James Wilson was one of six men to sign both the Declaration of
Independence and the Constitution of the United States. In the
Federal Convention of 1787, he spoke more often than all but one
other delegate (Gouverneur Morris), and by all accounts he played a
critical role in framing the Constitution. His early defense of the
proposed Constitution and his leadership in the Pennsylvania
ratifying convention did much to secure the document's acceptance.
Wilson served as one of the new nation's first Supreme Court
Justices, and his Lectures on Law contain some of the
period's most profound commentary on the Constitution and American
In spite of these tremendous accomplishments, few Americans have
ever heard of Wilson. However, over the past several decades,
scholars have come to a deeper appreciation of his contributions to
the creation of the American republic. This emerging consensus is
reflected well in a survey that Gary L. Gregg and I took of more
than 100 political scientists, historians, and law professors. We
asked these scholars to list and rank America's most underrated
Founders. James Wilson easily topped the list of 73 forgotten
Founders, and a diverse array of scholars agreed that he should be
numbered among the most important.
An overview of Wilson's life and accomplishments with a focus on
his political and legal ideas demonstrates that Wilson is a
sophisticated thinker who had a significant impact on America's
Founding. Although he did not win every battle in the Federal
Convention of 1787, America's constitutional system as it has
developed over time closely resembles his vision.
In his Lectures on Law, Wilson wrote that:
There is not in the whole science of politicks a more solid or a
more important maxim than this--that of all governments, those are
the best, which, by the natural effect of their constitutions, are
frequently renewed or drawn back to their first principles.
If American citizens, like governments, should reflect upon the
first principles of our constitutional republic, the political and
legal ideas of one of the greatest theorists among the Founders
simply cannot be ignored. A consideration of Wilson and the role he
played in America's Founding assists us in rediscovering these
Scottish Roots and Law Practice
James Wilson was born in Carskerdo, Scotland, in 1742, the son
of a lower-middle-class farmer. William and Alison Wilson dedicated
their son to the ministry at birth, and James accordingly received
an education uncommon to children of his class. After gaining a
fine classical education at Culpar grammar school, he won a bursary
to the University of St. Andrews in 1757. Here Wilson studied for
four years before entering the university's divinity school, St.
Mary's, in 1761.
Upon the death of his father, he was forced to withdraw from the
seminary to support his mother and younger siblings by working as a
tutor. When his brothers were old enough to take care of their
mother, Wilson emigrated to America to seek fame and fortune.
Wilson arrived in New York in the fall of 1765 and immediately
moved to Pennsylvania, where a letter of recommendation helped him
to receive an appointment as a tutor at the College of Philadelphia
(today the University of Pennsylvania). He taught Latin and Greek
for a year before reading law under John Dickinson, one of
Pennsylvania's most prominent attorneys. His rapid rise in the
legal profession is illustrated by his 1779 appointment to be
France's advocate-general in the United States. He served in this
position until 1783, when he resigned because Louis XVI was
unwilling to pay the high fees he required.
In 1782, Pennsylvania asked Wilson to represent the state in a
land dispute with Connecticut. The case was argued before a
tribunal formed under the Articles of Confederation, and Wilson's
careful arguments won the day.
His legal prominence is also indicated by George Washington's
willingness to pay him 100 guineas to accept his nephew, Bushrod,
as a law student. Bushrod, aware that such a fee was well above the
going rate, begged his uncle to allow him to study elsewhere, but
Washington insisted on Wilson, although he had to pay the fee with
a promissory note. Bushrod was evidently well served by this
arrangement, as indicated by his successful legal career and
eventual appointment to his mentor's seat on the Supreme Court.
Lectures on Law and Political Theory
Wilson maintained a law practice until the early 1790s, but
after the start of the War for Independence, he spent most of his
time engaged in affairs of state. Before turning to his
contributions to the creation of the American republic, a brief
account of his moral and democratic theory is appropriate to show
that he was a sophisticated thinker whose actions were driven by
Wilson's ideas are most systematically presented in a series of
law lectures he delivered from 1790 to 1792 at the College of
Philadelphia. His inaugural lecture was a major public event. In
addition to students, the audience included "the President of the
United States, with his lady--also the Vice-President, and both
houses of Congress, the President and both houses of the
Legislature of Pennsylvania, together with a great number of ladies
The lectures are particularly important to students of American
thought because Wilson believed that law should be "studied and
practiced as a science founded in principle," not "followed as a
trade depending merely upon precedent." Consequently, he spent most
of his time focusing on philosophical matters, especially those
pertaining to morality, epistemology, metaphysics, and politics. He
thought that once these foundations of jurisprudence were mastered,
students then could learn what he termed "the retail business of
law." The lectures progressed naturally from abstract political
theory to more concrete legal and constitutional issues, including
the appropriate powers of Congress, the President, and the Supreme
Central to Wilson's political and legal theory was his view of
morality. He followed Richard Hooker, who in turn borrowed from St.
