The Most Important Founder You’ve Never Heard Of

He wrote an influential pamphlet legally justifying the American Revolution, arguing that “all men are, by nature, free and equal.” He signed the Declaration of Independence and was a leading figure at the Constitutional Convention, where he was arguably as important as James Madison. (He is one of only six men to sign both the Declaration of Independence and the Constitution.) His speech during the ratification debates was drawn on more often than The Federalist Papers. A Supreme Court justice appointed by President Washington, he promoted judicial review a decade before Marbury v. Madison. His lectures on law at the College of Philadelphia established him as the American Blackstone. No wonder Washington and Vice President John Adams attended his opening talk there. He’d die in penury on the run from the law.

To borrow a line from Hamilton: “Yo, who the f is this?”

James Wilson is among the most important founders and—beyond scholarly circles—the least known. In the story of America’s birth, he is the figure in the carpet brought to life in Jesse Wegman’s splendid new book, The Lost Founder: James Wilson and the Forgotten Fight for a People’s Constitution.

One of seven children born to poor Presbyterian farmers in Scotland, Wilson attended the University of St. Andrews on a scholarship and was steeped in the Scottish Enlightenment. He immigrated to Philadelphia, where he became one of the most successful and wealthy lawyers of the founding generation. Like many of the framers, Wilson engaged in wild land speculation (his friend and fellow signer of the Declaration, Dr. Benjamin Rush, diagnosed it as “land mania”), squandering his wealth by taking on debt he could not repay, and ultimately sullying his reputation. As an associate justice, Wilson skipped an entire Supreme Court term to evade his creditors while lobbying President Washington to nominate him to the Court’s vacant chief justiceship. As a sitting Supreme Court justice, he died in poverty on the run from the law and debtor’s prison. His ignominious end is almost certainly behind his eclipse.

James Wilson is one of only six men to sign both the Declaration of Independence and the Constitution.

Wegman introduces Wilson to modern readers, delivering him from obscurity and returning him to his rightful place among the framers, the figures America perpetually turns to in pondering the republic and its future: Washington, Adams, Benjamin Franklin, Thomas Jefferson, James Madison, and Alexander Hamilton. Indeed, Wegman positions Wilson as the intellectual godfather to Abraham Lincoln’s Gettysburg Address, which sewed the Declaration of Independence and the Constitution into a seamless garment, insisting that America was “conceived in Liberty, and dedicated to the proposition that all men are created equal,” thereby situating the Civil War as a fight for “government of the people, by the people, and for the people.”

Yet Lincoln never credited Wilson, even when recounting those who signed the Declaration and attended the Constitutional Convention, though perhaps that’s not surprising, since by the Great Emancipator’s day Wilson had been largely forgotten. In a wonderful historical turn, a Republican Congressman during Reconstruction named James Wilson—no relation—argued that the Fourteenth Amendment embodied the Declaration’s principles, rightly, and finally, placing them in the Constitution. This is symbolically fitting as so many developments in American constitutionalism find their beginning in James Wilson’s thought. In Lost Founder, Wegman—a former New York Times editor, author of a book arguing for the Electoral College’s abolition, and Senior Fellow at the Brennan Center—brings Wilson’s thought to life for scholars and general readers, proving he is “a ghost lurking in the darkness behind the conventional story of the American founding.”

Unlike many of the architects of the Constitution, who were skeptical of popular democracy, Wilson thought the people “should have a direct hand in choosing their leaders at every level of government,” insisting that popular majorities “in all questions” ought to “govern the minority.” Yet Wilson was no populist, as Wegman notes, even if his subtitle referring to a people’s constitution might suggest otherwise. Recognizing popular government’s flaws, Wilson also insisted that checks and balances and the rule of law were necessary for the public good.

Wilson, for instance, was a critic of Pennsylvania’s simplistic democratic Constitution of 1776. While it had elements Wilson favored, eliminating property qualifications for holding office and voting, the annually-elected one house legislature was not subject to any substantial checks by either the executive committee or the judiciary. Lacking the institutional structures necessary for a viable government, Wilson predicted it would “produce general weakness, inactivity and confusion; intermixed with sudden and violent fits of despotism, injustice and cruelty.” Pointing to a lack of checks on the single-house legislature, which had the power to remove judges and undermine the administration of justice, Wilson posited that despotism could come from the people just as it could from a monarch.

