America's Forgotten Founders, second edition

America's Forgotten Founders, second edition

by Gary L Gregg II, Mark David Hall

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Overview

Even as Americans devour books about our Founding Fathers, the focus seldom extends past a half dozen or so icons—Franklin, Washington, Adams, Jefferson, Madison, Hamilton. Many of the men (and women) who made prodigious contributions to the American founding have been all but forgotten.
 
America’s Forgotten Founders corrects this injustice. Editors Gary L. Gregg II and Mark David Hall surveyed forty-five top scholars in history, political science, and law to produce the first-ever ranking of the most neglected contributors to the American Revolution and our constitutional order. This unique book features engaging short biographies of the top ten most important Founders whose contributions are overlooked today: James Wilson, George Mason, Gouverneur Morris, John Jay, Roger Sherman, John Marshall, John Dickinson, Thomas Paine, Patrick Henry, and John Witherspoon.

The latest entry in ISI Books’ Lives of the Founders series, America’s Forgotten Founders reshapes our understanding of America’s founding generation.

Product Details

ISBN-13: 9781480492950
Publisher: Intercollegiate Studies Institute (ORD)
Publication date: 03/11/2014
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 224
File size: 345 KB

About the Author

Gary L. Gregg II holds the Mitch McConnell Chair in Leadership at the University of Louisville and is director of the McConnell Center. He is the author or editor of several books, including Vital Remnants: America’s Foundingand the Western Tradition and Patriot Sage: George Washington and the American Political Tradition.

 
Mark David Hall is Herbert Hoover Distinguished Professor of Political Science at George Fox University in Oregon. He is the author of The Political and Legal Philosophy of James Wilson, 1742–1798 and coeditor of The Founders on God and Government and The Forgotten Founders on Religion and Public Life, among other books.

Read an Excerpt

America's Forgotten Founders

Second Edition


By Gary L. Gregg II, Mark David Hall

ISI Books

Copyright © 2012 Gary L. Gregg II and Mark David Hall
All rights reserved.
ISBN: 978-1-4804-9295-0



CHAPTER 1

JAMES WILSON

(1742–1798)


MARK DAVID HALL


"The pyramid of government—and a republican government may well receive that beautiful and solid form—should be raised to a dignified altitude: but its foundations must, of consequence, be broad and strong, and deep. The authority, the interests, and the affections of the people at large are the only foundation, on which a superstructure, proposed to be at once durable and magnificent, can be rationally erected."

—James Wilson, Lectures on Law, 1791


"Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness."

—James Wilson, Lectures on Law, 1791


James Wilson was a "reluctant revolutionary," but he played a significant role in the American Revolution and was a signer of the Declaration of Independence. He was one of the most important delegates at the federal Constitutional Convention, where he argued consistently for a strong and democratic national government. His early defense of the proposed Constitution and his leadership in the Pennsylvania ratifying convention did much to secure the Constitution's approval. Wilson served as one of the new nation's first Supreme Court justices, and his Lectures on Law contains some of the period's most profound commentary on the Constitution and American law.


Wilson was born in Carskerdo, Scotland, IN 1742, The son of a lower-middle-class farmer. Dedicated to the ministry at birth, he received a solid classical education that enabled him to win a scholarship to the University of St. Andrews. Wilson studied there for four years before entering the university's divinity school, St. Mary's, in 1761. He was forced to withdraw in 1762 upon the death of his father and for a few years served as a tutor to support his family. The life of a pedagogue did not suit Wilson, so as soon as his siblings were old enough to support their mother, he immigrated to America in search of greater opportunities. Arriving in Pennsylvania in 1765, Wilson taught Latin and Greek at the College of Philadelphia (now the University of Pennsylvania) for a year before reading law under John Dickinson. He flourished as an attorney and, as the Revolution approached, was drawn into politics.

Historian Christopher Collier proposed that Wilson was a "polemicist the equal of Tom Paine." This may be an exaggeration, but it is indisputable that Wilson achieved national recognition with his essay "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament" (1774). Many Patriots rejected Parliament's claim that it could levy internal taxes on the colonies, but they conceded that it could regulate and/or tax international trade. Wilson's essay was the first to deny publicly the "legislative authority of the British Parliament over the colonies ... in every instance." He acknowledged that the colonists owed allegiance to the king in exchange for his protection but stipulated that if the monarch withdrew his protection, the colonists were no longer obligated to obey the Crown. Wilson was able to put this theory into practice after he was appointed to the Second Continental Congress. He was, in Terence Ball's words, "a reluctant revolutionary," but he actively participated in the proceedings and eventually cast a critical vote in favor of independence.

