Wilson is one of the luminaries of [his] time,” wrote James Bryce in The American Commonwealth (1888), “to whom subsequent generations of Americans have failed to do full justice.” We conspicuously continue to fail. In America’s Forgotten Founders (2008), Mark David Hall and Gary Gregg recounted asking more than one hundred political scientists, historians, and law professors to rank, from a list of seventy-three, the most underrated founders. Wilson, they report, “easily topped the list.” In 1956, Wilson’s biographer, the historian Charles Page Smith, observed that his subject—one of six men to sign both the Declaration and Constitution—was “alone among the great figures of his age [to be] without a biography.” Smith hoped to “restore James Wilson to his proper place among the great figures of our history.” His work, long out of print, remains the only biography ever written about Wilson. Meanwhile, biographies of Founders routinely top the bestseller lists in our day; the reputations of John Adams and Alexander Hamilton have been restored by such efforts.
James Wilson was born in 1742 on a farm in the shire of Fife in the Scottish Lowlands, a coastal region of low windswept hills and misty pastures. His parents, enterprising small farmers, saw that their son, at age fourteen, entered St. Andrew’s College. Each morning young Jamie received a half-loaf of oaten bread and a pint of small beer before settling in to Newton’s natural philosophy, Locke’s psychology, and the epistemology of Hutcheson, Hume, Berkeley, and Shaftesbury. His parents had hoped to train him for the ministry, but in 1765, the eager twenty-three-year-old struck out for bustling Philadelphia, where he worked as a tutor until he noticed the prominence (and fees) of the city’s lawyers. Studying under the famed John Dickinson, Wilson filled notebooks with doctrines of English and ecclesiastical law, legal forms, and maxims from Cicero. He steeped himself in Pufendorf, Grotius, Burlamaqui, Coke, Kames, Bracton, Hardwicke, Hale, and Gillespie, and devoured books on constitutions and governments.
In 1767, he moved to Reading, northwest of Philadelphia, a sparse town of 1,000 people and thirty-one taverns. Within four years he was the county’s leading lawyer and husband to Rachel Bird, a young heiress. Together they moved to Carlisle, a poor frontier town of broad valleys and endless land title litigation (80 percent of the average colonial lawyer’s practice). His devout Calvinist mother, hearing of his temporal success, wrote with alarm. Despite his busy practice and a growing brood, he managed in 1774 to publish an essay, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” which as an attack on Parliament was both more radical than John Adams’s Novanglus and deeper than Thomas Jefferson’s Summary View. In 1775, after recruiting farmer-soldiers, Wilson was elected along with Ben Franklin to the Second Continental Congress. He began as a moderate Whig, opposing a split with England, but, in July 1776, he broke his delegation’s tie in favor of independence. Francis Hopkinson, observing the Scotsman on his feet, saw an orator who united the “powers of a Demosthenes and a Cicero.”
For two and a half years Wilson served tirelessly, drafting treaties, hearing admiralty appeals, overseeing requisitions. A colleague observed his “strong natural capacity improved by extensive reading” and a “very retentive memory.” Another noted his “stiff reserve and awkward manners.” He was a large, imposing man, at least six feet tall, stout and muscular. He had a soft burr and a ruddy face on which perched undersized spectacles; he sported a trim white wig. When he returned to practicing law in 1778, disgusted by a wheedling Congress, litigants from every state pressed him to try their cases. He had one of the most successful practices on the continent, but evenings were passed in his library, studying forms of government. In 1782, Pennsylvania returned Wilson to Congress. He worked alongside the young Alexander Hamilton for a national bank and a permanent revenue, but states were determined to ignore Congress and persist in bitter trade wars.
When the Constitutional Convention came to his hometown in May 1787—he lived just a block from Liberty Hall—he knew his time had come. The brightest lights on the continent were gathering, but no man, according to the historian Clinton Rossiter, had a “higher reputation for legal and political learning.” Wilson, now forty-four, did not disappoint. George Washington reported that the Pennsylvanian was “as able, candid and honest a Member as any in the Convention.” William Pierce, a delegate from Georgia, said that even in that assembly of demigods “no man is more clear, copious, and comprehensive.” Wilson made 168 speeches in those three and a half months, more than any man after Gouverneur Morris. Each evening he was back in his study, taking notes from Vattel, Montesquieu, and Burlamaqui.
