Although the Federal Convention of 1787 considered proposing a Council of Revision as part of the new government it devised,1 it ultimately provided for no such body but did provide for a Supreme Court.2 Professor Richard Fallon’s work makes possible a sharper understanding of the consequences of that choice.3 This Essay builds on that work and on Professor Garrett West’s contribution to the Symposium for which this Essay was prepared, in assessing Congress’s power to create a system in which the Supreme Court strongly resembles the thing it is not.4 I argue that although Congress can move the system in the direction of one with a Council of Revision, aspects of the Constitution that Fallon expounded impose substantial limits on the legislature’s ability to achieve that goal.
This Essay first describes the account of judicial review in the U.S. constitutional system that is familiar from Marbury v. Madison5 and draws out some implications that may be less familiar. I then describe a form of abstract constitutional review that uses a Council of Revision and note some ways in which the latter differs from the former. Finally, this Essay explores constitutional limits on Congress’s ability to change the structure of judicial review so that it closely resembles one with a Council of Revision.