Constitutional Journal

-Tuesday, Aug. 28, 1787

Yesterday it was reported that, in return for a compromise on slavery, the South would agree with Northern shipping States to eliminate the two-thirds vote for passage of navigation acts by Congress.

WITH surprising dispatch and almost no debate, yesterday's session, with a majority of lawyer delegates in attendance, approved major elements of the Judicial branch of the new national government.

The only disagreement arose when John Dickinson of Delaware objected to life tenure for judges who would serve on the bench ``during good behavior.'' Mr. Dickinson proposed that the President have the power to remove judges with the sanction of the House of Representatives and Senate. Gouverneur Morris of Pennsylvania objected:

``It [is] a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removable without a trial. Besides it [is] fundamentally wrong to subject Judges to so arbitrary an authority.''

Roger Sherman of Connecticut countered, seeing no such contradiction for regulating the Judiciary. He pointed out that in Great Britain a provision for summary removal of judges existed. James Wilson of Pennsylvania objected by pointing out that the power to remove a judge in Great Britain was less dangerous than in America - principally because the House of Commons and the House of Lords rarely agree on issues. ``The Judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Govt.,'' Mr. Wilson added.

Gov. Edmund Randolph of Virginia said he opposed Mr. Dickinson's motion, because it would weaken the independence of judges. In the separate States and under the British in the Colonial era, independence of judges had long been a cardinal principle. Perhaps this is why Mr. Dickinson's motion was defeated.

The delegates then turned to defining the jurisdiction of the Supreme Court. They gave the court a sweeping grant of power to hear and decide all cases arising under the proposed Constitution, as well as all laws enacted by the national Legislature. James Madison of Virginia warned it was ``going too far'' to give the Supreme Court jurisdiction in all cases. It was then proposed and adopted that the court would not decide a constitutional issue until a disputed case was actually brought before it by two contesting parties.

Thus the Convention precisely defined the role of the Supreme Court. It will decide cases and not issues or questions of law. It will have no power to act except when two contending parties present the court with adversarial arguments - one basing his right on the Constitution, the other contending it.

Besides authorizing Congress to create a system of national courts, the Convention subordinated the Supreme Court to Congress by giving Congress the power to determine the number of justices. It also limited the Supreme Court's jurisdiction by defining its role as a tribunal of final appeal. The Convention has deliberately made it the duty of Congress to exercise oversight of the Judiciary for reasons of practicality. By granting to the States jurisdiction over cases properly theirs, the large number of lawyers at this Convention hope to prevent the national Judiciary from being buried in a mass of unmanageable legal business.

The fact that so many lawyers could agree with so little dissent over a new national Judiciary must be regarded as a minor miracle of this Convention.

These day-by-day reports on the Constitutional Convention will continue tomorrow.

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