Question

Even though judicial review mentioned in the Constitution, the Founders did assume the Court would use this power. Read an excerpt from James Wilson's speech to the Pennsylvania Constitutional Convention on December 1, 1787, and then answer the questions.

I say, under this Constitution, the legislature may be restrained, and kept within its prescribed
bounds, by the interposition of the judicial department. This I hope, sir, to explain clearly and satisfactorily. I had occasion, on a former day (24 November), to state that the power of the Constitution was paramount to the power of the legislature, acting under that Constitution.
For it is possible that the legislature, when acting in that capacity, may transgress the bounds
assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but
when it comes to be discussed before the judges-when they consider its principles and find
it to be incompatible with the superior power of the Constitution, it is their duty to pronounce
it void. And judges, independent and not obliged to look to every session for a continuance of
their salaries, will behave with intrepidity and refuse to the act the sanction of judicial authority.

1. What reason does Wilson give for why the judicial branch would need to restrain the legislature through the use of judicial review?


2. How will the judicial branch decide if a law goes against the Constitution?


3. Why does Wilson believe that the judges will act with intrepidity (fearlessness) in exercising judicial review. In other words, why wouldn't they feel pressured to act or rule in a certain way?


4. Supreme Court Justices also serve in their positions for life. It's another check that's used to balance the judicial branch and help them maintain independence or influence from the other branches of government. Why do you think it is important for the justices to be independent?

Answer 1

1. Wilson gives the reason that the legislature may exceed its prescribed limits and transgress the bounds assigned to it, and the judicial branch would be needed to restrain it and keep it within those bounds.
2. The judicial branch will decide if a law goes against the Constitution by considering its principles and determining whether it is incompatible with the superior power of the Constitution. If it is found to be incompatible, it is the duty of the judges to pronounce it void.
3. Wilson believes that judges will act with intrepidity in exercising judicial review because they are independent and not obliged to look to every session for a continuance of their salaries. In other words, they are not beholden to the legislature or executive branches for their job security and can therefore act with impartiality and refuse to sanction an act that goes against the Constitution.
4. It is important for Supreme Court Justices to be independent because it allows them to interpret the law based on its merits and the Constitution, rather than being influenced by political pressure or the views of the other branches of government. This preserves the integrity and impartiality of the judicial branch and helps maintain the balance of power between the three branches of government. Justices who are not independent may be more likely to rule based on their personal beliefs or political affiliations, rather than on the law itself.