By the late 1770s, Wilson was recognized as one of the finest attorneys in America. In 1779 he was appointed to be France's advocate-general in the United States. He served in this position until 1783, when he resigned because King Louis XVI was unwilling to pay the high fees he required (the king eventually paid him 10,000 livres for his services). In 1782, Pennsylvania asked Wilson to represent the state in a land dispute with Connecticut. The case was argued before a tribunal formed under Article IX of the Articles of Confederation, and Wilson's careful arguments won the day. His legal prominence is illustrated as well by General Washington's willingness to pay him one hundred guineas to accept his nephew Bushrod as a law student. Bushrod, aware that such a fee was well above the going rate, begged his uncle to allow him to study elsewhere. But Washington was convinced of Wilson's ability as a lawyer and insisted on him, although he had to pay the fee with a promissory note. Bushrod was evidently well served by this arrangement, as indicated by his successful legal career and eventual appointment to his mentor's seat on the Supreme Court of the United States.


In his 1785 pamphlet, "Considerations on the Bank of North America," Wilson made the provocative argument that even under the Articles of Confederation, "[t]o many purposes, the United States are to be considered as one undivided, independent nation." Moreover, he proposed that Congress possessed a variety of implied powers, including the power to charter a national bank, and he vigorously defended the necessity of such a bank. Numerous scholars have noted that the essay contains every argument later made by Alexander Hamilton and his allies in support of a national bank under the United States Constitution.


In 1787 the Pennsylvania legislature appointed Wilson to represent the state at the Constitutional Convention. He attended the Convention from start to finish, and he participated in all of the most significant proceedings. Wilson joined with Madison to argue for a powerful national government based immediately upon the authority of the people. He was the most democratic of all delegates, arguing for the direct, popular, and proportional election of representatives, senators, and the president. When his colleagues rejected the direct election of the president—George Mason said "it would be as unnatural to refer the choice of the proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man"—Wilson, according to Carol Berkin, "devised the electoral college," or, in Collier's words, he became the "father of the bastard electoral college."


Wilson believed that the chief executive should be independent of the legislature and that he should have a range of powers that would allow him to act with "vigor and dispatch." He also fought for an independent federal judiciary that would possess the power of judicial review. Indeed, throughout the Convention he was one of the most significant advocates of checks and balances and the separation of powers. Wilson had more faith in the people than most Founders, but he was convinced that concentrated power, even power concentrated in a legislature, would lead to disaster. In his Lectures on Law, he wrote that a "single legislature is calculated to unite in it all the pernicious qualities of the different extremes of bad government." Finally, it is important to note that Wilson served on the critical five-member Committee of Detail, and many of the earliest full drafts of the Constitution are in his handwriting.


"Mr. Wilson ranks among the foremost in legal and political knowledge ... no man is more clear, copious, and comprehensive than Mr. Wilson, yet he is no great Orator. He draws attention not by the charm of his eloquence, but by the force of his reasoning."

—William Pierce, Wilson's colleague at the Federal Convention of 1787


Under Wilson's leadership, Pennsylvania became the second state, and the first large one, to ratify the Constitution. As the only member of the state's ratifying convention who attended the Federal Convention, Wilson was in an excellent position to defend the Constitution. In his "State House Yard Speech" of October 6, 1787, he responded to the earliest Anti-Federalist criticisms. Gordon S. Wood in The Creation of the American Republic: 1776–1787 remarked that this speech quickly became "the basis of all Federalist thinking." Wilson did his job so well that Federalists throughout the country enlisted his aid in their states' ratification debates. George Washington, for instance, sent a copy of the speech to a friend, noting:

the enclosed Advertiser contains a speech of Mr. Wilson's, as able, candid, and honest member as was in the convention, which will place most of Colonel Mason's objections in their true point of light, I send it to you. The republication of it, if you can get it done, will be serviceable at this juncture.


By the end of 1787, the speech had been reprinted in thirty-four newspapers in twelve states, and it was circulated in pamphlet form throughout the nation. Bernard Bailyn wrote in The Ideological Origins of the American Revolution that "in the 'transient circumstances' of the time it was not so much the Federalist papers that captured most people's imaginations as James Wilson's speech of October 6, 1787, the most famous, to some the most notorious, federalist statement of the time." Similarly, political scientist Gordon Lloyd commented that the "State-House speech is vital for an understanding of the pamphlet exchanges during the struggle for ratification." Following the ratification of the U.S. Constitution, Wilson played a major role in the Pennsylvania constitutional convention of 1789–1790.


George Washington appointed Wilson to be associate justice of the United States Supreme Court in 1789. The Court had relatively little business during its first decade, but Wilson issued significant opinions or votes in several cases, including Hylton v. U.S. (1796), Ware v. Hylton (1796), and Chisholm v. Georgia (1793). Particularly important is his seriatim opinion in Chisholm. In this case the Court had to determine if Alexander Chisholm, a citizen of South Carolina, could sue the state of Georgia. Georgia claimed he could not because it was a sovereign state. Wilson famously responded that "[a]s to the purposes of the Union ... Georgia is NOT a sovereign State." He reasoned that by ratifying the Constitution, the citizens of Georgia gave the federal judiciary, in the language of Article III, the power to judge controversies "between a State and Citizens of another State." This ruling provoked an immediate storm of outrage. There was talk of impeachment, and the day after the decision an amendment was introduced in Congress to overturn it. With the ratification of the Eleventh Amendment in 1795, the Court's decision in Chisholm was negated, but Wilson's opinion remains an important statement of the basic principles of American federalism.


