Wilson on Natural Rights and American Constitutionalism

The claim that Wilson subscribed to the fundamental tenets of the natural rights philosophy is not uncontroversial. Many scholars have noted the popularity of the natural rights philosophy among prominent statesmen of the era and how natural rights principles, especially as articulated in the Declaration of Independence, framed the subsequent debates over the nature of the American political order (Becker Reference Becker1942; Diamond Reference Diamond and Schambra1992; Dworetz Reference Dworetz1990; Ericson Reference Ericson1993; Pangle Reference Pangle1988; Rahe Reference Rahe1992; Zuckert Reference Zuckert1996; Reference Zuckert2002). But some scholars have identified Wilson as an exception in this regard, arguing that his views on politics were substantially informed by the Thomistic natural law tradition rather than the Lockean natural rights theory (see Hall Reference Hall1997; Leavelle Reference Leavelle1942, esp. 398–99; Obering Reference Obering1938; Seed Reference Seed1978, esp. chap. 2). If this reading of Wilson is accurate, then the tension between individual rights and the demands of the political community should not be evident in his writings: individuals’ duties to the community would supersede their rights. Wilson as a natural law theorist, therefore, would leave no question that individual liberties and rights are circumscribed by the higher corporate goals of the political association.

Yet for Wilson, as for most other statesmen of America's founding era, the fundamental nature of human beings as free and equal rights-bearers is the organizing principle of politics. In contrast to the natural law tradition, Wilson's view of political life is grounded in an account of the origins of politics, much like those of Hobbes and Locke before him (Velásquez Reference Velásquez1996, 206). To understand the proper foundations of political power, he turns to the prepolitical condition, which he characterizes as a condition of perfect freedom and equality in which all individuals possess fundamental natural rights (Lectures on Law [hereafter Lectures] 1790–92, in Wilson Reference Wilson and McCloskey1967, 240–42, 595). The list of natural rights that Wilson emphasizes is familiar: all individuals possess the rights to life or self-preservation (Lectures 154, 155), liberty (Lectures 241–42, 287), and the pursuit of happiness (Lectures 129, 145, 159, 241–42, 287).Footnote ⁴ In the state of nature, however, natural scarcity, the limits of human reason, and overweening self-love combine to frustrate the security of these rights (Lectures 266, 267, 285, 287, 289; see also Pennsylvania Statehouse speech of October 6, 1787, in Wilson Reference Wilson, Hall and Hall2007, 176). Individuals thus enter into society and institute governments so that they may better secure their stations and pursue their happiness (Lectures 155, 160, 234–36, 285, 287; see also Considerations on Parliament 1774, in Wilson Reference Wilson and McCloskey1967, 723). Wilson argues that because individuals enter into society to secure their natural rights in the first place, governments must be judged by the security of these rights: “Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind” (Lectures 592; see also Lectures 609; Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 221–22, 235). This is not a view that Wilson merely arrived at later in his political career. From his pre-Revolution Considerations on Parliament to his later Lectures on Law, he consistently presents a largely modern political teaching in which the security of individual natural rights provides the operative standard of political right (Becker Reference Becker1942, 105–13; Dennison Reference Dennison1977, 178; Pangle and Pangle Reference Pangle and Pangle1993, 174; Pangle Reference Pangle1988, 121–23; Velásquez Reference Velásquez1996).

Wilson also clarifies how this commitment to securing individual natural rights resulted in a fundamental reconceptualization of constitutional government, a novel and distinctively American constitutional theory that was most completely embodied in the federal Constitution. Wilson defines “constitution” as follows:

This definition outlines at least two essential, related characteristics of America's new constitutionalism. First, a constitution must reflect the fact that government derives from and subject to the constitution. A constitution must always be seen as a fixed, fundamental law that cannot be altered by ordinary acts of government. Second, the constitution itself must be the product of and subject to the “sovereign power,” the people (Lectures 304; see also Lectures 77; Speech of November 26, 1787, in Wilson Reference Wilson and McCloskey1967, 770). As Wilson's definition indicates, the American constitutional hierarchy places the people at the top as the authors of the fundamental law, which in turn remains above and constrains government.Footnote ⁵

The relationship between American constitutionalism and the natural rights political philosophy comes into view more clearly when considered in light of the British tradition from which American constitutional theory departs. One fundamental point of divergence between American and British constitutionalism, for example, centers on the location of sovereignty. Sovereignty within the British tradition had long been lodged in the crown until the Revolution of 1688 solidified Parliament's status as the supreme, sovereign power (Lectures 168–69). Wilson and the Americans, however, viewed the sovereignty of the people as a crucial implication of the natural rights philosophy. According to the natural rights account of politics, all individuals are “sovereigns” over themselves in the prepolitical condition, and they enter into society in part to preserve that sovereignty (Considerations on Parliament 1774, in Wilson Reference Wilson and McCloskey1967, 723). This fact means that naturally free and equal individuals should continue to act as “sovereigns” in political society, governed only by laws “of which they approve” (Lectures 179). American constitutional theory reflects this natural sovereignty insofar as it identifies the people as the sole authors of the Constitution. Wilson actually advocated a degree of popular sovereignty that went considerably farther than some of his fellow founders. Despite his widespread reputation as an enemy of democracy (Smith Reference Smith1956, 266), he clearly understood the natural rights standard of legitimacy to require the ongoing consent of the governed even beyond the initial establishment of the constitution (Lectures 121, 179, 180, 192).Footnote ⁶ Wilson believed that the active participation of the people in government is necessary to ensure that, at all times, the “supreme, absolute, and uncontrollable authority remains with the people” (Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 213).Footnote ⁷

