Scholars familiar with the writings and career of James Wilson are struck by the discrepancy between the status accorded him by most constitutional historians and the magnitude of his contributions to our founding. In their view, Wilson’s record clearly entitles him to a place among the honored “elite” of the founding era such as Madison, Hamilton, Jefferson, Washington, or Adams, a status which has so far been denied him. Indeed, a mere recital of his activities and accomplishments during this period would certainly seem to bear out their assessment, the most notable being his service as a representative from Pennsylvania to the Congress (1775-77; 1782-83; 1785-87) and as its delegate to the Philadelphia Constitutional Convention, his leadership in securing Pennsylvania’s ratification of the proposed Constitution and in crafting the Pennsylvania Constitution of 1790, and his work as one of the original justices on the United States Supreme Court. Yet, despite his significant and varied accomplishments, he is most frequently remembered in civics texts as being one of only six men to sign both the Declaration of Independence and the Constitution.
The claims advanced on his behalf, however, are not primarily based on his activities and service as such. Rather, to a great extent, they stem from the fact that Wilson – perhaps to a degree greater than any other of our Founders – possessed a systematic, coherent political theory, the key elements and principles of which he actively sought to advance or realize in the various contexts in which he served. To put this in different terms, the Constitutional Convention can plausibly be pictured, a la John Roche, as a caucus of the democratic elite engaged in the bargaining and the give and take which characterizes consensual politics, a process wherein the participants deal with the issues and conflicts as they arise in the course of the proceedings without paying much heed to overarching theory or principles. In these terms the delegates can be pictured as working, so to speak, from the “bottom up” as opposed to working from the “top down”; that is, as seeking, insofar as possible, a consensus among competing views rather than resolutions or solutions derived from, or even compatible with, the principles of abstract theory. But this “bottom up” view does not describe Wilson or the positions he articulated at the Philadelphia Convention. On the contrary, his position and arguments in the Constitutional Convention represented an effort to achieve a new constitutional order which would conform as closely as possible, with due concessions to existing contours of the American political landscape, to his basic political tenets.
While a good deal of Wilson’s basic political thought can be adduced from his public utterances and writings of the revolutionary and founding period, as well as from his contributions to the Convention, his Lectures on the Law (1790-91) provide us with a relatively systematic treatment of the assumptions and values underlying his positions with respect to central theoretical concerns such as the proper foundations of government. Thus, by examining these lectures with care, we come to a fuller understanding, albeit retrospectively, of the foundations of those operating political principles to which he consistently adhered throughout his career. Moreover, with respect to our immediate objective, these lectures, in addition to articulating the theoretical roots of his views concerning the form the new constitution should assume, convey his sense of priorities, i.e., what he regarded to be most important for a just and well-administered government. As a consequence, it is altogether appropriate that we begin by examining the deeper veins of his political thought for an understanding of his position in the Convention.
Born in Scotland in 1742, Wilson received a classical education at the University of St. Andrews with the intention of entering the ministry of the Church of Scotland. While he did not finish his required theological studies for the ministry (upon the death of his father, he left St. Andrews at the age of twenty after five years of study), there is no question that his education there had a permanent and profound impact on his thinking. At some point during his studies, he became a disciple of the inductive/common-sense school of thought and, in particular, the teachings of Thomas Reid. To a great extent, Wilson’s subsequent political thinking can be viewed from the perspective of reasoning outward from the assumptions and principles of this philosophical school. Consequently, most of his positions on law and government, on matters both large and small, can be traced to the premises of this common-sense approach. Nor, as we shall see, does he espouse any position that cannot readily be reconciled with these premises.
The Scottish common-sense philosophy to which Wilson subscribed constituted a reaction to the radical empiricism spawned by Locke which denied the reality of self-evident truths gained through intuition or common sense. A major element of this reaction consisted in pointing out the limitations of reason and the absurdities to which a reliance on reason alone would lead. In this latter vein, Wilson could write that the fundamental principle of Locke’s philosophy, “assuming the existence of ideas,” when “wielded by one philosopher . . . attaches itself solely to matter, and destroys the mind. Wielded by another, it attaches itself solely to mind, and destroys matter. Wielded by a third, it becomes equally fatal to matter and mind” (I, 215).
But Wilson placed the greatest stress at various points in his Lectures on Law on differentiating between reason and intuition by pointing out the proper role and function of each. The common sense philosophy, he wrote,
will teach us, that first principles are in themselves apparent; that to make nothing selfevident, is to take away all possibility of knowing any thing; that without first principles, there can be neither reason nor reasoning; that discursive knowledge requires intuitive maxims as its basis; that if every truth would admit of proof, proof would extend to infinity; that, consequently, all sound reasoning must rest ultimately on the principles of common sense – principles supported by original and intuitive evidence. (I, 213)
At another place he tells us that “the science of morals, as well as other sciences, is founded on truths, that cannot be discovered or proved by reasoning.” Consequently, he affirms, just as mathematics must have “its intuitive truths” before it is possible to “take a single step in our reasoning on the subject,” so, too, must moral reasoning. What is more, he is quick to point out that lacking these intuitive truths “it would not be in the power of arguments, to give” an individual “any conception of the distinction between right and wrong.” Lacking such a conception, he writes, would render terms of moral discourse as “unintelligible . . . as the term colour to one who was born and has continued blind” (I, 133).
A number of logical questions arise concerning these “intuitive” truths the answers to which give us a clear picture of Wilson’s basic philosophical approach and bring us around eventually to the specifics of his political thinking. One such question is, of course, what is (are) the source(s) of these intuitive truths?
The answer to this query takes us to the heart of Wilson’s philosophy. In the last analysis, he holds that God is the source of intuitive truths. But his answer is more complicated than this because he identifies conscience, common sense, and revelation as proximate sources of this truth; sources which, let us take care to note at this point, can also be perceived as channels or paths through which God’s will is revealed. Now Wilson did not write extensively about the character of these sources of knowledge. Nor does he systematically answer all the questions that arise from his approach. Nevertheless, he still presents us with a clear and comprehensible overview of his philosophy and the principles upon which it is founded.
Conscience clearly constitutes one of the central elements in Wilson’s approach and it is perhaps best that we begin with it by way of outlining the salient aspects of his theory. Wilson conceives of conscience as an inner moral sense, a “power of moral perception,” by which “we perceive some things in human conduct to be right, and others to be wrong” (I, 133). At other places he ascribes even wider functions to it as when, for example, he likens it to an “inward eye” which “distinguishes the beautiful, the amiable, the admirable, from the despicable, the odious, and the deformed” (I, 135). For Wilson, then, this inner moral force is truly a sixth sense, just as real as hearing and seeing, but which finds an outward expression in virtually every aspect of our culture: not only is it the source of moral excellence, it is also the source of the pleasures we derive from art, poetry, music, sculpture, and drama; i.e., all forms of human expression. Moreover, in his view, this moral excellence is addictive: a “high sense” of this “excellence is accompanied with a strong desire after it, and a keen relish for it,” a state of affairs which he describes as according with the “highest virtues.” And, beyond this, Wilson believed that these moral sensibilities, reinforced and improved through “habit, and by frequent and extensive exercise,” would serve to “regulate and control all our other powers” – “our passions as well as our actions” (I, 136).
Other aspects of Wilson’s treatment of conscience are noteworthy in light of his views on government. First, he holds that conscience in the fullest sense is universal: “All languages speak of a beautiful and a deformed, a right and a wrong, an agreeable and disagreeable, a good and ill, in actions, affection, and characters” – a fact which he takes as proof of a “universal cause” (I, 135). Second, though he does not dwell upon the matter, he believes that individuals possess different degrees of moral refinement. It is, he maintains, found among children in its purest, though least refined, form; “hence that joy in the prosperity of the kind and faithful, and that sorrow upon the success of the treacherous and cruel, with which we often see infant minds strongly agitated” (I, 134). Third, even though conscience and its commands “are written on their hearts, in characters so legible, that no man can pretend ignorance of them,” it can be overwhelmed at times by “passion.” Thus, he writes, in addition to “habit” and “frequent and extensive exercise” of our moral faculties, there is also the imperative need for the “vigorous and commanding principle of duty” to keep the passions in check (I, 137). Finally, he believes that reason within the confines of the self-evident or intuitive truths of conscience can serve to refine and enlarge the inner moral sense, even though it is incapable of affirming or denying that “voice of God within us” (I, 141). It helps us to discover the proper means to the end; “to make necessary distinctions and expectations, or to modify them [the intuitive moral truths] , according to the circumstances of time and place”; “to compare and discriminate” among the ends which our moral senses suggest to us; and, inter cilia, to set standards for moral conduct under changing conditions (I, 138). The lack of reason, we should remark in passing, helps to account for what Wilson perceives to be different levels in moral advancement among peoples (e.g., “the most uninformed slaves” have within them “the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd”) (I, 140). What is more, the role and function which reason assumes in his theory allows for the idea of progress (“it is the glorious destiny of man to be always progressive,” i.e., to advance, albeit at times ever so slowly, to higher plateaus of virtue) (I, 146).
Common sense, a second source for knowledge of God’s law, resembles conscience: from one perspective it can also be viewed as a “seed” planted by God in man which ‘reveals’ or allows him to comprehend intuitive truths that cannot be derived from reason but which, at the same time, provide the axioms from which reason must proceed. What is more, like conscience, which differentiates among our moral sensibilities, common sense gives us the wherewithal to judge of the reasonability of and relationship between intuitive truths.
Wilson, as we have already seen, was particularly concerned with rebutting the schools of philosophical thought which “allege that our mind does not perceive external objects themselves; that it perceives only ideas of them; and that those ideas are actually in the mind.” He was repelled by the “extravagant” conclusions that reason could reach from such a premise, e.g., that the ideas exist, but not the objects; that mind and body do not exist. Indeed, he believed that this premise, by leading us to deny our senses, “would finally lead to the subversion of all human knowledge” (I, 202). And he sought to undermine the foundations of these theories by embracing a “common sense” position, i.e., a position which he believed was confirmed by experience; namely, “that when external things are within the sphere of our perceptive powers, they affect our organs of sensation and are perceived by the mind.” He felt it useless to inquire into “the manner in which” these external objects “are perceived” because “we cannot trace the connexion between our minds and the impressions made on our organs of sense.” Nor, in this regard, did he believe we could “trace the connexion which subsists between the soul and the body.” Thus, he concluded “the existence of the objects of our external senses, in the way and manner in which we perceive that existence, is a branch of intuitive knowledge, and a matter of absolute certainty.” In other words, such knowledge fell into Wilson’s category of a “selfevident” or common sense truth which, though not capable of being proved through processes of reasoning, was nevertheless “supported by a species of evidence superiour to any that reasoning can produce” (I, 202).
Still other truths fell into this common sense category: the reality of man’s existence and of his mind (“I know it not from proof: I see it by the shining light of intuition”) (I, 224); and, among others, free will or “moral liberty” (“that power [liberty] of the mind, by which it modifies, regulates, suspends, continues, or alters its deliberations and actions”). Again, for Wilson, the proof of this “moral liberty” cannot be demonstrated by reason; rather, it resides in the “intuition … that we are free” (1, 211).
Finally, in speaking of common sense, we should note that Wilson did not entirely divorce it from reason. In fact at one point he writes that there are “two offices” or “two degrees” of reason: the first, common sense, “to judge of things selfevident”; the second, “to draw conclusions” from that which is “selfevident.” The differences between the two come down to the fact that common sense is common, or perhaps better said basic, in the sense that it constitutes the only degree of reason for the “greatest part of mankind”; that it is “purely the gift of heaven” which – quite unlike the second degree of reason – “no education can supply.” For all of this, however, Wilson makes clear his belief that the two are not only compatible with one another but also mutually supportive. To this point, he writes, “the interests of both [common sense and reason] are the same” and “between them, there never can be ground for real opposition ” (I, 213). In fact, he observes, “reason has no other root than the principles of common sense: it grows out of them: and from them it draws its nourishment” (I, 223).
The third ingredient of Wilson’s triad is revelation. “Reason and conscience can do much,” he wrote, “but they stand in need of support and assistance” which, he felt, was provided by the “revelation[s] . . . contained in the holy scriptures” (I, 143). Through such revelation (“given to us immediately and directly from himself”), he continued, “our natural knowledge is greatly improved, refined, and exalted” to the degree that “one who has had the advantage of a common education in a Christian country, knows more, and with more certainty, than was known by the wisest of the ancient philosophers” (I, 144).
Just as Wilson could see a compatible and mutually supporting relationship between reason, common sense, and conscience, so too he sees a symbiotic relationship between these sources of knowledge and revelation. Where the teachings of the scriptures unambiguously apply to problems or conditions of the temporal world, they must, he holds, be regarded “supereminently authentic.” But to this he is quick to add that those who look to the scriptures “to find . . . particular directions for every moral doubt which arises” will be disappointed. The scriptures, he points out, “do not explain; nor do they specify in what instances one right or duty is entitled to preference over another.” Rather, as he sees it, they embody “principles of morality” which are directed to “rational and moral agents” who are to apply them in light of worldly conditions for the advancement of virtue. As such “the scriptures support, confirm, and corroborate, but not supercede [sic] the operations of reason and the moral sense” (I, 144).
It is through conscience, common sense, and revelation combined with reason, according to Wilson, that we can apprehend natural law (“that law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us”) (I, 124). Certain characteristics of this natural law set forth by Wilson are noteworthy. To begin with, as we might expect, it is “immutable,” having “its foundation in the nature, constitution and mutual relations of men and things.” In his view, this immutability derives from the fact that God is the author of man’s “constitution” so that his command and prohibitions in the form of natural law must conform with the nature of this constitution. This line of reasoning, of course, only follows given his assumption that God “is under the glorious necessity of not contradicting himself.” Immutabililty, then, implies that the natural law not only conforms to man’s constitution and condition, but also that its provisions, taken as a whole, are consistent with one another.
