Marshall was propounding. If one read the Clause as broadly as Marshall did, no effective restraint would prevent Congress from defining the scope of its own legislative authority.

This tracks the inventive approach to originalism that Madison had pioneered in When Roane renewed his plea in , however, the discussion transcended a clausal reading of the Constitution to focus on the deeper problem of jurisdiction.

Implicit in this response was the recognition that the South would hereafter be a political minority needing protection against the North.

Second, and more important, Madison saw no alternative to supporting the primacy of the Supreme Court over the contending claims Roane had made for its counterparts in the states.

Roane had another prominent reader, however, who proved more sympathetic to his claims: Thomas Jefferson. The first was to argue that courts at both levels should try to limit the danger of judicial confrontations by avoiding the kinds of grand overstatements of positions that both Marshall and Roane were prone to giving.

True, much of the legal work that modern judges and justices perform reliably depends on precedent, doctrine, and professional competence.

The judiciary as a whole is hardly running amok. But when one leaves the well-ploughed fields of ordinary law to tramp the cratered terrain of constitutional interpretation, our confidence in judicial independence evaporates.

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