James Wilson, the Forgotten Founder Who Put the People at the Center

Quick quiz. Name the six men who signed both the Declaration of Independence and the Constitution. You got Franklin, of course. Maybe Robert Morris. Then the trail goes cold, and you start wondering whether a hit musical about one of the others might help. It would not, because the most important of them never got one.

His name was James Wilson. He spoke at the Constitutional Convention more often than almost any other delegate, sat on the committee that wrote the first full draft, led the ratification fight in the second most populous state, gave the first great lectures on American law, and served on the first Supreme Court. He also argued, more consistently than anyone in Philadelphia, that all legitimate power flows up from the people and not down from a sovereign. And he died broke, hiding from creditors, in a small town in North Carolina. This is his public career, what he stood for, and what we should learn from it.

From St Andrews to Carlisle

Wilson was born in Scotland in 1742 and studied at the University of St Andrews during the years when the Scottish Enlightenment was at its height. The common-sense philosophy of Thomas Reid, which held that ordinary people have reliable moral perceptions, shaped him for life. It is not a coincidence that the man who trusted ordinary citizens most at the Convention was trained by the philosophy that trusted ordinary judgment most.

He came to America in 1765, taught briefly at the College of Philadelphia, and then read law under John Dickinson, the author of the Letters from a Farmer in Pennsylvania. He practiced in Reading and then in Carlisle, on the Pennsylvania frontier.

In 1774 he published Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, a pamphlet he had begun years earlier. Its argument was radical for its moment. Wilson denied that Parliament had any authority over the colonies at all. The colonists owed allegiance to the king, he argued, but they were bound only by laws made by their own representatives, because the only legitimate basis of law is the consent of those governed by it. Two years before Jefferson wrote the Declaration, Wilson had already reached its premise.

The Declaration and its aftermath

Pennsylvania sent Wilson to the Continental Congress, and in the summer of 1776 he faced the decision of his life. Pennsylvania's delegation was divided, and its vote on independence depended on a handful of men. On July 2, 1776, Wilson voted for independence, joining Franklin and John Morton, while Dickinson and Robert Morris stayed away. That swung Pennsylvania's vote, and he signed the engrossed Declaration that summer.

The years that followed were less heroic and more complicated, which is to say they were real. Wilson opposed the Pennsylvania constitution of 1776, which concentrated power in a single-chamber legislature with no independent executive or upper house; he thought it an invitation to majority tyranny. He also defended in court merchants and accused Loyalists who were targets of popular anger. On October 4, 1779, an armed crowd of militiamen, angry over prices and Loyalist sympathies, attacked his house in Philadelphia, where he and a group of friends had barricaded themselves. Several people were killed in the exchange of fire before cavalry dispersed the attackers. Philadelphians called it the Fort Wilson riot.

That episode helps explain Wilson's peculiar position. He believed with total conviction that power came from the people. He had also seen a mob shoot at his front door. His life's work was to reconcile those two experiences: to build a government that rested on the people and yet protected individuals from the passions of the moment.

Wilson at the Convention

At the Constitutional Convention in 1787, Wilson was one of the most active and influential delegates. His positions formed a remarkably consistent pattern.

1. Popular election of the House. On May 31, Wilson argued for electing the first branch of the legislature directly by the people. He wanted, as Madison recorded, to raise the federal pyramid to a considerable altitude, and for that reason to give it as broad a basis as possible. The higher the building, the wider the foundation had to be.
2. A single, energetic executive. On June 1, Wilson moved that the executive consist of a single person. Several delegates feared that a single executive was the embryo of monarchy. Wilson argued that unity gave energy, dispatch and responsibility: when one person is in charge, the people know whom to hold accountable. The idea that won is now Article II, which we read in The Executive Power Shall Be Vested in a President, and Every Word Counts.
3. Popular election of the president. Wilson proposed that the president be elected by the people, and when that failed, he proposed electors chosen by the people in districts. His idea of electors chosen by the people was one of the ancestors of the Electoral College; the final design came late in the Convention, as told in The Committee of Eleven Invented the Electoral College in the Final Weeks.
4. Popular election of the Senate. Wilson argued for electing senators by the people too. Here he lost decisively; the Convention gave the choice to the state legislatures, where it stayed until the Seventeenth Amendment in 1913.
5. Representation by population. Wilson, from a large state, argued that representation in both houses should follow population, since government exists for people, not for the artificial entities called states. He lost that fight too when the Connecticut Compromise gave the states equal votes in the Senate.

Two further facts complicate the portrait. On June 11 Wilson moved the formula, with a second from Charles Pinckney, under which three-fifths of enslaved people would be counted for representation. That compromise had been proposed in the Confederation Congress in 1783 as a rule for apportioning taxes. Its history is a hard one, and our account of what the clause did and did not do is in The Three-Fifths Clause Limited Slaveholder Power and Measured No One's Worth. And Wilson served on the five-man Committee of Detail, which turned the Convention's resolutions into the first full working draft of the Constitution in late July and early August. Wilson's own drafts were among the working papers behind that report.

On September 17, when Benjamin Franklin was too infirm to deliver his own closing speech, it was Wilson who read it to the delegates. See Franklin's Closing Speech Asked Delegates to Doubt Themselves and Sign Anyway.

Leading ratification in Pennsylvania

Wilson was the first prominent defender of the Constitution to speak in public. On October 6, 1787, in the State House Yard in Philadelphia, he answered the charge that the Constitution lacked a bill of rights. His argument was a distinction that became central to the Federalist case.

