University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship 6-2008 James Wilson and the Drafting of the Constitution William Ewald [email protected] Follow this and additional works at: http://scholarship.law.upenn.edu/faculty_scholarship Part of the American Politics Commons, Constitutional Law Commons, Ethics and Political Philosophy Commons, Jurisprudence Commons, Law and Society Commons, Legal Commons, Legal History, Theory and Process Commons, Legal Theory Commons, Policy History, Theory, and Methods Commons, Political History Commons, Politics Commons, Politics and Social Change Commons, and the United States History Commons Recommended Citation Ewald, William, "James Wilson and the Drafting of the Constitution" (2008). Faculty Scholarship. Paper 988. http://scholarship.law.upenn.edu/faculty_scholarship/988 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. ARTICLES JAMES WILSON AND THE DRAFrING OF THE CONSTITUTION William Ewald Scholars of the Constitutional Convention of 1787 have long rec- ognized the importance ofJames Wilson to the framing of the Consti- tution. He is generally acknowledged to have been one of its princi- pal architects, second in importance only to Madison. This view of Wilson was stated in 1913 by the great scholar of the Convention, Max Farrand, who in an influential analysis called him "Madison's ablest supporter,"1 and Farrand's view has been widely accepted by historians of the Convention ever since. However, perhaps partly be- cause of this "ablest supporter" characterization, Wilson has tended to be viewed as an adjunct to Madison, his thought subsumed under the thought of his great colleague. The Constitution, especially in popular accounts, is treated as "Mr. Madison's Constitution ,'' and Wilson is reduced to a mere tactical follower. It is difficult to find a connected account of Wilson's role at the Convention, and, in par- ticular, a detailed analysis of exactly what he was attempting to ac- complish and of his similarities and differences from Madison. As I argue below, however, although Wilson and Madison were natural al- lies, and although they frequently voted together, their similar voting patterns mask the fact that their underlying reasons were often quite different. Wilson, indeed, possessed a constitutional theory compa- rable in sophistication to those of Madison, Jefferson, or Hamilton, and it deserves to be disentangled from the views of his better-known colleagues. The principal source for his theoretical ideas is the Lec- tures on Law he delivered at the College of Philadelphia (later the * Professor of Law and Philosophy, University of Pennsylvania. 1 MAX FARRAND, THE FRAMING OF THE CONSTITUTION 198 (1913). The full Farrand quota- tion is discussed below. See infra text accompanying note 34. Farrand's remarks begin, "Second to Madison and almost on a par with him was James Wilson," id. at 197; half a century later, Clinton Rossiter scarcely varied Farrand's words, concluding, "Second only to Madison-and an honorable second-was (James Wilson]." CLINTON ROSSITER, 1787: THE GRAND CONVENTION 247-48 (1966). 2 FRANK DONOVAN. MR. MADISON'S CONSTITUTION (1965); see also infra note 37 (discussing Madison's reputation as "the Father of the Constitution"). JOURNAL OF CONSTITTIONAL LAW [Vol. 10:5 University of Pennsylvania) in the early 1790s.' Because Wilson's views are likely to have evolved both during the intense arguments of the Convention itself and then in the national debate over ratifica- tion that followed, I shall in this article set aside all of Wilson's writ- ings after the close of the Convention, and in particular shall not rely upon the Lectures to interpret his actions at the Convention retrospec- tively. No doubt there are continuities between his earlier and his later thought, but for the sake of analytical clarity it is important to start by attempting to obtain as accurate a view as possible of the Convention as it would have appeared to Wilson at the time and to defer a discussion of the Lectures to another article. My aim here is thus a restricted one: to obtain a clear understanding of precisely what Wilson did between May and September of 1787 and, in particu- lar, of the contrasts and similarities between his arguments and those of James Madison. James Wilson is not nearly as well known as Madison or Jefferson or Hamilton, and indeed, relative to the magnitude of his accom- plishments, he has a good claim to be the most neglected of the ma- jor American founders. For that reason it will perhaps be best to be- gin by recounting some of the central facts of his life, with an emphasis on the events that did most to shape his thought on consti- tutional government. I. BIOGRAPHICAL BACKGROUND James Wilson was born in 1742 in Fifeshire