Thomas Aquinas, in adhering to a traditional Christian conception
of natural law. Wilson agreed with these thinkers that law is
either divine or human and that there are four "species" of divine
law: eternal law, celestial law, natural physical laws, and natural
moral laws. Like them, he thought that human law "must rest its
authority, ultimately, upon the authority of that law which is
divine," but unlike them, he offered a rich account of the natural
rights possessed by individuals.
Wilson taught that because natural rights are based on natural
law, they exist prior to government. Protecting these rights is the
state's most important responsibility. He asked rhetorically:
What was the primary and principal object in the institution of
government? Was it--I speak of the primary and principal
object--was it to acquire new rights by a human establishment? Or
was it, by a human establishment, to acquire a new security for the
possession or the recovery of those rights, to the enjoyment or
acquisition of which we were previously entitled by the immediate
gift, or by the unerring law, of our all-wise and all-beneficent
The latter, I presume, was the case....
Wilson provided an extensive discussion of the nature and scope
of natural rights throughout his works. For reasons of space, I
discuss only his understanding of the rights to life and
Wilson argued that because "man, fearfully and wonderfully made,
is the workmanship of his all perfect Creator," the right to life
must always be respected. He wrote with evident approval that:
With consistency, beautiful and undeviating, human life, from
its commencement to its close, is protected by the common law. In
the contemplation of law, life begins when the infant is first able
to stir in the womb. By the law, life is protected not only from
immediate destruction, but from every degree of actual violence,
and in some cases, from every degree of danger.
On the basis of this principle, Wilson criticized ancient
societies, such as Sparta, Athens, China, and Rome, for the
practice of exposing or killing unwanted infants. He also condemned
the "gentle Hindoo" who "is laudably averse to the shedding of
blood; but he carries his worn out friend and benefactor to perish
on the banks of the Ganges."
Like most legal theorists prior to the late 20th century, Wilson
[I]t was not by his own voluntary act that the man made his
appearance upon the theatre of life; he cannot, therefore, plead
the right of the nation, by his own voluntary act to make his exit.
He did not make; therefore, he has no right to destroy himself. He
alone, whose gift this state of existence is, has the right to say
when and how it shall receive its termination.
Wilson did support the death penalty for crimes such as murder
and treason. If a person is sentenced to death, however, he
stipulated in a grand jury charge that "an interval should be
permitted to elapse before its execution, as will render the
language of political expediency consonant to the language of
Wilson believed that all men and women have a right to liberty,
but he rejected the extremely individualistic understanding of
freedom envisioned by many modern philosophers. Instead, liberty
must always be understood within the limits of moral and civil law:
"Without liberty, law loses its nature and its name, and becomes
oppression. Without law, liberty also loses its nature and its
name, and becomes licentiousness." This concept was so important to
Wilson that he quoted a similar dictum from Cicero as the epigraph
for his law lectures: "Lex fundamentum est libertatis, qua fruimur.
Legum omnes servi sumus, ut liberi esse possimus [Law is the
foundation of the liberty which we enjoy. We are all servants of
the laws, so that we can be free]."
Wilson had a fairly expansive conception of the scope of liberty
protected by natural law. This is best illustrated by his
discussion of freedom of conscience--in his words, the "rights of
[The] right of private judgment is one of the greatest
advantages of mankind; and is always considered as such. To be
deprived of it is insufferable. To enjoy it lays a foundation for
that peace of mind, which the laws cannot give, and for the loss of
which the laws can offer no compensation.
Because individuals must be at liberty to make their own
choices, Wilson supported the general freedom of a person to "act
according to his own inclination" if he "does no injury to others"
and if "some publick interests do not demand his labours." It is
not clear exactly how far Wilson was ready to extend this
principle, but at a minimum he meant that the civil government
should not interfere with an individual's liberty to think and
believe what he or she wants. This was particularly true in matters
Given the influence of Christianity on Wilson's political
theory, it is important to emphasize that he was an advocate of
religious liberty. In his inaugural law lecture, after he praised
John Locke's essay on religious toleration, he reminded his
audience that a law protecting freedom of religion had been passed
in Maryland as early as 1649. He then noted that when Lord
Baltimore was urged to repeal the law, "with the enlightened
principles of a man and a Christian, he had the fortitude to
declare, that he never would assent to the repeal of a law, which
protected the natural rights of men, by ensuring every one freedom
of action and thought."
