The Constitutional Convention took place in 1787 in Philadelphia. Its main purpose was to address the problems in governing the USA under the Articles of Confederation; however, in the end it resulted in creating the United States Constitution.
In the course of the Convention an issue of creating a body for the Revisionary check on the legislature in order to “defend the Executive Rights” against legislative encroachments, as well as to prevent passing “unjust and pernicious laws” arose. Mainly, the subject of the debate was whether there should be established either a joint Council of Revision comprising the members of Executive and Judiciary branches or solely an Executive Magistrate.
There were numerous pros and cons concerning blending of the Executive and Judiciary departments. For example, establishing a Council would reduce corruption and individual control of the Executive branch over such important issues. Moreover, the Judiciary branch could provide a professional view of laws and, thus, contribute to the purpose of the Revisionary check.
However, there were more cons than pros concerning the issue. For example, according to Agresto the idea of the Council of Revision was rejected in part because of “the fear that it might give the Court a double negative” against the legislature. It is a rather convincing argument; however, to my mind the true reason cannot be so simplified.
Firstly, some of the participants deemed employing of the Judges in this way was unnecessary, because there was no need in protecting their constitutional rights. Moreover, some of the participants even thought that the Revisionary check “would seldom be used”, because its mere existence would “preserve harmony and prevent mischief”.
The main argument, to my mind, is that the Executive and Judiciary departments of power should be kept separate for the sake of more effective discharge of their duties. The participants of the Convention thought that the Judiciary influence on the Executive branch would be too strong, so that the latter could be outnumbered and ultimately have less power in the Council than the Judiciary, which could be considered as an encroachment on the Executive Rights.
Furthermore, it was considered that the Judges’ participation in the Council would give them a “previous tincture to their opinion”, in other words the members of the Council would be prejudiced, which, in turn, would prevent them from effectively discharging their basic functions.
All in all, the motion of creating the Council of Revision was rejected because of several reasons, with the effective separation of powers of the Judiciary and Executive departments being the main one.
References
The Founders' Constitution (Rev. ed.). (1937). New Haven and London: Yale University …