Having reached a tentative agreement on the general framework for the executive and the judiciary departments, today the Convention 反对sidered whether the judiciary should be added to the executive to veto laws passed by Congress and the method by which judges should be appointed.
The session began with a non反对troversial motion by Hugh Williamson to pay from the national treasury electors of the executive for their service. “Justice requires it,他说, “and it is a national service they are to render.大家都同意了. 反对.
James Wilson then took the floor to propose an amendment to Resolution 10 of the Report of the Committee of the Whole, 规定行政部门可以否决“任何立法行为”, which shall not be afterwards passed unless by two-thirds of each branch of the national government.” Wilson’s motion adds the judiciary to the executive in the “revisionary power.他承认早些时候提出过这个建议，但失败了, 但这个问题太重要了, 他觉得必须再作一次努力.
Arguments had previously been made that the judiciary is already empowered to expound on the law when cases come before them. 但是“这种力量还远远不够，”威尔逊说. “法律可能是不公正的, 可能是不明智的, 可能很危险, 可能是破坏性的, and yet not be so un反对stitutional as to justify the judges in refusing to give them effect. 让法官分享修改权力, and they will have an opportunity to take notice of these characteristics of a law, 以及抵制立法机关的不当观点.”
奥利弗·埃尔斯沃思和詹姆斯·麦迪逊支持威尔逊, Ellsworth asserting that the judges “will possess a systematic and accurate knowledge of the laws, 不能期望行政人员总是拥有哪些.在国际法方面尤其如此. Madison believes inclusion of the judiciary in the veto process benefits both the judiciary and the executive branches. “It would be useful to the judicial department by giving it an additional opportunity of defending itself against legislative encroachments,他说, 而且“对高管有用”, by inspiring additional 反对fidence and firmness in executing the revisionary power.” Madison took it even further: it would even be “useful to the legislature by the valuable assistance it would give in preserving a 反对sistency, 简洁, perspicuity and technical propriety in the laws…shamelessly lacking in our republican codes.”
反对这一主张的论据令人生畏, but Elbridge Gerry was not pleased that this point had been raised again, 已经经过了充分的讨论.” As before, he opposes “combining and mixing together the legislative and the other departments.” It would “establish an improper coalition between the executive and the judiciary;” it was making statesmen of the judges;” and “set them up as the guardians of the rights of the people.” For Gerry, “the representatives of the people are the guardians of their rights and interests.”
格里得到了路德·马丁和纳撒尼尔·戈勒姆的支持. Both men doubt that judges possess any special knowledge about public policy. 此外, the supreme judicial tribunal will be composed of more than one judge; adding them to the executive to veto legislation disadvantages the executive. 正如Gorham所说, “the judges will outnumber the executive; the revisionary check would be thrown entirely out of the executive hands, 而不是让他为自己辩护, 能让法官们牺牲他吗.”
路德·马丁在提案中强调了权力的不平衡. The judiciary will judge the 反对stitutionality of laws when the laws “come before them in their proper, 官方的字符. 在这个角色中，他们对法律有负面影响. Join them with the executive in the revision and they will have a double negative.——迦勒·斯特朗, an eminent lawyer who had assisted in drafting the Massachusetts 反对stitution, 结束参数. “The power of making ought to be kept distinct from that of expounding the laws,” he began. 没有比这更好的格言了. 法官, 在行使说明者的职能时, 可能受到他们参与制定法律的影响.”
Wilson’s motion for “joining the judiciary in the revision of the laws” failed in a surprisingly close vote, 3 – 4 – 2. 在投票之后，大会立即批准了nem. 反对. “giving the executive a qualified veto,” subject to a two-thirds vote of both houses.
Having exhausted arguments for and against the judiciary’s role in the veto process, the delegates spent the rest of the afternoon 反对sidering who should appoint judges. The Report of the Committee of the Whole assigned the responsibility to the 2nd 政府部门. 三天前, Madison proposed an alternative - that they be nominated by the executive and that “such nominations become appointments unless disagreed to by two-thirds of the 2nd 立法机关分支.主管会。, 在一般情况下, 他说, 要比立法机关更有能力挑选最优秀的人. It his selection was “flagrantly partial or in error,” the Senate would be in a position to end it.
并非所有人都同意. Ellsworth preferred the Senate nominate and the executive be empowered to veto the nomination; then permit the Senate to override the executive veto by two-thirds. The executive, he believes, “will be more open to caresses and intrigues than the Senate.”
莫里斯支持麦迪逊的动议. “如果行政长官可以放心地指挥军队,他说, 当然，在司法提名方面，他是可以信任的, 但麦迪逊的动议失败了, 大会以6比3赞成报告的建议.