James Wilson versus the Bill of Rights

• Date: 01 June 2014
• Published date: 01 June 2014
• DOI: 10.1177/1065912913513351
• Author: James R. Zink
• Subject Matter: Articles

513351PRQXXX10.1177/1065912913513351Political Research QuarterlyZink
research-article2013
Article
Political Research Quarterly
2014, Vol. 67(2) 253 –265
James Wilson versus the Bill of Rights:
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Progress, Popular Sovereignty, and the
DOI: 10.1177/1065912913513351
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Idea of the U.S. Constitution
James R. Zink1
Abstract
Americans today may take the Bill of Rights for granted, but its inclusion in the U.S. Constitution originally was
controversial. To understand why, I turn to James Wilson, a leading statesman of the founding era and the chief
opponent of the Bill of Rights. Among other things, Wilson thought a bill of rights would bind future generations to
an incomplete list of rights and deprive them of the right to define individual rights over time. His arguments against a
constitutional bill of rights also offer a useful view of the complexity and diversity of American founding era thought.
Keywords
constitutionalism, bill of rights, James Wilson, popular sovereignty
Given the cherished place the Bill of Rights has long held
Constitution (Hall 1997, 21); he was largely responsible
in American politics, it is easy to forget that the inclusion
for shaping the office of the presidency (DiClerico 1987;
of a declaration of rights was hotly contested during the
McCarthy 1987); he was one of George Washington’s first
debates over ratification of the U.S. Constitution. We
appointments to the U.S. Supreme Court (Read 2000, 93);
tend to assume the Bill of Rights is a good thing and an
and he was the new federal republic’s first law professor
essential part of our political heritage, which makes it dif-
(Smith 1956, 309). But perhaps most important for present
ficult to imagine plausible arguments against such a mea-
purposes, Wilson’s varied career gave him a valuable per-
sure. Indeed, some scholars have described the Federalists’
spective of the American vision of politics as that vision
opposition as “sophistical” (Storing 1981, 1:67), “porous”
was unfolding.
(Levy 1999, 23), and perhaps merely a strategic posture
I reconstruct Wilson’s multilayered argument against
the Federalists assumed to advance the ratification cause.1
the bill of rights to show the extent to which his resistance
Yet, while it is tempting to dismiss that original dispute as
was based in his commitment to popular sovereignty.
irrelevant to our contemporary politics, the fact that we
Wilson pushed the familiar Federalist argument that a bill
continue to debate the boundaries of the rights defined in
of rights would undermine the principle of enumerated
the Constitution and their suitability for our evolving
powers by providing government a pretext to claim pow-
society suggests that there remains good reason to reflect
ers not explicitly granted in the Constitution. When situ-
on the Bill of Rights’ place within our constitutional
ated within his general views on the purpose of a
system.
constitution, however, it becomes clear that he also
To understand the arguments against including a decla-
thought a bill of rights would have a dangerous effect on
ration of rights in the Constitution, I turn to James Wilson,
the people, teaching citizens to view the Constitution as
a leading statesman of the founding generation and the
the ultimate political authority and the source of their
chief opponent of a bill of rights. Although Wilson never
rights. In unpacking his various complaints, moreover,
has captured the popular imagination in the way that other
we will see that Wilson articulates an expansive concep-
statesmen of America’s revolutionary and founding eras
tion of popular sovereignty, one that suggests the right of
have, students of early American history generally
acknowledge his significant practical and philosophical
1North Carolina State University, Raleigh, USA
contributions. Among other things, Wilson was one of only
six men to sign the Declaration of Independence and the
Corresponding Author:
U.S. Constitution (Adams 1922, 134); he was a leading
James R. Zink, Department of Political Science, School of Public and
International Affairs, North Carolina State University, Campus Box
member of the Committee of Detail at the Constitutional
8102, Raleigh, NC 27695-8102, USA.
Convention, which was charged with drafting the proposed
Email: jrzink@ncsu.edu