As an associate justice, Wilson skipped an entire Supreme Court term to evade his creditors while lobbying President Washington to nominate him to the Court’s vacant chief justiceship.

Wilson experienced this first-hand in 1779 when an armed militia attacked his house. The clash occurred during the Revolutionary War, pitting ordinary and lower-class citizens frustrated by inflation against wealthy elites. The politics were convoluted, and included notable figures like the painter Charles Willson Peale, but Wilson was drawn in largely because he defended men accused of treason in the midst of the Revolutionary War (though his criticism of the 1776 Constitution reinforced the view that he was part of the wealthy elite). Already angered by shortages of essential goods and a devalued currency, the “constitutionalists,” as the radicals dubbed themselves, were further enraged as they watched perceived Loyalists acquitted of treason. If Wilson insisted that the accused be allowed counsel to “instruct and assist them in their defense,” the radical constitutionalists saw the law as favoring elites at their expense. The “Fort Wilson Riot,” as it would come to be known—because Wilson turned his home into a fort to defend himself—inspired a reformed Pennsylvania Constitution in 1790 that maintained a wide franchise while instituting checks on legislative power. 

Acutely aware of the dangers posed by popular passions, Wilson nevertheless remained committed to government rooted in the consent of the people, which included popular participation in government. For Wilson, “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.” (Wilson proclaimed this point in “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” his influential pamphlet, which was published a few months after Thomas Jefferson’s pamphlet, “Summary View of the Rights of British America” in the spring of 1774. (Wilson wrote the pamphlet in 1768 but publishers considered it too radical at the time.)

Both Jefferson and Wilson rejected parliamentary authority over the colonies while accepting allegiance to the monarch within a larger constitutional scheme. Interestingly, both argued that the king should exercise his “negative” against parliament’s unlawful efforts to govern the colonies. Wegman argues that unlike Jefferson, Wilson provided a “legal” argument for dissolving ties with Great Britain, grounding the revolution in law. This is slightly overstated, as Jefferson’s “Summary View” tended in this direction as well. And Jefferson even criticized George III for vetoing Virginia’s attempt to stop the importation of slaves. Even while both these pamphlets engaged in constitutional and political theory that justified revolution, they prudentially held out the hope of continued union with Britain. It was Thomas Paine’s Common Sense, published less than two years after Wilson’s and Jefferson’s pamphlets in 1776, that took direct aim at the whole edifice of monarchy and boldly insisted on independence. If diffident on the role of monarchy in the constitutional scheme, Wilson’s “Considerations” demonstrated that parliament was acting unlawfully and that the king was neglectful of subjects on whom his legitimacy depended.

It is worth repeating that what is most notable about “Considerations” 250 years into the American experiment is its insistence that “all men are, by nature, free and equal,” which Jefferson elegantly rephrased as “all men are created equal.” The self-evident truths of the Declaration have framed America’s constitutional conflicts from the beginning. But in the early years of the republic, none of the famous founders turned to these words, except Wilson. Wegman illustrates that Wilson made “the Declaration’s text central to his politics.” Its ideas provided the foundation for the Constitution, which created a union of the whole people—another idea of Wilson’s that Lincoln followed in arguing against secession in his First Inaugural. Wilson’s was the only explicit reference to the Declaration at the Convention. He pointed to it again during the ratification debates, proclaiming that the Constitution rested on the same foundation “on which our independence was placed”—that is, on the sovereignty of the people.

At the Convention, Wilson’s contributions were rivaled only by those of his frequent ally James Madison.

At the Convention, Wilson’s contributions were rivaled only by those of his frequent ally Madison. Along with Gouverneur Morris, his fellow Pennsylvania delegate, Wilson argued for a strong national government capable of meeting the nation’s needs. Drawing on this logic, Wilson was also a leading advocate for a single president, using language about “energy, dispatch, and responsibility” that Alexander Hamilton echoed in Federalist 70. Wilson even insisted that these virtues would be better established if the president were chosen by a national popular vote, just as he argued that Senators should be elected by voters in their states—a practice which was established over 125 years later by the ratification of the Seventeenth Amendment in 1913.

