Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1988 Metaphor and Imagination in James Wilson's Theory of Federal Union Stephen A. Conrad Indiana University Law School, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Legal History Commons, and the Legal Theory Commons Recommended Citation Conrad, Stephen A., "Metaphor and Imagination in James Wilson's Theory of Federal Union" (1988). Articles by Maurer Faculty. 2118. https://www.repository.law.indiana.edu/facpub/2118 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Metaphor and Imagination in James Wilson's Theory of Federal Union Stephen A. Conrad CONTENTS I. Introduction and Overview 3 II. The Fundamental Authority of "Moral Science" 9 III. "Moral Abstraction" as a Patent Metaphor 19 IV. Imagination as "Experience" in Civil Society 26 V. Politics as Cultivation 31 VI. "Enlarging the Sphere": The "Federal Republic" as Metaphor 38 VII. Metaphors for Representation as Metaphors for American Federalism 49 VIII. Conclusion: The Mandarin Democracy of "Democratic Nationalism" 64 Stephen A. Conrad is an associate professor of law, Indiana University-Bloomington. Ph.D. 1980, Harvard University; J.D. 1982, Yale University. Preliminary versions of parts of this article were presented at the Legal History Forum at the University of Illinois College of Law; the Legal Studies Workshop at the Florida State University College of Law; the Interdisciplinary Wednesday Luncheon Seminar at the National Humanities Center; and the Annual Meeting of the American Society for Eighteenth-Century Studies, Cincinnati, April 1987. The author gratefully acknowledges the following for financial assistance that supported research and writing: the National Humanities Center; the J.N. Pew, Jr. Charitable Trust; the National Endowment for the Humanities; and both the School of Law and the Office of Research and Graduate Development, Indiana University-Bloomington. He also thanks Lance Banning, Samuel H. Beer, Bette H. Sikes, and Aviam Soifer for extraordinarily painstaking and thorough critiques. And he thanks the following for helpful comments on one or more aspects of his argument: Bruce Ackerman, Dan Conkle, Walter Dellinger, Roger Fechner, Don Gjerdingen, Robert Gordon, -Michael Grossberg, Jean Hagstrum, Michael Hoeflich, Rob Jevon, David Kuieck, John Christian Laursen, Donald Livingston, Ned McClennen, Robert McColley, Terence Martin, R. Kent Newmyer, Harry Pratter, Andrzej Rapaczynski, Gerald Stourzh, Aileen Ward, Aubrey Williams, and the lively students in the author's 1985 course on the history of American federalism. © 1988 American Bar Foundation Metaphor and Imagination in James Wilson's Theory of Federal Union Stephen A. Conrad "Through metaphor, the past has the capacity to imagine us, and we it." -Cynthia Ozick, in "The Moral Necessity of Metaphor"' American federalism is nothing more-and nothing less-than a metaphor. This was how James Wilson, the most prominent lawyer at the Philadelphia Convention, came to approach the novel problem of understandingand convey- ing what federalism in a modem republic should mean. The Federal Republic created in 1787 was, for Wilson, more than a matter of ingenious political de- sign, more than a matter of the "new science of politics," and more than a matter of constitutional law or constitutionalism itself-unless the Constitution were seen to "comprehend" the moral purpose and moral promise of the new nation. To Wilson, this view of the importance of the moral content of republican federalism was entailed by the "knowledge" that he took to be the necessary foundation of the Republic. It was this knowledge of certain fundamental princi. ples-of "moral science," human nature, and the nature of language, and, more generally, of "cultivation" as a political and social process that was also an end in itself-that ultimately justified "the People" as the "sublime" metaphor gov. eming American constitutional theory. Yet, for all Wilson's faith in figurative "comprehensiveness," his distinctive approach to securing the New Republic through a federal union of the American People seems to have proved less and less compelling to his contemporaries the more he tried to pursue it as far as his vision of a politics of cultivation directed. L INTRODUCTION AND OVERVIEW "[The text of the Constitution provides the beginning rather than the final answer to every inquiry into questions of federalism." -Justice Blackmun, for the Court, in Garcia v. SAMTA (1985)2 1. The Moral Necessity of Metaphor: Rooting History in a Figure of Speech, Harper's Mag., May 1986, at 62, 68. 2. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547 (1985). 4 LAW AND SOCIAL INQUIRY The American Founding of the 1780s generated such novel formulations of federal theory that it should hardly be surprising that the language of those formulations is so ambiguous. 