James Madison was a strong proponent at the Constitutional Convention of a Council of Revision. This “joint executive-judicial council of revision” would be “armed with a limited negative over congressional acts, including congressional exercise of its power to negative state laws.” Jack N. Rakove, Judicial Power in the Constitutional Theory of James Madison, 43 William & Mary L. Rev. 1513, 1521 (2002). The Convention rejected this proposal. Later, in his Observations on the “Draught of a Constitution for Virginia,” Madison contrasted how a Council of Revision would work in contrast with the mechanism that we now call “judicial review” (a name not given it until the early 20th century):
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 botii protest agst. a bill as violating the Constitution, let it moreover be suspended, notwithstanding the overruling proportion of the Assembly, until tiiere 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.
Putting aside the reasons for and against the various proposals, it is worth noting Madison’s description of what “judicial review.” It consists of a court’s decision to refuse or not to refuse to execute a law. Nothing more. But also nothing less. For while this description of “judicial review” may seem somewhat weaker than the ability to “strike down” or “negative” laws, it is still an awesome power. In Madison’s view, this arrangement “makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.”