Still another characteristic of the natural law upon which Wilson dwells is its universality. All men are equally subject to the command of their Maker”; it possesses an essential fitness for all mankind, and binds them without distinction.” To this point, he quotes from Cicero: “it [the law of nature] is the same eternal and immutable law, given at all times and to all nations; For God, who is its author and promulgator, is always the sole master and sovereign of mankind” (I, 145-46).
Finally, and perhaps more immediately relevant to his political thinking, are the goals or directions which Wilson perceived the natural law ‘leading’ mankind; that is, to put this otherwise, what he conceived to be the highest ends to which the natural law (God’s will) conduced. That he thought it would be progressive (“though immutable in its principles, [it] will be progressive in its operations and effects”), we have already remarked upon. While, as we shall see, he is specific about what he considers to be its progressive nature in his politically oriented writings, he sets forth only general goals in his lecture on “The Law of Nature.” Here he informs us that our “moral sense” operates to produce “happiness”; that “whatever promotes the greatest happiness of the whole is congenial to the principles of utility and sociability: and that whatever unites in it all the foregoing properties must be agreeable to the will of God.” God’s will, he believed, could be put into one “paternal precept,” namely, “Let man pursue his happiness and perfection” (I, 145).
Clearly, Wilson’s political theory employs the vocabulary and approach of certain “modern” political theorists such as Hobbes and Locke with its references to a state of nature and natural rights. However, his basic premises, positions, and concerns – albeit linked closely to Christianity – are essentially those which characterize classical political thought. His conception of “happiness” is closely connected to the intellectual and moral development of individuals, and he subscribes to a higher law from which rights are derived – a higher law and rights which are not the product of convention or ‘created’ through agreements or contract. Moreover, and a matter discussed immediately below, even though he does use the modern framework for describing the origins of civil society and the institution of government, at base he accepts the classical view of the inherent nature of man as “social.” Thus, his vocabulary, not unexpectedly, is one of “rights” and “obligations.”
Elements of Political Thought
Fundamental to Wilson’s political thinking, and quite in keeping with the intuitive approach outlined above, is his emphasis upon man as a social being. “Our moral perception,” he writes, “as well as the other powers of our understanding, indicate, in the strongest manner, our designation for society” (I, 232). At another place, he remarks that humans are “fitted for society” and “society is fitted and intended” for them. He likens society to a “powerful magnet, which, by its unceasing though silent operation, attracts and influences our disposition, our desires, our passions, and our enjoyments” (I, 227). And, to dispel any notion that men have an option to live in society or not, he puts man’s sociability on the same plane as natural law: “we are designated by Him, who is all-wise and all-good” for a “state of society” (I, 238).
Certain of Wilson’s observations about the individual and society are quite salient to his political thought. To begin with, there are definite classical overtones in his views concerning the individual and society. While he is certainly not unmindful of the ways in which society provides for the purely material needs of its members – e.g., “food, raiment and shelter” – he stresses that these needs are hardly sufficient for individual development in conformity with the natural law. In this vein, he asks whether a solitary individual, provided with security and the necessities of life, “could . . . find employment for the most excellent powers and instincts of his mind?” And he answers that “sour discontentment, sullen melancholy, listless languor” would necessarily “prey upon his soul” (I, 235).
If we look at this concern from another angle, it would appear that Wilson believed that the degree of the development of the moral and intellectual capacities of the individual is a function of the extent or size of the society. To be sure, he acknowledges that the basic unit of society, the family, can provide “security,” a degree of safety, “many of the necessities of life,” some “social enjoyments,” and “finer operations of the mind.” He also reasons that the “pleasures and advantages” of “reciprocal assistance” would be greater in a “union of a few families in the same neighborhood.” But greater still would be the benefits of a more extended social sphere which, he writes, “will furnish more diversified and delightful exercise to our powers of every kind” (I, 235).
Man’s improvement, his quest for excellence and virtue, Wilson perceived as stemming from a reciprocal and mutually beneficial relationship between the individual and society. For instance, he observed that individuals in society derive “pleasure” from “acts of beneficence,” just as do those who derive benefit from them. And even if the “praise and acclamations of others” or “regard and esteem” are not forthcoming for such selfless or socially benevolent acts, “virtue will prove herself her own reward” for those who accept and act in accordance with the “design of nature” – for those, that is, who contribute “to the general interest,” “by employing [their] care . .. industry . . . and even . . . fortune, in order to strengthen the love and friendship, which should always predominate in human society” (I, 236-37). In this context, he describes “the wisest and most benign constitution of a rational and moral system”; namely, as one in which “the degree of private affection, most useful to the individual, is . . . consistent with the greatest interest of the system,” while “the degree of social affection, most useful to the system, is . . . productive of the greatest happiness to the individual.” Thus, Wilson could envision a unity or correspondence between individual well-being and happiness and the promotion of the general welfare or common interest: “he who operates for the good of the whole, as is by nature and by nature’s God appointed him, pursues, in truth, and at the same time, his own felicity.” “Misery” is the reward of those who operate on motives and principles contrary to the “common good and publick interest” (1, 238).
Civil Society and Government: The Principle of Consent
Wilson’s view of the state of nature clearly was not one of isolated individuals who seldom interacted with one another. Indeed, he writes of a “natural society” which preceded the development or, perhaps more accurately, the evolution of the “civil society.” What is evident in this connection is that he viewed society as passing through stages of development; from natural society to civil society or “state,” and finally to the highest stage, civil society with government.” Key to understanding the major principles which seemed to guide his thinking about the forms and processes of government at the Philadelphia Convention and elsewhere is his conception of the “middle stage,” that is, of the state or civil society.
Although he does not describe in any detail the characteristics of a “natural” society, we do come to understand its essential features by examining the chief elements of his civil society. To begin with, we should note that Wilson throughout his writings makes clear that civil society or the state did exist without government. In fact, he maintains that a “state of civil society must have existed, and such a state, in all our reasonings on this subject; must be supposed, before civil government could be regularly formed and established” (I, 238). He stresses this point in order to make clear one of the central principles of his theory, namely, that “the act and compact which form the public association, are very difficult from those by which the associated body, when formed, may choose to maintain and regulate itself” (I, 284). In keeping with this conception, he could write at the outset of his law lectures that “in the just order of things, government is the scaffolding of society: and if society could be built and kept entire without government, the scaffolding might be thrown down, with the least inconvenience or cause of regret” (I, 86). At another point he emphasizes that “government was instituted for the happiness of society”; that government and even the constitution should be “handmaidens,” not the “mistresses of the state.” Thus, he points out, the change of government, even through revolution, is not, as commonly supposed, logically connected with the “calamities attendant on wars.” A change of government, in his view, does not mean that “every thing must be reduced to a state of nature, and that the rights and obligations of the society must be lost and discharged.” On the contrary, those “establishments, whose foundations rest on the society itself, cannot be overturned by any alteration of the government which society can make” (I, 284).
What is equally clear from Wilson’s discussion is that societies reach a stage wherein government is necessary for at least two somewhat disjointed reasons. The first, he maintains, is that society without government, “in the present state of things,” cannot “flourish,” much less “reach perfection.” Government, from this perspective, is an aid in developing the intellectual and moral capacities of the members of society. The second relates directly to the “dissensions and animosities” that he believed would necessarily arise in a society wherein each individual could act “uncontrolled by others.” The result of this he portrays in terms of a diminishment of “liberty” and an “inconvenience,” both of which are remedied by “civil government” (I, 285).
Wilson, of course, recognized that government can be good or bad [“how often has the happiness of society been offered as a victim to the idol of government!” (I, 239)] and he discusses this matter at various levels. But the deepest level of all is whether the constitution and the government it creates conform with the basic principles or fundamental laws of the civil society which, in turn, are grounded in the natural law or God’s will. Indeed, he writes: “Government . . . should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principle object, is not a government of the legitimate kind” (II, 592). In this connection, he stresses a point which permeates most of his writings about political institutions and practices; namely, there is a reciprocal influence between the people and their government, that “government founded on improper principles, and directed to improper objects, has a powerful and pernicious bias both upon those who rule, and those who are ruled” (II, 785).
Now if government, as Wilson writes, is to provide “precision and certainty” in the application of the fundamental laws of society and the ends for which civil society is constituted, we must come back around to and carefully examine his vision of the properly constituted civil society. For this purpose, we can best begin with his description of a state as “a complete body of free persons, united together for their common benefit, to enjoy peaceably what is their own, and to do justice to each other.” “It is,” he continues, “an artificial person: it has understanding and will peculiar to itself: it has its obligations; and it has its rights.” He tells us that
this union may rationally be supposed to be formed in the following manner: if a number of people, who had hitherto lived independent of each other, wished to form a civil society, it would be necessary to enter into an engagement to associate together in one body, and to regulate, with one common consent, whatever regards their preservation, their security; their improvement, their happiness. (I, 239)
He deems it “indispensably necessary” for this union “that the wills and the power of all the members be united in such a manner that they shall never act nor desire but one and the same thing, in whatever relates to the end, for which the society is established.” He puts this in only slightly different terms when he writes that the civil society, “properly understood,” is a “voluntary union of persons in the same end, and in the means requisite to obtain that end.” Thus, he holds, that the “only rational and natural method . . . of constituting a civil society, is by the convention or consent of the members, who compose it.” The “social compact,” in other words, is one wherein “each individual engages with the whole collectively, and the whole collectively engage with each individual.” Those individuals who do not care to join the compact “are not members of society,” but those who do are bound to its terms (I, 239).
From this account of the formation of civil society, we can derive one of Wilson’s most basic political principles, namely, voluntary consent. “Consent,” he writes in his law lectures, “is the sole principle, on which any claim, in consequence of human authority, can be made upon one man by another” (I, 187). However, we must look to his “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament” (1774), a pamphlet directed to the matter of the status of the American colonies, to understand fully the central role of consent in his political thinking. In his prefatory remarks to this work he writes that his original intention was “to trace some constitutional line between those cases in which we ought, and those to which we ought not, to acknowledge the power of parliament over us.” Instead, basing his position on the principle of consent, he denied the legitimacy of “the legislative authority of the British parliament over the colonies … in every instance” (II, 721).
Wilson’s argument is essentially twofold and derives from certain axioms central to his understanding of the emergence of civil society; namely, that “all men are, by nature, equal and free” and that “no one has a right to any authority over another without his consent.” Thus, he reasons, “all lawful government is founded on the consent of those who are subject to it.”  But, as we might expect, he adds an important dimension to this formulation: the reason individuals give their consent is “to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature.” And he declares that this “happiness of the society is the first law of every government,” a law “founded on the law of nature” that is binding upon the “legislature itself.” “The people,” he contends, “have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves; if they have not the second, they are every moment exposed to slavery” (II, 723).
Wilson’s first level of argumentation consists in showing that the liberty, and hence the happiness, of the American colonists are not at all secure in the hands of the British parliament, even the House of Commons. The ties which serve to unite the interests of the British people with their government and which also serve to militate against encroachments on liberty – e.g., the fact that members of commons, as well as their family and friends, are subject to the laws which they pass – are simply “not enjoyed by the colonists” (II, 724). Unlike the English citizens, the colonists have no mechanisms, such as elections, to restrain the members of commons from “betraying their trust” (II, 727). In Wilson’s estimation, these and like factors show that the “the colonists are not under the same obligations” as the English “to intrust their liberties into the hands of” parliament (II, 724). For the same reasons, he argues, there can be no presumption of the consent on the part of the colonists to the acts of parliament. In sum, at this level, his arguments are directed to showing that the political arrangements and relationships of the colonists to Great Britain are such that the “first law of government, the happiness of society” has not and cannot be observed: the “British liberties” and natural rights which the colonists should enjoy, far from being secure in the hands of parliament, can been abrogated with impunity.
His second level of argument concerns the nature of the obligations the colonists have incurred towards their mother country which, in turn, involves the question of what they have consented to by way of governance at the most fundamental or “contractual” level. More specifically, this aspect of Wilson’s argument goes to a “deeper” level by inquiring into the basis for the presumed “superiority of Great Britain over the American colonies.” His investigations in this respect convince him that this superiority cannot be “shown in any book of the law” nor can “it be derived from the right of conquest.” In fact, he concludes, “it cannot be accounted for” (II, 741). Consequently, though the colonists owe an allegiance to the king “because they have hitherto enjoyed, and still continue to enjoy, his protection,” they are under no obligation to obey the acts of parliament (II, 743). Such was not the understanding of “those who left Britain, in order to settle in America” nor of their “sovereigns . . . who gave them commissions for that purpose” (II, 741).
From this we can see that the principle of consent applies to both the ordinary operations of government as well as to the more fundamental institutional arrangements, relationships, procedures, and structures which are normally regarded as constitutional in nature. And we may go so far as to say, on the basis of what Wilson writes with respect to this principle, that when the first principle of government, “happiness of the governed,” is consistently violated something is amiss with the mechanisms of consent.
Liberty, equality, and diversity
Consent, as we have already indicated, is integrally linked to two other basic principles which also have their roots in the civil society and which government is obliged to promote and protect: to wit, liberty and equality.
Liberty, in Wilson’s thought, is perhaps best conceived in terms of the primary means to happiness. “Every man has a sense of the right” of liberty because, according to Wilson, nature has “furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains tender affections.” Thus, not only is the “right of natural liberty” the outgrowth of the “selfish part of our constitution; it also finds moorings in our
“generous affections.” Our “moral sense, he contends, “intimates to us, that in our voluntary actions consist our dignity and perfection” (I, 242).
