1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76
(Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248
(Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220
(Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44
(Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836),
II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton);
III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165
(Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in
"Letters of Fabius"). Ford, Essays on the Constitution, 295 (Robert
Yates, writing as "Brutus"). True these are only seventeen names out of
a possible fifty-five, but they designate fully three-fourths of the
leaders of the Convention, four of the five members of the Committee of
Detail which drafted the Constitution (Gorham, Rutledge, Randolph,
Ellsworth, and Wilson) and four of the five members of the Committee of
Style which gave the Constitution final form (Johnson, Hamilton,
Gouverneur Morris, Madison, and King). Against them are to be pitted, in
reference to the question under discussion, only Mercer of Maryland,
Bedford of Delaware, and Spaight of North Carolina, the record in each
of whose cases is of doubtful implication.

It should be noted, however, that there was later some backsliding.
Madison's record is characteristically erratic. His statement in The
Federalist No. 39 written probably early in 1788, is very positive: The
tribunal which is to ultimately decide, in controversies relating to the
boundary between the two jurisdictions, is to be established under the
general government. Yet a few months later (probably October, 1788) he
seemed to repudiate judicial review altogether, writing: "In the State
Constitutions and indeed in the Federal 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 the 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 Department paramount in fact to the
Legislature, which was never intended and can never be proper." 5
Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as
follows in support of the proposals to amend the Constitution which led
to the Bill of Rights: "If they are incorporated into the Constitution,
independent tribunals of justice will consider themselves i