Thursday, February 02, 2023

The Man Who Wrote "We the People"

John Mikhail

For the Balkinization 20th Anniversary Symposium

Sometime during the last week of July or the first week of August, 1787, a 44-year-old immigrant sat down at his desk, began jotting down ideas for a preamble to a new constitution, and crafted a statement that changed the course of history: “We the People…do…ordain and establish…the Constitution.” The author played with different language, wrestling with details such as what the new government should be called and where its name should first appear in his draft.  Each subsequent version of his preamble, however, began with the same three words—“We the People”—indicating that the new system rested on popular sovereignty.

The Constitution of the United States has been called the world’s most important legal document. While that might be a stretch, there is no doubt that its influence has been enormous. Today, 235 years after it was framed and ratified, it still governs a diverse nation of over 330 million people. Dozens of countries around the world have modeled their constitutions on the U.S Constitution. The clearest signs are their preambles, boldly affirming the principle of self-government. “We the People of the United States” has become “We the People of Afghanistan,” “We, the People of Albania,” “We, the people of Angola,” “We, the people of Bangladesh,” “We, the Bolivian people”—and so on, for a dazzling variety of nations, large and small.  Even the Charter of the United Nations follows the same pattern: “We the Peoples of the United Nations….”

Who wrote these majestic opening words of the Constitution? That man was James Wilson, a “founding father” so integral to the creation of the United States that his relative neglect by historians and constitutional theorists is nothing less than astonishing. The story of Wilson’s life is as remarkable as that of any other founder because of his humble origins, his status as “another immigrant coming up from the bottom,” his seminal contributions to the American Revolution, his pivotal support for the Declaration of Independence, his dedicated service on the first Supreme Court, and, above all, his unrivaled influence on the drafting and ratification of the Constitution. Yet many scholars hardly know him, and most Americans have never heard of him.

Wilson is the only person in American history to sign both the Declaration of Independence and the Constitution and to serve on the Supreme Court. His 1774 pamphlet attacking the authority of Parliament inspired crucial passages in the Declaration of Independence, including its famous passage on self-evident truths and its final paragraph vesting prerogative powers in the United States. At the constitutional convention, Wilson was the chief architect of the Presidency and one of two principal draftsmen of the Constitution. He wrote the first complete draft of the Constitution, and in that capacity, he was responsible for crafting dozens of its most significant clauses, including the Vesting Clauses, the Necessary and Proper Clause, the Take Care Clause, and the Supremacy Clause—all of which play critical roles in modern constitutional litigation. During ratification, Wilson’s public defense of the Constitution formed “the basis of all Federalist thinking” (Gordon Wood), and many of his ideas later appeared in The Federalist and other ratification literature without attribution. In 1789, George Washington nominated Wilson to be one the first Justices of the Supreme Court, a position he held until his death in 1798. During his tenure on the Court, Wilson wrote several landmark opinions, including one (Hayburn’s Case) affirming the power of judicial review and another (Chisholm v. Georgia) defending American nationalism and popular sovereignty. In addition, Wilson was one of the main authors of the 1790 Pennsylvania constitution—another surprisingly neglected fact about him, which bears on Moore v. Harper and other recent election law controversies (more on this below).

For the past several years, I have been working on a book on Wilson, tentatively titled The Man Who Wrote ‘We the People’: James Wilson and the Creation of the United States. There is a reason why there is no definitive scholarly biography of Wilson and why producing one is such a slow process. Unlike better-known founders, there is no published edition of Wilson’s papers. The relatively easy manner in which detailed studies of them can be written thus cannot be replicated with him. Furthermore, Wilson’s surviving papers at the Historical Society of Pennsylvania and other institutions are incomplete and contain significant gaps. Crucial information about him is located only in various archives throughout the United States and other parts of the world.