This naturalliberty which man enjoys in the state of nature is, Wilson informs us, bounded only by the laws of nature; specifically, that an individual “does no injury to others” and that he tends to the “publick interests” that “demand his labours.” Once government is instituted, however, man enjoys civil liberty which still allows him to act “according to his inclination” which is now limited by “municipal law.” Wilson recognizes that this municipal law may prohibit more than the law of nature. Yet, he writes, “under a government which is wise and good, every citizen will gain more liberty than he can lose by these prohibitions.” The positive penalties of law, and thus the intended restrictions on civil liberty, should, he believed, only operate upon the same concerns as natural law limitations on natural liberty; that is, upon “selfishness and injury'” (II, 587).
As for equality, Wilson takes great pains to make clear that he is far from being a social and economic egalitarian. As we have seen, he perceived a richness and diversity in the extended society – a richness and diversity which would operate to refine and enlarge the intellectual and moral capacities of its members. So, too, he sees that much is to be gained from “the varieties of human genius, human disposition, and human characters.” For him the maxim that “all men are created equal” did not “apply … to their virtues, their talents, their dispositions, or their acquirements.” With regard to these characteristics, he believed that there “should be … great inequality among men.” Such inequality he felt indispensable for “social happiness” as well as for the needs of society (I, 240).
Wilson holds that the “efficient cause” for the wide “varieties of taste and character which are to be found in society may be difficult,” perhaps even impossible, to explain. Of their “final cause,” he has no doubts: “the intention of Providence.” Not only does he regard them as “mutually beneficial to each other”; they also serve, in his view, to dampen “violent oppositions of interest in the same pursuit.” “Hence, he writes,
we enjoy a variety of convenience; hence the numerous arts and sciences have been invented and improved; hence the sources of commerce and friendly intercourse between different nations have been opened; hence the circulation of truth has been quickened and promoted; hence the operations of social virtue have been multiplied and enlarged. (I, 241)
The one respect in which men are equal, Wilson insists, is in relation to the rights and obligations which existed prior to the establishment of civil government. The natural rights and duties of man,” he holds, “belong equally to all.” Each individual forms but a part of a society whose greatest interest and happiness are intended by all the laws of God and nature.” “These laws, he goes on to say, “prohibit the wisest and the most powerful from inflicting misery on the meanest and most ignorant; and from depriving them of their rights or just acquisitions.” Put otherwise, in civil society, according to Wilson, no one can claim, in preference to another, superior right”; likewise, “no one” in civil society “can claim over another superior authority” (II, 241).
This equality with regard to rights and obligations, as we have noted above, is to be observed by government. Wilson specifies these individual rights and duties in the following terms: to receive the fulfillment of the engagements which are made to him, and to be free from injury to his peculiar relations [relations less than general such as those between parents and children, husband and wife], to his property, to his character, to his liberty, to his person” (II, 608): There is another kind of equality which must be observed with the establishment of government; specifically, a political equality which comes down to the equality of individuals to give or withhold their consent. From this principle flows another, majority rule, which Wilson uses as a basic standard for judging the legitimacy of governmental institutions and processes once established. The political equality of the civil society, in other words, should ideally be reflected in the institutions and operations of government.
Wilson writes that individuals organized for action in society can “do business only in three ways – by the decision of the whole, by the decision of the majority, or by the decision of the minority.” Of course, he regards rule by the majority as the only suitable or workable option, the more so given his views of society and the natural law. Yet, it is of some interest to note the qualifications and justifications for majority rule which he does set forth. To begin with, he rejects the position that because “all men are naturally equal” and “naturally free” they can be bound only with their consent to the laws which are passed by government; a position which, if adhered to, would require unanimity as the decision-making rule. In joining society, he maintains, individuals freely and unanimously consent to the formation of a society and the purposes for which it is established. Likewise they consent to “every thing that is necessary” for the fulfillment or achievement of these purposes (I, 242).
Wilson also inquires into “which is most reasonable and equitable,” whether “the minority should bind the majority – or . . . the majority bind the minority?” He has no hesitation in answering that majority rule is the “most reasonable … because it is not so probable, that a greater number, as that a small number concurring in judgment, should be mistaken.” As for the matter of equity he writes that the majority must be presumed to have a greater interest in the society than the minority. He remarks again that the minority is obliged to obey the majority because “they [the minority] are bound by their consent originally given to the establishment of the society, for the purposes which it was intended to accomplish.”
Finally, with regard to how decisions should be made, Wilson does believe that the majority rule principle “may be altered and modified by positive institution.” “In some cases,” he adds, “the consent of a number larger than a mere majority: in others even unanimity may be
required.” While he does not explain what he means by “positive institution,” we may take this to mean that the society, at the time it establishes government, may make provisions for such extra-majorities. In other words, he implies at this juncture that the society may adopt a constitution which contains provisions calling for the assent of more than mere majorities for the government to act. This view is borne out by his definition of and views on the nature of a constitution:
By the term constitution, I mean that supreme law, made or ratified by those in whom the sovereign power of the state [society] resides, which prescribes the manner, according to which the state wills that the government should be instituted and administered. From this constitution the government derives its power: by this constitution the power of government must be directed and controlled: of this constitution no alteration can be made by the government; because such an alteration would destroy the foundations of its own authority. (I, 304)
We should not conclude from this that Wilson viewed constitutions as instrumentalities for limiting popular majorities. For him, it would appear, they embodied limitations on government or the authority of rulers. He writes, immediately after the passage quoted above, that “as to the people, however, in whom the sovereign power resides, the case [their relationship to the constitution] is widely different, and stands upon widely different principles.” It is, he makes clear, from the authority of the people that the “constitution originates.” In their hands,” he continues, “it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” From this he concludes that a “majority” is sufficient to change or alter the constitution. But, in this regard, he draws a distinction relative to the power of the majority and the obligations of a minority. If that which the majority mandates is not “contrary to the act of original association, or to the intention of those who united under it,” the minority is obligated “to conform to the resolution of the majority.” However, the situation changes if the majority infringes upon the “act of original association” or governs contrary to the original “intentions” of those who originally formed the association. In these circumstances, the minority is still bound to the rule of the majority, but it is “not obliged to submit to the new government” – i.e., its members “have a right to retire, to sell their lands, and to carry off their effects” (I, 304). In other words, and a matter about which Wilson showed great sensitivity, the minority possesses the right to emigrate under such circumstances.
Finally – and this by way of attempting to clarify Wilson’s approach to constitutionalism – we should note that changes in a constitution, according to Wilson’s theoretical principles, would seem to require that the majority act through channels apart from the ordinary political processes through which statutory laws are made. Otherwise, constitutional change could be brought about in a manner completely alien to one of Wilson’s basic precepts, that is, through agencies created by and subordinate to the constitution. Perhaps, in this respect, it is useful to conceive of Wilson’s theory as comprising two kinds of majorities: political majorities, which legitimately operate through the government created by the constitution, and constituentmajorities, which can legitimately change the constitution. In this context, then, the constituent majority which establishes the first constitution can specify by “positive institution” not only the means by which change can be achieved, but also whether change should require something beyond a mere majority.
The principles and qualities of good government
At various points, as we have already mentioned, Wilson remarks upon the interrelationship between the character of society, government, and constitution. Nowhere is this more pronounced than in his discussion of the principles and qualities of good government. While careful to observe that society and government are indeed distinct entities, he observes that the “beneficence, the wisdom, and the energy or the injustice, the folly, and weakness of government” can be attributed to the character of the constitution. In turn, “on the good or bad qualities of the government and laws, will depend on the prosperity or the decline of the state.” Likewise, these qualities also determine the “excellence and happiness” or the “depravity and infelicity of the citizens” (I, 306). And from this he concludes: the first consideration of a state, and its most important duty, is to form that constitution, which will be best in itself; and best adapted to the genius, and character, and manners of her citizens. Such a constitution will be the basis of her preservation, her happiness, and her perfection” (I, 308). Such a formulation makes sense because, as will be seen, his principles and qualities of good government are general in nature and can be realized in a variety of ways appropriate to the “genius,” “character,” and “manners” of the people.
What, then, are those qualities and conditions which a constitution should seek in order to promote the happiness of the people? Wilson specifies four which are all grounded on his belief that “frail and imperfect” men “must be the instruments … by which government is administered.” The first is to insure as far as possible that “the wisest and the best” within the society are elected to the “offices and departments” of government. The second, he puts as follows: “to communicate to the operations of government as great a share as possible of the good, and as small a share as possible of the bad propensities of our nature.” Closely related to this is a third objective: “to increase, encourage, and strengthen those good propensities,” while discouraging, lessening, or correcting the bad. And, finally, to structure the government through “particular checks and controls” so that it is “advantageous even for the bad men to act for the publick good” (I, 290-91). It is when these conditions are met that Wilson believes we may speak of “government of laws, and not of men”; a government in which “every man does homage to the laws” (I, 290).
As we might expect, Wilson also inquires into “the qualities in government, necessary for producing laws, properly designed, properly framed, and properly enforced.” These qualities he capsulized as follows: “Goodness should inspire and animate the intention: wisdom should direct and arrange the means: power should render the means efficacious, by carrying the laws vigorously into execution.” To the degree that these qualities predominate and “blend” with one another in due proportion in the “operations of government,” the more perfect the government and society (I, 290).
Wilson is explicit about the principles of organization or structuring that will produce good government. For the most part, his attention centers in and around the principle of the separation of powers; that is, with the proper organization of the legislative, executive, and judicial branches and their relationship to one another. That he would concentrate his attention on this principle is understandable since he shared the prevailing view of the time which held that any union of the three powers of government – legislative, executive, and judicial – in the same hands would represent tyranny. To evidence his concern on this score, he canvasses the various possible unions of these powers to show what the consequences might be. A union of the legislative and executive powers in the same person, he writes, would allow the executive not only to “enact tyrannical laws” but to execute them in a “tyrannical manner. ” A union of the legislative and judicial powers would expose the “lives, liberties, and properties of the citizens … to arbitrary judges, whose decisions would, in effect, be dictated by their own private opinions, and would not be governed by any fixed or known principles of law.” Uniting the executive and judicial powers, he observes, “might soon be an overbalance for the legislative authority.” In any event, the citizens would have no recourse to the perversion of the laws and their unjust and tyrannical execution. Of this particular union of powers, Wilson writes: “Nothing is more to be dreaded than maxims of law and reasons of state blended together by judicial authority. Among all the terrible instruments of arbitrary power, decisions of courts, whetted and guided and impelled by considerations of policy, cut with the keenest edge, and inflict the deepest and most deadly wounds” (I, 298-99). Needless to say, he was convinced that a concentration of all three powers in the same hands would produce the same results without any possibility of redress.
We should pause to note other aspects of Wilson’s thinking regarding the need for the separation of powers that relate to the broader principles of his political theory. In the first place, it would appear that he believes tyranny exists whenever there is a union of powers along the lines he suggests; that is, his conception of tyranny is not confined to the exercise of these powers in an arbitrary and oppressive manner, but rather comes down to the mere existence of the union of any two powers. Why so? Because, as Wilson intimates in his brief discussion of the government of Venice, where all three powers were joined in an “aristocracy,” those living in such a regime can never enjoy the “peace and tranquility” of mind which is an essential ingredient of liberty. Nor may we surmise could anyone living under the same conditions. To put this in a broader context, the “peace and tranquility” of mind cannot be had in a regime where the potential for the exercise of arbitrary and capricious power exists; where, for example, the subject is not certain from one day to the next how the laws will be applied or interpreted. Thus, it seems certain that for Wilson, the civil liberty of the individual – which, let us recall, was to be even more extensive than his natural liberty – depended on the uniform, equal, and predictable application of the civil laws. We see, then, that the separation of powers assumed critical importance in his political thought precisely because it would insure the rule of law – i.e., this uniform, equal, and predictable application of the laws.
While we can view Wilson’s specifics regarding the proper organization from the viewpoint of his overriding concern to insure the rule of law (i.e., a government of laws, not of men), they also embrace other values quite in keeping with the attributes of good government. For instance, in considering the branches of government in the order of their “greatness,” he is adamant about the need for a bicameral legislature. “A single legislature,” he argues, “is calculated to unite in it all the pernicious qualities of the different extremes of bad government. It produces general weakness, inactivity, and confusion; and these are intermixed with sudden and violent fits of despotism, injustice, and cruelty” (I, 291). Just as individuals sometimes act on the basis of their passions and prejudices contrary to their “true interests,” so too, he maintains, do single legislative chambers.
Now, in Wilson’s view, the second legislative body provides the requisite “internal” restraint on the legislative authority. Indeed, he believes that the “restraints on legislative authority must … be chiefly internal” (I, 293). A second chamber would not only serve to check the passions of the first body – so that, presumably, the passions might “cool down” thereby allowing for reflective deliberation – but also any encroachment on the constitution that might proceed from this quarter. In fact, he envisions each branch being a watchdog, so to speak, over the other: “If one of them should depart, or attempt to depart from the principles of the constitution; it will be drawn back by the other.” What is more, the mere existence of two bodies lessens the possibility of either branch broaching unconstitutional measures: “The very apprehension” of disapproval of the other chamber “will prevent” attempts by one branch to depart from constitutional principles (I, 290-91).
Wilson is also quite clear on another point relative to the legislature. That is, in commenting on republican government, he conceives of the legislature as forming the base of what he calls the “pyramid of government” (I, 403; II, 785). The stability and structural soundness of this pyramid, he emphasizes, demands a close connection between the people and the legislature. In his view, the “foundations” of this pyramid must be “broad, and strong, and deep.” In this regard, he sees “representation” in terms of a “chain of communication between the people, and those to whom they have committed the exercise of the powers of government” (II, 786; I, 312; I, 403). In turn, he holds that “two things are essentially necessary” for this “chain” to operate in a fashion consistent with republican principles: “1. That the representatives should express the same sentiments, which the represented, if possessed of equal information, would express. 2. That the sentiments of the representatives, thus expressed, should have the same weight and influence, as the sentiments of the constituents would have, if expressed personally.”