3 Ever since the 1780s this fund of ambiguity has helped to sustain disagreement-not least within our current Supreme 4 Court-over what "conception" of federalism is "proper" to the Founding. In the present essay I discuss the federal theory of James Wilson, a lawyer who was a leading founder,5 in order to reconsider this problem of ambiguity by examining at some length how and why Wilson conceived his own theory of American federal union largely in terms of metaphor and other figurative lan- guage. Here I take this language to be not merely politic equivocation, inci- dental to the debates at the Founding, but a material part of Wilson's ambitiously "comprehensive" federal theory. In other words, I try to take Wilson's figurative rhetoric as seriously as he 3. For a valuable perspective on the novelty of American federal theory, see the substantially unpublished dissertation by Patrick Riley, Historical Development of the Theory of Federalism, Sixteenth-Nineteenth Centuries (Harvard University, 1968), esp. ch. xvi, as read in light of the preceding chapters. For the Founders' own avowals-and protestations-of novelty, the evidence abounds: e.g., Madison's Federalist Papers No. 37 at 233 and No. 14 at 88 0. Cooke ed., Cleve- land: World Publishing Co., 1961). Cf. I Max Farrand, ed., The Records of the Federal Conven- tion of 1787, at 338 (4 vols.; rev. ed. New Haven, Conn.: Yale University Press, 1937) ("Farrand, Records"): Madison's Notes of June 20, reporting remarks of the soon-to-be Anti-Federalist John Lansing on the Virginia Plan: "He had another objection. The system was too novel & com- plex." In contemplating throughout this essay what I consider the positive capability of ambiguity, I have been especially influenced by William E. Connolly, Politics and Ambiguity (Madison: Uni- versity of Wisconsin Press, 1987), e.g., at xi: "the competing ideals of individualism and commu- nalism, liberalism and radicalism, negative freedom and positive freedom, tend to converge in obscuring the ambiguous character of standards, ideals, and ends most worthy of endorsement." For a characterization (by the leading historian of American federalism as it is embodied in constitutional law) of Madison's federal theory as "ambiguous," see Harry N. Scheiber, Federalism and the Constitution: The Original Understanding, in Lawrence M. Friedman & Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives 85, 87 (Cam- bridge, Mass.: Harvard University Press, 1978). 4. Quoting Martha A. Field, Comment-Garcia v. San Antonio Metropolitan Transit Authority: The Demise of a Misguided Doctrine, 99 Harv. L. Rev. 84, 85 (1985). Cf. Laurence H. Tribe, American Constitutional Law 154 (Mineola, N.Y.: Foundation Press, 1978) (re: "the Younger doctrine" and its aftermath in general, "it is clear from the Supreme Court's decisions that a concern for federalism is the chief underpinning of the Younger cases. The Court, however, has explained neither the exact content nor the precise status of that concern"). Cf. also Geoffrey R. Stone et al., eds., Constitutional Law 209 (Boston: Little, Brown & Co., 1986) (apparent consen- sus on the Court that "federalism serves important values"; "the real dispute" arises "over how thelsel values of federalism are to be protected"). See also the symposium in 19 Ga. L. Rev. 789 (1985), esp. the introduction by A.E. Dick Howard, at 789, Garcia and the Values of Federalism: On the Need for a Recurrence to Fundamental Principles. 5. The documentary record would seem to leave little room for doubt about Wilson's actual importance. See, e.g., Max Farrand's estimation of Wilson's standing at the Federal Convention itself; Farrand, The Framing of the Constitution of the United States 197 (New Haven, Conn.: Yale University Press, 1913) ("Farrand, Framing") (Wilson was "[slecond to Madison and almost on a par with him.... In some respects he was Madison's intellectual superior"). Nevertheless, the durability of Wilson's renown has proved to be quite another matter. By the time of his early death in 1798, Wilson had already fallen into the obscurity in which his name still languishes. In a previous essay (cited infra note 12), I tried to begin to contribute both to earlier explanations for Wilson's fall and to earlier efforts to rehabilitate him. Professor Samuel H. Beer has kindly ap- prised me that his forthcoming synoptic study of American federalism will, in its treatment of the founding, focus largely on Wilson. I am also told that Professor Garry Wills will shortly be pub- lishing a book on Wilson. James Wilson's Theory of Federal Union 5 himself did.6 At the Philadelphia Convention and afterward, Wilson adopted, adapted, or devised a number of figures of speech and figurative allusions with which to convey his vision of American federalism.