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254
Political Research Quarterly 67(2)
each generation to define for itself the nature and extent
solution, however, was essentially the converse of
of individual rights. Not unlike Thomas Jefferson, who
Wilson’s: he supported a fixed, written bill of rights but
believed that excessive deference to the past could under-
argued that other elements of a constitution ought to be
mine each generation’s right to consent to the govern-
reviewed and, if necessary, revised by each generation.
ment under which it lives, Wilson feared a bill of rights
Wilson’s arguments against the bill of rights suggest a
would discourage future generations from defining rights
very different understanding of the fundamental purpose
over time, thereby effectively ceding their authority on
and primary value of the Constitution. Rather than look-
one of the most fundamental matters of government.
ing to the Constitution as a direct guarantor of individual
Through this study, I contribute to the existing schol-
rights, he would have us view it as a blueprint for enlight-
arship on Wilson by explicating underappreciated aspects
ened and moderate self-government. It provides both a
of Wilson’s argument against the bill of rights and by
model for how individual citizens should think about
situating that argument within his political and constitu-
their relationship with government as well as a set of pro-
tional thought more generally. I complete my recent anal-
cesses and institutions through which “we the people”
ysis (Zink 2009) by reconciling Wilson’s emphasis on the
collectively strive to understand our rights and, as a
importance of a fixed, written constitution with his oppo-
result, each other.
sition to a constitutional bill of rights. In detailing the
“progressive” dimension of Wilson’s argument, more-
Wilson’s Political and Constitutional
over, I build on Arkes’s (1990, ch. 4) analysis in two
important ways. First, I explain how this aspect of
Thought: An Overview
Wilson’s argument reflects his more fundamental con-
To provide necessary context for Wilson’s arguments
cerns about the sovereignty of future generations. That is,
against the bill of rights, I begin with a brief orientation to
he objected not only on the grounds that a bill of rights
his political and constitutional thought. To be clear, I
would have a stultifying effect, inhibiting the increas-
offer a reconstruction in the sense that I endeavor to situ-
ingly refined understanding of natural rights that the
ate Wilson’s sometimes incomplete or underexplained
progress of history affords, but also because, over time, it
arguments against the bill of rights within his general
effectively would discourage the people from exercising
understanding of government. I agree with Arkes (1990,
their sovereign authority to define rights. Second, and
58–59) that Wilson’s most explicit arguments against the
relatedly, I show in the conclusion how Wilson believed
measure do not yield a complete picture of the basis of his
the process of defining rights itself would encourage the
opposition, but Arkes’s account does not fully capture the
kind of broad citizen deliberation that stabilizes politics
extent to which those explicit arguments clearly invoke
and helps constitute a moderate citizenry. To the extent
principles and themes that Wilson develops more thor-
that a bill of rights constrains this process, it limits the
oughly elsewhere. Arkes’s discussion of Wilson is just a
social and moral benefits that go along with it.
small part of his broader project, so he does not necessar-
More broadly, Wilson’s arguments help us understand
ily presume to offer a comprehensive explanation of
that the controversy over a bill of rights reflects more fun-
Wilson’s opposition. But it is important to place Wilson’s
damental questions about constitutionalism per se, and
arguments against a bill of rights within this broader con-
thus they offer a useful window into the diverse, complex
text to elaborate on them in a way that hews closely to
perspectives on the purpose of a constitution that emerged
Wilson’s own words and ideas.
during the American founding era. Thomas Paine ([1792]
The relatively few scholars who have systematically
1989, 162) certainly spoke for Wilson and many others of
analyzed Wilson’s works typically offer one of two broad
the era when he observed that the American Revolution
characterizations of his views. According to one line of
was intended to be a comprehensive one, a revolution in
interpretation, Wilson’s political thought is fundamen-
the principles and practice of government. Despite broad
tally modern in character and fits squarely within the
agreement on first principles, however, exactly how to
Lockean natural rights tradition (Becker 1942, 105–13; ,
reconcile the tensions among those principles and trans-
178; Pangle 1988, 121–23; Read 2000, ch. 4; Velásquez
late them into constitutional practice was not immedi-
1996; Zink 2009). That is,...