James Wilson and “We the People”

Prof. Mikhail discussing James Wilson with Prof. Hadley Arkes and Prof. Jonathan Gienapp

Thank you very much, Hadley. Let me start by saying what a pleasure it is for me to participate in this event with you and with Jonathan. I want to thank Garrett for all of the work he did to bring us together. And I’m grateful that both Garrett and you mentioned that I was your student at Amherst College—quite a long time ago, over 30 years ago now—because I’m quite confident that the first time I ever heard the name “James Wilson” was in your classes, which I took back in the late 1980s. I can remember reading the first pages of First Things and encountering this man, James Wilson, and scratching my head and wanting to know more. So I credit you with lighting the spark of my own interest in Wilson. It has been a very rewarding experience to continue to study him over the years from different vantage points.

I want to pick up first on a question you just asked, which is what motivated me to get to know more about Wilson. One of the main factors was the whole series of topics you touched upon, including Wilson’s theories of jurisprudence and natural law, his understandings of ethics, epistemology and the human mind, and of how we come to have moral ideas in the first place. This is one of many things that sets Wilson apart. The Founders, as a group, were quite intelligent and well-read, and they wrote reflectively and thoughtfully on many topics.  But not too many of them dived as deeply into moral philosophy and epistemology as Wilson did. He really stands out in that regard.  One can see this in his law lectures, where Wilson writes knowledgeably about Descartes, Locke, Hume, Reid, and other philosophers. So that was one of the first sources of my interest in Wilson.

You kindly mentioned my book—and you were far too generous in your description of me—but I’ll set that aside. The fact remains that my focus on Wilson originated not so much in Constitutional law and Constitutional history, but in moral philosophy and moral psychology. Wilson is one of the few people who serves as a bridge from my research in moral philosophy and moral psychology to my more recent scholarship in Constitutional law, because he was one of the few figures on the scene in late 18th century America who was writing and thinking deeply on both topics. Wilson is also a rich source of ideas on the connections between moral philosophy and law. He says at one point in his lectures that the moral sense is a distinct and original power of the human mind, and that our knowledge of topics like natural jurisprudence and the law of nations flows from that source. I’m inclined to think that, in a deep sense, he’s correct about this. Trying to come to grips with just what Wilson meant by statements like this and what a credible intellectual framework approaching those topics today would be in the 21st century, knowing what we do today about the human mind and about where moral ideas come from, is really quite challenging. So Wilson is a continuous source of ideas and inspiration, at least for me.

Having said this, I want to pivot now to Constitutional law, since that’s our topic today, and make a few opening remarks about Wilson, explaining why he is so important. For starters, he is the man who wrote “We the People.” That is the theme of a book I’m writing on Wilson, the tentative title of which is, “The Man Who Wrote ‘We The People’: James Wilson and the Creation of the United States.” There are no more important words than “We the People” in Americans’ understanding of their Constitution. It’s a phrase that is endlessly fascinating, engaging, and controversial because it leads us to ask questions such as, “Who are We the people? Who are the members of the political community to which that phrase refers, and did refer in the 18th century?” And, of course, we are all familiar with the modes of exclusion and oppression—racism and sexism, for example—that kept various groups out of that category.

To a significant extent, I think, Wilson was ahead of his time in having a capacious understanding of We the People. There is a lot one could say on that point alone. The phrase “We the People” was not just a nice-sounding phrase for Wilson, because he believed deeply in the concept of popular sovereignty. Jonathan has written quite wonderfully about this subject, and others have as well. Perhaps more than any other Founder, Wilson saw how much the notion of popular sovereignty could do to justify the Constitution and its break with the Articles of Confederation, and to put the government of the United States on a new, sounder footing—a foundation that was not derived from the authority of the states, but from the authority of the people. And as you noted in your introduction, Hadley, Wilson understood sovereignty as residing ultimately in the individual. He draws upon Burlamaqui and other writers on that point. It also connects with how he handled actual cases, such as Chisholm v. Georgia, which on Wilson’s view necessarily raised the issue of where sovereignty ultimately lies in the Constitution.

So that is one set of topics that makes Wilson quite instructive. But his significance goes well beyond the Preamble. He was one of the two chief draftsmen of the Constitution, along with Gouverneur Morris. Wilson was a member of the five-member Committee of Detail that did most of the actual construction of the Constitution in its first phase, in late July and early August of 1787. And as far as the evidence suggests, he was the leading draftsman of the committee. Edmund Randolph had produced an outline of the Constitution, which James Wilson then took and turned into the Constitution’s first complete draft.