In order to achieve these ends Wilson perceived the need for two additional conditions. First, “all elections ought to be free.” To realize this, he supported extensive manhood suffrage: “The correct theory [regarding the extent of suffrage] and true principles of liberty require, that every citizen, whose circumstances do not render him necessarily dependent on the will of another, should possess a vote in electing those, by whose conduct his property, his reputation, his liberty, and his life, may be all most materially affected” (I, 407). Second, he thought that “all elections ought to be equal.” By this he meant, one person, one equal vote in the sense that the citizens in one part of the state ought to be able to choose the same number of representatives as citizens in another part of the state.
Turning to the executive, Wilson envisioned the necessity for unity in order to provide restraint as well as “safety and . . . energy in the operations of government.” Quite unlike the legislature, he notes, the restraints on the executive authority are “external.” Consequently, he reasons, these restraints can be “applied with the greatest certainty, and with greatest efficacy, when the object of restraint is clearly ascertained” (I, 293). To this matter he writes, if the people should perceive misconduct or corruption on the part of those charged with executive responsibilities, they will at least know whom to hold responsible for the abuse of their “generous and unsuspecting confidence” come the time of general elections.
A good deal of Wilson’s case for a single executive is set forth from the perspective of the weaknesses and drawbacks of plural executives. While, for example, he acknowledges that deliberation has its proper place in “planning, forming, and arranging laws,” he also believes
that there are “emergencies” wherein he who “deliberates, is lost” or where “secrecy may be equally necessary as despatch.” Yet, he asks rhetorically, can either secrecy or despatch be expected, when, to every enterprise, and to every step in the progress of every enterprise, mutual communication, mutual consultation, and mutual agreement among men, perhaps of discordant views, of discordant tempers, and of discordant interests are indispensably necessary?” (I, 294).
But even in the ordinary operations of government, where no emergency presents itself, Wilson could see the compelling need for unity. “When, he observes, more than one person are engaged in the same enterprise, a difference of opinion, concerning the object or the means, is no improbable contingency.” And how, he asks, are these differences to be resolved between “those of equal authority”? The difficulties he perceives in this regard stem from “a prevailing and undecided difference in sentiment” which, unlike the differences to be found in deliberative bodies, cannot be “concluded by a resolution or a vote.” Rather, these differences in the conduct of “publick enterprises” are “the inauspicious parent of bitter and determined opposition” which serves to undermine the cooperation needed for effective execution of the laws (I, 295).
From this same perspective, Wilson devotes a good deal of attention to the dangers to effective and honest administration that can result from the appointment process in a system with plural executives. After observing that “much of the reputation … energy . . . and safety of the nation depends on judicious and impartial appointments,” he goes on remark:
But are impartiality and fine discernment likely to predominate in a numerous executive body? In proportion to their own number, will be the number of their friends, favourites, and dependents. An office is to be filled. A person nearly connected, by some of the foregoing ties, with one of those who are to vote in filling it, is named as a candidate. His patron is under no necessity to take any part, particularily responsible, in his appointment. He may appear even cold and indifferent on the occasion. But he possesses an advantage, the value of which is well understood in a body of this kind. Every member, who gives, on his account, a vote for his friend, will expect the return of a similar favour on the first convenient opportunity.
Through such processes, Wilson contends, “a reciprocal intercourse of partiality, of interestedness, of favouritism, perhaps of venality, is established.” The result is that “ignorant, vicious, and prostituted characters are introduced into office” so that those who do possess “talent and virtue” will shy away from “appointments” lest their reputations be tarnished by association. Off at the end, however, the people, “wounded and buffeted, suffer the most. What is more, according to Wilson, they have not the melancholy satisfaction of knowing by whom the blows are given ” (I, 294).
Wilson firmly believed that “the person who nominates or makes appointment to offices should be known” and that there should be “no constitutional stalking horse . . . provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.” He entertains the hope that “an intercourse of integrity and discernment on the part of the magistrate who appoints, and of gratitude and confidence on the part of the people, who will receive the benefit from his appointments” will lead to a “beneficent atmosphere” in which “bare-faced impudence and unprincipled intrigue will receive repulse and disappointment” (I, 295).
As for the judiciary, Wilson stresses the need for independence. Because the “fortunes,” “lives,” “reputations,” and “liberties” of the people are affected by the judgments of the judges, it is indispensible, according to Wilson, that they be impartial. Their judgments, he writes, “ought to be calculated not only to do justice, but also to give general satisfaction, to inspire general confidence, and to take even from disappointed suiters . . . the slightest pretence of omplaint.” For this reason, he continues, “in their salaries, and in their offices, they ought to be completely independent” (I, 297).
Though, as we have seen, Wilson stresses the need for a separation between the branches in order to avoid a tyrannical union of powers, he is also aware that there must be some degree of “mutual dependency” between them. With regard to their essential functions, it would appear, he believed they should be independent of one another. “In preparing bills, in debating them, in passing them, in refusing to pass them,” he maintains, the legislature should be completely independent. But once the measure has passed it should be subject to control by the other branches in accordance with the provisions spelled out in the constitution. The end sought by this mutual interdependence is, as he put it, “if one part should, at any time, usurp more power than the constitution give, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” For him, “the balance of the parts consists in the independent exercise of their separate powers, and, when their powers are separately exercised, then in their mutual influence and operation on one another. Each part acts and is acted upon, supports and is supported, regulates and is regulated by the rest.” Because of the “necessity for movement in human affairs,” the departments will “move in concert,” with each influencing the other, forming a vector in the direction of “public liberty and happiness” (I, 300).
Wilson at the Constitutional Convention
We can best understand Wilson’s posture in the Philadelphia Convention by recurring to the major elements of his broader theory which have been set forth. Perhaps the most crucial of these is that Wilson viewed the thirteen states as one society in the midst of a process of changing its government, of establishing a new government that would insure its happiness in accordance with the natural law to a degree and in a fashion the Articles had proved incapable. To put this in other terms, from Wilson’s perspective it seems clear that the colonies formed a civil society even before the Declaration of Independence. In his framework, the Continental Congress and the adoption of the Articles simply represented efforts on the part of the whole society, albeit through the existing state governments, to establish a system that would be conducive to its collective happiness. In keeping with his view, these efforts could also be conceived of in terms of a progression; that is, just as the society felt the need to adopt the Articles in order to provide for a closer union, it had come to the realization that an even stronger political union was necessary in order to secure happiness. From his vantage point, then, the Convention represented only one, though critically important, step in the process of altering or changing the “scaffolding” of society, a scaffolding which Wilson held could be ripped down and replaced in its entirety. Thus, he believed the Convention could begin de novo in structuring a new government that would conduce to the happiness of the society; it was not bound down by the constitutional or governing principles which had been employed in the Articles. Such a position is manifest in his statement (16 June) of what he understood to be the scope of his authority – and that, we may infer, of the Convention as well – “with regard to the power of the Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose any thing.”
Though many of Wilson’s more substantial contributions to the Convention are clearly predicated on this one society premise, we do not find it articulated as such. Instead, what we do find is considerable indirect evidence to this effect in the form of remarks that are best understood in light of this premise. Consider, for instance, his interpretation of the Declaration of Independence and its place in the American founding. On 19 June, during a debate concerning what ought to be the status and role of the states in a new system, Luther Martin contends that with their separation from Great Britain, the states had been “placed … in a sate of Nature towards each other; that they would have remained in that state till this time, but for the confederation; that they entered into the confederation on the footing of equality; that they met now to amend it on the same footing; and that he could never accede to a plan that would introduce an inequality.
Martin’s position, of course, represents a direct assault on key elements of Wilson’s conceptual framework. If Martin’s view is correct, it follows that the states constituted thirteen separate civil societies, each with its own government, whose consent – rather than that of the individuals comprising them – would be necessary for any change in the form of government. Thus, as we might expect, Wilson openly challenges Martin’s view of the union, particularly with respect to the status of the states. In this, he presents his own interpretation of the Declaration of Independence: “He read the declaration of Independence, observing thereon that the United Colonies were declared to be free and independent States; and inferring that they were independent, not individuallybut Unitedly and that they were confederated as they were independent, States.” In other words, one government had existed over the whole; a view entirely consonant with, and even necessary (but not sufficient) for, the one society premise.
At an earlier point (8 June) Wilson spoke directly to an even more essential element of his one-society premise. Here he observed that “among the first sentiments expressed in the first Congress was that Virginia is no more, that Massachusetts is no more, that Pennsylvania is no more, etc. We are now one nation of brethren. We must bury all local interests and distinctions.” And, while he acknowledged that the “tables at length began to turn,” he pointed out that the Articles gave too much rein to the states; a state of affairs which had allowed them to sacrifice the “general interest” of the society to local and partial interests. Clearly he felt it to be the business of the Convention to propose a new system that would rectify the vices of the Articles, even if this meant subordination of the states to a new national government: Such, at least, would seem to be the presumption given the language which he does use at this point – e.g., “One of its [Articles] vices is the want of an effectual controul in the whole over its parts” – and which is also borne out in his later positions and comments. In this connection, it should also be noted that he maintained (9 June) that the principle of equality of the states under the Articles, rather than state representation according to the population, was a decision of expediency, “owing to the urgent circumstances of the time,” rather than a contractual principle which the delegates were obliged to honor. On 20 June, in an apparent effort to undermine the legitimacy of the Articles, he again stresses that the large states had “acceded .. , to the Constitution in its present form” out of “necessity, not of choice.”
In keeping with this “one society” thesis, on 16 June – after comparing the Virginia and New Jersey plans – he asks, “Where do the people look at present for relief from the evils of which they complain? Is it from the internal reform of their governments?” And, after answering the latter question in the negative, he goes on to assert that “it is from the National Councils” that “relief” is sought, as if to say that not only is there a self-awareness of a national society – i.e., the people of the different states recognize themselves as constituting a society with common interests and aspirations – but also an acknowledged means through which this society can legitimately act. Given this state of affairs, he entertains no doubts that the people would embrace a new modeled national government.
To this interpretation of events and developments, we should also remark that Wilson had other reasons for holding to the one society thesis, quite aside from the fact that its premises would allow for a far stronger political union. From his viewpoint, we need only recall, an extensive and diverse society would also foster the moral and intellectual development of its members. On this score, we may reasonably surmise that he would look upon a stronger political union as strengthening the bonds between individuals in a society, making social and commercial intercourse far easier, as well as broadening their experiences and outlook. As such, a stronger and more extensive union would clearly represent “progress” in his estimation. These reasons, we may also surmise, account for Wilson’s strong aversion to the incorporation of federal principles – i.e., those which would acknowledge states as political societies – into the constitutional framework.
Principles and objectives
Wilson spoke more than 165 times at the Convention, ranking second only to Gouverneur Morris in this regard. He spoke to every major issue before the Convention and to many minor matters as well. Yet, and this again because his positions were derived from his broader theory, it is not too difficult to comprehend his stance toward the major issues facing the Convention. Indeed, his first address to the Convention on 31 May provides us with an overview of the ends which he sought and, as such, serves as a convenient point of departure for examining his positions in some detail:
[He] contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a base as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governments should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceeded much more from the officers of the States, than from the people at large.
While his assumption that the new national government must be republican in nature is not uninteresting, his remarks expressly direct us back to a fundamental element of his thinking: namely, the foundations of this republican government must rest firmly on the people and, insofar as possible, the connection between the people and their representatives ought to be as direct as possible. Certainly he saw no room for the states as intermediate institutions between the national government and the people; a condition which, to use his expression, could only weaken the “chain of communication.” Hence his posture from the outset was both democratic (or republican) and national, two principles under which a good deal of Wilson’s convention strategy can be subsumed and comprehended. Moreover, as his metaphor implies, his thinking also embodied beliefs concerning the proper organization of the government, as well as how powers and functions ought to be distributed so that the “pyramid” could be soundly and safely raised to the “considerable altitude” he envisioned. As we might well imagine on the basis of his broader theory, the doctrine of the separation of powers played an enormous role in his thinking on these matters. Consequently, to understand fully his goals and tactics requires that we examine his concerns in this respect as well.
The democratic principle
From the outset, as already noted, Wilson , was a strong proponent of the principle of the popular election of the lower chamber as set forth in the Virginia plan. On 6 June we find his most extensive justifications for this, the first element of which is simply that the authority of the more powerful government in contemplation should “flow immediately from the legitimate source of all authority. We are left to wonder at this point if he entertained the belief that the legitimacy of the national government in the exercise of its new powers would be strengthened or, at least, could not readily be brought into question, provided its foundation were popular. But he does say that the government should possess “not only the force . . . but the mindor sense of the people at large.” And, in this connection, he maintains, consonant with his broader principles, that “the Legislature [i.e., not only the lower house] ought to be the most exact transcript of the whole Society.” “Representation,” in his view, “is made necessary only because it is impossible for the people to act collectively.” Moreover, he could see benefits arising from representation under the proposed system; namely, large electoral districts would serve to guard against the “improper elections” that had occurred in small districts where “bad men” had been able “to intrigue themselves into office.”
From the beginning it was apparent that Wilson was going to have difficulties realizing his democratic goals with regard to the second branch. Ideally, he favored direct election of Senators through an electoral system based on his “one man, one vote” principle. This much, at least, he intimated in his second address to the Convention on 31 May when he observed that “both branches of the National Legislature ought to be chosen by the people.” However, his remarks in this connection also pointed to the practical difficulties of implementing any scheme of popular election. He acknowledges, for instance, that he was not prepared to offer a “specific proposition” for direct popular election, though he does refer to “the mode of chusing the Senate of New York to wit of uniting several election districts, for one branch, in chusing members for the other branch, as a good model.” Yet, as Madison was quick to point out, to follow this mode
would involve associating the “smaller States with larger ones in the same district,” a consideration which, given the political realities of the Convention, was itself sufficient to rule out any such scheme. What is more, as Madison also noted, larger states in this situation “would chuse from within themselves, altho’ better men might be found in the former [the smaller states].” Thus, we find even Madison, who favors proportional representation in the second chamber, in effect, undercutting one of the more feasible schemes for securing this end.
