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James Madison, Executive Power, and the Question of Consistency
Unformatted Document Text:  Instead of a list of enumerated powers, the resolution that outlined the parameters of legislative power merely recommended that each branch have the power of originating acts, that both branches together “ought to be impowered to enjoy the Legislative rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” Needless to say, the wording is vague in a way that would imply that Madison intended the legislature to have broad law making powers. 16 This impression is reinforced by the very next clause which called for the National legislature to be armed with the power “to negative all laws passed by the several states, contravening in the opinion of the National Legislature the articles of Union.” Madison actually preferred even stronger language to describe this power. Previous to the Convention he told Jefferson that the federal head should be armed with a veto “in all cases whatsoever.” He had also previously confided in Washington that he thought that the veto should be vested in the second branch of the legislature. 17 Along with the creation of a bicameral national legislature, Madison’s “Virginia Plan” called for the establishment of both an independent National Executive and National Judiciary. It proposed that the National Executive be chosen by the National legislature for one term, and vested with the power to execute the laws of the legislature, and to exercise the executive powers granted to Congress by the Confederation. The Judiciary would “consist of one or more supreme tribunals, and of inferior tribunals chosen by the National Legislature, to hold their offices during good behaviour.” Together, “a convenient number of the National Judiciary” and the Executive would make up a “Council of revision” that would have the power to review and reject any law of the “National Legislature.” 18 16 Ibid. 17 Ibid.; James Madison to Thomas Jefferson, New York, 19 March, 1787, PJM, 9: 318; James Madison to George Washington, New York, 16 April, 1787, PJM, 9: 384-385; See also James Madison to Edmund Randolph, New York, 8 April, 1787, PJM, 9: 370. 18 “Virginia Plan,” PJM, 10: 16-17. 10

Authors: Edwards, Gregory.
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Instead of a list of enumerated powers, the resolution that outlined the parameters of legislative power
merely recommended that each branch have the power of originating acts, that both branches together “ought to be
impowered to enjoy the Legislative rights vested in Congress by the Confederation & moreover to legislate in all
cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted
by the exercise of individual Legislation.” Needless to say, the wording is vague in a way that would imply that
Madison intended the legislature to have broad law making powers.
This impression is reinforced by the very next clause which called for the National legislature to be armed
with the power “to negative all laws passed by the several states, contravening in the opinion of the National
Legislature the articles of Union.” Madison actually preferred even stronger language to describe this power.
Previous to the Convention he told Jefferson that the federal head should be armed with a veto “in all cases
whatsoever.” He had also previously confided in Washington that he thought that the veto should be vested in the
second branch of the legislature.
Along with the creation of a bicameral national legislature, Madison’s “Virginia Plan” called for the
establishment of both an independent National Executive and National Judiciary. It proposed that the National
Executive be chosen by the National legislature for one term, and vested with the power to execute the laws of the
legislature, and to exercise the executive powers granted to Congress by the Confederation. The Judiciary would
“consist of one or more supreme tribunals, and of inferior tribunals chosen by the National Legislature, to hold their
offices during good behaviour.” Together, “a convenient number of the National Judiciary” and the Executive
would make up a “Council of revision” that would have the power to review and reject any law of the “National
Legislature.”
16
Ibid.
17
Ibid.; James Madison to Thomas Jefferson, New York, 19 March, 1787, PJM, 9: 318; James Madison to George
Washington, New York, 16 April, 1787, PJM, 9: 384-385; See also James Madison to Edmund Randolph, New
York, 8 April, 1787, PJM, 9: 370.
18
“Virginia Plan,” PJM, 10: 16-17.
10


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