Note that Wilson did not think liberty is restricted to matters
of the heart and mind. He thought that people had the right to act
upon their convictions: to "speak, to write, to print, and to
publish freely." Yet he believed that each of these rights has
limits, as indicated by his support for laws against slander,
libel, and blasphemy.
Wilson discussed a variety of other natural rights, including
the rights to property and reputation. In each case, he argued that
because rights are based upon God's universal and absolute laws,
they must always be respected.
Wilson was a prominent advocate of democracy, but he did not
believe majorities should restrict the rights of minorities.
Foreshadowing John Stuart Mill, he proclaimed that "[o]n one side,
indeed, there stands a single individual: on the other side,
perhaps, there stand millions: but right is weighted by principle;
it is not estimated by numbers." Yet unlike Mill, Wilson believed
that rights are limited by the natural law upon which they are
founded. He rejected the individualistic view of rights that would
come to dominate American political theory and law.
God's moral laws may be known through "reason, conscience, and
the Holy Scriptures." Following Francis Hutcheson and Thomas Reid,
Wilson taught that God gives everyone a moral sense that provides
knowledge of the first principles of morality. He found biblical
support for this position in St. Paul's claim that natural law is
"engraven by God on the hearts of men." Such knowledge allows men
and women to answer most moral questions, but it is occasionally
necessary to reason from first principles to solve particular
A person's moral sense, and even the moral sense of a society,
may become corrupt through disuse, faulty education, or bad laws.
Thus, it is not surprising that people have moral disagreements and
that some cultures accept practices that are considered immoral by
Even so, careful consideration shows that individuals and
cultures agree on moral issues far more often than they disagree.
As people come to understand the requirements of natural law, it
may be said to progress. In Wilson's words, "the law of nature,
though immutable in its principles, will be progressive in its
operations and effects." He was quite clear that it is only our
knowledge of the natural law that changes, not the natural law
When Wilson combined his moral epistemology with his optimistic
view of human nature, he came to the conclusion that majority rule
is the best way to make human laws that are compatible with natural
law. Consequently, he embraced popular sovereignty and argued that
all legitimate governments must be based directly on the will of
the people. His views are illustrated well through his most famous
The pyramid of government--and a republican government may well
receive that beautiful and solid form--should be raised to a
dignified altitude: but its foundations must, of consequence, be
broad, and strong, and deep. The authority, the interests, and the
affections of the people at large are the only foundation, on which
a superstructure, proposed to be at once durable and magnificent,
can be rationally erected.
Every aspect of government must be founded upon the authority of
the people. Their consent, he taught, is the "sole legitimate
principle of obedience to human laws."
At times, Wilson sounded like a simple majoritarian, but it must
be remembered that he believed the primary purpose of government is
to protect natural rights. He knew that people are "imperfect" and
suddenly may "become inflamed by mutual imitation and example" and
commit immoral actions. Truly democratic institutions address the
problem of minority tyranny, and to prevent majority tyranny, he
supported separation of powers and checks and balances.
However, it is critical to recognize that these checks were
intended to be only temporary; he never supported rule by elites as
did many thinkers influenced by the radical Enlightenment.
Fortunately for the United States, Wilson's contributions to the
creation of the American republic were influenced by a far more
traditional approach to law and politics.
Wilson and the War for Independence
In 1768, shortly after reading John Dickinson's Letters from
a Farmer in Pennsylvania, Wilson penned a pamphlet entitled
"Considerations on the Nature and Extent of the Legislative
Authority of the British Parliament." In it, he argued that
Parliament had absolutely no authority over the colonies' internal
or external affairs.
Most Patriots agreed with Wilson's first point, but few had
arrived at the second. At the urging of Francis Alison, a fellow
Scott and colleague from the College of Philadelphia, he did not
publish the pamphlet in 1768. However, by 1774, Wilson felt that
the time had come to declare publicly that the "legislative
authority of the British Parliament over the colonies" should be
"denied in every instant."
Central to Wilson's argument was his conviction that the law of
nature requires that governments be based directly on the people.
Because the colonists were not represented in Parliament, this body
could claim no authority over them. Wilson conceded that the
colonists were obligated to obey the King in exchange for his
protection, but he implied that if this protection was removed, the
obligation would cease.
"Considerations" articulated what would be later known as the
"dominion" or "commonwealth" status of English colonies. Wilson
drafted the pamphlet six years before Jefferson and Adams published
similar arguments and 70 years before the British adopted the
policy. Shortly after its publication in 1774, the essay was
recognized as one of the most powerful statements for colonial
independence from Parliament. It is noteworthy that Thomas
Jefferson copied several passages from it into his Commonplace
Book--including passages similar to ones in his draft of the
Declaration of Independence.
