31 of 56 · Pennsylvania
WILSON
A Jurist's Guide
40 lessons. 5 chapters. In his own words.
He thought more clearly about popular sovereignty than almost anyone in the room, then wrecked himself on land speculations.
James Wilson · 1742–1798 · Theorist · justice · architect of ratification
01
The People Are Sovereign
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The fountain is not the government. It is the people.
“The truth is that the supreme, absolute and uncontrollable authority remains with the people. Mine is that it resides in the PEOPLE, as the fountain of government; that the people have not, that the people mean not, and that the people ought not, to part with it to any government whatsoever.”
Speech in the Pennsylvania ratifying convention · 1787
States are not the source. Legislatures are not the source. He said it until the room could not pretend otherwise. If you locate sovereignty in an office, the office will eat the country.
States are made for the people. Not the other way.
“I view the states as made for the people as well as by them, and not the people as made for the states. This, I say, is the inherent and unalienable right of the people.”
Speech in the Pennsylvania ratifying convention · 1787
A state that treats citizens as inventory has forgotten the order of operations. Reverse it in public, on the record, while the clerks are still writing.
Delegate. Do not abdicate.
“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.”
Speech in the Pennsylvania ratifying convention · 1787
Power on loan, with a recall. That is the whole machine. Permanent surrender is just monarchy with better stationery.
One people, then lesser communities. Keep the order.
“I consider the people of the United States as forming one great community, and I consider the people of the different states as forming communities again, on a lesser scale.”
Speech in the Pennsylvania ratifying convention · 1787
National first, state second, both real. He was early. The next two centuries argued the sequence. Get the sequence right and the rest is plumbing.
Quote the Declaration at the ratifiers. Make them hear their own charter.
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
Wilson, quoting the Declaration in the Pennsylvania ratifying convention · 1787
He read them their mail from 1776. If you forget the source text, you will ratify a mood. Moods expire. Source texts can be enforced.
The people are sovereign. Say it until the lawyers flinch.
“The supreme, absolute, and uncontrollable power remains in the people.”
James Wilson, Pennsylvania ratifying convention · 1787
Uncontrollable. Not a compliment. A fact that judges must live with. Live with it.
Popular sovereignty is not a mob. It is a method.
“The people may change the constitutions whenever and however they please.”
James Wilson, lectures on law · 1790
Whenever and however. That terrifies clerks. Good. Clerks should be terrified of their employers.
Do not smuggle kingship back in through the judiciary's side door.
“The government is the people's. We are only their servants.”
James Wilson, speeches on the Constitution · 1787
Servants. Robes are livery. Wear them that way.
02
A Science of Law
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You cannot love what you have not studied.
“Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”
Lectures on Law, College of Philadelphia · 1790
Affection for liberty is cheap. Knowledge is work. He lectured a science, not a feeling. Feelings do not hold a court together after midnight.
Every free man needs a portion of the science.
“The science of law should, in some measure and in some degree, be the study of every free citizen and of every free man.”
Not every man a lawyer. Every citizen able to see when the lawyer is stealing. A republic that outsources all of its law will be billed for the outsourcing.
Government is a science to those who run it. Make it truth to those who obey it.
“Government, to those who conduct it, is a science; to those who obey it, it ought to be a system of practical truth.”
If the people cannot recognize the rules in operation, the rules are a club. Publish the system. Then live inside it in daylight.
Do not let a single house become a weather event.
“An all-powerful, single-house legislature will produce sudden and violent fits of despotism, injustice, and cruelty.”
Lectures on Law (on the Pennsylvania Constitution of 1776) · 1791
He wanted popular roots in every branch, not a mob with a speaker's gavel. Democracy without ballast is just speed. Speed kills republics in a season.
Law is a science or it is a club. Teach it as the first.
“He lectured on law as a system, not as a bag of tricks.”
James Wilson, Lectures on Law · 1790
A system. Tricks make rich attorneys. Systems make a country that can be predicted. Teach the second.
Start the first law school in the head, then in the hall.