Perhaps Wilson’s most important role at the Convention was serving on the Committee on Detail, where he was a lead drafter of the Constitution’s text. In this capacity, Wilson framed the Necessary and Proper Clause and the Supremacy Clause. The former gave Congress the power to do whatever was necessary and proper to carry out its own powers, as well as any powers vested in the other branches. At the same time, the latter ensured that national laws would be supreme over state laws. He was also behind the privileges and immunities clause of Article IV, which helped solidify the national union by requiring states to grant citizens of other states the same privileges and immunities they granted their own citizens, and behind the promise that the United States would guarantee each state a republican form of government. Most significantly, he penned and insisted on the famous opening lines of the Constitution: We the People. (Gouverneur Morris has a claim here, too.)

Yet Wilson often failed to persuade his fellow delegates to adopt positions he considered foundational. Along with Madison, Wilson opposed equal representation of the states in the Senate, insisting it was “a fundamental and a perpetual error” at odds with republican government precisely because “the general government is not an assemblage of states” but a union of the people.  Nevertheless, Wilson was an ardent and persuasive advocate for ratification—a vivid reminder that the Constitution was viewed as an imperfect document by leading actors of the founding generation. Wilson’s fellow Pennsylvanian, Benjamin Franklin, confessed that he “did not entirely approve of this Constitution at the present,” but supported it because he was uncertain we could do better.

The imperfect nature of the Constitution and the drift from the promise of the Declaration were most evident in that it left slavery intact. Like the compromise between small and large states, this was the bargain that would hold the Convention (and Union) together, as much as Wilson found it distasteful. He, too, was imperfect in this regard, as he was central to the creation of the Electoral College and the three-fifths compromise that gave the slave states added electoral power. Americans have been wrestling with these imperfections from the beginning, and Wilson’s ideas frequently lurk in the background.

Indeed, Wilson’s vision was prescient. His understanding of national power, rooted in a union of the people, was echoed by Chief Justice John Marshall in McCulloch v. Maryland (1819) as the foundation for his far-reaching interpretation of national power under the Necessary and Proper Clause. Benjamin Franklin explicitly cited “We the People” in petitioning Congress to abolish slavery in 1790. Frederick Douglass similarly turned to “We the People” to argue for Black citizenship, and position the Constitution as antislavery, in 1860. FDR explicitly invoked Wilson during the Great Depression (apparently the only president to ever do so), insisting on a broad reading of national power to meet the challenges the nation faced. So, too, did the Supreme Court in Humphrey’s Executor (1935) holding that Congress could insulate appointees to independent commissions from at-will executive removal. (The Roberts Court seems determined to overturn Humphrey’s Executor any day now despite the fact that it offers a compelling view of the separation of powers.) In articulating the principle of “one person, one vote,” the Warren Court also cited Wilson. And on it goes.

Wilson is notable in another regard as a principled skeptic of a bill of rights. At the Pennsylvania ratifying convention, Wilson insisted that bills of rights properly belong to a monarchy, where rights are bestowed on the people by the government. In a popular government, however, the people give the government power while retaining their rights. Building on this argument, Wilson found it impossible to enumerate all the rights to which the people were entitled. Over time, he worried that only rights enumerated in the constitutional text would be protected, eroding the logic of popular constitutional government. Recognizing the power of this argument, Madison penned the Ninth Amendment to remind the public of this central axiom of popular government: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Still, Wilson’s prediction has at least partly come to pass in prominent textualist and originalist jurisprudence that decries the protection of so-called unenumerated rights.

Wilson’s deeper point was that the people should have a mindset to protect their rights by carefully attending to why the government was regulating them: the burden should be on the government to show why liberty was being regulated in each instance. This required, for Wilson, an educated populace attuned to the logic of constitutional government. He seconded, on this score, Madison’s motion at the Constitutional Convention for Congressional power to establish a national university (without religious affiliation or preference) as an essential supplement to constitutional institutions. It is the people, after all, who carry the burden of republican self-government.

As America celebrates the 250th anniversary of the Declaration, with the republic’s future in peril, we might buttress ourselves with Wilson’s insistence that the people can always reform a constitutional government. Indeed, I hope Wegman’s wonderfully readable book gets a wide audience. You could celebrate the 4th of July this year by taking a break from doomscrolling about constitutional decline and reading The Lost Founder. Take inspiration from it before returning to the arduous and elusive work of sustaining self-government.

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