Wilson was forced to put his theory of resistance into practice
when he was elected to the Second Continental Congress. He was a
reluctant revolutionary, but he eventually cast the Pennsylvania
delegation's deciding vote in favor of independence, thus allowing
the Declaration of Independence to be adopted unanimously. His
support for independence was driven by his twin convictions that
government must be based on the consent of the governed and that
the Crown was violating the natural rights of Americans.
After voting for independence, Wilson returned to state politics
to oppose Pennsylvania's radical constitution of 1776. Although he
sympathized with its democratic elements, he was against vesting
most civil power in a unicameral legislature.
This stand, coupled with his defense of two Quakers accused of
treason and his opposition to wartime price controls, encouraged
Philadelphians to view him as an enemy of democracy. In October of
1779, when tensions were running high, a mob descended on Wilson
and several of his fellow anti-constitutionalists. These men armed
themselves and took refuge in Wilson's house. After a short gun
battle, the mob was chased off, but the "Attack on Fort Wilson," as
the incident came to be known, exacerbated the view that Wilson was
Throughout the 1780s, Wilson advocated the creation of a banking
system that could help to ensure the circulation of sound currency.
He supported the formation of the Bank of North America and in 1785
was hired to write a pamphlet defending the embattled
Wilson's "Considerations on the Bank of North America" is
significant for his provocative argument that even under the
Articles of Confederation, "[t]o many purposes, the United States
are to be considered as one undivided, independent nation."
Moreover, he proposed that the Confederation Congress possessed a
variety of implied powers, including the power to charter a
national bank, and he vigorously defended the necessity of such a
bank. The essay contains most of the arguments later made by
Alexander Hamilton in support of a national bank under the United
The Federal Convention of 1787
Wilson's greatest contributions to the American republic were
made in the Federal Convention of 1787. Among the few delegates to
attend the Convention from start to finish, Wilson participated in
all of the most important proceedings.
As mentioned earlier, he spoke more times (168) than any other
member, save Gouverneur Morris, and he often responded to the most
serious attacks on the concept of a strong and democratic national
government. Scholars as varied in their interpretations of the
American Founding as Samuel Beer, James Bryce, Max Farrand, Ralph
Ketcham, AdrienneKoch, Robert McCloskey, Paul Johnson, Clinton
Rossiter, and John Fabian Witt agree that Wilson was second only to
James Madison, and was perhaps on a par with him, in terms of
influence on the Constitution.
To Wilson, the critical problem faced by delegates was creating
a strong national government that would protect and promote natural
rights. Because he thought democratic institutions were the most
likely to respect rights, he supported them throughout the
- To ensure that the base of the pyramid of government was as
broad as possible, he opposed property qualifications for
- He was one of relatively few Founders to argue for the direct,
popular election of both Representatives and Senators and was
virtually alone in his conviction that members of both
houses ought to be elected from proportionally sized
- More surprising still, he concluded that the President should
be "the man of the people" and therefore elected directly by
- Finally, he opposed such restrictions on elected officials as
term limits and age requirements, believing that the people should
be free to elect anyone they choose.
Some of Wilson's proposals were adopted, but many were too
progressive for the era. Nevertheless, he was instrumental in
making the Constitution as democratic as it was, and over the
years, America's national political system has become almost as
democratic as he desired.
Wilson was the most democratic of the major Founders, but he was
not a simple majoritarian. He recognized that majorities could be
tyrannical and so advocated a number of devices that he thought
would check the will of an errant majority.
His most interesting arguments in this regard involved the
judiciary. Early in the Convention, he supported Madison's proposed
Council of Revision, which would have consisted of the executive
and "a convenient number of the national Judiciary." The Council
would have had an absolute veto over legislative acts. Madison's
idea was eventually rejected, but Wilson did not abandon his effort
to strengthen the judiciary.
Wilson was convinced that the Supreme Court needed to be
independent from the other branches of the national government. He
therefore opposed the Virginia Plan's provision that the
legislature appoint judges. He also fought his old mentor John
Dickinson's proposal that judges be easily removable and supported
the constitutional prohibition against lowering their salaries.