The respective American and British views on the source of individual rights also inform the extent to which a constitution is seen as a fixed, supreme law within each constitutional tradition. As Wilson's definition of “constitution” indicates, the Americans came to view a constitution as an established law that is superior to government and all ordinary laws that government issues. These two important characteristics—fixity and supremacy—follow from the natural rights account of the origins and purposes of politics. A constitution, in this view, represents an agreement among sovereign individuals to organize and empower government in order to better secure their rights. Although individuals consent to give over certain powers to government through the constitution, that limited transfer is perfectly consistent with natural sovereignty and the security of natural rights: government can regulate individual rights and liberties only to the extent authorized by the sovereign people via the constitution. In contrast, British constitutionalism establishes neither an obvious hierarchy of law nor a clear line of demarcation between the constitution and government. A “constitution” in the British view is a largely historical description that encompasses the present system of government, broadly understood, as well as the traditions from which that system evolved (Lectures 310). This necessarily implies that no act of government can amount to an unconstitutional violation of individual rights: because government is a part of the constitution, the constitution is always subject to governmental control, and therefore all acts of government are constitutional (Lectures 310). British constitutional theory thus reflects the traditional view that individual rights are an “inheritance,” the product of a long history of arbitration by which the crown, government and people of England arrived at a shared understanding of rights and liberties (Lectures 589). The expansive British constitution embodies this shared history, and individual rights in turn derive from the constitution. Whereas American constitutional theory grounds the constitution in individual natural rights, then, the British tradition grounds individual rights in the constitution.

To illustrate the practical implications of these constitutional differences, Wilson points to the dubious history of individual rights in England after the signing of the Magna Carta, a document that was considered in part an embodiment of the British constitution. This great charter of liberty outlines the cherished rights and liberties of British subjects, and for that, Wilson acknowledges, it is of “high value” to the people of England (Speech of November 28, 1787, in Wilson Reference Wilson, Hall and Hall2007, 194). There are, however, two basic problems with the venerable document. First, it is at best only a part of the constitution. The rights granted to the people by virtue of that instrument are therefore subject to modification and perhaps even elimination by other elements that compose the constitution, including the ordinary operations of government or the actions of the crown. Given this blurred boundary between the constitution and the government that it purportedly constrains, Wilson concludes that it should come as little surprise that the terms of the Magna Carta had been frequently violated since its signing, a fact that emphasizes its status as merely one among many “fundamental” laws of the kingdom (Speech of November 28, 1787, in Wilson Reference Wilson, Hall and Hall2007, 195). The second, more fundamental problem with the Magna Carta is that it relies on a flawed conception of rights in which individual rights and liberties are granted to the people by the sovereign king (Speech of November 28, 1787, in Wilson Reference Wilson, Hall and Hall2007, 194). From Wilson's decidedly American perspective, therefore, the Magna Carta is evidence that the British “constitution” is not a proper constitution at all because it reflects a fundamentally dangerous theory of rights in which the political association is understood as the source rather than the product of individual rights (see also Lectures 309; Chisholm v. Georgia 458–59).Footnote ⁸ To found the constitution on this erroneous theory of rights, he asserts, effectively is to “unfix what rests on the immovable basis of nature, and to place it on the tottering institutions of man” (Lectures 609). Wilson and the Americans, of course, believe that certain individual rights are “laid deeply in the human frame” (Lectures 609) and should never be understood as the product of conventional arrangements (Lectures 588).

Wilson's analysis of the British constitution's deficiencies also sheds light on his quiet critique of the early state constitutions in America. During the debates over ratification, the proposed federal Constitution's lack of a bill of rights became a major point of contention. Many of the state constitutions at the time contained bills of rights and, recognizing the popularity of such declarations, the Anti-Federalists portrayed the Constitution's shortcoming in this regard as clear evidence of the despotic designs behind the proposed governmental arrangement (Storing Reference Storing1981b, 67). But Wilson countered that declarations of rights were necessary under the state constitutions only because, through those constitutions, the citizens of the several states “invested their representatives with every right and authority which they did not in explicit terms reserve” (Statehouse speech of October 6, 1787, in Wilson Reference Wilson, Hall and Hall2007, 171–72). The state constitutions, in other words, suffered from the same basic defect as the British constitution: they conferred plenary powers on government, effectively transferring sovereignty to the state legislatures. Thus, without a declaration of rights explicitly reserving to the people certain fundamental rights, the state governments would be free to regulate individual rights and liberties according to their own arbitrary determinations (Statehouse speech of October 6, 1787, in Wilson Reference Wilson, Hall and Hall2007, 171–72). When Wilson's thoughts on the Bill of Rights are considered in the light of his views on the problematic nature of the Magna Carta, his ambivalence about the state constitutions is apparent. Many of these constitutions were newly drafted at the direction of the Continental Congress in 1775, and so, to some degree, they reflected a deliberate attempt to implement a new constitutionalism more conducive to securing individual natural rights. But the fact that the state constitutions needed bills of rights in the first place reveals that they were still substantially informed by the erroneous British conception of constitutional government. Much as he offered qualified praise for the Magna Carta, then, Wilson could praise the state constitutions while simultaneously maintaining that they were not proper constitutions.Footnote ⁹