After the convention, Wilson set in motion Pennsylvania’s Federalist machine; he was its undisputed leader. In public assemblies and state houses, Wilson, in his booming voice, defended the Constitution and its lack of a Bill of Rights, its peacetime army, its supposed threats to the states, and the power of direct taxation. His prominence and stiff manner made him a special target for anti-Federalists. One ally felt it necessary to explain Wilson’s “lordly carriage” as the result of his effort to keep his spectacles on his nose. As always, he was systematic. In debate he would note every objection to the Constitution, speaker by speaker, which produced entries like: “This government is and was intended to be an aristocracy. No. 34, 35, 38, 82, 115, 134, 148, 150, 151, 219.” By cross-referencing them against a master list, Wilson was able to track their frequency and expose contradictions. “I am bold to assert,” he said in his State House Yard speech of October 1787, “that [this Constitution] is the best form of government which has ever been offered to the world.” The radicals never had a chance in Pennsylvania, but had Wilson faltered in the forensic struggle, they might have won a delay tantamount to victory or provoked Federalists into an impatient show of force.
The new government needed filling and Wilson wanted to be Chief Justice; it was a profound disappointment when Washington chose John Jay in his stead and named Wilson an associate justice. Wilson was Jay’s superior in legal ability, but Jay was popular in wavering New York and the job required at least as much tact as wisdom, which the old spymaster had in plenitude. Besides, Wilson’s growing debts from his ambitious land speculations were well known. The inauguration of the first court was a modest affair in which a few Congressmen and local lawyers turned up for the taking of oaths and the choosing of a seal before all repaired to the (still standing) Fraunces Tavern. Then, no business being at hand, they adjourned for a few months. Wilson was among the few who imagined what the court would become by the quiet but persistent accumulation of power.
In fact, the fiercely restless Wilson intended to become the American Blackstone, and he set out to accomplish this through a series of lectures delivered at the College of Philadelphia in 1791. The opening lecture was graced by the President and First Lady, Vice President Adams, members of Congress, state legislators, dignitaries, friends, and old allies. Wilson revered the common law but knew that its lordly judges had little to teach us about the separation of powers, judicial review, federalism, and true representative government. The Lectures, 800 pages in total, unfold in thirty-five parts, averaging twenty-two pages apiece. The first third covers the law of nature, the common law, the law of nations, and the origins of society; the middle section takes up the departments of government and subjects such as juries, corporations, and constables; the final third is devoted to crime and punishment.
“Order, proportion, and fitness,” said Wilson, “pervade the universe.” He was not a man to think small, or to start anywhere but the beginning. At the foundations of what he called the “beautiful structure of the law” was the proposition that just as fixed laws create uniformity in the physical world, so, too, there are unchanging facts of human nature, which our law must reflect. The tendency, however, to reduce the springs of human conduct to a single motive—say, selfishness, utility, or fear—was, Wilson said, like placing an awkward gesticulating puppet alongside a real person. Wilson denied Hobbes’s “perverted” account of men as mechanistic, appetite-driven animals; he also rejected Locke’s blank slate. He sympathized with the view of the philosophes that man’s innate goodness was corrupted by institutions. It happens that Wilson’s education was perfectly timed to follow the flowering of the Scottish Enlightenment: Hutcheson, Hume, Berkeley, and Adam Smith had made Edinburgh the greatest university in the West for two generations. Lord Kames was a favorite of Wilson’s, as were Hume’s history (though never his philosophy) and James Stewart’s political economy. Above all stood Thomas Reid, the Glaswegian philosopher and father of the Common Sense school. In his lecture on the “Law of Nature,” so heavily does Wilson draw on Reid that entire paragraphs are lifted without attribution.