Wilson also believed that the Supreme Court should have the
power of judicial review. In his law lectures, he contended that a
bad law might be vetoed by the executive and that it is "subject
also to another given degree of control by the judiciary
department, whenever the laws, though in fact passed, are found to
be contradictory to the constitution." Moreover, like every Justice
but one who served on the Supreme Court before John Marshall,
Wilson thought the Court could strike down laws that violate the
Democracy, Federalism, and Sovereignty
There is a natural tension between Wilson's support for checks
like judicial review and his commitment to democracy. In advocating
the former, he made it clear that counter-majoritarian checks
should not be used often. In the Federal Convention, he noted that
"[l]aws may be unjust, may be unwise, may be dangerous, may be
destructive; and yet not be so unconstitutional as to justify the
judges in refusing to give them effect." He also argued explicitly
for judicial self-restraint, contending that a judge should
"remember, that his duty and his business is, not to make the law,
but to interpret and apply it."
Wilson did not believe that the Supreme Court would use its
power to thwart the majority on many issues. Instead, he thought
that it would use judicial review only rarely to strike down
blatantly unconstitutional or unjust laws. For Wilson,
counter-majoritarian checks are temporary injunctions, useful in
preventing majorities from acting out of "passions" and
"prejudices" that are "inflamed by mutual imitation and example."
In the final analysis, the Court cannot prevail against a sustained
supermajority, but this is as it should be because the people are
best able to create just laws. The purpose of checks like judicial
review is not to make policy, but to restrain improper or unjust
laws until the people recognize them as such and correct them.
Wilson's democratic views influenced his understanding of
federalism. While partisans of the states or the national
government argued about which is sovereign, Wilson contended that
only the people are sovereign and that once this principle is
[T]he consequence is that they may take from the subordinate
governments powers with which they have hitherto trusted them, and
place those powers in the general government, if it is thought that
there they will be productive of more good. They can distribute one
portion of power to the more contracted circle, called state
governments; they can furnish another proportion to the
government of the United States. Who will undertake to say, as a
state officer, that the people may not give to the general
government what powers and for what purpose they please? How comes
it, sir, that these state governments dictate to their
superiors?--to the majesty of the people?
In America, the people decided to split the power of government
between the states and the nation. Wilson argued that the general
principle that should be used to draw "a proper line between the
national government and the governments of the several states" is
Whatever object of government is confined in its operation and
effects within the bounds of a particular state, should be
considered as belonging to the government of that state; whatever
object of government extends in its operation or effects beyond the
bounds of a particular state, should be considered as belonging to
the government of the United States.
Wilson attempted to put this principle into practice when, as a
member of the Committee of Detail, he played a significant role in
drafting Article I, Section 8 of the Constitution. Believing that
the scope of the national government was limited to powers
enumerated in the Constitution, he supported the Necessary and
Proper Clause but thought that implied powers must be closely
connected to enumerated powers. Powers not assigned to the national
government are reserved to the people, who may or may not choose to
give them to the states.
Because the national government is limited to its enumerated
powers, Wilson did not think it necessary to add a bill of rights
to the Constitution. Why, he argued, add an amendment stating that
Congress cannot restrict the liberty of the press if Congress has
no power over the press? Furthermore, Wilson contended that a bill
of rights would be dangerous because if any rights are left out, it
might be assumed that they are not retained by the people.
Throughout the Constitutional Convention, Wilson strove to help
frame a strong and democratic national government that would
protect individual rights, and it is interesting to note how
closely America's current constitutional system resembles the one
- Early in the 19th century, states began to make some of the
suffrage reforms advocated by Wilson.
- By the 20th century, his proposal that Senators be elected by
the people had become enshrined in the Constitution, and his
"chimerical" idea that the President be elected by the people is
virtually always the political practice, if not the constitutional
- As well, the Supreme Court has become a co-equal part of the
national government that both checks the other branches and plays
an important role in protecting individual rights.
Ratification Debates and the Pennsylvania Constitution
From the Constitutional Convention, Wilson proceeded to the
Pennsylvania ratifying convention where, as the only member to
attend both, he became the leader of the pro-ratification forces.
He began his defense of the Constitution with his famous "State
House Yard Speech," given in Philadelphia on October 6, 1787.
There, Wilson promoted the benefits of the Constitution and
responded to the main Anti-Federalist attacks. Most significantly,
as noted above, he defended the absence of a bill of rights from
Wilson was the first member of the Federal Convention to defend
the Constitution publicly. Under his leadership, Pennsylvania
became the second state--and the first large state--to ratify the
Constitution. Federalists throughout the country enlisted his aid
in their own ratification efforts. George Washington, for instance,
sent a copy of Wilson's "State House Yard Speech" to a friend,
[T]he enclosed Advertiser contains a speech of Mr.
Wilson's, as able, candid, and honest member as was in the
convention, which will place most of Colonel Mason's objections in
their true point of light, I send it to you. The republication of
it, if you can get it done, will be serviceable at this juncture.