The U.S. Constitution, in contrast to the British constitution and, to a lesser extent, the state constitutions, is a proper constitution because it is both the product of natural rights and protective of them. Wilson suggests that the federal Constitution represented a then-unparalleled realization of American constitutional principles primarily because it organized a government of limited, enumerated powers (Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 211–12). Unlike the British and state constitutions, therefore, the U.S. Constitution makes it clear that government can regulate individual rights only to the extent explicitly consented to by the sovereign people (see, e.g., Address to the Colonists of 1776, in Wilson Reference Wilson, Hall and Hall2007, 47; Pennsylvania Statehouse speech of October 6, 1787, in Wilson Reference Wilson, Hall and Hall2007, 171–72; Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 211–12).Footnote ¹⁰ In this regard, the federal Constitution institutionalizes the appropriate hierarchy of political power: “The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superiour to our legislatures; so the people are superiour to our constitutions. Indeed the superiourity, in this last instance, is much greater; for the people possess, over our constitutions, control in act, as well as in right” (Speech of November 26, 1787, in Wilson Reference Wilson and McCloskey1967, 770; see also Lectures 77). Thus it incorporates the two central components of the American theory of constitutionalism, the absolute supremacy of the people and a clear separation between the fundamental law and the government that it authorizes and constrains. America's “overruling constitution”—that significant and unique contribution to the science and practice of government—provides the ultimate buffer between the considerable power of government and the natural rights that it was designed to secure (Speech of November 26, 1787, in Wilson Reference Wilson and McCloskey1967, 770). At the same time, it symbolizes the primacy of rights insofar as it makes unambiguously clear that “the people are masters of the government” (Lectures 310).

The Natural Rights Dilemma

When American political and constitutional thought is viewed in the light of Wilson's analysis, it becomes easier to see how the natural rights project is radical in its implications. Natural rights are inalienable rights that individuals possess independent of government, rights that inhere in individuals simply in their status as human beings. As Wilson makes clear, moreover, the idea that government exists to secure these rights necessarily implies the juridical superiority of individual natural rights claims. He explicitly rejects Edmund Burke's traditional British view that individuals surrender their natural rights “in trust” to government when they submit themselves to its authority. To allow this conception of rights, he objects, would effectively render individual rights the product of convention, always subject to the tyrannical impulses of government and society: “If this view be a just view of things, then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames: he can claim nothing but what the society provides” (Lectures 589; see also Lectures 609). Wilson, in contrast, conceives of natural rights as “absolute rights” to which individuals always retain legal title (Lectures 586). Individuals in civil society legitimately can be bound by majority rule (Lectures 242–43), but only as long as civil constraints do not undermine the security of natural rights. The right to defend or preserve oneself, for example, “[cannot] be abrogated by any regulation of municipal law” (Lectures 609; cf. Locke [1689] Reference Locke and Laslett1988, §149). Wilson's understanding of this right is expansive; it extends to the protection of family members and property (Lectures 609) and even includes a corresponding right to take reparations for any deprivation resulting from another's use of force without right (Lectures 610). Thus, these individual rights always remain as legitimate legal claims against the political community, even in the face of popularly promulgated civil laws that otherwise would abridge them. Wilson is not merely admitting an abstract theoretical conceit when he asserts, “man does not exist for the sake of government, but government is instituted for the sake of man” (Lectures 610; see also Lectures 155, 589, 592). Rather, he is revealing the founders’ firm commitment to entirely reorganizing politics around the security of individual rights.

