James Madison’s notes from July 23, 1787 at the Constitutional Convention feature a report on various views on proposals to require an “oath to support the articles of the Union.” When Madison turned to the views of James Wilson, Madson recounted that Wilson considered them as a “left-handed security only.” What ever does that phrase mean?
Presumably Wilson described oaths as a “left handed security” because he viewed oaths only as a secondary security – not the strongest security, as the left hand helps the right hand for most of us. Additionally, as my friend Professor Mark David Hall reminds me, we traditionally shake with our right hands because for 90% of us, and certainly during the time of the Founding, that is the hand with which we would classically hold a weapon. Shaking with our left hands doesn’t really provide much of a security guarantee. Professor Hall and I agree: Wilson meant that oaths don’t really guarantee anything. However, Wilson was an outlier among the founders in this regard.
So the question is why are oaths a secondary security to Wilson? I turned to his section on Courts in his famous Lectures on Law to understand him further.
Wilson restates in this section his principle of sovereignty, which is that sovereignty resides ultimately in the “free and independent man” who is bound to Human Law only by himself, by his consent. The citizen is a sovereign member of the government of which the courts and legislatures are a part, and is taking an oath and participating in bodies authorized originally by himself as sovereign.
Wilson has argued that the principle of consent is the foundation of all Human law. He traced this back to the middle ages in his section on Municipal Law, repeating well-known legal adages supporting consent from Edward I and Fortescue. He also notes that in earlier Feudal times the principle of consent was there in the feudal oath.
I infer that Wilson held that in Feudal times the personal oath was the basic compact of society. But with the development of parliamentary government, obligation stands not upon a personal oath but upon an act of the free and sovereign individual with others. We the People. (from the preamble to the Constitution).
The most important or primary reason for being obliged to the constitution or human law lies in the fact that it is one’s own act, as a sovereign. A personal oath duplicates this, and is secondary or left-handed, meaning helpful, but not the ultimate security of the oath which is putatively one’s recognition that one has consented to those laws tacitly as a citizen and member of sovereign body.