Many scholars have tried and failed to write an authoritative biography of Wilson. The first was Swarthmore’s Burton Alva Konkle, who passed away in 1944 before his Life and Times of James Wilson could make it to press. In 1967, Harvard’s Robert Green McCloskey took a major step forward when he published a new edition of The Works of James Wilson (first published in 1804 by Wilson’s son, Bird Wilson), along with a lengthy introduction, bibliographical essay, and detailed index. McCloskey seemed poised to add a new book on Wilson to his widely read scholarship on American political history, but he died prematurely in 1969, cutting short a brilliant career. More recently, Pulitzer Prize-winning historian Garry Wills planned a book on Wilson and spent several years researching it, but he abandoned the project, perhaps because of the difficulties involved in collecting and transcribing all the necessary resources. To date, only a handful of books about Wilson have been published. The best biography is still Charles Page Smith’s James Wilson: Founding Father, 1742-1798, a dull, plodding account published in 1956. Smith’s book contains valuable information, but it has many flaws and badly needs updating.

I am not alone in thinking that Wilson deserves more attention. Danielle Allen, Akhil Amar, Randy Barnett, Charles Barzun, William Ewald, Jonathan Gienapp, Mark David Hall, Aaron Knapp, Maeva Marcus, Michael McConnell, Eric Nelson, Nicholas Pedersen, Emily Sneff, William Treanor, Derek Webb, Jesse Wegman, and John Witt are among those who have written extensively on Wilson, or who are writing books on him or in which he plays a major role. Collectively, these and other authors are contributing to what may eventually become a Wilson renaissance. But would a better understanding of Wilson and his influence on the Constitution make any difference for constitutional theory? This symposium offers a valuable opportunity to reflect on this question. Without purporting to be definitive—and in a spirit of gratitude and appreciation for Jack Balkin and Balkinization on its 20th anniversary—here are a few provisional answers. 

Article II and the Separation of Powers

Consider first presidential powers, and the whole area of separation of powers generally. No founder played a bigger role in shaping the design of the American presidency than Wilson. George Washington made the blueprint come alive, of course, and both Washington and Robert Morris probably exerted substantial influence “off stage” in Philadelphia. Yet as far as one can tell from the available records, the basic contours of the office were primarily shaped by Wilson, with noteworthy assists from John Rutledge, Edmund Randolph, Gouverneur Morris, and a few others. James Madison gave hardly any attention to the national executive before the convention, but as Bill Ewald has observed, Wilson came prepared to argue from the very start for “a single President, elected for a relatively short term, eligible for re-election, wielding a veto power, and enjoying authority independently both of Congress and of the legislatures of the states”—in short, for the very structure of the office that actually emerged from the proceedings. Notably, Wilson also proposed direct popular election of the President, followed by a less direct electoral college system as a fallback measure only when his initial proposal was coolly received. As Michael McConnell has explained, Wilson was also primarily responsible, along with Rutledge, for dividing the royal prerogatives between Congress and the President, hence for the specific enumeration of executive powers in Article II. The most significant contemporary debates about presidential powers turn on the Vesting Clause and Take Care Clause, for example, both of which were primarily Wilson’s handiwork. Finally, Wilson’s bold motion that the national executive power be vested in a single individual and his statement that “Unity in the Executive instead of being the fetus of Monarchy would be the best safeguard against tyranny” are among the clearest origins of the so-called “Unitary Executive Theory.”

All of these factors make Wilson’s ideas about the nature and scope of presidential powers of paramount importance. Yet Wilson also was one of the principal architects of the enumerated powers scheme of Article I and the jurisdictional grants of Article III, and the primary author of the single most important clause for discerning the relationships among Congress, the President, and the federal judiciary: the Necessary and Proper Clause.  And a truly surprising feature of the enormous literature on the separation of powers is how little attention has been paid to this unusual confluence of facts about the drafting history. Countless books, articles, and judicial opinions tell us what “the framers” believed or assumed about these design features of the Constitution, or about their supposedly “Madisonian” character, without ever making any serious contact with the mind of the man who actually crafted these provisions for the Committee of Detail. The Necessary and Proper Clause, in particular, gets remarkably short shrift in many influential accounts of implied executive powers, the non-delegation doctrine, the major questions doctrine, and similar topics. Indeed, one often encounters confident assertions in this literature that one suspects would have made little sense to Wilson—for example, that Congress is forbidden from delegating its powers, or that the Government of the United States has no constitutional powers in its own right, apart from the powers vested in its various departments and officers. And the significant horizontal influence that Congress possesses over the President and every other officer and department of the federal government often slips from view.