Wilson's vision of American politics, therefore, implies a surprising degree of faith in the capacity of individuals to exercise their rights responsibly, despite the fact that his own account of human nature suggests that this faith is misplaced. We have seen that Wilson, following Hobbes and Locke, argues that individuals agree to institute government in the first place precisely because humans are inherently self-interested. Without the coercive influence that government provides, individuals would routinely violate one another's rights and liberties whenever an immediate advantage could be gained by doing so. This is not to suggest that founders such as Wilson subscribed to the antisocial psychological portrait of human nature that often is associated with the natural rights political philosophy. Like many of the Scottish moral sense philosophers who influenced him, Wilson recognizes social affections in human nature, passions that turn each individual toward others and that operate independent of self-interest (Lectures 227; see also Beer Reference Beer1993, 365; Seed Reference Seed1978, 17–18; Velásquez Reference Velásquez1996, 210–14). This natural sociability implies other-regarding natural duties that ostensibly negate the primacy of individual rights in his political theory (see, e.g., Seed Reference Seed1978, 18–19). Yet he qualifies this softer, more optimistic portrayal of human nature in important ways. Although he pointedly rejects the Hobbesian characterization of the state of nature (Lectures 228–29), he also carefully observes that natural social affections “partake of human imperfection” (Lectures 266) and often are overwhelmed by the drive for self-preservation (see, e.g., Lectures 285, 587). Wilson similarly dilutes the obligatory force of individuals’ natural duties. As in Locke's natural rights theory, these duties are largely ancillary to the overriding natural right of self-preservation: the duty of humanity operates only after an individual does “what he can for himself” and terminates at the moment that the individual becomes “wanting to himself” (Lectures 160–61; cf. Locke [1689] Reference Locke and Laslett1988, §6). In fact, Wilson apparently conceives of other-regarding duties as deriving from the individual right of self-preservation, ascribing their moral force primarily to the necessity of human cooperation for individual preservation and happiness (Lectures 160). Despite his more cheerful outlook on human psychology, then, Wilson never lost sight of the fact that “it is the nature of man to pursue his own interest, in preference to the public good” (Pennsylvania Statehouse speech of October 6, 1787, in Wilson Reference Wilson, Hall and Hall2007, 176; see also Lectures 266, 267, 285, 287, 289).

Wilson's works thus display the central tension that critics of the American endeavor found so vexing: the attempt to sustain a political community on a philosophy that privileges self-interested individuals. There had long been vocal critics of the natural rights philosophy, of course, ever since Sir Robert Filmer first described Hobbes's political theory as a prescription for anarchy (Filmer [1648] Reference Filmer and Sommerville1991, 141). But these complaints took on new significance when the colonists actually proposed to put natural rights principles into action. The American revolutionaries were vilified as crazy disciples of Locke who had set out to “unhinge and destroy every Government upon Earth” (Tucker Reference Tucker1775, 11). Even Edmund Burke, who defended the colonists on the grounds that they were merely asserting their long-established constitutional rights as Englishmen, expressed deep discomfort with the natural rights principles that the Americans had invoked: “I am not here going into the distinctions of rights, not attempting to mark their boundaries. I do not enter into these metaphysical distinctions; I hate the very sound of them. Leave the Americans as they antiently stood, and these distinctions, born of our unhappy contest, will die along with it” (Burke [1775] Reference Burke, Canavan and Payne1999, v. 1, 215). When the French followed the American example, however, his hopes for a quick death to “metaphysical” rights-talk were dashed, and he responded by authoring probably the best-known polemic against the natural rights political project, the Reflections on the Revolution in France. In the splenetic tones for which he is (in)famous, Burke argued that organizing politics around vague natural rights would only inspire a “wild litigious spirit” in individuals (Burke [1790] Reference Burke, Canavan and Payne1999, v. 2, 120) and encourage them to view liberty as “a prize to be contended for” rather than “a possession to be secured” (Burke [1790] Reference Burke, Canavan and Payne1999, v. 2, 145). To the extent that contemporary critics of rights-based liberalism echo these concerns, therefore, they fundamentally continue a longstanding debate of which the American founding era is a central part.

Wilson understood the pitfalls associated with natural rights political order very well. As he articulated the challenge confronting the Americans:

Wilson here subtly acknowledges the force of the arguments against the natural rights political philosophy. A political association founded on America's political and constitutional theory must constantly remind individuals of their rights in order to avoid the slide to tyranny, that “great danger” resulting from unexercised liberty. But by advertising the primacy of individual rights, a “free government” necessarily opens the way to the “still greater danger” of the unreasonable exercise of rights. The deference to individual judgment implied in the natural rights political philosophy emerges here as a “weighty burden” with potentially disastrous political consequences if it is not discharged properly. These admissions seem to point to one inescapable conclusion: whether because of self-interest or ignorance, humans simply are incapable of exercising their rights in a way that is consistent with the public interest. Wilson, however, avoids this conclusion in part because of his faith in the constitutive potential of the U.S. Constitution.

Lessons of Liberty and Law

At a general level, Wilson indicates that the written-ness of the U.S. Constitution encourages individuals’ “love of liberty” by memorializing and reinforcing in their minds the primacy of their rights and the derivative nature of government. Wilson knows that the mere fact that a document outlines limits to governmental power is not sufficient to stop the abuse of power. For constitutional constraints to be effective, the people must constantly guard against a government that oversteps its constitutional limitations. The people cannot discharge this responsibility, however, unless they possess “some just and general knowledge of those rights that are to be protected, and of those duties that are to be performed [by government]” (Lectures 148). Of course, as an opponent of the inclusion of a bill of rights in the American Constitution, Wilson does not require an enumeration of individual rights. Nevertheless, so that the people never forget their ultimate authority, America's written Constitution unambiguously declares the sovereignty of the people, something that “is evident from the manner in which it is announced: ‘WE THE PEOPLE OF THE UNITED STATES’” (Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 235). The written Constitution emphasizes the primacy of individual rights by publicizing that it is the people who “ordain and establish” it and the government that it authorizes and constrains (Lectures 329). Because “the people appear in the foreground of the national constitution” (Lectures 401), then, it helps to cultivate the “love of liberty” by constantly reminding individuals that they are the masters of government.