"James Wilson was arguably the best legal theorist of the Founders."

—Garry Wills


Perhaps the most significant but overlooked case with which Wilson was involved concerned the Invalid Pension Act of 1792. The law required federal judges to act as administrators to determine whether veterans were eligible for certain benefits. In Hayburn's Case (1792), Wilson, who was riding circuit, led Justice John Blair and District Court judge Richard Peters to declare the act unconstitutional because it required judges to perform nonjudicial duties. Congress rapidly altered the act to meet Wilson's objections, so the Supreme Court never heard the case. Accordingly, Hayburn's Case is often overlooked as the first instance where a federal court declared an act of Congress to be unconstitutional.


From 1790 to 1792, Wilson offered a series of law lectures at the College of Philadelphia—today the University of Pennsylvania. Because he believed that law should be "studied and practised as a science founded in principle," not "followed as a trade depending merely upon precedent," many of his lectures are devoted to broad moral, epistemological, political, and jurisprudential issues. Consequently, they contain some of the richest analysis of America's constitutional order written by a Founder. Their significance was recognized by many survey participants. For instance, Garry Wills suggested that "Wilson was arguably the best legal theorist of the Founders." In a similar vein, Howard L. Lubert called Wilson "a leading legal authority of the age," and Walter Nicgorski wrote that he was "a ranging, profound, and bold thinker, both about the principles of good government and about specific constitutional devices," while Henry J. Abraham referred to him as "one of the outstanding lawyer scholars of his time."


In the early 1770s, Wilson began speculating heavily in western land. In 1797 an economic downturn devastated an overleveraged Wilson. Even though he was a sitting Supreme Court justice, he was thrown into jail on two separate occasions because of unpaid debts. He spent his final days hiding from creditors in Edenton, North Carolina. Wilson died on August 21, 1798, and was buried with little ceremony in Edenton. In 1906 his body was disinterred and reburied in America's Westminster Abbey-Christ Church, Philadelphia.


Wilson's inglorious and early death, his lack of papers, and his service on the Supreme Court at a time when there was little business before that body conspired to keep him in relative obscurity. He is worthy, however, of serious consideration as one of the most thoughtful and systematic political and legal theorists of the Founding era. He played a critical role at the Constitutional Convention, and although he did not win every battle, the American constitutional system has developed over time to closely resemble his vision. In his law lectures, Wilson wrote:


"Wilson was second to James Madison in importance in framing the Constitution. Wilson was also the leading American legal theorist of his day."

—Scott Gerber


There is not in the whole science of politicks a more solid or a more important maxim than this—that of all governments, those are the best, which, by the natural effect of their constitutions, are frequently drawn back to their first principles.


If American citizens, like governments, should reflect upon the first principles of our constitutional republic, the political and legal ideas of one of the greatest theorists among the Founders simply cannot be ignored.


MAIN CONTRIBUTIONS OF JAMES WILSON


Wilson played a critical role in drafting the United States Constitution. He consistently argued for a strong and democratic national government that would protect the natural rights of its citizens.


Wilson offered one of the earliest and most influential responses to anti-Federalist criticisms of the Constitution. Under his leadership, Pennsylvania became the second state to ratify the document.


Wilson was one of the leading political and legal theorists among all of the Founders.


From the Pen of James Wilson


Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author. The laws of God may be divided into the following species.


I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the "law eternal."


II. That law, which is made for angels and the spirits of the just made perfect. This may be called the "law celestial." This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence—those laws are wise and good. For another truth we have infallible authority—those laws are strictly obeyed: "In heaven his will is done."


III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.


(Continues...)

Excerpted from America's Forgotten Founders by Gary L. Gregg II, Mark David Hall. Copyright © 2012 Gary L. Gregg II and Mark David Hall. Excerpted by permission of ISI Books.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

A Note from the Publisher,
Introduction,
Famous Founders and Forgotten Founders What's the Difference, and Does the Difference Matter?,
James Wilson,
George Mason,
Gouverneur Morris,
John Jay,
Roger Sherman,
John Marshall,
John Dickinson,
Thomas Paine,
Patrick Henry,
John Witherspoon,
Conclusion: America's Other Forgotten Founders,
Appendix A: The Forgotten Founders: The Complete List of Nominees,
Appendix B: The Forgotten Founders: The Top Thirty Finalists,
Appendix C: The Forty-Five Scholars Who Participated in the Forgotten Founders Survey,
Appendix D: About the Contributors,
Acknowledgments,

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