In writing that draft, Wilson crafted many of the clauses and phrases that have become so important in American law: the Vesting Clauses, for example, at the beginning of Articles One, Two, and Three; the Necessary and Proper Clause, on which I have written extensively, which is a critical provision in the Constitution for understanding the separation of powers; the Take Care Clause, which goes to the heart of presidential authority; and the Supremacy Clause. Drawing upon a resolution that had been adopted by the convention, Wilson framed the first version of the Supremacy Clause in the Committee of Detail draft. And in composing it, he did something really critical, which was to subordinate state constitutions to federal law. Wilson was a nationalist, who often thought of ways to enlarge federal authority. He also was one of the strongest champions of implied national powers at the convention and thereafter.

Wilson’s fingerprints are all over the Constitution, including on some issues that we look at today with regret, like the great compromises over slavery.  We should note that Wilson had a large hand in crafting some of those compromises. Later, he played a crucial role in the campaign to ratify the Constitution. When it came time to do so, he arguably became the leading Federalist spokesman, at least during the early phases of ratification, both in his State House Yard speech, and then in the Pennsylvania Ratifying Convention. Wilson went first, in many instances, in laying out what became the standard Federalist arguments about the Constitution—arguments that were later picked up and elaborated in other state ratifying conventions. Pennsylvania was the first large state to ratify the Constitution, and Wilson played an extraordinary role in that convention and in shaping the Federalist defense of the Constitution more generally. Gordon Wood and others have written about this topic, and I think it is really important.

There are passages in The Federalist Papers written by Hamilton, Madison, and Jay, for example, that come straight from Wilson. In fact, I think that debt has not yet fully been chronicled. Some of it rises almost to the level of plagiarism. Then, after the Constitution is adopted, Wilson goes on to the Supreme Court. He is one of George Washington’s first appointments to that body. As Maeva Marcus, who is the leading expert on the early years of the Supreme Court, has pointed out, Wilson was quite diligent and devoted in this role and took his job on the Court quite seriously. He was hardworking. He rode circuit and in doing so, he crisscrossed the United States, perhaps more than any other Justice. Wilson traveled throughout the United States – north, south, and the middle part of the country—publishing important jury instructions along the way. Finally, of course, there are his law lectures, which fortuitously come down to us through the efforts of his son, Bird Wilson, because it’s quite possible we might never have seen the law lectures, given how Wilson’s life ended. From original notebooks he possessed, Bird Wilson published the first edition of the law lectures in 1804. They are a rich store of jurisprudential ideas that has not fully been tapped, brimming with interesting things from the standpoint of intellectual history.

I have laid out quite a bit, so rather than going on, I think I’ll wind down here. I was asked at some point to say something about Wilson’s contributions to Article Two of the Constitution and his role in shaping the American presidency—because, again, Wilson arguably was the chief architect of the presidency. He came into the convention with very distinctive ideas about what the national executive should look like, and in many cases his views prevailed. Bill Ewald, an expert on Wilson who teaches at the University of Pennsylvania and who is a friend of Jonathan’s and mine, has written very perceptively about this topic, calling attention to the many elements of presidential power and the structure of the office that Wilson championed right from the start. So perhaps that’s a topic we can return to, along with judicial power, because Wilson was a strong champion of judicial review. He also was arguably the most democratic member of the Philadelphia Convention, strongly in favor of extending the franchise as far as possible. On issue after issue, Wilson takes unusual and deeply interesting positions that cut across many of the usual categories that commentators tend to use when they think about the founders and try to classify them in different ways. Let me stop there, however, and turn things over to Jonathan.

This article is taken from Prof. Mikhail’s remarks during a webinar, which may be found here.

John Mikhail is the Carroll Professor of Jurisprudence at Georgetown University Law Center, where he has taught since 2004. He teaches and writes on a variety of topics, including constitutional law, moral psychology, moral and legal theory, cognitive science, legal history, criminal law, torts, international law, and human rights. He is the author of Elements of Moral Cognition: Rawls’ Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (from Cambridge University Press), and over fifty articles, chapters, essays, and reviews in peer-edited journals, law reviews, and anthologies. He has written extensively on Wilson from the perspective of a constitutional historian as well as a constitutional theorist.
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