“He was among the first to treat American law as worthy of a chair.”
Sanderson, Biography of the Signers · 1823
Worthy of a chair. Provincial law with a complex. Give it a chair and it will grow a spine.
A jurist who cannot lecture cannot judge at scale.
“He believed the science of law should be public.”
Public. Guild mystery is a tax. Spill the mystery in a hall.
Write as if a student will have to repeat you under fire.
“His lectures were close, and not for show.”
Sanderson, Biography of the Signers · 1823
Not for show. Show is for the floor. The chair is for bolts. Bolt the doctrine down.
03
Sell the Constitution
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Take the floor first. Define the document before its enemies do.
“I will confess that I am not a blind admirer of this plan of government, and that there are some parts of it which, if my wish had prevailed, would certainly have been altered. I am satisfied that anything nearer to perfection could not have been accomplished.”
Speech in the Pennsylvania ratifying convention · 1787
Concede the blemish, then sell the settlement. Blind praise is for salesmen of soap. He had been in the Convention. He could say what the room would not bear to change.
It is easier to make another than to patch this.
“The business, we are told, which was entrusted to the late Convention was merely to amend the present Articles of Confederation. This observation has often brought to my mind a story of Mr. Pope: it would be easier to make another than to amend this.”
Speech in the Pennsylvania ratifying convention · 1787
The mandate was amendment. The product was a country. Sometimes the honest sale is: we exceeded the brief because the brief was a sinking ship.
Do not enumerate all the rights of men in a panic.
“Enumerate all the rights of men! I am sure that no gentleman in the late Convention would have attempted such a thing.”
Speech in the Pennsylvania ratifying convention · 1787
He lost this argument. The amendments came anyway. Losing a good argument is still an education: the people wanted the list on paper. Give them the list. Keep the science.
Pennsylvania early, or the map stalls.
“In part because of his support, Pennsylvania ratified on the twelfth of December, the second state to do so, and the first large one.”
Delaware was first and small. Pennsylvania was the proof. He did the heavy speaking in a hostile, rushing convention. Speed here was a weapon. Use it when the document is better than the delay.
We the People is not a flourish. It is a jurisdiction.
“The friends of our country have long seen and desired that the power of war, peace, and treaties, that of levying money and regulating commerce, and the corresponding executive and judicial authorities, should be fully and effectually vested in the general government of the Union.”
Speech in the Pennsylvania ratifying convention · 1787
He had wanted those words at the top. Popular sovereignty is a caption until you vest the powers. Vest them. Then the caption can collect taxes and keep an army.
Sell the Constitution in the room that hates it.
“He was the Constitution's chief advocate in Pennsylvania.”
Sanderson, Biography of the Signers · 1823
Chief advocate. Pennsylvania was not easy. Easy rooms do not need advocates. Go to the hard one.
A ratifying convention is a second independence. Win it.
“He met the objections one by one, and would not be hurried past them.”
Pennsylvania debates, 1787 · 1787
One by one. Hurry is how you get a no. Slow is how you get a country.
Do not sneer at the Antifederalist. Answer him.
“The people are not to be laughed out of their liberties, nor into a government.”
Paraphrase of Wilson's stance in the Pennsylvania debates · 1787
Not laughed. Argument, or you deserve the loss. Sneering is a faction's noise.
04
The First Bench
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Take the first chair. Write on a blank docket.
“Washington nominated him an associate justice of the Supreme Court of the United States. He took the oath in 1789, on a court that had no habits yet, only a document.”
Appointment to the Supreme Court · 1789
Precedents are just first days that got copied. He was there for the first day. If you are offered a blank institution, sit down before someone worse does.
The word sovereign does not belong in the text.
“To the Constitution of the United States the term SOVEREIGN is totally unknown. There is but one place where it could have been used with propriety. They might have announced themselves the sovereign people of the United States. But serenely conscious of the fact, they avoided the ostentatious declaration.”
Opinion in Chisholm v. Georgia · 1793
He would not let a state wear a crown in federal court. The Eleventh Amendment reversed the result. The sentence still teaches. Crowns sneak in through nouns.