On 7 June, not unexpectedly, the Convention by a ten to one vote rejects Wilson’s motion for popular election to the Senate by districts created for that purpose. However, from Wilson’s perspective all was not lost because on 11 June the Convention by a six to five vote does approve his formal motion, seconded by Hamilton, that “the right of suffrage in the second branch ought to be according to the same rule as in the first branch.” Thus, by a narrow margin the principle of proportional representation was, at least for a time, accepted.
Nevertheless, a very serious practical problem remained: If the political integrity of the states was to be observed in this electoral process, how could proportionality be achieved without creating a Senate far too numerous for the functions which Wilson and others would like to see it perform? King put one aspect of the difficulty rather succinctly as early as 31 May: ” [He] reminded the Committee that the choice of the second branch . . . by the State Legislatures would be impracticable, unless it was to be very numerous, or the idea of proportionamong the States was to be disregarded. According to this idea, there must be 80 or 100 members to entitle Delaware to the choice of one of them.” Pinckney reaffirms this on 7 June by remarking that if the proportionality principle were followed and “the small States should be allowed one Senator only, the number would soon be too great, there will be 80 at least.” At this juncture, Madison articulates the basic concern, namely, that such a numerous assembly would defeat the very purposes of a second chamber: “the use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom than the popular branch. Enlarge their number and you communicate to them the vices which they are meant to correct.” And there can be no question that Wilson viewed the question of size as critical, particularly as a numerous second chamber would be less likely to engage in reflective deliberation.
The problem for Wilson, then, came down to trying to provide for proportionality, while keeping the size of the Senate small enough for its deliberative functions. He could not go along with the Virginia plan which provided for election of senators by the lower house because, as he intimates on 31 May, this arrangement, by making the upper house dependent on the lower, violated the principle of the separation of powers. On 25 June he moves that the upper chamber be elected by “electors chosen by the people for that purpose.” The motion is not even seconded and reveals that by this point he had given up any idea of direct popular election of senators. By 30 June, we can begin to sense that he is grasping for straws. At this point he is willing to “compromise.” To this end, he “threw out the idea” of allowing states one senator for each 100,000 inhabitants. In commending this compromise “he looked forward to the time when the smallest States will contain 100,000 souls.” In the meantime, however, he urged, “let the States not having that number of inhabitants be allowed one [Senator].” Such a compromise, he believed, would not render the Senate “too numerous,” though it is difficult to believe that he could not foresee the obvious difficulties the anticipated growth in population would create. Finally, on 14 July, in a last ditch effort to salvage some semblance of proportionality in the upper chamber, he seconds and speaks on behalf of Pinckney’s motion to allot the states between one and five senators according to their population with the total number coming to thirty-six.
Clearly Wilson’s concerns on the critical issue of representation in the second chamber were twofold. One, which we will explore in due course, was to prevent the states from playing a constituent role in the national government. Hence, he was opposed to election by the state legislatures. The other, though not entirely independent of this matter, centered on the more abstract concern to provide for democratic foundations which, in turn, required political equality among citizens conceived of as members of one society.
The depth of Wilson’s conviction that the foundations of the system – the “pyramid,” as he would have it – must accord with the principle of political equality in both legislative chambers can be gleaned from his remarks of 30 June, when by all evidences the Convention was on the verge of breaking down over the issue of the appropriate principle of representation for the Senate. In speaking to Ellsworth’s motion which called for equality of state representation, he reacts boldly to the contention that if the principle of state equality is not acceded to, only one state “North of Pennsylvania” would ever agree to the plan of government. “If,” he responds, “the minority of the people of America refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen of better grounds.” In this connection, he goes on to stress the degree to which equality of state representation would allow the minority to thwart the will of the majority. Referring to the vote of 29 June on which four smaller states had even voted against proportional representation (“the just principle of representation”) in the lower house, he notes that they “were as 22 to 90 of the people of America.” The basic issue confronting the Convention, as he saw it, came down to whether “less than 1/4 of the United States [shall] withdraw themselves from the Union; or shall more than 3/4 renounce the inherent, indisputable, and unalienable rights of men, in favor of the artificial system of states.” “If the issue be joined,” he continued, “it was on this point he would chuse to join it.”
Wilson’s remarks on 30 June also embody another line of attack on the state equality principle. Noting that by this principle seven states can control six, he goes on to argue that “less than 1/3” of the people could conceivably “overrule 2/3.” Now the problem Wilson identifies in this respect goes beyond the justness of this situation and to the question of legitimacy; that is, more exactly, to the matter of how this electoral arrangement can be justified. Thus, for instance, he asks rhetorically whether “honest citizens,” who presumably are thwarted by minorities in the fashion he imagines, “will” or “ought . . . to be satisfied with being told that one third compose the greater number of States?” “If the Government be not laid on [the] foundation” of political equality, he goes on, “it can be neither solid nor lasting.”
Later on 7 July, he once again indicates the depth and nature of his convictions on this issue. Remarking that he “was not deficient in a conciliatory temper,” he notes that “firmness was sometimes a duty of higher obligation.” At this point he argues that the conciliation sought between the large and small states over the issue of equality of state representation in the Senate was significant only to the “Representatives,” not “the Constituents.” Moreover, on this occasion, he stresses that the conciliation of these representatives to the proposed system was not the important issue. Rather, he insists, the support of the constituents was vital; a support which could not be expected unless “the foundation … be laid in justice and right.” To this general concern he remarks on 14 July that the prospects for popular support of the proposed Constitution will be diminished once the people come to realize that delegates representing but one third of the people have dictated to those representing two thirds on the “fundamental point” of representation in the Senate. “What hopes,” he again asks rhetorically, “will our Constituents entertain when they find that the essential principles of justice have been violated in the outset of the Government?”
Wilson, true to form, fights the principle of state equality in the Senate to the bitter end. On 15 July, just one day before the final vote on the amended Committee report which provided for equality of votes in the second branch, he reiterates his basic arguments in only slightly different, but highly dramatic, terms: “Justice” calls for proportional representation – a proposition which, he insists, “has not in argument at least been yet contradicted,” and state equality constitutes a “vice in Representation,” “a fundamental and perpetual error” that “must be followed by disease, convulsions, and finally death itself.”
We can comprehend the extent of Wilson’s bitter disappointment with the adoption of the Connecticut Compromise from another perspective. Above all, he wanted the base of his federal pyramid to be anchored in the people, and the principal component of this base, we may infer from his comments concerning representation, was the legislative branch; a fact which accounts for outspoken and determined opposition to the state equality principle. This view of his position is confirmed when we turn to his positions and comments on the presidency. What we see in this respect is a far greater willingness to give and take, to seek accommodation, and to allow values other than those associated with political equality and majority rule to come into play. Put another way, Wilson seemed to have a pretty good notion of how to constitute the base of his pyramid, but he was less certain of what values ought to predominate, and to what degree, as he moved “up” from this base.
This is not to say that Wilson did not have some pretty firm ideas about the executive office. He did. As we might expect, he is quick to move (1 June) for a single executive arguing that “unity in the Executive instead of being the fetus of monarchy would be the best safeguard against tyranny.” Moreover, at this time he joins Madison in moving for broad executive powers, i.e., that the executive should possess the “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers ‘not Legislative nor Judiciary in their nature,’ as may from time to time be delegated by the national Legislature.” On 4 June, he expands upon the need and desirability of unity in the executive office. Not only would unity provide for the necessary “vigor” in government, it would also conduce to “tranquility” as well. “Among three equal members,” he could envision “nothing but uncontrouled, continued, and violent animosities; which would not only interrupt the public administration; but diffuse their poison thro’ the other branches of Government, thro’ the States, and at length thro’ the people.” To this he adds that the possibilities of deadlock among three heads might well result because, unlike the judiciary where “there are two sides only to a question,” legislative and administrative questions “have commonly many sides.” In sum, his views on unity and the reasons for it remained constant throughout the Convention. In this respect, Wilson may be regarded, quite in keeping with his general theoretical views, as the first and foremost advocate for the framework necessary for a strong and energetic executive.
However, he was amenable to compromise concerning the mode of selecting the chief executive. His flexibility on this matter may be accounted for by a perceived interrelationship between mode of selection and other concerns such as reeligibility, as well as with certain difficulties associated with popular election which he came to acknowledge. In any event, on 1 June, Wilson – though “apprehensive that it might appear chimerical” – sets forth the notion of “election [of the executive] by the people.” On this occasion he notes that this mode of selection has proved “convenient and successful” in New York and Massachusetts and that it also necessitates a choice between “persons whose merits have general notoriety.” We may interpret this to mean that he wanted to place the executive authority on the same fundamental plateau as the legislative; that he sought to anchor executive authority firmly on popular foundations as part of the base of his pyramid. So much he expressly acknowledges towards the end of the 1 June session: “[He] renewed his declaration in favor of an appointment by the people. He wished to derive not only both branches of the Legislature from the people, without the intervention of the States Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.” At the outset of the very next session (2 June), however, he moves for a system of indirect popular election which in certain respects resembles the electoral college system finally agreed to. Under this scheme, with certain crucial details left to be ironed out, the states would be divided into districts with those voters eligible to vote “for members of the first branch of the national Legislature” authorized to elect “electors of the Executive magistracy” who, in turn, would meet to elect a president. Wilson, in proposing the plan, noted its advantages which he took to be “election without intervention of the States” and the promotion of greater “confidence among the people in the first magistrate” than would be had through “election by the national Legislature.”
On 17 July, after the Great Compromise, the Convention again turned its attention to the mode of electing the president, as if resuming where it had left off before the stormy controversy over the basis for representation in the Senate. At this point, Wilson joins Gouverneur Morris in attacking the provision for election by the legislature and in urging direct election by the people. His most significant contributions in this regard involve what he perceives to be the legitimate role of the legislature in the process of electing a president. In the first place, he believed that the extensiveness of the country would render election by the people relatively immune from the cabals, intrigues, and conspiracies that would characterize election by the legislature. When pressed by Mason on the issue of why nationalists, such as Wilson, were willing to repose great confidence in the legislature when it came to the delegation of “indefinite power,” but not in electing a president, Wilson responds that confidence may be reposed in the legislature when its actions affect its members as well as their constituents. However, where this is not the case, such as “appointment to great offices, where the legislature might feel many motives, not common to the public confidence,” “jealousy” is “warranted.” “It was notorious,” he concluded, that “this branch of business . . . was most corruptly managed of any that had been committed to legislative bodies.”
A second role for the legislature emerges from Wilson’s acknowledgement that a majority of voters might not concur on the same candidate for president. To meet this objection, he would allow the legislature by majority vote to decide between the leading candidates, “This,” he believed, would restrain the [legislature’s] choice to a good nomination at least, and prevent in a great degree intrigue and cabal.”
While the Convention would ultimately move in the general direction suggested by Wilson, it did so very slowly. A concern which came into play and which greatly complicated finding any acceptable method of selection was the question of reeligibility. If, that is, the executive were chosen by the legislature, there was a firm consensus among the delegates that he should not be reeligible. Their chief worry in this respect centered around the danger that the executive, to gain reelection, would become dependent on the legislature. Intimately linked to this question were other considerations ranging from the consequences which a ban on reeligibility would have for the system over the appropriate term of office. For instance, it was Wilson’s view that if elected by the legislature, the term of the chief executive should be lengthy. Indeed, he goes so far as to say on 24 July that “he would agree to almost any length of time in order to get rid of the dependence [on the legislature] which must result from it [election by the legislature].” As he also makes clear at this point, a prohibition on reeligibility might well serve to deprive the nation of the services of its ablest and most competent men, thereby violating one of his cardinal principles of good government.
The Convention flip-flops on the issue of the mode of selection. On 19 July, it adopts a scheme calling for election by electors chosen by the state legislatures with provisions for reeligibility. This represents a step in a direction towards Wilson’s ideal insofar, at least, as it removes the national legislature from the process. But on 24 July, the Convention moves back to election by the national legislature. At this juncture, Wilson proposes another (and, for him, uncharacteristic) mode of selection which, as he put it, was not a “digested idea and might be liable to strong objection.” This proposal called for the election of a chief executive for a six year term by “not more than 15 of the National Legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating.” Through random selection and provision for isolation of the legislators, he pointed out, this plan would greatly reduce both the possibility of intrigue and dependence on the legislature. However, he felt obliged to say towards the end of this session that he did not regard his plan as “the best mode”; that, indeed, “this opinion remained unshaken that we ought to resort to the people for the election [of the chief magistrate].”
On 24 August, when the Convention is considering the report of the Committee on Detail on the election of the president, Wilson seems resigned to the fact that election would be by the national legislature. At this point, he moves that rather than providing for the separate concurrence of both chambers, the election should be by joint ballot. This change, quite in keeping with his democratic principles, would give the House a greater say in the election of the President. His motion to the effect is adopted. However, in this same session, Gouverneur Morris once again assails election by the legislature on familiar grounds and moves that the President be chosen by Electors to be chosen by the People of the several States.” Morris’s motion loses by a vote of six to five, but the narrowness of its defeat may be looked upon as marking a shift in thinking which set the stage for the final resolution of this issue, the main outlines of which were set forth in the report of the Committee of Eleven on 4 September that provided for the electoral college.