By December 29, 1787, Wilson's speech had been reprinted in 34
newspapers in 12 states. In addition, it was published in pamphlet
form and circulated throughout the nation. Bernard Bailyn has noted
that "in the 'transient circumstances' of the time it was not so
much the Federalist papers that captured most people's
imaginations as James Wilson's speech of October 6, 1787, the most
famous, to some the most notorious, federalist statement of the
time." Defenders of the Constitution in other states referred to
the speech for ammunition in their own ratification battles. It
soon became, in Gordon Wood's words, "the basis of all Federalist
As his final act of constitution-making, Wilson helped to lead
Pennsylvania in dissolving its constitution of 1776 and creating a
new one. The Pennsylvania constitutional convention of 1789-1790
commenced with Wilson, the Federalist leader, and William Findley,
the leader of the western democrats, agreeing to renounce the old
constitution and begin debating a plan written by Wilson. His draft
provided for a government based firmly on the sovereignty of the
people but limited through a system of separated powers.
Wilson, who often had been labeled an aristocrat, broke with his
old allies and joined the democrats on several issues. Most
significantly, he led the fight for the direct, popular election of
representatives, state senators, and the governor. Wilson's
contributions to the Pennsylvania Constitution of 1790 are
noteworthy insofar as they demonstrate that he did not argue for
democratic institutions at the Federal Convention simply because he
was from a large state.
Wilson as Supreme Court Justice
After the Constitution was ratified, Wilson wrote to President
Washington and suggested that he be appointed Chief Justice of the
United States. Washington responded coolly, writing: "To you, my
dear Sir, and others who know me, I presume it will be unnecessary
for me to say that I have entered upon my office without the
constraint of a single engagement." Eventually,
however, Wilson was appointed and confirmed as an Associate Justice
of the Supreme Court. From this position, he was to play an
important role in the formation of American law.
One of Wilson's most significant decisions is also one of the
most overlooked. In 1792, Congress passed the Invalid Pensioner
Act, which provided federal assistance to men injured in the War
for American Independence. It required federal circuit courts to
determine whether veterans were eligible for these benefits. The
judges' decisions were subject to final approval by the Secretary
of War and Congress.
The first case arose in the New York Circuit, where Chief
Justice John Jay and Associate Justice William Cushing were
presiding with District Judge James Duane. These judges informed
Congress that they objected to this duty but would perform it out
of respect for the legislators and the pensioners.
When a case arose in the Pennsylvania Circuit, Justices Wilson
and John Blair, along with District Judge Richard Peters, refused
to accept the petitioner's case. Under Wilson's leadership, the
judges wrote a letter to President Washington in which they argued
that reviewing claims was not a judicial function and, more
significantly, that it violated the principle of separation of
powers because the Secretary of War and Congress had the final
In response to the Pennsylvania circuit judges' letter, Attorney
General Edmund Randolph applied to the Supreme Court for a writ of
mandamus requiring the circuit court to perform its duty.
Fortunately for future Chief Justice John Marshall's reputation,
the full Court did not have to rule on the matter. Before the
Justices could act, Congress altered the offending legislation and
mooted the case.
Because the Supreme Court never issued an official opinion,
Hayburn's Case (1792) is often overlooked by students of the
judicial process, but it is fair to consider the case to be, in the
words of the reporter of the House of Representatives, the "first
instance in which a court of justice has declared a law of Congress
unconstitutional." James Madison agreed with this assessment, as
indicated by a letter to Richard Henry Lee in which he commented
that the circuit court judges in Pennsylvania had pronounced the
act "unconstitutional and void." Similarly, St. George Tucker, in
his 1803 republicanized edition of Blackstone's
Commentaries, cited Hayburn's Case as evidence that
the judiciary has the duty to void an unconstitutional act of
Congress. Thus, 11 years before Marbury v. Madison (1803),
federal judges, led by Wilson, were engaging in judicial review of
Wilson's most significant Supreme Court opinion came in the 1793
case of Chisholm v. Georgia. The controversy arose when
Chisholm, executor of the estate of a Loyalist, sued Georgia for
payment of a debt incurred during the War for Independence. The
state claimed that because it was sovereign, it could not be sued.
Georgia recognized that to submit to the jurisdiction of the
federal courts would strike a major blow to state sovereignty. This
concern had been raised repeatedly by the Anti-Federalists, who had
argued in many of the ratifying conventions that individuals would
be able to sue states.
In Chisholm, the Anti-Federalists' worst nightmare seemed
to come true: The Supreme Court ruled four to one against Georgia.
Wilson joined the majority and wrote the most memorable and
theoretically interesting of the seriatim opinions. He moved
far beyond the simple legal question to argue that the case was not
primarily about jurisdiction, but instead concerned whether or not
"the people of the United States form a Nation?"