Wilson contrasts America's concrete, written Constitution with the amorphous and uncertain—and thus potentially destructive—constitutions in other countries. For example, he allows the “supposition” that an original contract took place between the king and the people of England, but the Glorious Revolution of 1688 was necessary precisely because the rights and liberties granted by that contract were the “subjects of dark and doubtful disputation” (Lectures 173). The lack of a definitive instrument outlining the rights of citizens and duties of government allowed the king to flout citizens’ liberties routinely. The work of the Revolution, therefore, was not merely to restore the contract, but to “declare these duties expressly, and to reduce that contract to a plain certainty” (Lectures 173). The subsequent English Declaration of Rights provided documentary evidence of the crown's concessions, but even the rights granted by this instrument easily could be undermined by the overbearing legislative power (Lectures 173; see also Lectures 178, 192, 309–10). Wilson similarly complains about the pernicious influence of the king's counselors, who wielded great authority despite having no power “defined or described in the British constitution” (Lectures 319). Ill-constructed or tyrannical governments deliberately draw a veil over their operations (Lectures 306) or distort their foundations with “fable and mythology” (Lectures 71) in order to obscure the only legitimate basis of governmental power, the natural rights of individuals. In contrast, the U.S. Constitution announces in the “simple garb of freedom and truth” the supremacy of the people over government (Lectures 71), a “great truth [that] can never be too deeply impressed” upon the public mind (Lectures 73): “We have no occasion to enter a caveat against the supposition, that our liberties are the grants of princes. With us, the powers of magistrates, call them by whatever name you please, are the grants of the people” (Lectures 317). The written Constitution publicizes in certain terms the central importance of individual liberty, and thus it ensures a vigilant citizenry that is always on guard against governmental encroachments on their rights.

Wilson's view that the written-ness of a constitution could reinforce the security of individual rights was widely shared by his contemporaries. At the time of the Revolution, Americans were accustomed to thinking of certain fundamental documents as helping to delineate the nature and extent of governmental power, a tradition that dated back to the early colonial charters and even to the Magna Carta (see Lutz Reference Lutz1988, esp. chap. 4). In this sense they were well acquainted with constitutional documents. The idea of a written constitution, however, did not begin to crystallize until the colonists came to realize that the promise of limited government is empty if the rights of citizens and the responsibilities of government are not reduced to plain certainty in a single, definitive document (Lutz Reference Lutz1988, 9; McAffee Reference McAffee2000, 10–12; Wood Reference Wood1969, 292–93, 600–601). The core elements of American constitutionalism began to take shape during this important period of self-reflection, but they did not wholly coalesce until the federal Constitution (Lutz Reference Lutz1988, 99–100; McAffee Reference McAffee2000, 10–12), when Americans clearly and consistently defined a “constitution” as a fundamental law that is superior to government and alterable only by the people (Stourzh Reference Stourzh, Ball and Pocock1988, 47–48). This commitment to individual rights and popular government underscored the necessity of explicitly delimiting governmental power in an accessible document that ordinary citizens could “quote article by article” (Paine [1791] Reference Paine and Kuklick1989, 89).Footnote ¹¹ Such a document would enable citizens to recognize whenever government had overstepped its constitutional limitations, thereby ensuring that “the supreme, absolute, and uncontrollable power remains in the people” (Speech of November 26, 1787, in Wilson Reference Wilson and McCloskey1967, 770). Thus, Wilson was one among many statesmen and political theorists of the era who viewed a written constitution as an important part of the rights revolution and the new constitutionalism that it inspired.

Yet Wilson also emphasizes that the “love of liberty” instilled by America's written constitution has an important corresponding effect on individuals. The Constitution draws citizens to it initially because it is the product of liberty, but Wilson notes the significance of that great act of liberty: the people, the authors of the Constitution, have given themselves a fundamental law. Individuals learn to love the written Constitution, therefore, because it is a steadfast monument to liberty, and this sense of constitutional attachment in turn renders individuals amenable to the document's ennobling lessons in self-government.