Wilson took from Reid the fascinating notion that we possess a sort of sixth sense, called the “moral sense.” Where other senses detect sweet and bitter, light and dark, harmony or discord, the moral sense provides the same “immediate testimony of nature” with regard to right and wrong. “The first principles of morals,” wrote Wilson, “into which all moral argumentation may be resolved, are discovered in a manner more analogous to the perceptions of sense than to the conclusions of reasoning.” (Indeed, neuroscientists today find that a part of the brain called the medial orbito-frontal cortex seems to govern moral conduct. In 2001, a researcher measured brain blood-oxygen levels in subjects as they read sentences, some describing moral violations and others offensive but not immoral actions. The cortex was stimulated only by the morally themed sentences.)
The Yale Book of Quotations reports that the phrase “politically correct” first appeared in Justice Wilson’s opinion Chisholm v. Georgia (1793): “‘The United States,’ instead of the ‘People of the United States,’ is the toast given. This is not politically correct.” Contemporaries called him “enthusiastically democratic”—no compliment in those days. At the convention, he argued hotly that popular sovereignty required senatorial representation by population, not by area: if Pennsylvania, with 431,000 souls, had the same weight as Delaware, with 50,000, didn’t this make each Delaware man more than his Quaker State brother? When Roger Sherman and Elbridge Gerry sought to distance power from the people, which they felt to be a mob prone to leveling and anarchy, Wilson replied that government, like a pyramid, could be unshakeable, but only with the broadest base. When Wilson sought direct election of senators, he had allies, if only a few. But when he went on to propose direct elections of the president, he stood virtually alone.
“No government demands so much from the citizen as Democracy,” said James Bryce, “and none gives back so much.” Wilson quite agreed. “In battle, every soldier should consider the public safety as depending on his single arm,” he told one crowd. “At an election, every citizen should consider the public happiness as depending on his single vote.” To the extent that a citizen doesn’t exercise his rights, others will for him, whether as legislators, judges, or functionaries. Lawyers (then as now) “involve themselves in a thick mist of terms of art” and seek to confine law to its initiated votaries, but, said Wilson, the “knowledge of those rational principles on which the law is founded, ought, especially in a free government, to be diffused over the whole community.” As the Washington and Lee professor Eduardo Velásquez has written, Wilson’s writings may provide the “most systematic and sustained examination by an American Founder of the natural law and natural rights theories that inform the American republic.”
The epigraph to Wilson’s works, first published by his son in 1804, was Cicero’s: “We are slaves to the law, that we may be free.” In one characteristic passage, Wilson wonders why anyone should bristle at the thought of “obedience” to law. Is our safety endangered by obedience? No, he said, for what greater security is there than to be governed only by laws, made by yourself and others with whom you share a perfect equality of rights? Is our freedom infringed by obedience? No, for what man is free that lives in fear? Is the dignity of man degraded by submission to law? The Supreme Being himself works not without a rule. Wilson, one notices, has a bracingly optimistic view of government. Legislation promoting “arts, philosophy, virtue, and religion” is not a government imposing moral goodness on citizens; it is the people blessing themselves. Government is not a necessary evil; it’s a necessary good. If all men were angels, government would still be necessary.
Eyes probably rolled in Liberty Hall when Wilson, the convention’s Professor, let slip yet another reference to the Amphictyonic League or the pan-Europeanism of Henry IV. He learned to tame his pedagogy in debate, but in his Lectures he had free rein. A typical sentence might condemn New York for requiring that judges retire at age sixty, when the Spartans deemed no man fit for office until sixty. He mocks timidity about new legislation by recalling that the Locrians required a citizen who wished to propose a law to appear before the assembly with a cord around his neck and explain his reasons; if they were found wanting, he was promptly hanged. He mentions that the feudal German Diet, like our Congress, had power to regulate coin and construct fortresses, and that the privileges-and-immunities clause in Article IV of our Constitution nicely imitates Rome’s easy incorporation of foreigners—a policy, he might add, approved by Francis Bacon and Machiavelli. “So formidable was Wilson’s reputation for erudition,” writes Charles Page Smith, “that when William Findley, in the Pennsylvania Ratifying Convention, bested him on an obscure point about the constitution of Iceland, Wilson’s enemies gloated over the triumph for weeks.”
