Remarks on Jefferson's Draft of a Constitution by James Madison (October 1788)

JAMES MADISON: REMARKS ON JEFFERSON'S DRAFT OF A CONSTITUTION

A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceded 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 re-passage 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 Executive 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.