Wilson began his elaborate answer with a quotation from Thomas
Reid about the significance of language. language is important, he
claimed, because imprecise words can lead to bad political theory.
For instance, people often misuse the terms "state" and
"sovereign." To define these terms, Wilson returned to first
principles and reminded his audience that people are "fearfully and
wonderfully made" and that they are endowed by their "Creator" with
"dignity." A state, on the other hand, is but an "inferior
contrivance of man." While a state is certainly "useful and
valuable," the people should never forget that a state exists to
serve them, not vice versa.
Wilson built on this distinction and argued that the people
always retain their power of original sovereignty. While they may
vest aspects of this sovereignty in states, it is sovereignty of a
"derivative" nature. It is therefore inaccurate to speak of a
"sovereign state," for only the people are sovereign. The people as
a whole, including the citizens of Georgia, created the
Constitution. Therefore, "as to the purposes of the Union...Georgia
is NOT a sovereign State."
On the basis of "general jurisprudence," Wilson concluded that
Georgia is not a sovereign state and that it has a duty to fulfill
its contracts. After discussing a number of precedents that
supported this position, he addressed the question of whether the
Supreme Court has jurisdiction in the dispute. To answer it, Wilson
turned to Article III, Section 2 of the U.S. Constitution, which
states that the judicial power "shall extend to controversies,
between a state and citizens of another state." Clearly, Wilson
contended, this provision shows that the people gave the Supreme
Court the jurisdiction to hear cases of this nature. Georgia
therefore must submit to the will of the sovereign people and
subject itself to the jurisdiction of the Court.
Americans were not yet willing to embrace Wilson's views on
sovereignty. Indeed, advocates of states' rights moved quickly to
pass a constitutional amendment to reverse Chisholm. There
are no records of Wilson's reaction to the Eleventh Amendment, but
one may presume that he considered it to be a mistake because it
allowed states to judge themselves. That said, he undoubtedly would
have accepted the amendment because he supported the power of the
people to change the Constitution as they saw fit.
Wilson played a role in two other important Supreme Court
- In Hylton v. U.S. (1796), he agreed with his fellow
Justices that Congress's uniform tax on carriages was not a direct
tax and was therefore constitutional. Wilson did not write an
opinion because the Court upheld the ruling he made while riding
circuit. The case significantly strengthened the ability of the new
national government to raise revenue by upholding a key element of
Hamilton's plan for rescuing the finances of the fledgling
republic. The mere acceptance of this case also implied that the
Justices believed they had the power to strike down acts of
Congress. In fact, when Wilson was presiding over the circuit court
arguments in the case, he told the government's counsel that the
Justices were of the opinion that federal courts could strike down
congressional legislation as unconstitutional.
- In another 1796 decision, Ware v. Hylton, Wilson held
that the national government's treaty-making power takes precedence
over state law. Specifically, the 1783 treaty with Great Britain,
which required repayment of pre-war debts to British citizens,
preempted a 1777 Virginia law that effectively abolished those
debts. Wilson was tempted to make this ruling solely on the basis
of the "law of nations," but he ultimately joined the rest of the
Court in declaring that the Supremacy Clause operated
retroactively. An important precedent concerning the supremacy of
federal law thereby was established.
The Will of the People
Throughout his legal career, Wilson evidenced a commitment to
the idea that law must be based on the will of the people. He even
taught that juries should be able to judge laws as well as facts.
In his first federal grand jury charge, he informed jurors
[I]t may seem, at first view, to be somewhat extraordinary, that
twelve men, untutored in the study of jurisprudence, should be the
ultimate interpreters of the law, with a power to over-rule the
directions of the Judges, who have made it the subject of their
long and elaborate researches, and have been raised to the seat of
judgment for their professional abilities and skill.
A jury can adjudicate both fact and law because it is serving as
a representative of society, and the common person is able to know
principles of justice as well as, if not better than, the trained
Wilson respected juries because he thought they represent the
will of the people. Similarly, he cherished the common law because
its "every lovely feature beams consent." Common law is one of the
most democratic of all types of law as people have agreed to it and
have participated in its development throughout the ages. Wilson
supported common law, like democracy, not as an end in itself but
because it is an important means by which natural law can be known.
Common law, like society, is not perfect but nevertheless is in a
state of progression because its "authority rests on reception,
approbation, custom, long and established. The same principles,
which establish it, change, enlarge, improve, and repeal it."
A Sad End to a Short Life
Throughout the 1790s, Wilson spent more and more time managing
his increasingly chaotic business affairs. He had borrowed heavily
to speculate in western lands and was fighting constantly to meet
bills and to borrow more money for further investments.