The tone of the Lectures is dignified, engaging, and cheerful. Scarcely a lecture passes without quotation from the likes of Shakespeare, Lucretius, Aristotle, and especially Alexander Pope. The year 1791 also saw the publication of Boswell’s Life of Johnson and Paine’s Rights of Man. For the eighteenth century, Wilson’s prose style is remarkably fluid. Though he lacks the playfulness of Addison, the witty snap of Chesterfield, and the momentum of Johnson, the Lectures nonetheless reflect Wilson’s piercing clarity. He could also turn a phrase. On kings: “In the attempt to make one person more than man, millions must be made less.” On unity: “Union is a benefit, not a sacrifice.” On government: “The legislature, in order to be restrained, must be divided. The executive power, in order to be restrained, should be one.”
That last quote sounds like something out of The Federalist. The joint authority of Hamilton and Madison will always overshadow Wilson, but their respective works are hardly competitors. The Federalist moves in quick, polemical strokes. Wilson, by contrast, invites us on a calm, pleasing journey, sailing over time and space, examining man, society, and equality. Wilson saw greed and fear as clearly as Publius, but other passions, too, that were no less relevant to political life: tenderness for a spouse; affection for children and parents; attachment to friends; zeal for country. “The right of natural liberty is suggested to us not only by the selfish parts of our constitution,” said Wilson, “but by our generous affections; and especially by our moral sense, which intimates to us that in our voluntary actions consist our dignity and perfection.” Where Federalist 10 saw ambition checked by ambition, Wilson saw generosity aided by generosity. Even something as mundane as presidential appointments could, “like a fragrant and beneficent atmosphere, diffuse sweetness and gladness around those, to whom they are given.”
In 1795 and 1796, Wilson was twice more passed over for Chief Justice. His disappointment was immense, but not fatal. The same cannot be said of his land speculations. Post-revolutionary men of means, nearly without exception, dabbled in land. (“The difference between George Washington’s speculations and Wilson’s,” one scholar quipped to me, “was that Washington’s were successful.”) Commerce had been crippled by postwar depression and interstate rivalry, and manufacturing was still in its infancy. Land, then, was the principal field for adventurous capital. At times, Wilson had controlled millions of acres. In the 1790s, he worked feverishly to hold together a flimsy empire of property investments while continuing to enter into new ventures. Before the panic of 1796 finally ruined him, he had been one of the wealthiest men in America.
Judgments from creditors piled up, and men began to speculate openly about how long he would avoid arrest. It finally came in 1797. By then his larder was empty, his rent was in arrears, and his tailor refused to supply his six beloved children with new clothes. His fellow Pennsylvanian Benjamin Rush observed that the man who once made Cicero and Coke his daily study now stupefied himself with tawdry novels. He died in August 1798, at the age of fifty-six, gaunt, listless, and alone, in a drafty inn in North Carolina. He owed his former convention-mate Pierce Butler alone some $197,000—millions today.
A Pennsylvania lawyer named Alexander Graydon remembered Wilson as a man who “never failed to throw the strongest lights on his subject, and then rather to flash than to elicit conviction. . . . He produced greater orations than any other man I have heard.” Benjamin Rush called Wilson’s mind “one blaze of light.” If Wilson’s teachings no longer dazzle us, it is only because they are now commonplace. Wilson helped innovate the argument that all government, state and federal, acts for the people, just in different spheres: states are entrusted with some powers, the federal government with others, but the source of that trust is always the same. John Marshall’s famous opinion in McCulloch v. Maryland (1819), which upheld Congress’s power to create a national bank, is often traced to Hamilton’s “Opinion on the Constitutionality of the Bank.” But Hamilton himself had drawn upon Wilson’s “Considerations on the Bank of North America,” written six years earlier. A copy, in Wilson’s own hand, was found among Hamilton’s papers. His views on judicial review, contracts, and corporations were constitutionalized in the magnificent cases Marbury v. Madison (1803), Fletcher v. Peck (1810), and Dartmouth College v. Woodward (1819).
