Lessons from a Lost Constitution: The Council of Revision, the Bill of Rights, and the Role of the Judiciary in Democratic Governance

This Article explores the relationship between the Council of Revision and the Bill of Rights. The Council of Revision, proposed at the Constitutional Convention by James Madison and the other Virginia delegates, would have been comprised of the President and several prominent members of the federal judiciary. Its task would have been to review the work of Congress and to exercise a qualified veto over those congressional acts with which it disagreed. This Article contends that the Bill of Rights must be understood in the context of Madison’s disappointment over the rejection of the Council of Revision at the Convention. Madison's preference for the Council of Revision helps explain his initial aversion to judicial review and his reluctance to support early efforts to propose a bill of rights. Madison's subsequent decision to assume the leading role in the enactment of the Bill of Rights, furthermore, is attributable in large part to the ways in which he ultimately came to view the Bill of Rights (and judicial review) as a functional equivalent to the Council of Revision. By the Spring of 1789, this Article argues, Madison had come to believe that a bill of rights could help provide the work of the judiciary with the very quality he feared that it most lacked after the Council’s demise: legitimacy in the eyes of the American people. In addition to contributing to our historical understanding for the origins of the Bill of Rights, Madison’s commitment to the Council of Revision is worth considering today because it invites us to re-examine our own conceptions of judicial review and to explore the various ways in which the work of the judiciary can be harmonized with the tenets of representational democracy. In particular, the Council challenges us to consider the extent to which the work of the judiciary should be conceptualized as a representational enterprise rather than as a 'countermajoritarian' endeavor