In 1797, an economic downturn devastated the over-leveraged
Wilson, along with investors such as Robert Morris, "Financier of
the Revolution" and at one point the richest man in America. Unable
to find assistance to meet the variety of notes coming due, Wilson
was forced to flee from his creditors. Thrown into jail on two
separate occasions, he spent his final days hiding in a tavern in
Edenton, North Carolina, the hometown of Justice James Iredell.
Here, with his wife by his side, Wilson contracted malaria and died
on August 21, 1798. He was buried with little ceremony on the
estate of Mrs. Iredell's father.
Wilson's early, ignoble death has contributed to his relative
obscurity. Because he died at a relatively young age, he was unable
to complete his law lectures. Unlike most Founders remembered
today, he did not serve in the executive branch; nor did he serve
long as a Supreme Court Justice. Additionally, he left relatively
few papers with which scholars can work. These factors help to
explain why Wilson is not better known today, but they do not
indicate that this fate is just.
An Enduring Legacy
As noted at the outset, Wilson believed that "of all
governments, those are the best, which, by the natural effect of
their constitutions, are frequently renewed or drawn back to their
first principles." This does not mean that contemporary
policy problems can be solved simply by asking "What would the
Founders do?" but it does suggest that we do well to reflect on the
principles that animated the men and women who helped win American
independence and create our constitutional republic.
America's Founders were committed to a common core of ideals. Of
course, they had disagreements among themselves, particularly with
respect to how these ideals should be implemented. A narrow focus
on five or six famous Founders runs the risk of distorting the
Founders' views as a whole. An accurate account is possible only if
we consider a wide range of Founders, including men and women like
Abigail Adams, Samuel Adams, Fisher Ames, Elias Boudinot, Daniel
Carroll, John Dickinson, Oliver Ellsworth, Patrick Henry, John Jay,
Luther Martin, George Mason, Gouverneur Morris, Charles Pinckney,
Edmund Randolph, Benjamin Rush, Roger Sherman, Mercy Otis Warren,
John Witherspoon, and, of course, James Wilson.
For instance, scholars often portray America's Founders as
secular thinkers, but this position is impossible to maintain if
one examines more than a handful of select elites. Clearly, Wilson
was influenced by a Christian conception of natural law, and his
theory of natural rights is best understood in light of this
tradition. Notably, his expansive view of the right to life was
shaped by his conviction that humans are created in God's image,
and his view of an individual's right to liberty is constrained by
Similarly, academics, attorneys, and jurists interested in the
Founders' views on religious liberty and church-state relations too
often rely on narrow studies of a few unrepresentative Founders,
usually Thomas Jefferson and James Madison. Expanding this
conversation to include Wilson and others reveals that while
everyone supported religious liberty, virtually no one advocated
the strict separation of church and state.
Of course, the Founders had some disagreements about specific
policies. For instance, even by Federalist standards, Wilson was an
extreme nationalist. It is telling, however, that he came to
support the specific enumeration of the national government's
powers. Indeed, he helped draft what became Article I, Section 8 of
the Constitution. Since the 1930s, the national government has
acted as if it possesses unlimited power. A return to first
principles reminds us that the federal government has an important
but limited role in our constitutional republic.
In two important respects, Wilson was unrepresentative of
the Founding generation.
First, unlike most Founders--even those most prominently
remembered--he left a systematic account of his political and legal
theory in his Lectures on Law. This work deserves to be
Second, Wilson had a more optimistic view of human nature
than most of the Founders. He never denied that men and women can
act in a self-interested manner, but he thought that good laws and
institutions can significantly improve human beings. America is
fortunate that most Founders did not share his overly optimistic
(though not unduly utopian) view of human nature.
James Wilson is worthy of study because his sophisticated and
innovative political theory informed his many important
contributions to the creation of the American republic. He was
instrumental in supporting and reconciling some of the most
important ideas of his day (and ours): popular sovereignty,
majority rule, limited government, and minority rights. A tension
remains between these ideas, which means that Wilson should be
regarded not only as an influential historical figure, but also as
someone who can guide us in thinking through the current debates in
Mark David Hall, Ph.D., is Herbert Hoover Distinguished
Professor of Political Science at George Fox University in Newberg,
Oregon. He is author of The Political and Legal Philosophy
of James Wilson, 1742-1798 (University of Missouri Press,
1997) and co-editor of The Sacred Rights of Conscience:
Selected Readings on Religious Liberty and Church-State Relations
in the American Founding (2009), America's
Forgotten Founders(2008), and the two-volume
Collected Works of James Wilson(2007).