Article 1, Section 7, Clauses 2 and 3
[Volume 2, Page 402]
James Madison, Observations on Jefferson's Draft of a Constitution for Virginia15 Oct. 1788Papers 11:292--93
Council of Revision. A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceived be more effectually secured, without disarming the Legislature of its requisite authority, by requiring bills to be separately communicated to the Exec: & Judicy. depts. If either of these object, let 2/3, if both 3/4 of each House be necessary to overrule the objection; and if either or both protest agst. a bill as violating the Constitution, let it moreover be suspended, notwithstanding the overruling proportion of the Assembly, until there shall have been a subsequent election of the H. of Ds. and a repassage of the bill by 2/3 or 3/4 of both Houses, as the case may be. It sd. not be allowed the Judges or the Ex to pronounce a law thus enacted, unconstitul. & invalid.
In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.
The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).
© 1987 by The University of Chicago