Wilson, for obvious reasons, saw great merit in the Committee ‘ s proposal for the election of the president by electors. He remarks that the matter of how to select the chief executive has been “in truth the most difficult on which we have had to decide” and that, for his part, “he had never made up an opinion on it entirely to his own satisfaction.” He goes on to remark that this plan not only clears the way “for a discussion of the question of reeligibility on its own merits,” but also “gets rid of one great evil, that of cabal and corruption.” However, as we might expect, he was highly displeased with the stipulation that the eventual selection of a president, if no candidate should receive a majority of electoral, would fall to the Senate. He states his firm view, consonant with his 24 August position, that this responsibility should devolve on the entire legislature and that the legislative choice be confined to fewer than five candidates as provided in the report.
On 6 September, he states his objections to the Senate’s role in a far more comprehensive fashion. He remarks that the power of electing a president, along with powers and functions already vested in relating to executive and judicial appointments, removal, and treaties, has “a dangerous tendency to aristocracy.” In this vein, he observes:
The power of making Treaties involves the case of subsidies, and here as an additional evil foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people as he ought to be, but the Minion of the Senate. He cannot even appoint a tide-waiter without the Senate…. the Senate sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves.
His sentiments, it would appear, were shared by others to the extent that the Convention amended the report to provide that election of the President would fall to the House, not the Senate, in case no candidate received a majority of electoral votes. However, he could hardly have been pleased with the provision that each state would vote as a unit in this process.
It should be remarked that Wilson’s commitment to the democratic principles of political equality and majority rule was certainly not confined to the discussions and debates surrounding the constitution of the major departments of the proposed system. In the debates on the age qualifications for members of the House (22 June), he sets forth his opposition to “abridging the rights of election in any shape. It was the same thing whether this were done by disqualifying the objects of choice, or the persons choosing.” To the specific motion before the Convention, he observes “many instances might be mentioned of signal service rendered in high stations to the public before the age of 25: The present Mr. Pitt and Lord Bolingbroke were striking instances.” In arguing for indefinite reeligibility of the chief executive he notes that the “capacity and inclination for public service existed – in very advanced stages of life.” “The popes,” he observes, “have generally been elected at very advanced periods, and yet in no case had a more steady or better concerted policy been pursued than in the Court of Rome.” And, though Wilson does not express his general views on liberal manhood suffrage in the Convention, he does, as we would expect, oppose (7 August) Gouverneur Morris’s motion to restrict the suffrage to freeholders.
His comments on both 7 and 8 September make it clear that he believed that the treaty-making process ought to be changed to simple majority votes in both chambers, rather than two-thirds of the Senate. His reasoning was twofold: The two-thirds requirement “put in the power of a minority to controul the will of a majority” and “treaties . . . to have the operation of laws . . . ought to have the sanction of laws also.”
Probably Wilson’s best and most comprehensive statement of his democratic convictions and their relationship to his broader theory of government and society comes on 13 July, when he responds to the fears of Gouverneur Morris that certain Southern states would exercise a control over the yet to be formed Western states to oppress the Eastern commercial interests. “Conceiving that all men wherever placed have equal rights and are equally entitled to confidence,” he declared that he did not view with “apprehension the period when a few States should contain the superior number of people. The majority of the people wherever found ought in all questions to govern the minority.” “Further,” he inquired, “if numbers be not a proper rule, why is not some better rule pointed out. No one has yet ventured to attempt it. Congresses have never been able to discover a better. No State as far as he had heard, has suggested any other.” He went on to say that “he could not agree that property was the sole or the primary object of government and society.” Rather, he subscribed to the position, clearly classical in nature, that “the cultivation and improvement of the human mind was the most noble object.” And he concluded by observing that “with respect to this end, as well as to other personal rights, numbers were surely the natural and precise measure of representation.”
The national principle
As we have seen, one of Wilson’s primary objectives – along with that of securing democratic foundations – was to provide for a national government as independent as possible from the state governments. Ideally speaking, it would seem, Wilson did not want the existence or the exercise of the powers of the national government to depend in any way on the state governments. For instance, we see very strong support for Madison’s plea (5 June) that the proposed Constitution rest, not on the ratification of the state legislatures, but rather “the supreme authority of the people themselves.” Indeed, on this matter, Wilson cautioned the Convention not to allow “a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States.” He makes it clear in this connection that he would rather have a “partial union,” one based on sound principles, rather than a complete union achieved by acceding to demands that ratification rest upon the assent of the state legislatures.
This same concern over the role of the states is evident on matters which, though less theoretically significant, were nevertheless highly crucial to the end which he sought. In this category, by way of illustration, would clearly fall his concern (22 June) that the “members of the national government” be paid by the national government, not by the states; a provision which he thought necessary to render them “as independent as possible of the State Governments in all respects.”
Wilson’s position regarding this need for independence is based on both political and theoretical considerations. Of the two, the political – whose foundations are most clearly seen in the debates over representation, particularly state representation in the second chamber – are the more prominent in the Convention debates. At a relatively early date (7 June), Wilson opposes selection for the upper house by state legislatures, noting only at this point that if one branch is elected by the people and the other by the legislatures, “the two branches will rest on different foundations, and dissensions will natural arise between them.” And, on 20 June, he amplifies on the nature of the dissension that will arise. Reciting the history of certain confederacies and recalling the experiences of Americans under the Articles, he notes the propensity of member states to obstruct measures in the “public interest.” He was convinced, moreover, that “a jealousy would exist between the State Legislatures and the General, Legislature” owing to the interests which attached to these bodies. “A private citizen of a state,” he observes, “is indifferent whether power be exercised by the General or State Legislatures, provided its being exercised for his happiness.” However, he continues, “his [state] Representative has an interest in its being exercised by the body to which he belongs.” For this reason, Wilson concluded, the state representative “will . . . view the National Legislature . . . with the eye of a jealous rival.” In sum, in his estimation, the main cleavages in the system would take the form of state versus national interest, wherein interest would generate from and attach to the institutions.
On 21 June, in responding to Doctor Johnson’s query on how a portion of state sovereignty might be preserved without “giving them [states] each a distinct and equal vote for the purposes of defending themselves in the general Councils,” we come upon another dimension of Wilson’s thought. If protection is to be afforded the states, he wonders aloud about mechanisms that will protect the national government from the states. From his perspective, the national government, not states, are in need of protection:
he saw no danger to the States from the General Government. In case a combination should be made by the large ones it would produce a general alarm among the rest; and the project would be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any proposition in the National Legislature to encroach on the State Legislatures, he conceived a general alarm would take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and would finally spread among the people at large . . . He could not discover, therefore, any danger whatever on the side from which it had been apprehended. On the contrary, he conceived that in spite of every precaution the general Government would be in perpetual danger from encroachments from the State Governments.
From this, we can see that he subscribed to Madison’s position that there were no essential differences between the large and small states, most certainly none which required institutional protection for the latter. Indeed, on 30 June, he disparages the arguments of the small states by referring to their concern about a combination of the three large states as “imaginary.” Rather than any such combination, he argues, “it would be easy to prove both from reason and history that rivalship would be more probable than coalitions.” In any event, he notes that “no answer has yet been given to [Madison’s] observations” that no real interest differences serve to separate the large from the small states.
Wilson’s theoretical reasons for seeking a new national system independent of states takes us back to his conception of the pyramid government he outlines on 31 May. On 25 June, he fills in elements of this outline. On this occasion he sets forth the idea of dual citizenship; that is, as he contemplated it, that there would be a “two-fold relation in which the people would stand: 1. as Citizens of the General Government; 2. as Citizens of their particular State.” Now, in opposing state representation, Wilson wants both governments, state and national, “to be derived from the people”; for both to have parallel lines of accountability to the people. “The same train of ideas which belonged to the relation of the Citizens to their State Governments were,” he argues, “applicable to their relation to the General Government and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of the State Governments.” By this line of analysis, he concluded that “with respect to the province and objects of the General Government they [the states] should be considered as having no existence”; that, in other words, the national government is not to be “an assemblage of States, but of individuals for certain political purposes.” As such, he maintained, “it is not meant for the States, but the individuals composing them.” He emphasizes this point again in his speech of 30 June, during the height of the debate over state equality in the Senate, when he asks rhetorically, “Can we forget for whom we are forming a Government? Is it for men, or for the imaginary being called States?”
However, his more general conception of union makes clear that, despite his fervent nationalism, he did not believe in the elimination of the states. This is a point which he emphasizes repeatedly at various points in the proceedings. Even in the 30 June speech with its reference to states as “imaginary beings,” he concludes by saying that states are “necessary and valuable parts of a good system.” On 6 June, he is quick to enter the fray in order to respond to what he understood to be Read’s contention that “the idea of preserving State Governments ought to be abandoned.” He holds that there is “no incompatibility” between the national and state governments, “provided that the latter were restrained to local purposes.” Then, in keeping with the general theme we have already examined, he perceives the problem, not as Read pictured it of the national government swallowing up the states, but rather of the general government “being destroyed gradually by the usurpations of the parts composing it.”
On 7 June, Wilson reaffirms his position with respect to the states, this time around to counter the intimation by Dickinson that he (Wilson) favored “extinguishing these planets [the states].” While “he did not believe they would warm or enlighten the Sun [central government],” he reasserts the proposition that “within their proper orbits they must still be suffered to act for subordinate purposes for which their existence is made essential by the great extent of our Country.” Again, on 19 June, in an apparent effort to disassociate himself from Hamilton’s plan, Wilson remarks that “by a National Government he did not mean one that would swallow up the State Governments.” On the contrary, he asserted, “he was tenacious of the idea of preserving” the state governments; that, in fact, “they were absolutely necessary for certain purposes which the former could not reach.”
Naturally, Wilson could see that the states would pose a threat to the uniform interpretation and application of national laws. Thus, he supported the ninth resolution of the Virginia Plan which provided for the establishment of “inferior tribunals.” However, at an early stage (5 June), this provision for inferior tribunals runs into difficulty, principally because, to cite Rutledge, “the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal” which was “sufficient to secure national rights and uniformity of Judgment.” Apparently there was strong sentiment that this provision represented an unwarranted encroachment upon state authority because, even after Madison points out the impracticality of depending upon state tribunals and the need for a national judiciary “commensurate to the legislative authority” (views which Wilson endorsed), Rutledge’s motion to strike it out carries by a vote of five to four with two states divided. However, Wilson and Madison are to pick up on the idea expressed by Dickinson in the course of this debate, namely, “that if there was to be a National Legislature, there ought to be a national judiciary, and that the former ought to have authority to institute the latter.” To this end, they move “that the National Legislature be empowered to institute inferior tribunals,” a motion which carries eight to two with one division. With this, at least, one essential element of a viable national government was agreed to.
On 18 July, after having approved Martin’s motion of 17 July providing for the supremacy of national laws passed “in pursuance of the Articles of Union” – a forerunner of the Supreme Law of the Land clause found in the final version – the Convention reaffirms its decision of 5 June to empower the national legislature “to appoint inferior tribunals.” These two decisions, taken together, obviously served to strengthen the hand of the national government vis-a-vis the states. Nevertheless, Wilson felt that the judiciary alone would not be able to cope with the centripetal forces fueled by the states that would inevitably arise in the new union. This is fully apparent from his comments on Pinckney’s motion (23 August) which reintroduced the idea of a national legislative veto on “all laws passed by the several States interfering in the opinion of the Legislature with the general interests and harmony of the Union.” This Wilson regarded as no less than “the key stone wanted to compleat the wide arch of Government.” While, he observes, “the power of self-defence has been urged as necessary for the State Governments . . . it was equally necessary for the General Government. But he felt the firmness of Judges is not of itself sufficient”; that “something further is requisite.”
His comments of 8 June, when the notion of a legislative vote is first discussed by the Convention, reveal another, though hardly surprising, dimension of his nationalist approach. After Gerry contended that such a provision could “enslave the States” and would “never be acceded to,” Sherman follows to urge that the Convention devote some thought to defining “the cases in which the negative ought to be exercised.” Wilson responds to this suggestion by drawing a parallel between the status of the states in the contemplated union and that of individuals who have entered a political society. In this vein, he reasons:
There is no instance in which the laws say that the individual should be found in one, and at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual person may happen as well as over the individual States. Federal liberty is to States, what civil liberty, is to private individuals. And States are no more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage to purchase civil liberty by the surrender of his personal sovereignty, which he enjoys in a State of nature.”
Thus, he held that “a definition of the cases in which the Negative should be exercised, is impracticable.” But he was firm in asserting that the power to decide should be vested in the national government. After noting that “a discretion must be left on one side or the other,” he asks rhetorically: “will it not be most safely lodged on the side of the National Government?” This question he answers towards the end of his presentation with still other rhetorical questions: “What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?”
That Wilson possessed certain general principles which ought to constitute a basis for determining an appropriate use of the national veto, and hence some idea of what ought to be the primary responsibilities of the states and national government, is evident from his support of Sherman’s motion on 17 July to change the sixth resolution of the plan under consideration to vest the national legislature with power “to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Government of such States only, and wherein the general welfare of the United States is not concerned.”
Yet, it is questionable that Wilson thought formulations such as that offered up by Sherman would or should matter much in resolving the question of state-national power relationships. The elements of Wilson’s answer to this problem, as well as the objectives he sought in this regard, are to be found in his more general principles. Although he never put these elements together at any one point in the Convention, the outline of his preferred answer seems clear: The majority of the people acting through the national legislature and in their capacities as citizens of the United States should be the final arbiters of the extent of states’ powers vis-a-visnational authority. In this sense, the system would be unitary. But this, according to Wilson’s line of thinking, should be no cause for alarm because there is no reason to suppose that individuals acting in their capacities as citizens of the United States would act contrary to their interests as citizens of their respective states. So much he seems to say in his answer to Doctor Johnson (21 June) who, as we have seen, feared that the national government would swallow up the states. According to Wilson this would simply not come about because “the General Government will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Government in possession of what the people wish them to retain.” (Emphasis added.) His solution, then, is procedural in nature, relying on the dual citizenship of the people.
