You could easily pick him out from the other delegates to the Constitutional Convention in 1787: a small plump bespectacled figure, darting from room to room in a flurry of words and ideas. In fact, he would speak at virtually every session of the convention–and have more influence on the framing of the Constitution than any other delegate except James Madison. He was James Wilson, a Scottish-born lawyer from Philadelphia, and his most important constitutional brainchild is his unique gift to us: the United States Supreme Court.
Today, as the shadow of Terri Schiavo falls across it and the other courts of the land, it is worth remembering why Wilson argued for a Supreme Court in the first place, and how he persuaded his fellow delegates that it would never substitute the will of lawyers and judges for the will of the people. Far from being a check on democracy, Wilson wanted the Supreme Court to be its major buttress: “a jury of the country,” as he put it, whose judges would act as citizens first, and great legal minds second. The Supreme Court was going to be the national repository of something he believed was indispensable for a free society, namely common sense. Wilson’s ideas form the Supreme Court’s lost legacy, which makes them more relevant today than ever.
Like the other key Founding Fathers and constitutional framers, Wilson was deeply influenced by the ideas of the Scottish Enlightenment, and men such as Adam Smith and David Hume and Francis Hutcheson (whose notion of human “happiness” was enshrined in the Declaration of Independence). But one Scottish thinker mattered most to Wilson: Thomas Reid. Reid taught that all human beings come equipped with a fundamental understanding of reality called common sense. Common sense enables us to judge the world and make our most important decisions about up and down, right and wrong, truth and falsehood. It is the enemy of moral relativism and intellectual pretension, and both Reid and Wilson believed that it was by expanding the reach of common sense through experience, and gaining confidence in our own intellectual powers, that we become truly and morally free.
Reid’s common-sense philosophy laid the foundations for a living science of human freedom. Although it is almost forgotten today, it had a huge influence on post-revolutionary America–and on Wilson’s idea of a Supreme Court. On the one hand, Wilson explained to his fellow delegates, such a court would uphold the rule of law: but on the other, it would not “disparage the legislative authority” or to “confer upon the judiciary department a power superior, in its general nature.”
Instead, the Supreme Court was supposed to give American democracy a power it would desperately need, the power to use its common-sense judgment in a reflective way. By looking at a particular law, judges would decide whether it fit into the essential framework of the constitution, or not. This power of judging what is or is not constitutional was not something reserved for legal experts: It belonged to any ordinary citizen. Being a “judge” was for Wilson something more than just a legal or professional title. He had learned from Reid that all human beings are by their nature judging animals, who sift and evaluate the facts of experience with their common sense, and then decide and act accordingly.
From that point of view, Wilson saw no essential distinction between judge and jury: In fact, under Scottish law they were virtual partners. In Scotland, the judge’s job was not to act as some neutral legal referee but to help the jury find out the facts of the case and to reach the right decision. This is what Wilson’s Supreme Court was supposed to do. As “the jury of the country,” its decisions were not supposed to reflect judicial authority, but the good sense and judgment of the community as a whole. As Wilson himself put it, “a judge is the blessing, or he is the curse of society.” It all depended on whether he or she was going to be guided by common sense, or by professional vanity and ambition.
So what went wrong? How did we get from Wilson’s Supreme Court to judges who behave like Plato’s philosopher kings? The answer is not easy, but it may go beyond specific decisions like Marbury v. Madison which expanded the power of the judiciary in ways Wilson never imagined, or even specific activist courts or judges. We have today a legal climate in which lawyers more and more see themselves as an elite, breathing the rarified atmosphere of juridical technicalities and legal jargon–precisely what Wilson and Reid most despised in academic philosophers of their day. Like teachers at today’s college and universities, lawyers and judges have to come see themselves as professionally equipped to understand the world better than ordinary people, when it is in fact the other way around–as Wilson knew only too well.
We need to return to the philosophy of common sense, and to judges as the embodiment of Common Sense Man, who in Thomas Reid’s words, “sees his duty without reasoning, as he sees the highway.” James Wilson stated that the rule of law was only possible with “the consent of those whose obedience the law requires.” The existence of a Supreme Court, and the judicial branch, was supposed to help to build that consent, not undermine it. From that point of view, we need to recover Wilson’s lost legacy before it is too late.
–Arthur Herman is a historian and author of How the Scots Invented the Modern World and To Rule the Waves: How the British Navy Shaped the Modern World.