When read properly, then, America's written Constitution imparts to its readers a “love of law” that encourages the responsible exercise of liberty. Wilson knows that securing individual rights in a republic as expansive and diverse as America's is almost impossible unless individuals expand their perspectives and learn to view their rights and interests within the broader context of the whole. As he puts it, America's natural rights political order requires of its citizens “an expansion of mind, of talents, and of temper” (Lectures 267). Wilson believes that if the Constitution's principles are “maturely considered and estimated” by citizens, then they will recognize the crucial importance of achieving this broader view (Lectures 305). When Wilson reads the details of that document, he sees an institutional arrangement “in which all the qualities are happily blended in their operation” (Lectures 290). Those novel, defining characteristics of the American government—the compound federal system, separation of powers, balances, and checks—all moderate the behavior of individuals who operate within government and make it “advantageous even for bad men to act for the publick good” (Lectures 289–90). Officeholders thus are free to pursue their own interests, but the various institutional checks and controls shape and constrain their pursuits so that they are consistent with the “true line of public liberty and happiness” (Lectures 300). Perhaps more importantly for Wilson, however, the written Constitution makes these institutional mechanics of moderation accessible to its citizens. It provides a model for thinking about self-interest that individuals outside of government should study and internalize.

Wilson thus views the documentary form of the Constitution as an important complement to its substance. The written-ness of the Constitution allows the government's carefully proportioned and balanced powers to “diffuse, through the whole society, their mingled and tempered influence” (Lectures 290; see also Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 241). This influence can be felt when one exercises a constitutional right such as the right to vote, an activity that has “a powerful tendency to open, to enlighten, to enlarge, and to exalt the mind” (Lectures 403; see also Seed Reference Seed1978, 22–23). But the mere knowledge of the Constitution and its principles of liberty and law has a moderating effect on individuals (Lectures 267). Wilson envisions a nation of little Ciceros (Lectures 84), a citizenry equipped with a detailed knowledge of the Constitution's institutional arrangements and the organizing principles that underlie them. Far from encouraging a “wild litigious spirit” (Burke [1790] Reference Burke, Canavan and Payne1999, v. 2, 120), this knowledge imbues individuals with the Constitution's moderating influence, as they learn to consider their rights and interests in conjunction with the rights and interests of their fellow citizens.

It is useful to contrast Wilson's views on the Constitution's role in encouraging civic engagement with the Anti-Federalist perspective. Although the Anti-Federalists hardly presented a unified and coherent vision of the American political order—or at least they produced nothing that quite matched The Federalist—a dominant theme throughout Anti-Federalist writings is the importance of a tightly-bound, civic-minded citizenry. One of the Anti-Federalists’ chief objections to the U.S. Constitution, for example, was the problem of achieving community in the extensive federal system that it organized. They argued that the “constant clashing of opinions” resulting from such an expansive and diverse republic would dilute individuals’ devotion to their fellow citizens and their country, and the resulting contentiousness of political interaction would undermine the secure enjoyment of individual rights (Storing Reference Storing1981b, 19–20). The Anti-Federalists thought that popular government could succeed only in relatively small, homogenous communities where citizens are united by shared opinions about the appropriate contours of rights and liberties (Dry Reference Dry, Frost and Sikkenga2003, 221–23; Ketcham Reference Ketcham and Ketcham1986, 17). Their preferred plan of government, of course, was similar to the Articles of Confederation: a system in which the states retained their sovereignty in every important respect, which would ensure the preservation of those smaller communities.

Wilson joined the Anti-Federalists in acknowledging the importance of strong bonds of citizenship, but he believed that the federal Constitution would encourage, rather than hinder, the kind of civic engagement necessary for the security of individual rights. Wilson rejected the Anti-Federalist prescription for promoting civic duty, arguing that the homogeneity that the Anti-Federalists longed for would be downright destructive of individual rights:

Those very social affections that seem to soften the individualism in Wilson's portrait of human nature emerge here as potentially destructive forces. Individuals, moved by the social passions, all too often seek out like-minded individuals and engage in social relations that circumscribe the objects of their natural affections. Although a sense of community undoubtedly results when our “social propensities” operate in this fashion, that community spirit is “inconsiderate” and intolerant of those who are located outside of our “narrow and contracted sphere.” Wilson thought that America's written Constitution would allow the American political order to successfully steer this course between excessive individualism and the excesses of community.Footnote ¹²

Although Wilson fit squarely within the Federalist camp, it also is instructive to compare his understanding of the novelty of America's new constitutional theory with the more recognizable version offered by James Madison in The Federalist. From Madison's perspective, the uniqueness of the Constitution consists primarily in its institutional arrangements, which establish the mechanisms necessary for balancing the security of individual rights with the demands of popular government (Zuckert Reference Zuckert, Frost and Sikkenga2003). Like Wilson, he sought to account for those base, self-interested aspects of human nature that have potentially destabilizing effects on the political order, especially when they manifest themselves in the form of factionalism. In Federalist 10, for example, Madison famously argued that the new compound system delineated by the Constitution “extends the sphere” and “take[s] in a greater variety of parties and interests,” which in turn makes it less likely that a majority faction can form and use the offices of government “to invade the rights of other citizens” (Hamilton, Madison, and Jay Reference Hamilton, Madison, Jay, Rossiter and Kesler2003, 78). Madison here articulates a “negative” view of the Constitution's influence: he highlights the way in which America's novel federal arrangement almost mechanistically manages the bad effects resulting from self-interested behavior, rather than controlling the underlying self-interested behavior itself. Wilson joins Madison's analysis in almost every respect, but he also provides a complementary account that emphasizes the positive, moderating influence that the federal arrangement can have on citizens. From Wilson's view, the expansive federal system presents to its citizens new objects of choice that require them to look beyond parochial interests to reach accommodations with a wider citizenry (Beer, Reference Beer1993, 360–77; Velásquez Reference Velásquez1996, 219). This process, in turn, compels individuals to contemplate the broader bases of human commonality; it helps to enlarge the sentiments and refine individuals’ social powers. Citizens, as a result, are more generous and thus less likely to oppress in the first place (Velásquez Reference Velásquez1996, 220).Footnote ¹³