The Independent State Legislature Theory

In light of current events, another pertinent topic is the Elections Clause. Its crucial word, generating the challenge in Moore v. Harper and other recent election law disputes, is “Legislature.” Who incorporated this word into the Elections Clause and vested state legislatures with authority over the “Times, Places, and Manner” of federal elections, subject to override by Congress? Once again, it was Wilson—a fact curiously underappreciated in the vast amount written about a case that has been called “the most important case for American democracy in the almost two and a half centuries since America’s founding.” Wilson was one of the period’s biggest champions of judicial authority, after all, along with democratic elections. As McCloskey emphasized half a century ago, he also was the only prominent founder to embrace the underlying principle of “one person, one vote” on which the Warren Court relied in Wesberry v. Sanders and Reynolds v. Sims.

So would Wilson have embraced the independent state legislature theory? In a word: No. In fact, he is about the last member of the founding generation who would have endorsed the concept of an “independent” state legislature. Wilson favored capable legislatures, to be sure, but he consistently advocated judicial review at both the state and federal levels. Between 1776 and 1790, he led the movement to impose more checks on the Pennsylvania legislature than existed in the state’s 1776 constitution. These efforts culminated in a “counter-revolution in Pennsylvania” and the adoption of a new state constitution in 1790. Wilson was a primary architect of that constitution—one of the only framers to play this leading role at the state level after drafting the federal Constitution—and almost certainly the author of its “free and equal” elections provision, which soon migrated elsewhere and now appears in some form in about one third of all state constitutions. The newly popular tendency to denigrate state constitutional provisions like this one and declare them judicially unmanageable in favor of the Elections Clause would likely have amused Wilson, since he drafted both provisions.

More importantly, the best evidence we possess affords little reason to doubt that Wilson would have repudiated the independent state legislature theory. Like virtually all the founders, he believed that legislatures were invariably limited by their constitutional mandate. In his last known publication, a 1797 letter to Congress, Wilson reinforced just this point by amplifying Justice William Paterson’s opinion in Vanhorne’s Lessee v. Dorrance. Quoting Paterson, Wilson wrote:

What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land. It is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.

What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution. It is their commission, and, therefore, all their acts must be conformable to it, or else they will be void. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is absolutely void (emphasis on “Constitution” and “void” added by Wilson).

These are the convictions of the man who actually drafted the Elections Clause. Significantly, they echo prominent criticisms of the independent state legislature theory almost word-for-word. Any lingering doubts about the dubious originalist credentials of this theory should have been dispelled by now (see, e.g., here, here, here, and here), but perhaps a closer familiarity with Wilson and his firm belief in the importance of constitutional limits on state legislatures can serve as another nail in the coffin—assuming the Supreme Court wants to maintain any credibility at all on this issue.

Who are We the People?

            Consider finally the Preamble itself. No three words are more important in shaping Americans’ views about the Constitution than “We the People.” The phrase is endlessly engaging because of its implications for popular sovereignty, democracy, equality, and inclusion. Yet did the framers believe that women, Black people, indigenous people, or immigrants were part of We the People? This question tends to undercut faith in the Constitution, and the “smart” answer to it, which sophisticated people are supposed to know, is: No, of course not. A corrosive pessimism about the Constitution thus shapes many constitutional theories right from the start.

Suppose, however, one asks a more specific question: Did the man who actually wrote “We the People” believe that women, Black people, indigenous people, and immigrants were included in that phrase? For example, would its author have celebrated the fact that 70 years later, Frederick Douglass would stand in front of an abolition society and offer this gloss on the multiracial, gender-neutral, and other progressive implications of the Preamble?

“We, the people”—not we, the white people—not we, the citizens, or the legal voters—not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people—the men and women, the human inhabitants of the United States, do ordain and establish this Constitution….

For over two decades, I have been reflecting on this question and how significant it seems to be. Without pretending to do justice to this topic, here I will simply note some of the reasons why, although the evidence is not unequivocal, it leans in favor of Douglass’s interpretation.

To begin with, Wilson was a child of the Enlightenment, broadly construed, and he believed deeply in the notions of human rights and moral progress. At the convention, he proposed a novel scheme of representation, whose striking reference to “the whole number of white & other free Citizens & inhabitants of every age, sex, and condition” expressly recognized a class of non-male and non-white citizens, along with noncitizens, as members of the political community. As historian Jan Lewis pointed out almost three decades ago, Wilson’s conception of representation was thus a “genuine innovation” in political theory, since it broke from the dominant views of the time, which based representation on wealth, taxpayers, or adult men, rather than inhabitants.

