Learning from the Great Council of Revision Debate

Abstract

Should judges play a prominent policymaking role through their exercise of judicial review, or should judicial review be exercised to strike down only those acts that clearly violate the Constitution's text or historical context? Prevailing scholarship maintains that the Constitutional Convention debates provide little relevant guidance with which to answer this question. The truth is essentially the opposite: the Convention delegates extensively considered the role that judges should play in policymaking, particularly during their debate over a proposed council of revision. This essay revisits the council of revision debate. It argues that beneath the delegates' clear disagreements lies an apparent consensus, one heretofore largely unrecognized: that whether or not judges should have been invited to play the policymaking role they would have played as members of a council of revision, they should not play a policymaking role while serving on the judicial bench.