In the state constitutions, Wilson said in substance, everything not reserved was given to the government. In the federal Constitution, everything not given was reserved to the people. A state government held general power over its people, so a bill of rights was needed to fence off what the government could not do. The federal government held only enumerated powers, so a list of rights was unnecessary: the government simply had no power over the subjects a bill of rights would address.

Anti-Federalists answered that this was too clever by half, and in the end they won that argument: the Bill of Rights was added. But Wilson's distinction, between a government of general powers and one of enumerated powers, is the foundation of every conservative argument about federal overreach since. When we say "Where in the Constitution does it say Congress can do that?", we are speaking Wilson's language.

At the Pennsylvania ratifying convention, Wilson again led the Federalist side and pressed his theme: sovereignty resides in the people, who may parcel out power to the state and federal governments as they choose. Pennsylvania ratified on December 12, 1787, by 46 to 23, the second state to do so. And on July 4, 1788, at Philadelphia's Grand Federal Procession celebrating ratification, Wilson gave the oration.

He then helped write Pennsylvania's constitution of 1790, which replaced the single-chamber system of 1776 with a bicameral legislature, a governor with a veto and an independent judiciary. Wilson had spent fourteen years arguing for exactly that.

The lectures on law

In 1789, President Washington appointed Wilson as one of the first associate justices of the Supreme Court. The next year Wilson began a series of lectures on law at the College of Philadelphia, beginning in December 1790 and continuing into 1791. President Washington attended the opening lecture, along with other officers of the government.

The lectures were an attempt to give America its own Blackstone. Wilson admired the great English jurist but rejected his starting point. Blackstone had defined law as a rule prescribed by a superior. Wilson argued instead that the obligation of human law rests on the consent of those who are bound by it, and that above all human law stands a natural law, discoverable by reason and conscience, which no government made and no government can repeal. Rights, in Wilson's account, are not grants from the state. Government exists to secure them. That is the Declaration's second paragraph turned into a system of law. We take the lectures up in James Wilson Lectured on Natural Law While Washington Was President.

Chisholm and the limits of a principle

On the Court, Wilson's most important opinion came in Chisholm v. Georgia (1793). A citizen of South Carolina sued the state of Georgia in federal court over a debt, and Georgia claimed sovereign immunity. Wilson, writing in the seriatim style of the time, rejected Georgia's claim with his favorite argument: the people, not the states, are sovereign, and for the purposes of the union Georgia was not a sovereign state that could refuse to answer in court.

The country disagreed, and quickly. Congress proposed the Eleventh Amendment in 1794, and it was ratified in 1795, barring federal suits against a state by citizens of another state. The story is in Chisholm v. Georgia Lost in 1793 and the States Answered With the 11th Amendment.

Chisholm shows both the power and the limit of Wilson's thought. He was right that sovereignty rests with the people. He was less attentive than Madison to the way the people had chosen to organize their sovereignty, through states that retained real authority. A principle pushed past the structure the people actually ratified becomes a different principle.

The ruin

Wilson's public greatness was matched by private recklessness. He speculated heavily in western lands, borrowing to buy vast tracts in the expectation that their value would soar. When credit tightened in the mid-1790s, his empire of paper collapsed. In 1797 he was jailed for debt in Burlington, New Jersey, while a sitting justice of the Supreme Court. After his release he went to North Carolina, where his creditors pursued him again. He died in Edenton, North Carolina, on August 21, 1798, at 55, still a justice, still in debt. He was buried there, far from Philadelphia, and his remains were moved to Christ Church in Philadelphia only in 1906.

That is the main reason Wilson is forgotten. A Founder who dies in disgrace makes an awkward statue.

The objection, and the lesson

The best case against honoring Wilson goes like this. He was a nationalist who wanted to minimize the states, which is the opposite of what conservatives defend today. His theory of popular sovereignty led straight to Chisholm, a decision so unpopular that the country amended the Constitution to undo it. And his private conduct, gambling with borrowed money while sitting on the highest court, is the kind of behavior conservatives condemn in public officials today. Why make a hero of him?

The answer has four parts.

1. He was a nationalist about structure, not about power. Wilson wanted a strong union, but his State House Yard speech is the clearest statement in the ratification debate that the federal government has only the powers granted to it. Conservatives who quote "enumerated powers" are quoting his argument.
2. His central idea is the conservative idea. Rights come from God and nature, not from the state; government rests on consent; law binds because the governed agreed to it. That is the creed of the Declaration, and Wilson defended it longer and more systematically than almost anyone of his generation.
3. Chisholm teaches as much as it embarrasses. Wilson's error was to push a true principle past the limits of the structure the people had ratified. The Eleventh Amendment shows the people correcting a court through Article V, which is exactly how the system was supposed to work.
4. His ruin is a warning, not an excuse. Wilson's debts do not erase his arguments, but they do teach a lesson about public trust. A justice who must flee his creditors cannot do his job. Character in private life is not separate from fitness for public office. The Founders knew that, and Wilson's end proves it.

The case in brief

1. James Wilson signed both the Declaration and the Constitution and argued from 1774 onward that legitimate power rests on the consent of the governed.
2. At the Convention he championed popular election of the House and the president and a single, accountable executive, and he helped write the first full draft on the Committee of Detail.
3. He led Pennsylvania's ratification and gave the classic statement that the federal government holds only the powers granted to it.
4. His law lectures of 1790 and 1791 grounded American law in natural rights and consent, but his Chisholm opinion pushed popular sovereignty past the federal structure and was reversed by the Eleventh Amendment.
5. His ruin by debt, while a sitting justice, is why he is forgotten and why character in office matters.

What you can do: read the Preamble and the Tenth Amendment together on the site's Constitution page, then browse the Founders page for the other signers he worked beside, and share one of his arguments with a student who has never heard his name.