The Separation of Powers
As we might well expect from our survey of Wilson’s political thought, particularly the views he expressed in his law lectures, the doctrine of the separation of powers, and the principles which he derives therefrom, are never very far from his thinking concerning the most important issues, and many lesser ones, that confronted the Convention. Many positions he took in the Convention were expressly related to the central requirement of the doctrine; namely, that the legislative, executive, and judicial powers be not joined. Yet, positions which he assumed on virtually all issues touching upon the organization of the system, the distribution of powers, and the rules under which it should operate were clearly conditioned by, and best explained in terms of, this requirement. Or, put another way, he was convinced that maintaining the separation of powers was imperative; that without a viable separation the system would soon degenerate into tyranny. Consequently, we must assume that the conditions necessary for maintaining separation between the branches were, whether articulated or not, uppermost in his mind.
Understanding this, we come to see why, early in the deliberations, Wilson voices misgivings with regard to the Virginia Plan. Quite simply, in his view, it did not adequately provide for maintaining the separation of powers. For instance, on the same day as his initial “pyramid” statement, 31 May, he criticizes the mode provided for election to the “second branch” of the legislature. His opposition to “nomination by State Legislatures” is, of course, best attributed to his nationalistic stance. But his objection to election by the lower house is grounded on his firm belief that the second branch ought to be, as he put it, “independent” of the first. Otherwise, he believed, the second chamber would lack the independence to pose a check on the lower branch, a condition that would lead to a concentration of powers in the hands of the lower house with an attendant loss of reflective deliberation, liberty, and the rule of law. Likewise, when speaking to the issue of the election of the executive on 1 June, he opposes state intervention in the process and calls for election by the people, while simultaneously arguing that the legislature and executive ought to be “as independent as possible of each other.” In this regard, as we have already noted, he was a staunch opponent of the legislature electing the executive in order to preserve the independence of the latter.
To understand thoroughly Wilson’s stance on these and related matters – e.g., why he believed “unity in the Executive” constituted “the best safeguard against tyranny” – requires an awareness of the nature of Wilson’s strategic approach to the problem of maintaining the separation of powers. This we see best at two places: first, in his comparison and appraisal of the New Jersey Plan (16 June); and second, in his comments on the prospects and nature of legislative tyranny on 15 August.
We gain considerable insight into the dimensions of his principle concerns relative to the separation of powers from his specific criticisms of the New Jersey Plan. After discussing what he regards to be its deficient foundation (“Congress as a Legislative body does not stand on the people”), he turns to his second major criticism, “Congress is a single Legislature.” On this score, he remarks:
Despotism comes on Mankind in different Shapes, sometimes in an Executive, sometimes in a Military, one. Is there no danger of a Legislative despotism? Theory and Practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can be only restrained by dividing it within itself, into distinct and independent branches. In a single House there is no check, but the inadequate one, of the virtue and good sense of those who compose it.
As we see, Wilson regarded bicameralism, with independent chambers, to be not only essential to prevent despotism, but for good government as well; themes, as we have seen, he expands upon in his later writings.
But bicameralism, he also makes clear in this analysis, is not all that is necessary to avoid tyranny. Another major deficiency of the New Jersey Plan, he holds, is its provision for plural executives. “In order to” controul the Legislative authority,” he argued, “you must divide it. Likewise, he believed that “to controul the executive you must unite it.” As we shall see, the unity he sought, beyond helping to provide for control of the executive, fit in very well with his more general strategy to fortify the executive so that he would be able to fend off attacks from the legislative body.
Wilson’s comments on 15 August are made in support of a complex motion by Madison (which Wilson seconded) to the effect that if both the executive and the judges of the Supreme Court should object to a measure passed by Congress, then both legislative chambers would have to repass the measure by a three-fourths vote for it to have the force of law; if only one disapproved – i.e., either the executive or the judges, not both – then a two-thirds vote would be necessary. In support of this motion he remarked that “after viewing the subject with all the coolness and attention possible [he] was most apprehensive of a dissolution of the Government from the legislature swallowing up all the other powers.” “The prejudices against the Executive,” he continued, result from a “misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, King and tyrant, were naturally associated in the minds of the people; not legislature and tyranny.” Yet, he noted, “where the Executive was not formidable, the two last were the most properly associated.” In this connection, “he insisted that we had not guarded against the danger on this side [legislative] by a self-sufficient power either to the Executive or Judiciary department.”
Wilson’s fear of the legislature, we may say, leads to a strategy for maintaining the separation between the departments which comes down to weakening the strong (the legislature) and strengthening the weak (the executive and judiciary). While we see that his tactics – i.e., his specific proposals to achieve this condition – do vary, his strategy remains constant throughout. On 4 June, for example, we find him advancing the position that the “Executive ought to have an absolute veto.” “Without such a self-defense,” he argued, “the Legislature can at any moment sink it into non-existence.” In answering Sherman’s objection that such a negative would allow “one man to stop the will of the whole” and that “no man could be found so far above all the rest in wisdom” that he should be empowered “to overrule the decided and cool opinions of the majority,” Wilson responds by saying that the negative “would seldom be used.” Its mere existence, he argued, would cause the legislature to resist passing measures that would occasion its use. And, while anything less than an absolute veto, such as providing for override by extra-majorities in the legislature, “might do in peaceable times,” he warned that “there might be tempestuous moments in which animosities may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself.”
In defending the absolute executive veto on 4 June, Wilson also acknowledges that he “was for varying the proposition in such a manner as to give the Executive and Judiciary jointly an absolute negative.” Along with Madison he was a staunch advocate of the Council of Revision which would have provided a union of executive and the judiciary in the exercise of the veto power. From his brief remarks on his motion of 6 June to unite the judiciary with the executive in the exercise of the veto power, we can see that he shared Madison’s view that such a union would add to executive firmness and help to insure that the veto would be employed when necessary to fend off an aggrandizing legislature. While this motion loses badly (8 to 3), convinced of “its utility,” he again moves on 21 July that the “supreme National Judiciary should be associated with the Executive in the Revisionary power.” This time around he emphasizes the beneficial role the judiciary can assume under such an arrangement, indicating, as he proceeds, his belief that the courts possessed the power of judicial review:
The Judiciary ought to have an opportunity of remonstrating against projected encroachments on the people as well as themselves. It had been said that the judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, maybe destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.
While Wilson leaves it to others, principally Madison, Mason, and Gouverneur Morris, to defend this proposal, he does attempt to answer the charge that such a union would represent a blending of powers contrary to the spirit of the separation of powers doctrine. In speaking to Wilson’s motion, Gerry argues that “he would rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary and Legislative departments. It will bind them together in an offensive and defensive alliance against the Legislature, and render the latter unwilling to enter into a contest with them.” To this Wilson responds simply that it was “obvious … that the joint weight of the two departments was necessary to balance the single weight of the Legislature.” At another level, Wilson tacitly acknowledges the merit of Ghorum’s charge that the “Judges ought to carry into the exposition of the laws no prepossessions with regard to them,” an impartiality that might be impaired if they were part of the revisionary process, by answering that “the evil would be overbalanced by the advantages promised by the expedient.” Such was his fear of legislative aggrandizement which could bring about a collapse of the separation of powers.
From the outset, and in keeping with the principles of his overall strategy, Wilson opposed appointment of judicial and executive officers by the legislature. On 5 June, he expresses his displeasure with the provision of the Virginia Plan to the effect “that the National Judiciary be chosen by the National Legislature.” “Experience shewed,” he argued, “the impropriety of such appointment by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences.” “A principle reason for unity in the Executive,” he went on, “was that officers might be appointed by a single, responsible person.” Again on 18 July, he voices his opposition to the provision that the second chamber of the legislature appoint judges and moves that “the Judges be appointed by the Executive.” This motion loses badly (6-2). On 23 August, he associates himself fully with the position and reasoning of Gouverneur Morris in opposition to “appointment of officers by the Senate.” Here Morris stresses that “the body is too numerous for the purpose; as subject to cabal; and as devoid of responsibility.” Further, he points out that “if judges were to be tried by the Senate . . . it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.” Wilson even objects (7 September) to the final disposition of this matter which, by way of a compromise, allowed for nomination by the president and confirmation by the Senate. He held this to be a “blending [of] a branch of the Legislature with the Executive.” Moreover, he observed: “Good laws are of no effect without a good Executive; and there can be no good executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate.” This stance was consistent with his views expressed on 6 September, which we have already examined, concerning the “aristocratic” potentialities of the Senate.
The Constitution from Wilson’s Perspective
By stepping back, so to speak, and looking at the Virginia Plan from Wilson’s perspective, we can make some assessment of the degree to which the final product embodies his theoretical principles. For instance, we see at once that Wilson had to look upon the popular base of the national government provided by the Virginia Plan as too narrow, at least for the pyramid he had in mind. Moreover, we know that he felt the Plan violated certain basic principles of the separation of powers doctrine by making all branches dependent to varying degrees on the lower house. From his perspective, these would seem to be the two major drawbacks. On the other hand, the chief ‘plus’ in the Plan was that it embodied the national principle with respect to both its powers and structure.
Clearly, from Wilson’s point of view, there were some very serious setbacks. The most serious of these, as we have seen, resulted from the intrusion of the confederal principle; that is, from the compromises that had to be made with those concerned about the preservation of state sovereignty. On this count, the biggest blow to Wilson surely was the Great Compromise which, from his perspective, was not really a compromise at all. Indeed, it violated both his national and democratic principles. However, one positive result of the compromise was to insure, and this in keeping with his most basic principles, that the upper chamber would not be dependent on the lower. From this vantage point, then, it was not a complete disaster.
What is more, two other considerations, somewhat interrelated, rendered this compromise far less objectionable in practice than in theory. First, Wilson and his supporters could not come up with any viable scheme for proportional representation in the Senate. This we may surmise is one reason why the large state delegations could not find common ground in opposing the compromise. Second, on Wilson’s own showing, there was no reason to suppose that on issues apart from those involving state interest, as such, there would be any grounds for conflict or deadlock between the small and large states. While Wilson could make the abstract case that the compromise would allow a small minority to control the majority, there was no a priori reason to believe that such would occur in practice.
There were other major gains and losses from Wilson’s vantage point. The confederal principle again came into play in the election of the president. Clearly, however, this particular minus was more than offset by the mode of election which corresponded very closely with his initial suggestion and carried with it the full potential for a democratically based chief executive. Not only did this mode of election promise to broaden the base of the pyramid, it also avoided the major difficulties associated with the election of the president by the legislature – difficulties which arose from the separation of powers principle. In sum, while he could find theoretical grounds on which to fault the final resolution of this very difficult issue, if viewed as a whole, he had good reason to be pleased.
We know, to view the final product from another angle, that Wilson could not have been entirely pleased with the ‘balance’ between the branches grafted into the Constitution. However, on this matter, his specific views seemed to be dictated more from the experience of the states than from theoretical principles. Put otherwise, his view that the executive needed more protection against legislative encroachment than was provided by the qualified veto clearly could not be derived from theory independent of observation and experience. However, in saying this, we should not overlook the extent to which Wilson did get his way, albeit with a mixing of the confederal principle, in insuring the independence of the branches. While, that is, he lost out on the matter of a union of the executive and judiciary in the so-called revisionary function, he could hardly be displeased that their dependence on the legislative branch, built into the Virginia Plan, had been eliminated.
We can say essentially the same thing with regard to the national principle. He did lose out in his proposals for a national negative on state legislation. Yet, one wonders if he was not on the whole fairly satisfied with the final product in light of his conception of the union and its foundations. Revealing in this regard are his observations in the Pennsylvania ratifying convention debates which would indicate that he had expanded upon the ideas embodied in his concept of “dual citizenship.” Here, in response to the notion that “the supreme power resides in the states, as governments,” he maintained:
it [supreme power] resides in the people, as the fountain of government; that the people have not – that the people meant not – to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.
As he makes clear in his remarks later, the people to whom he refers are “We, the people” of the Preamble; that is, the people collectively, not the people of each state taken separately. Moreover, he takes pains to deny the Antifederalist charge that the Constitution is based on the consent of the states. In so doing, Wilson conceives of the Constitution as a national supremacy document; that is, more exactly, as one which will permit the people in their capacities as national citizens – i.e., through the national government – to adjust the relationships between the states and national government in a manner most conducive to their happiness and well being.
In short, what an extended analysis along the lines suggested here would show is that Wilson was quite candid in his famous Statehouse speech of 6 October, designed to answer the major charges against the proposed Constitution. On this occasion, he openly acknowledged that he was not “a blind admirer of this plan of government, and that there are some parts of it which . . . would certainly have been altered” if he had had his way. Nevertheless, he goes on to remark, “but, when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every State) has an equal pretension to assert his own, I am satisfied that anything nearer to perfection could not have been accomplished.” On balance, it constituted a sufficiently sound “pyramid of government” that he could enthusiastically work for its adoption.
Books mentioned in this essay may be found in The Imaginative Conservative Bookstore. This essay appeared in the Political Science Reviewer (Fall 1987) and is reprinted with the gracious permission of the author.
1. Robert G. McCloskey put the matter this way: “The truth is that posterity’s neglect of Wilson is nothing short of astonishing when it is measured against his claims to be remembered.” “Introduction” in Robert G. McCloskey, ed., The Works of James Wilson, 2 vols. (Cambridge: Harvard University Press, 1956), 2. All subsequent parenthetical citations in the text are to these volumes; the volume number is followed by the page number.
