Thomas, J., concurring
to empower judges to pass upon not only the constitutionality of laws, but also their policy. One of the council’s main supporters, James Wilson, stated that the council would share the New York Council’s power of reviewing laws, not only on constitutional grounds, but also to determine if they were “unjust,” “unwise,” “dangerous,” or “destructive.” 2 Farrand 73. Such a power was needed, according to Wilson, because the ordinary judicial power of refusing to apply unconstitutional laws in cases or controversies did not include the authority to decline to give effect to a law on policy grounds. Ibid. The other leading proponent of a council, James Madison, similarly argued that the council would veto “laws unwise in their principle, or incorrect in their form.” 1 id., at 139. For Madison, the council was necessary to remedy the defect caused by the limits of judicial power: Judges could not prevent the “pursuit of … unwise & unjust measures.” 2 id., at 74. In that vein, George Mason similarly argued that a council was needed to prevent “unjust oppressive or pernicious” laws from taking effect. Id., at 78.
Significantly, proponents of a council rejected the premise that judicial power included a power to refuse to apply a law for policy reasons. In fact, “[n]either side thought judges would or should be authorized to make policy—whether couched in the language of justice or rights—through their exercise of the judicial power. … [T]he debate over a council of revision was made necessary … because … not a single delegate on either side of the debate proposed or supported having judges perform a policymaking role from the bench.” J. Anderson, Learning From the Great Council of Revision Debate, 68 Rev. Politics 79, 99–100 (2006). From that shared premise, the council’s proponents argued that such an institution was needed precisely because it would be incompatible with judicial duty to take policy concerns into account in adjudicating cases. See J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933,
