Breaking News

Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of Independence (Corrected)

Despite signing both the Declaration of Independence and the Constitution and being one of six original justices appointed to the Supreme Court, James Wilson is not often thought of as a leading light among America’s founders. One explanation for this is that Wilson’s time on the Supreme Court was not especially noteworthy; only nine cases were heard during his tenure. In fact, Wilson may be best remembered for being the first and only Supreme Court justice to be jailed while on the court. He spent time in two separate debtor’s prisons in the late 18th century before dying in 1798 at the age of 55.

Professor William Ewald, in a lecture last week to the Supreme Court Historical Society, illuminated Wilson’s significant role in the drafting and modern understanding of the Constitution and Declaration of Independence. Justice Elena Kagan introduced Ewald after recounting how he was recommended to her by Elizabeth Warren, then a law professor at the University of Pennsylvania. Kagan came to realize that Ewald’s academic prowess proved “Senator Warren right, as she always is.” Realizing the implication of what she had said, Kagan quickly added, “in matters like that.”

Wilson was born and educated in Scotland before coming to Pennsylvania in 1765 at the age of 23. He would apprentice for John Dickenson before playing a leading intellectual role in the American Revolution. Ewald’s lecture focused on Wilson’s impact on both the Constitution and Declaration of Independence. Ewald explained that the popular misunderstanding of Wilson is due in part to the limited records he left behind. Unlike other Founding Fathers’ surviving papers, which were politically significant and were later preserved and analyzed, many of Wilson’s are remarkably banal financial documents and contracts, while other papers were destroyed.

Wilson’s influence on the Constitution was fairly straightforward. He was the principal drafter and perhaps the driving force on the Committee on Detail, which filled in the gaps in the broad constitutional framework agreed upon at the 1787 convention. Ewald pointed out that the committee did far more than just fill in legal technicalities: It provided the enumeration of federal powers and supremacy clauses in Article I, designed much of the presidency and defined the jurisdiction of the federal courts. The vast majority of the committee’s work went directly into the final Constitution without significant revisions from the convention at large.

Wilson himself proposed, with fellow delegate Roger Sherman, the infamous Three-Fifths Compromise between northern and southern states, under which each slave was counted as three-fifths of a person in calculating the population of a state to apportion congressional representation. Ewald explained in a follow-up email that James Madison had originally proposed that rate of counting slaves relative to the free population for purposes of taxation, and that Wilson, an opponent of slavery, suggested using the formula for representation as well. Ewald explained the decision as pragmatic; “the Convention would have come to a rapid end if [Wilson] had pushed for abolition,” he wrote.

According to Ewald, the Constitution that was enacted and ratified may have resembled Wilson’s preconception of it more closely than those of the other Founding Fathers. The final document had a stronger central government than Southern founders like Thomas Jefferson and Madison desired, yet was more democratic and egalitarian than Alexander Hamilton preferred. Wilson was, for example, a major proponent of the principle of “one-man-one-vote.” Nonetheless, Ewald cautioned against calling Wilson, or anyone else, “the Father of the Constitution,” because the document was far too complex for any one person to have been its prime mover.

If Wilson’s role in the drafting of the Constitution was clear and well established at the time, his role in the Declaration of Independence was obscured in the revolutionary era. Yet Wilson was well ahead of his contemporaries in understanding how the document would evolve over the course of American history. Wilson did sign the Declaration, but he was not a member of the “Committee of Five” that drafted the document. His influence can be traced to a 1774 pamphlet titled “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” in which he argued, in what was then a radical stance, that Parliament did not have authority over the American colonies.

One of Wilson’s core arguments was:

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.

Ewald noted that is it clear that Jefferson, who copied other passages from Wilson into his own writings, used Wilson’s words as a direct source for the famous line in the Preamble to the Declaration of Independence, which in Jefferson’s rough draft read: “We hold these truths to be sacred & undeniable; that all men are created equal and independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness.”

But, Ewald explained, the concept of America being founded on the basis of human freedom and equality was not especially important to most of the Founding Fathers. Jefferson never used the phrase “created equal” in any of his writings from 1776 until his death in 1826. The same is true for George Washington, Madison, Hamilton, John Adams and many other Founding Fathers. In fact, the phrase was seldom used in American discourse before the middle of the 19th century, when the abolitionists began citing it to justify ending slavery. Of course, it is now part of perhaps the most iconic line in the Declaration of Independence, a shift that Ewald cited to argue that the Declaration can only be analyzed as a living document.

Wilson, however, was well ahead of his peers in understanding the importance of human equality in the American Revolution. During the Pennsylvania debates over whether or not to ratify the Constitution, Wilson quoted the entire second sentence of the Declaration of Independence and added, “[T]his is the broad basis on which our independence was placed; on the same certain and solid foundation this system [of the US Constitution] is erected.” According to Ewald, Wilson intended to draw an explicit link among the Declaration, human equality and the Constitution, which no other delegate did during any ratification debates.

Why was Wilson so far ahead of his contemporaries? Ewald argued that the answer could lie in Wilson’s Scottish roots, which were unique among the great thinkers of the Revolution. Scotland still thought of itself as a colony of England in the 18th century, when Wilson was growing up and being educated. In Ewald’s view, Wilson’s “different philosophical [and] analytical background” may have engendered his radical view of the egalitarian basis for America’s founding.

This post has been corrected to reflect the fact that Thomas Jefferson was not a delegate at the Constitutional Convention, he was serving as minister to France at the time. 

Recommended Citation: Jon Levitan, Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of Independence (Corrected), SCOTUSblog (Dec. 7, 2017, 4:34 PM),