Wilson was no saint, and he said and did things which would strike almost everyone today as objectionable. But on many issues, he held views that were surprisingly inclusive for their day. He opposed limiting the franchise to property owners, for example, and denied that the purpose of government was to protect property rights. He favored direct election of the House and Senate and wanted both to be based on proportional representation. On behalf of immigrants like himself, he fought against nativist restrictions on constitutional office-holding. And unlike John Marshall and most of his other contemporaries, he had no hesitation extending theories of natural rights to indigenous peoples, endorsing their right to sell their native lands to whomever they pleased.

In the decade leading up to the convention, Wilson lived in cosmopolitan Philadelphia, a city with the nation’s largest free Black community, along with immigrants and other inhabitants of every type. Among his best friends was William White, the Episcopal Bishop who ordained Absalom Jones and supported the establishment of the first Black church in Philadelphia. Another close friend was Benjamin Rush, a leader in the drive for abolition and racial equality. In their arguments to the Pennsylvania legislature on behalf of the Bank of North America in 1785, Wilson and his co-counsel, Gouverneur Morris, used the citizenship of naturalized immigrants and free Black people to illustrate why the State could not validly enact retroactive laws. Just as these individuals could not be stripped of their citizenship, so, too, Wilson and Morris argued, the bank’s charter was inviolate. Finally, while riding circuit in 1793, Wilson decided a little-known case that recognized that a free Black man was a citizen for purposes of federal diversity jurisdiction.

These are the men who actually wrote most of the Constitution and who gave us the precise words that Americans fought over during the antebellum period, and still wrestle with today—not only “We the People,” but also the references to “Persons” in the Three-Fifths, Slave Trade, and Fugitive Slave Clauses, and the references to “Citizens” in Article III. Why then have so many commentators assumed that Southern slaveholders, Garrisonians, and Dred Scott were correct about their original meaning, and that Douglass was wrong?

Weren’t Wilson and Morris slaveholders themselves, however, and didn’t they participate in shaping the Constitution’s worst compromises over slavery? And weren’t Wilson’s views on indigenous property rights beneficial to the land companies he represented?  Yes—and these facts should not be ignored or minimized. In my research, for example, I have discovered that Wilson probably owned more slaves over his lifetime than is commonly assumed, an important part of his biography that warrants more scrutiny. Yet placing findings like these in historical context is also important. Rush, Benjamin Franklin, John Jay, and other leading antislavery figures of the period also enslaved numerous people at various points in their lives, for instance, even as they actively promoted abolition. So, too, did several of the congressmen who fought the hardest for maintaining the government’s right to abolish slavery when they were petitioned to do so in 1790. In fact, so did some of the petitioners themselves, including their tireless leader, Warner Mifflin.

The contrast between Wilson and Morris, on the one hand, and Southerners like Madison and Jefferson, on the other, is nonetheless sharp and critically important for comprehending how slavery actually fared in the original Constitution. Unlike Madison and Jefferson, Wilson and Morris were not obsessed with protecting slavery from democracy. On the contrary, they were the main architects of the robust conception of implied national powers that inspired abolitionists like Franklin, Mifflin, and Jones to petition Congress to abolish slavery. The two provisions that most directly supported these early abolitionist efforts—and that 150 years later underwrote FDR’s most far-reaching assertions of national power—were the Preamble and Sweeping Clause, both of which originated with Wilson and Morris. Morris, of course, was the most outspoken critic of slavery at the convention, who had tried to promote gradual abolition in New York when its state constitution was being drafted in 1777. For his part, Wilson raised the issue of general emancipation in Congress as early as 1776, and at the 1787 Pennsylvania ratifying convention, he publicly celebrated the fact that Congress would soon have “power to exterminate slavery from within our borders.” In his law lectures, Wilson likewise followed Blackstone in firmly repudiating the idea of property in man. We will never really understand the Constitution and its enduring capacity for promoting the common good and general welfare until we stop seeing it as primarily a “Madisonian” instrument and come to grips with facts like these. Reflective equilibrium in constitutional law requires both fit and justification. On both issues, Madison is important, but an even more significant figure is the man who wrote “We the People.”

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