Wilson seems to have made so few errors of political judgment that his views never had much reason to evolve. From his 1774 attack on Parliament to his judicial opinions three decades later, the same ideas shine forth: all men are born free; legislators are creatures of the people; power begins with the people (their consent) and ends with the people (their happiness); and all this is founded on the law of nature. Yet if consistency made him rare, his simultaneous faith in popular democracy and muscular national government made him a species apart. Jefferson praised the former but feared the latter; Hamilton did the opposite. “For a people wanting unto themselves,” Wilson said, “there is no remedy.”
Max Farrand, who compiled The Records of the Federal Convention of 1787, declared that Wilson, in his influence on the drafting of that sublime document, was “second to Madison and almost on par with him.” Most agree. Yet, in some ways, Wilson’s vision better harmonizes with the course of American development. Wilson imagined a president who soared above faction, a “man of the people,” in his words. Wilson lost the fight for direct senatorial elections, but his spirit presided over the passage of the Seventeenth Amendment in 1913, which provided for the election of senators by a popular vote (the “people thereof”), instead of by vote in the state legislature. It was, in part, Wilson’s Reidian belief in man’s moral sense that gave him this confidence. Man is not wolf to man, or at least not merely so, for a divine light, as sure as sight and sound, guides us. This instinct also convinced him that one day Americans would turn themselves to the “great principles of humanity” and demand that the slaves be freed.
The political scientist Robert McCloskey, in the introduction to his 1967 edition of Wilson’s works, called the neglect of the Founder “nothing short of astonishing when it is measured against his claims to be remembered.” In 2007, Liberty Fund brought out a new edition of the works. The co-editor Kermit L. Hall wrote that he hoped the volumes would aid the “ongoing effort to determine accurately [Wilson’s] rightful place in the Founding era.” The general neglect of Wilson is, in some ways, a consequence of his financial disgrace in his own day. But above all, history’s love of dash, simplicity, and symbolism is responsible—Wilson didn’t win any wars, invent any rods, draft any declarations, govern any republics, found any banks, guide any courts, or father any constitutions. He can claim association with every great event of his age, but responsibility for none.
Except, perhaps, for one. In late summer 1787, during the convention, Wilson, serving on the so-called Committee of Detail, revised the draft preamble. He changed “The people and states of New Hampshire, Massachusetts,” etc., to “the people of the states” and prefixed “we.” Amended, it read: “We, the people of the states.” One final tweak produced the immortal opening:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domesticTranquility, provide for the commondefence, promote the generalWelfare, and secure the Blessings of Liberty to ourselves and ourPosterity, doordainand establish this Constitution for the United States of America.
It is fitting that Wilson was born on foreign soil, because the “People” that he imagined, that he helped create, were not defined by blood but principle. “A people free and enlightened,” he marveled in 1788, on the first Fourth of July under the Constitution, “establishing and ratifying a system of government, which they have previously considered, examined, and approved! This is the spectacle, which we are assembled to celebrate; and it is the most dignified one that has yet appeared on the globe.” Some months before his death, in Wiscart v. Dauchy, Wilson wrote his last opinion as a member of the court. It was a soaring effort, writes Charles Page Smith, a final testament to the man and what he stood for:
Here, indeed, in the robes of office, Wilson put off despair, the feeling of a broken, hunted man, and turned back to a better world, the real world of his mind. In this realm noble principles governed action; ‘the mysterious science of the law’ opened out in all its splendor, rising, lucid as sunlight, pure and ineluctable from first postulates to final truths. And above the whole wondrous structure of mundane law, stood God’s law, final and immutable, pervaded by His justice, shaped by His love, lifting man above doubt and confusion into a stable and orderly universe.