the father of our constitution -- 3/07/22

Today's selection -- from The Life and Career of Justice James Wilson, edited by Randy E. Barnett. Though the creation of the U.S. Constitution was a process “far too complicated for any one delegate to understand the entire process, let alone control it,” Philadelphian James Wilson may have a more substantial claim to the label “Father of the Constitution” than James Madison:
"Writing in 1913, the most influential scholar of the Convention, Max Farrand, who prepared the standard scholarly edition of the documentary sources, labeled [James] Wilson 'Madison's ablest supporter.' That characterization has stuck. Wilson comes across in Madison's Notes as more aggressive -- even a bit of a bully toward the smaller states -- while Madison was cooler and more cerebral.

"There is a great deal to say about their relationship. But I want to focus on an incident whose importance during the Convention has generally been overlooked: The Committee that met for ten days after the 'Connecticut Compromise' while everybody else took a break. This was the committee that prepared the first draft of the Constitution.

"Madison was not on this Committee -- it is called the Committee of Detail -- and his Notes have little to say about it. Wilson, however, was the Committee's dominant intellect, and in fact the Committee's notes are in his handwriting. I mentioned earlier that Wilson's granddaughter turned over to the Historical Society of Pennsylvania what survived of her grandfather's papers. The notes of the Committee of Detail were part of what she handed over, though nobody realized what they were until scholars went to work on them early in the twentieth century.

"I have written at length about the Committee of Detail.  So let me summarize the principal results. They are pretty surprising.

"If you look closely at the reprinting of the various Convention texts in Max Farrand's standard edition, the statistics are quite striking. Madison's original Virginia Plan fills three pages. The Convention's resolutions given to the Committee of Detail fill six pages. So in two full months of debate the Convention added three pages to Madison's plan. The Report of the Committee of Detail fills twelve pages. In other words, in about a week the Committee doubled the text. The final Constitution, as adopted on September 17, fills fifteen pages. What does that mean? The most intensive period of legislative drafting of the entire summer occurred within the Committee of Detail. I remind you that Madison was not a member of this committee and that its drafts are in Wilson's handwriting. For a Wilson biographer, those are suggestive facts.

"Oddly -- and for reasons it would take too long to discuss­ before 2008, nobody seems to have looked especially closely at what the Committee of Detail actually did. You certainly cannot conclude from the number of pages alone that its work was important. And you cannot conclude from the fact that the manuscripts are in Wilson's handwriting that he was the principal architect. Several of the other members had terrible handwriting, and Wilson may have been chosen simply for bis fine penmanship. So you have to look closely.

"It turns out, however, that the Committee of Detail produced many of the central elements of the final Constitution. The enumeration of federal powers, the Necessary and Proper clause, the Supremacy Clause, large parts of the design of the Presidency, the specification of the jurisdiction of the federal courts -- these things are largely the handiwork of the Committee of Detail, and for the most part their language goes straight from Wilson's manuscript into the final Constitution.

"How much of this was Wilson's own contribution? The evidence is difficult to disentangle. I would, of course, like to be able to tell you that Wilson was the primary architect of the Report of the Committee of Detail, which is the first draft of the Constitution. But the documentary evidence will not allow that conclusion. He might have been. He might not. We simply do not know. It is beyond question that he was a powerful intellectual force on the Committee, and for that reason I suspect that be was the principal architect of several of the key structural provisions that made their way into the Constitution. They fit his thinking, and be argued for them on the floor of the Convention. But beyond that, the evidence runs out.

"The evidence is, however, quite clear on two points. First, the Committee of Detail was of central importance to the drafting of the Constitution. Second, Wilson was a member of the Committee, and Madison was not. Remember that the standard story holds that James Madison was the principal architect of the Constitution, and Wilson was a kind of assistant, a very able helper. But if we look a bit more closely at Madison's own Notes, we see that the familiar story cannot be correct.

"In the first place, there is the Committee of Detail. Secondly, much of the design of the Presidency was supplied by Wilson. The Presidency was a topic on which Madison tells us he had thought little before the Convention began, and it is clear that on this major topic he followed Wilson's lead. Finally, and most importantly, the underlying philosophical premises of the two men -- their views of democracy, popular sovereignty, federalism, republicanism, and representation -- are quite different.

"Those philosophical differences are a huge topic, ... But let me put the central point in a peremptory way -- and without the qualifications that would be necessary in a work of scholarship. Wilson, philosophically, is quite different not just from Madison, but from the other delegates to the Convention. He is the only one to argue for a principle of democratic equality -- to argue that the Constitution, as a whole, should be based on a principle of one-man­ one-vote. He is the only one. That was an extremely unusual position in the eighteenth century. All the other delegates, in varying degrees, wanted restrictions on democracy -- a term they generally used with distaste. Wilson used it with approval.

"So if you put all this together, you get a very different picture of Wilson from the usual one. Wilson is not just some kind of junior apprentice to Madison, but a major and independent figure in his own right. Can we say that he is a greater figure than Madison? Absolutely not. My only point is that they are different, and that each can help us to understand the other. On some days, Wilson makes better arguments than Madison, and on other days it is the reverse. We do not need to choose.

"As for the question 'Who is the Father of the Constitution?' I hope it is clear that the question is misconceived. It misunderstands what happened in Philadelphia -- as Madison of course repeatedly said. If you go to Oxford University's new 'Project Quill' website, you can see a graphical representation of all the decision points at the Convention. There are about 2,500 of them. The proceedings were far too complicated for any one delegate to understand the entire process, let alone control it. There were too many actors, too many decisions, too many trade-offs, and too many secret bargains. So the label 'Father of the Constitution' is best abandoned."



Randy E. Barnett


The Life and Career of Justice James Wilson


Georgetown Center for the Constitution


Copyright 2019 Georgetown Center for the Constitution


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