in the Scottish low- lands.4 His father was a yeoman farmer, a strict Calvinist, who des- tined his son for a ministry in the Church of Scotland. Wilson was sent first to the local grammar school (where he learned the rudi- ments of Latin and Greek) and then to the nearby University of St. Andrews. For the next four years he studied Latin, Greek, mathemat- ics, logic, and moral and political philosophy, and he then spent a fifth year studying theology. It is important to recognize that the Scottish universities were at this time far in advance of Oxford or Cambridge, to say nothing of the education available in the American colonies. The Scottish Enlightenment, associated with Adam Smith, David Hume, Thomas Reid, Lord Kames, Dugald Stewart, Francis 3 1 THE WORKS OF THE HONOURABLE JAMES WILSON, L.L.D. (Bird Wilson ed., 1804), reprintedin 1 THE WORKS OFJAMES WNILSON 53 (Robert Green McCloskey ed., 1967). 4 The basic biographical facts about Wilson's life are taken from CHARLES PAGE SMITH, JAMES WILSON: FOUNDING FATHER: 1742-1798 (1956). June 2008] JAMES WILSON AND THE DRAFI'ING OF THE CONSTITLfrION 903 Hutcheson, and numerous lesser figures, was in full bloom.5 Al- though the center of the movement was located at Edinburgh, the in- fluence of these thinkers was strong at St. Andrews, and Wilson was steeped in their works, as well as in the philosophical writings of Locke, Berkeley, and Rousseau (who had famously spent time in Ed- inburgh with David Hume) 6 After the death of his father, he decided to emigrate to America. His ship landed in New York in the fall of 1765. Parliament had en- acted the Stamp Act, imposing taxes on the American colonies, in March, while he was still in Britain; when he landed, the Stamp Act Congress was meeting in New York to coordinate the American resis- tance. He thus arrived in the midst of the crisis that was to culminate in the American Revolution. It is worthwhile to stress that, unlike most of the eventual drafters of the Constitution, he was an adult immigrant to America. His family had not lived for generations in Virginia or Massachusetts or New York; and this fact, combined with his Scottish education, may have predisposed him (like the other conspicuous immigrant, Alexander Hamilton) to think nationally at 5 For recent studies, see generally JAMES BUCHAN, CROWDED WITH GENIUS: THE SCOTTISH ENLIGHTENMENT: EDINBURGH'S MOMENT OF THE MIND (2003); THE CAMBRIDGE COMPANION TO THE SCOTTISH ENLIGHTENMENT (Alexander Broadie ed., 2003); A HOTBED OF GENIUS: THE SCOTTISH ENLIGHTENMENT, 1730-1790 (David Daiches et a]. eds., 1986). 6 The importance of the Scottish thinkers to the American founding was first clearly pointed out by Douglass Adair. See, e.g., Douglass Adair, "That Politics May Be Reduced to a Science": David Hume, James Madison, and the Tenth Federalist, 20 HUNTINGTON LIBR. Q. 343 (1957) (describing the influence Hume's work had on James Madison's thoughts and writings). Geoffrey Marshall independently called attention to Madison's direct borrow- ing of portions of The FederalistNo. 10 from Hume. See Geoffrey Marshall, David Hume and Political Scepticism, 4 PHIL. Q. 247, 255-56 (1954) (making side-by-side comparisons of Hume's and Madison's statements). Adair's theme of Scottish influence was subsequently elaborated upon at length by Garry Wills. See generally GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST (1981); GARRY WILLS, INVENTING AMERICA: JEFFERSON'S DECLARATION OF INDEPENDENCE (1978) [hereinafter WILLS, INVENTING AMERICA]. Wills has often been accused by historians of exaggerating Adair's point and, in particular, of underplaying the influence of John Locke. However, his general point concerning the existence and importance of the influence of the Scottish Enlightenment thinkers seems incontestable. Apart from the general question of Scottish influence on the founders, Wilson in particular was one of the most highly educated of the Framers of the Constitu- tion and was especially indebted to thinkers such as Reid, whom he had first studied at St. Andrews. Although in this Article I shall not be exploring the intellectual sources of Wil- son's constitutional thought, I note in passing that his Lectures in Law reveal that he had read extraordinarily widely in the political theory of the Enlightenment. Indeed, it is dif- ficult to find works mentioned by Madison orJefferson that were unknown to Wilson; but not hard to find works relied upon by Wilson in his Lectures that neither Madison norJef- ferson appear to have read. But this is a lengthy topic, and a full treatment of Wilson's reading is best postponed to another article. JOURNAL OF CONS77TUTIONAL IA W [Vol. 10:5 the 1787 Convention rather than in terms of the interests of particu- lar localities.