This is not at all to suggest that Madison and Wilson do not share the same fundamental understanding of America's constitutional theory. Madison does not deny the Constitution's pedagogical value for the people and the potential salutary effects flowing therefrom. He ultimately rationalized his eventual support for a written bill of rights on grounds that emphasized the psychological and educative effects of the Constitution: “What use, then, it may be asked, can a bill of rights serve in popular Governments? I answer [that] . . . [t]he political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion” (letter to Jefferson of October 17, 1788, in Madison Reference Madison and Meyers1981, 158). Madison knew from experience with the state constitutions that mere “parchment barriers” would not prevent citizens from invading the rights of other citizens whenever the “popular current” allowed for it (Madison [1788] Reference Madison and Meyers1981, 157). To him, therefore, a constitution with a bill of rights is less useful for its direct deterrent effects on behavior than for the way in which it can shape and moderate the individual attitudes that underlie behavior. The written Constitution, with its enumeration of individual rights, stands as a constant reminder to individuals that the secure enjoyment of one's rights and liberties and others’ secure enjoyment of their rights and liberties are mutually interdependent. The written-ness of the Constitution, then, allows these “political truths” to be “incorporated with the national sentiment,” which in turn counteracts the “impulses of interest and passion” (Madison [1788] Reference Madison and Meyers1981, 158). Conversely, Wilson shared Madison's views on how the Constitution's novel institutional design manages and controls the effects of self-interested behavior (see esp. Lectures 300). But the “enlarged sphere” and institutional controls embodied in the Constitution together take on added significance for Wilson: they provide to all individuals who read the Constitution a model for developing all of the “finer operations of the mind” and for taking a broader view of their rights (Lectures 235). The written Constitution helps to constitute individuals in a way that minimizes the blind pursuit of self-interest even without the direct intervention of the Constitution's moderating institutions.

The Constitution as a Political Language

America's written Constitution also memorializes a carefully crafted political language that emphasizes its important lessons in liberty and law. Wilson consistently asserts that the “science of law” should be incorporated into every free citizen's education so that citizens properly understand their rights and duties (Lectures 72), and language plays a central role in facilitating this civic education. For example, Wilson observes that in other countries that are less favorable to the natural rights of individuals, the science of law generally is assumed to be a “disagreeable” or “perplexed” study: “Some, indeed, involve themselves in a thick mist of terms of art; and use a language unknown to all, but those of the profession. By such, the knowledge of the law, like the mysteries of some ancient divinity, is confined to its initiate votaries; as if all others were in duty bound, blindly and implicitly to obey” (Lectures 73). In the United States, however, the Constitution offers a plain and accessible language that demystifies for all who read it the correct principles of government. When citizens speak this language, they help diffuse the Constitution's valuable lessons throughout the community.

Wilson views language as essentially political in the dual sense that language is arrived at politically and it has political consequences. Languages are arrived at politically insofar as they are among those things that are “settled by agreement or custom” (Lectures 381). They originally were “contrived by men in general, to express common sentiments and perceptions” (Lectures 135), and there is a real sense in which languages ultimately are grounded in the consent of those who speak them—no language survives for long unless a group of individuals agree to a system of signs used to convey thought. Yet the meaning of a word does not necessarily originate by consent. Words typically acquire “a right by prescription” (Lectures 213), or the general acceptance over time of a word's meaning, regardless of whether or not it was collectively coined by common agreement in the first instance. A people unknowingly can assent to words that subtly perpetuate incorrect notions of the common “sentiments and perceptions” that they are intended to represent. Similarly, as something that is almost “purely artificial” (Lectures 381), definitions and the language that signifies them can be manipulated or abused (Lectures 98–99). Wilson is sensitive to the various uses and abuses of language and the political consequences that flow therefrom. When a word or a system of words enters into common usage, it effectively receives the endorsement of common opinion, a powerful authority. As a word becomes authoritative, in turn, it correspondingly shapes the thoughts and sentiments of those who speak it, for better or worse. Language, in short, serves an important constitutive function: it is “in consequence of language” that “we are united by political societies, government, and laws” (Lectures 231; see also Conrad Reference Conrad1988, 21).Footnote ¹⁴

