In the first entry into the series on “Forgotten Founders,” we explored Gouverneur Morris. Today, we examine James Wilson, the Pennsylvanian and Scottish founder behind popular sovereignty, the structure of the judiciary, and many of the most notable compromises at the Constitutional Convention.
Wilson is best known for his roles in at the Convention in drafting the Constitution’s Preamble, helping to frame both the presidency and judiciary, including the Electoral College and in crafting the Three-Fifths Compromise. He also influenced Thomas Jefferson’s famous promises in the Declaration of Independence.
Wilson also was one of the first six justices on the Supreme Court and his “Lectures on Law” helped lay the foundation for American legal principles, but he died in 1798 penniless. His financial ruin harmed his reputation throughout the nineteenth century by calling into question his commitment to republican principles and painting him as an anti-democratic schemer.
Wilson’s role as a framer was overlooked for over a century until scholars like Max Farrand and Andrew McLaughlin began to revisit his significance to the founding at the turn of the twentieth century, while the first biography of Wilson was not published until 1956 by Charles Page Smith.
As legal historian Jonathan Gienapp observed, Wilson’s distinct theory of the Constitution presupposed the existence of national powers outside of enumerated powers that were based distinctly in popular sovereignty. Wilson was arguably the second most important framer of the Constitution, in the eyes of some scholars. In Wilson scholar William Ewald’s words, he “possessed a constitutional theory comparable in sophistication to those of Madison, Jefferson, or Hamilton, and it deserves to be disentangled from the views of his better-known colleagues.”
Wilson came to the colonies from Scotland in 1765 after spending four and a half years at the University of St. Andrews; he also arrived in New York at the height of the Stamp Act Crisis. Wilson’s star immediately took off as he apprenticed under John Dickinson, a leading colonial lawyer, in 1766. After Dickinson published the seminal pamphlet, Letters from an American Farmer, denying Parliament’s authority to tax the colonists without consent, Wilson wrote his own pamphlet denying Parliament’s authority to legislate on any internal colonial matter. When Wilson published it in 1774, it established him as a leading colonial thinker and proved influential to Thomas Jefferson.
As a rising leader, Wilson was part of the Pennsylvania delegation to the Second Continental Congress in May 1775 and by the following summer, he was the leading voice in convincing the delegation to vote in favor of independence. In the period before the 1787 Constitutional Convention, Wilson jostled between his law practice and political duties. He served as Philadelphia financier Robert Morris’s principal legal adviser and took on some key cases such as the 1782 Wyoming Valley litigation deal with the disputed border between Pennsylvania and Connecticut. Wilson won the case as Pennsylvania’s Attorney General but took the lesson that the federal government needed a supreme court to give final resolution to issues between states. His time back at Constitutional Congress only convinced him further that a new Constitution was needed.
When Wilson joined the Philadelphia Convention in May 1787, he was viewed as among the legal leaders in the country. Besides Gouverneur Morris, no delegate spoke more throughout the Convention than Wilson, even though he was not known for his oratory skills. In the first days of the Convention, Wilson remained silent, but once he arose on May 31 to speak, he spoke every day going forward. His remarks that day, according to Madison’s notes, established Wilson’s vision for the Constitution:
“(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 basis 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 Governm[ents] should be obviated as much as possible.”
Wilson was among the five delegates chosen to serve on the Committee of Detail that was important to the remaining business of the Convention and was, as the late historian Richard Beeman wrote in Plain, Honest Men, the “most dedicated supporter of a truly national government and the least protective of the interests of any particular state or region” on the committee. With Madison absent from the committee, Wilson was one member with a deep understanding of political theory and the history of government.
The Committee’s major challenge was to resolve issues related to the presidency, especially presidential elections. Wilson favored a single, independent president, elected for a short term (one year) and eligible for re-election, with the power to veto legislation
Wilson also preferred a general grant of power to Congress. He came into the Convention favoring a national Supreme Court and was influential in giving the president the sole power of nomination, while also arguing for allowing Congress the discretion to create inferior federal courts. He consistently supported proportional representation as strongly as any delegate based on the principle of popular sovereignty, saying that, “if we depart from the principle of representation in proportion to the numbers, we will lose the object of our meeting.”
In addition, Wilson was also one of the original supporters of the Three-Fifths Compromise, believing the compromise partially recognized the personhood of enslaved persons. Yet, on July 11, Wilson, according to Madison’s notes, “did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? Then why are they not admitted on an equality with White Citizens? Are they admitted as property? [T]hen why is not other property admitted into the computation?” Ultimately, despite his personal anti-slavery convictions, Wilson accepted the compromise as needed to create a stronger national union.
After the convention approved the Constitution, Wilson was the only framer at Philadelphia also appointed to Pennsylvania state ratifying convention, where he was a key figure in Pennsylvania’s ratification of the Constitution. Wilson’s "State House Yard speech" on October 6, 1787, supporting ratification of the Constitution against the charges of anti-federalists that it lacked a Bill of Rights and annihilated state governments was printed throughout the United States. For Wilson, “We the people” meant not the people of the several states, but the people of the United States.
In September 1789, President George Washington appointed Wilson to the Supreme Court. Wilson was the main architect behind Pennsylvania’s Constitution of 1790, replacing the radical 1776 constitution he had long criticized. He began his “Lectures on Law” at the College of Pennsylvania in 1790 and 1791 before securing an appointment as the first law professor in 1792. The “Lectures” helped to lay out the philosophy behind the two constitutions that Wilson had contributed to.
However, Wilson’s personal prospects quickly came crashing down. Speculative investment in lands in the South and West destroyed his wealth. By 1797, he was riding circuit for the Supreme Court in the South to avoid creditors before a brief stint in prison in New Jersey. Once he returned to North Carolina, Wilson was imprisoned again for a bad debt. He died the following August in North Carolina in poverty at a tavern in Edenton, North Carolina.
By the turn of the century, Wilson was largely forgotten among the central framers and his role in framing the Constitution would only be resurrected by the work of scholars of the convention like Max Farrand, who concluded: “In some respects (Wilson) was Madison's intellectual superior, but in the immediate work before them he was not as adaptable and not as practical. Still he was Madison's ablest supporter. He appreciated the importance of laying the foundations of the new government broad and deep, and he believed that this could only be done by basing it upon the people themselves.”
Further Reading:
Bartrum, Ian C. "James Wilson in the State House Yard: Ratifying the Structures of Popular Sovereignty" (2016). Scholarly Works. https://scholars.law.unlv.edu/facpub/1195
Ewald, William. "James Wilson and the Drafting of the Constitution" (2008). Faculty Scholarship. Paper 988. http://scholarship.law.upenn.edu/faculty_scholarship/988
Gienapp, Jonathan. "The Myth of the Constitutional Given: Enumeration and National Power at the Founding." American University Law Review Forum 69 (2020).
Heyburn, Jack. “Gouverneur Morris and James Wilson at the Constitutional Convention,” https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1644&context=jcl
Smith, Charles Page. James Wilson, Founding Father: 1742-1798. Chapel Hill: The University of North Carolina Press, 1956.
Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.
