The Language of Liberty and Law: James Wilson on America's Written Constitution

Abstract

Although contemporary Americans take it for granted that a “constitution” is a written document, written constitutions were almost unprecedented at America's founding. James Wilson, one of the most significant yet overlooked of America's founders, offers a comprehensive theory of America's written constitution. Wilson argues that the written-ness of the U.S. Constitution serves two essential functions. As an initial matter, it memorializes the primacy of liberty by announcing that the authority of government derives only from a free people. Perhaps more importantly, however, the written constitution uplifts and refines the character of its citizens, and thus helps to constitute a people. A review of Wilson's writings and speeches reveals how, even in a rights-centric political order, the written constitution helps to cultivate moderate and civic-minded citizens without diminishing the fundamental importance of individual rights.

James Wilson versus the Bill of Rights

“…According to one line of interpretation, Wilson's political thought is fundamentally modern in character and fits squarely within the Lockean natural rights tradition (Becker 1942, 105-13;, 178;Pangle 1988, 121-23;Read 2000, ch. 4;Velásquez 1996;Zink 2009). That is, while his writings undoubtedly reflect other influences, Wilson mostly articulates a modern understanding of government organized around humans' fundamental nature as free and equal rightsbearers.…”

“…2 Government, Wilson insisted, exists to secure individual natural rights, and any government that fails in this regard "is not a government of the legitimate kind" (Lectures, in Wilson 2007 [hereafter Works], 1061). 3 Wilson's emphasis on the political significance of natural rights, however, only makes his opposition to including a bill of rights in the U.S. Constitution even more puzzling, especially given his views on the rights-securing function of a written constitution (Zink 2009). After all, if Wilson thought a primary purpose of government is to secure individual rights, why did he object to defining the most fundamental rights in the supreme law of the land?…”

“…Wilson also suggested that a constitution could serve important symbolic and educative functions that complement its primarily practical role in establishing government (Zink 2009). He assumed the people's tendency to attach particular significance to constitutions and constitutional documents affords them special influence over citizens' attitudes and values.…”

“…Through this study, I contribute to the existing scholarship on Wilson by explicating underappreciated aspects of Wilson's argument against the bill of rights and by situating that argument within his political and constitutional thought more generally. I complete my recent analysis (Zink 2009) by reconciling Wilson's emphasis on the importance of a fixed, written constitution with his opposition to a constitutional bill of rights. In detailing the "progressive" dimension of Wilson's argument, moreover, I build on Arkes's (1990, ch.…”

America’s Homo Sacer

“…Because the source of authority for the U.S. Constitution is derived from citizens, they are capable of utilizing legal mechanisms to overcome an overzealous government. James Zink (2009) argues that the U.S. Constitution is written and spells out citizen rights gives them the security to enforce those rights. No such security is available to a noncitizen.…”