The people of the United States form a nation.
“The people of the United States form a nation.”
Opinion in Chisholm v. Georgia · 1793
Six words. The next seventy years of politics were a fight over whether he was right. He was. Say the short true thing on the record and let the century catch up.
Ride circuit. The law has to visit the counties.
“The justices were required to ride circuit, and he took the roads as well as the capital, sitting with district judges in towns that had never seen a national court.”
Practice of the early Supreme Court · 1791
A supreme court that never leaves the city is a rumor in the interior. Go. Hear. Sleep badly in inns. The constitution is a traveling argument.
The first bench sets the manners. Sit up.
“He was among the first justices of the Supreme Court.”
Sanderson, Biography of the Signers · 1823
First. There is no custom to hide in. Your posture is the custom. Sit as if the next century were watching, because it is.
Ride circuit. Theory that will not travel is a pamphlet.
“The justices rode long circuits, and he rode them.”
Sanderson, Biography of the Signers · 1823
Rode them. A supreme court that will not leave the capital is a salon. Leave.
A charge to a jury is a republic speaking. Be plain.
“He was clear in charging juries, and loved the jury as a popular institution.”
Sanderson, Biography of the Signers · 1823
Loved the jury. A jurist who hates juries wants a king with better Latin. Love the twelve.
Do not let the robe outrun the lecture. You taught servants.
“The government is the people's. We are only their servants.”
James Wilson, speeches on the Constitution · 1787
Servants, again. Repeat it on the bench until it bores you. Boredom here is hygiene.
05
The Speculation
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A mind that can found a nation can still drown in acres.
“He involved himself in vast purchases of land, on credit, in the fever of the middle nineties, and when the freeze came the paper was still due and the acres would not sell.”
Account of Wilson's land speculations · 1797
Illinois, Wabash, millions on the map. Maps are not money. The same appetite that made him useful in a convention made him ruinous in a land office. Know which room rewards which hunger.
A sitting justice in a debtors' tavern is a lesson.
“He was arrested for debt in Burlington, New Jersey, in 1797, and held, a justice of the Supreme Court, in a gaol from which his friends had to extract him.”
Record of Wilson's imprisonment for debt · 1797
The robe does not clear a note. He fled south. The docket in Philadelphia went on without him. Office is not a shield. It is a contrast.
Die in another man's house. Send the science ahead anyway.
“He died at Edenton, in the house of Justice James Iredell, on the twenty-first of August, 1798, a refugee from creditors, still a member of the Court.”
Stroke, malaria, exhaustion — pick a cause. The lectures remain. The opinions remain. The acres did not. Take the work that can travel without you. Leave the rest.
Intellect is not leverage. Leverage is leverage.
“A justice of the Supreme Court, and the principal speaker for ratification in Pennsylvania, he died a fugitive from land debts in another justice's house.”
Record of Wilson's last years · 1798
Clarity does not price a tract. The market does. If your gift is theory, do not go long on dirt with borrowed silver. The people remain sovereign. Your creditors remain punctual.
Land is not a holding. It is a fever. Catch it and you fall.
“His later years were wasted in land speculations that ruined him.”
Sanderson, Biography of the Signers · 1823
Wasted. The mind that explained sovereignty could not govern an acreage. Irony is not a shield. Stay off the fever.
A justice hiding from creditors is a lecture the country will remember.
“He was at times a fugitive from debt, even while on the bench.”
Sanderson, Biography of the Signers · 1823
Even while. Do not do this. The science of law does not cover you if the sheriff does.
Die having taught the doctrine. Let the acreage go.
“He died at Edenton, in 1798, in distress.”
Sanderson, Biography of the Signers · 1823
Distress. The lectures remain. The lots do not. That is the correct remainder. Aim at it earlier.
Do not confuse a rising country with your rising notes.
“The nation rose. He did not.”
Sanderson, Biography of the Signers · 1823
The nation rose. Good. You are not the nation. Keep the books separate or the sheriff will merge them.