Wilson emphasizes the political consequences of language in his running critique of William Blackstone's definition of law (see, e.g., Lectures 103, 112–13, 126–27, 168–71, 175, 189, 193–94; see also Read Reference Read2000, 107–8). From Wilson's perspective, Blackstone problematically defines law as a “rule of action, which is prescribed by some superiour, and which the inferiour is bound to obey” (Lectures 103). As the superior–subject relationship becomes inextricably associated with the word “law” in common usage, then, “hideous consequences” follow: “Absolute, unlimited, and indefeasible power, nonresistance, passive obedience, tyranny, slavery, and misery walk in its train” (Lectures 118). Wilson argues that this understanding of the word allows absolutists to claim “impunity, indulgence, and even sanction” for the abuse of power because, whenever individuals speak about “law” in Blackstone's terms, they tacitly accept that their inferiority rightfully commands their obedience. Other common or formal legal expressions in old England, such as “sovereign liege lord,” likewise emphasize the subordinate position of the citizenry by presenting “the king to his subjects as the object of their allegiance” (Lectures 177). Wilson objects to the language of the Magna Carta on similar grounds, noting that it presumes to grant to citizens rights that they already possess as the undeniable endowment of nature (Speech of November 28, 1787, in Wilson Reference Wilson, Hall and Hall2007, 194). Thus, the very language that British citizens speak buttresses in their minds an erroneous conception of political right; it obscures in the minds of those who tacitly accept it through common usage the true source of legitimate political power, the consent of the supreme and sovereign people (Lectures 77, 81, 121).

In contrast with the British tradition, America's written Constitution supplies its citizens with a shared political language that continuously reinforces in their minds the correct principles of government whenever they speak it. Wilson's view of the political nature of Constitutional language is subtle. Although he initially appears opposed to the clever manipulation of language perpetrated by men such as Blackstone, Wilson actually does not object to the use of language to accomplish political ends. Rather, he objects to the specific political ends at which Blackstone's erroneous definitions aim. Indeed, in Chisholm v. Georgia, Wilson suggests that political innovation sometimes requires the prudent reinvention of language (Chisholm 454). The Constitution, of course, was drafted by Wilson and others, and thus it represents a political language that was carefully crafted with political goals in mind. Technically, then, the Constitution was not the product of “we the people,” but the state ratifying conventions ensured that its language conformed closely to its underlying principles of political right:

So that the people never forget their ultimate authority, America's political language identifies them as its author. Thus, not only does the Constitutional language reflect the essential relationship between liberty and law, but even the process by which it was promulgated likewise embodies those correct principles of government. Whenever an individual speaks the Constitutional language, he or she is reminded of his or her distinctive status as the subject and author of the law (Lectures 195).

The core of Wilson's famous opinion in Chisholm v. Georgia, one of the first significant crises of federalism that confronted the relatively young U.S. Supreme Court, effectively illustrates the salutary influence of America's constitutional language. In finding that a “sovereign” state could be sued by the citizens of another state (in this case, to recover debts owed by that state), Wilson reasoned,

Wilson here suggests that the “common” language reflects an erroneous understanding of the principles of the American Constitution in a couple of respects. First, within the specific context of Chisholm, the “convivial” language routinely elevates “the United States” above the unified, single people for whom the states exist. Just by speaking in this way, individuals encourage an unreasonable attachment to state interests that disrupts the spirit of union that is essential to the survival of the federal republic. Greater attention to the language of the preamble would habituate citizens to the proper object of reverence, “the people of the United States,” considered as one people (Chisholm 464). More generally—and perhaps even more problematically—the common usage perpetuates an erroneous conception of political right. By focusing on the “artificial person” instead of the natural persons who authorize it, common usage effectively elevates government above those individuals “who spoke it into existence.” As his critique of Blackstone illustrates, the slide to tyranny begins whenever citizens unreflectingly accept government as the sovereign superior. Yet, as long as the written Constitution exists, individuals can always return to its first principles to correct the errors of common language, in much the way that Wilson does here.Footnote ¹⁶

The very use of America's constitutional language, then, redounds to the viability of the political association, even when partisans engaged in political discourse disagree over the meaning of the Constitution's specific terms. Wilson readily concedes that language can never achieve “mathematical precision” and is necessarily subject to inaccuracy (Speech of December 4, 1787, in Wilson Reference Wilson, Hall and Hall2007, 238). As long as this is the case, some of the Constitution's specific provisions inevitably will be open to interpretation and debate. But, following Wilson's lead, individuals should view the Constitution with bifocal vision: although individuals should always give due attention to its specific details, they also must never lose sight of the “combined and comprehensive view” and “general texture” of the Constitution (Chisholm 465). The comprehensive view of the Constitution unambiguously reveals a political system that is grounded in ordered liberty. This admixture of liberty and law composes the “common principles” that allow individuals to engage in debate in the first place (Lectures 223), and whenever individuals speak the constitutional language, it reinforces these shared principles of political reasoning in their minds.