Andrew C. McLaughlin offers this assessment of Wilson’s contribution to the Constitutional Convention: The work of James Wilson as a framer of the constitution seems not to have received its just recognition . . . While it is true, indeed, that historians have given him passing commendation, his name has generally been linked with names of other men far less deserving; and this argues lack of full appreciation. We are asked, for example, to admire the work of Gerry and Sherman and Franklin and Robert Morris and Dickinson and Randolph and Mason. Yet some of these men contributed little to the results of the convention; while other of them were at times obstacles in the way to a reasonable conclusion or advocates of the sheerest folly. If Wilson’s work be closely examined, its greatness and worth will appear, and will place him above all but one or two men of the convention. Perhaps Madison alone can be called his equal in judgment and far-sighted wisdom. Certainly Wilson was one of the four men who bore the burden in the heat of the day – who fought with desperate and magnificent energy in the greatest controversy of the convention. But for Madison, King, Gouverneur Morris and Wilson, narrow, selfish particularism might have won the victory in the long battle that was waged between the friends of nationalism on the one hand, and those of contracted localism on the other.” “James Wilson in the Philadelphia Convention,” 12 Political Science Quarterly (March, 1897), 1-2.
The importance of Wilson and his neglect is a theme common to virtually all those who have examined his political thinking. See, for example, Ralph Rossum, “James Wilson and the ‘Pyramid of Government’: The Federal Republic,” 6 Political Science Reviewer (Fall, 1976); Randolph G. Adams, “Introduction” to Selected Political Essays of James Wilson (New York: Alfred A. Knopf, 1930) and Geoffrey Seed, James Wilson (Millwood, N.Y.: KTO Press, 1978).
2. We may surmise that one of the reasons Wilson has not been accorded the status which seems his due is that he was an inveterate land speculator, who, after his fortunes took a disastrous turn, spent the last years of his life fleeing his creditors.
3. As M.E. Bradford, no friend of Wilson’s nationalist position, writes: “Wilson was almost unique among the Framers in reasoning from a systematic philosophical position, resting on a general metaphysic, in recommending that particular provisions be included in the proposed . . . Constitution.” Bradford describes Wilson as a “Metaphysical progressive” and “a philosophe of democracy.” A Worthy Company(Marlborough, New Hampshire: Plymouth Rock Foundation, 1982), 84.
4. John Roche, “The Founding Fathers: A Reform Caucus in Action,” 56 American Political Science Review(March, 1962). According to Roche, the Framers were “an extremely talented” collection of “democratic politicians” whose final product was not “a triumph of architectonic genius” but instead “a patchwork sewn together under the pressure of both time and events” (814).
5. Some of these lectures, thirty-five in all and in various stages of completion, were delivered at the College of Philadelphia (now the University of Pennsylvania) in the winter of 1790-91. Business and his duties on the Supreme Court kept him from continuing with the lectures at the college during the subsequent winter and from putting some of them into final form. However, they do comprise the bulk of Wilson’s written work that we possess. The lectures range in subject matter and scope. Several deal with the nature and types of crime; others with the “constituent parts of the courts” such as judges, juries, attorneys, their functions and duties; and still others deal with broader matters of political theory such as the nature of society, the natural law, and the characteristics of good government. Obviously, the lectures in this latter category are the most relevant to this undertaking.
6. There is ample justification for this retrospective approach. In the first place, Wilson was a consistent theorist; that is, at a relatively early age he had already formulated the assumptions from which he was to reason in the political sphere. This is evident from his writings and utterances prior to the Constitutional Convention and, afterwards, in his role as the chief architect of the Pennsylvania Constitution of 1790. Moreover, there is nothing in his law lectures which would contravene the positions he took at Philadelphia. On the contrary, what we find at many places is a full and complete explanation of why he adopted the position he did. To be sure, he does not put the matter precisely this way. Yet, frequently we find him repeating arguments he had presented in the Convention in more elaborate form and even presenting new arguments which could be used to support the position he took on key issues.
7. The leading biography of Wilson is Charles Page Smith’s James Wilson: Founding Father, 1742-1798 (Chapel Hill, N.C.: University of North Carolina Press, 1956). Seed’s James Wilson is a useful account of his political thought and activity during his mature years.
8. In this connection, Wilson looked upon common law as “one of the noblest births of time . . . the wisest of laws” because it was the product of collective reason over time (I, 334). It embodied “human reason” understood “as the knowledge, and experience, and information of many [men], arising from lights mutually and successively communicated and improved” (I,358).
9. It seems clear that Wilson’s thought, in important particulars, parallels that of the “judicious and excellent” Hooker (I, 123).
10. On this point, we cannot help but perceive a significant difference between Wilson and Madison concerning the benefits to be derived from an extended republic such as that envisioned under the proposed Constitution. Madison looked upon its chief advantage as controlling the effects of majority factions. Wilson, however, as we see from these passages, looked upon an extended society as benefitting its members in a variety of ways.
11. Wilson is not very precise about the nature of the evolution from natural society to civil society with a fully developed government. We can say that civil society with government commences when the people have consciously consented to form a government for purposes to which they also consent. The natural society ceases when a people, recognizing common purposes and interests, consent to become one. But the character of the in-between stage, i.e., civil society, is not described by Wilson in any detail.
12. Regarding this relationship Wilson wrote: “On the Constitution will depend the beneficence, the wisdom, and the energy, the folly, and the weakness of government and laws. On the good or bad qualities of government and laws, will depend the prosperity or decline of the state. On the same good or bad qualities will depend, on the other hand, the excellence and happiness, or on the other, the depravity and infelicity of the citizens” (I, 306). For an extended treatment of this relationship see: Ralph A. Rossum, “Civic Virtue and Republican Government: The Importance of Character in the Political Thought of James Wilson,” a paper prepared for delivery at the Claremont Institute’s Bicentennial Conference. Claremont McKenna College, February 20-22, 1986.
13. In this regard it should be remarked that when the occasion presented itself Wilson never failed to fault Blackstone’s definition of the law as “dangerous and unsound.” Law, according to Blackstone, was a “rule of action prescribed by some superior, and which the inferior is bound to obey.” But Wilson’s conception of equality simply ruled out the possibility of “superiors” and “inferiors.” For him, the law rested upon popular consent given by equals (I, 103).
14. In the last paragraph Wilson writes: “The connexion and harmony between Great Britain and us, which it is her interest and ours mutually to cultivate, and on which her prosperity, as well as ours, so materially depends, will be better preserved by the operation of the legal prerogatives of the crown, than by the exertion of the unlimited authority by parliament” (II, 745). In setting forth this relationship, Wilson established what was to become in the nineteenth century the framework for the British Commonwealth.
15. To this point he writes: The opinion has been very general; that, in order to obtain the blessings of good government, a sacrifice must be made of a part of our natural liberty. I am inclined to believe, that, upon examination, this opinion will prove to be fallacious: It will, I think, be found, that wise and good government instead of contracting, enlarges as well as secures the exercise of the natural liberty of man: and what I say of his natural liberty, I mean to extend … to all his other natural rights” (II 586-87).
16. Without the right to emigrate freely, Wilson pointed out, “residence” cannot be taken as “reasonable evidence of . . .”consent to the formation, the constitution, the government, or the laws of the state (I, 246).
17. The strength of his conviction and language are no doubt due to the Pennsylvania experience with plural executives under the Constitution of 1776.
18. Interesting in this connection is Wilson’s argument advanced in 1785 that Congress under the Articles possessed inherent powers. “The act of independence was made before the articles of confederation. This act declares, that ‘these United colonies,’ (not enumerating them separately) are free and independent states, they have full power to do all acts and things independent states may, of right, do.
“The Confederation was not intended to weaken or abridge the power and rights, to which the United States were previously entitled. It was not intended to transfer any of those powers or rights to the particular states, or any of them. If, therefore, the power now in question [to incorporate a national bank] was vested in the United States before the confederation; it continues vested in them still. The confederation clothed the United States with many though, perhaps, not with sufficient powers; but none did it disrobe them” (II 829-30).
19. This view, of course, stood in sharp contrast to those who viewed the nation in terms of a confederation of sovereign states. Indeed, there were those who shared Sherman’s view, diametrically opposed to Wilson’s, that the states actually did constitute societies. At least so much seems clear from the context of Sherman’s remark on 20 June: “Each State like an individual had its peculiar habit, usages and manner, which constituted its happiness. It would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it.”
20. It is interesting to note that Doctor Johnson, on 29 June at the height of the controversy between the small and large states over the composition of the upper chamber, pictured their basic difference as stemming from different conceptions of the nature of the political union. “The controversy must be endless whilst Gentlemen differ in the grounds of their argument; Those on one side considering the States as districts of people composing one political Society; those on the other considering them as so many political societies.”
21. Davie puts the issue bluntly on 30 June. He believes the “Report of the Committee allowing the Legislature to choose the Senate, and establishing proportional representation in it … to be impracticable.” He puts the minimum number this would require at ninety. Moreover, in commenting on “appointment of the Senate by electors chosen by the people,” he raises the same objections as Madison; namely, “the larger Counties or districts thrown into a general district, would certainly prevail over the small Counties or districts, and merit in the latter would be excluded altogether.”
22. In this connection, it should be noted that on 2 July Wilson speaks against committing the issue of representation in the Senate to a committee as proposed because, he argued, “it [the committee] would decide according to that very rule of voting which was opposed on one side.”
23. Wilson adamantly opposed (14 August) a provision which would have made members of the national legislature ineligible for national offices on grounds that this would violate the principles of good government. “To render its [national legislative] members ineligible to National offices” would, he argued, “take away its powers of attracting those talents which were necessary to give weight to the government and to render it useful to the people. He was far from thinking the ambition which aspired to Offices of dignity and trust, an ignoble or culpable one. He was sure it was not politic to regard it in that light, or withhold from it the prospect of those rewards, which might engage in the career of public service.”
24. His remarks on 9 June are interesting in this respect. Here he maintains that “a new partition of the States is desireable.” We can view this remark in light of his concern to base Senate representation on the principle of proportionality. But we can also infer that he would like to redraw state boundaries to secure better administration. And the question arises, in what sense did Wilson think of the states as being indispensible to union? It does seem clear that he thought they would have to play a role in administration because of the extensiveness of the republic. Thus, for instance, his response on 19 June to Hamilton’s Plan: “They [the states] were absolutely necessary for certain purposes which the former [national government] could not reach. All large Governments must be subdivided into lesser jurisdictions.”
25. Hamilton is to correct this impression immediately after Wilson s comments and in so doing blurs whatever differences there might have been between them on the role of the states. Hamilton contended that “he had not been understood [correctly] yesterday. By an abolition of the States, he meant that no boundary could be drawn between the National and State Legislatures; that the former must therefore have indefinite authority. If it were limited at all, the rivalship of the States would gradually subvert it.”
26. This analogy, of course, can be viewed as weakening his “one society” position because it places the states in the position of contracting parties to the Constitution. However, the point he seems intent on making through the use of this analogy is that it would be impossible to draw, a priori at least, clear lines of jurisdiction between the contemplated national government and the states. Moreover, the analogy would seem to be appropriate for the conditions which he perceives under the Articles – principally the conflict and dissension between the states – which are to be alleviated through the proposed Constitution.
27. Thus, to secure the representation of state interest did not, to Wilson’s way of thinking, require state equality in the upper chamber. Nor, indeed, was it necessary to make states constituent parts of the national government for this purpose. However, once state equality was granted, then, from Wilson’s point of view, the states surely would have no basis to question the propriety of national legislation.
28. Wilson, we should take care to recall, did not look upon the separation of powers as a means or device for curbing or controlling popular majorities. He looked upon separation as a means of controlling the rulers from abusing or oppressing the ruled. Thus, his advocacy of the separation of powers did not conflict with his democratic principles.
Wilson also believed that good government could be secured through a separation of powers. Consequently, he could look upon the double representation of the people in a second chamber, not only as a way to curb the members of the lower chamber from betraying their trust, but also as a means of refining the laws passed by the lower chamber.
29. Wilson never did regard the provision of the Connecticut Compromise which provided that “all bills for raising or appropriating money” should originate in the House to be any concession at all to the interests of the larger states. On 6 July, for instance, he comments that “if both branches are to say yes or no, it was of little consequence which should say yes or no first, which last.” Indeed, he did not believe it would serve the purpose of good government: “if either [chamber] was indiscriminately to have the right of originating, the reverse of the Report, would he thought be most proper; since it was a maxim that the least numerous body was fittest for deliberation; the most numerous for decision.”
30. Luther Martin, among others, is to make this point on 28 June by turning the argument of Wilson and Madison around. Martin reasoned, “if the large States have the same interest with the smaller as was urged, there could be no danger in giving them an equal vote; they would not injure themselves, and they could not injure the large ones on the supposition without injuring themselves.” And on 30 June, Ellsworth argues that “no salutary measure has been lost [under the Articles] for want of a majority of the States, to favor it.”
31. John B. McMaster and Fredrick D. Stone, Pennsylvania and the Federal Constitution, 1787-88(Lancaster, Pennsylvania: The Historical Society of Pennsylvania, 1888), 316.
32. Ibid., 383.
33. So much, at least, seems clear from his 24 November speech to the Pennsylvania ratifying convention. “After all, it will be necessary that, on a subject so peculiarly delicate as this [the respective sphere of state and national authority], much prudence, much candor, much moderation, and much liberality, should be exercised and displayed both by the federal government and by the governments of the several states. It is to be hoped that those virtues in government will be exercised and displayed, when we consider that the powers of the federal government and those of the state government are drawn from sources equally pure. If a difference can be discovered between them, it is in favor of the federal government, because that government is founded on a representation of the whole Union; whereas the government of any particular state is founded only on the representation of a part, inconsiderable when compared with the whole. Is it not more reasonable to suppose that the counsels of the whole will embrace the interest of every part, than that the counsels of any part will embrace the interests of the whole?” Jonathan Elliot, Debates on the Adoption of the Federal Constitution, 5 vols. (Philadelphia: J.B. Lippincott Co., 1836-45); II, 425.
34. McMaster and Stone, 149.