Tenth Amendment Center: Forgotten Advice from James Wilson

Here’s another thing the government-run “education” system completely ignores.

Though The Federalist Papers are often cited – by academics and federal judges – as the definitive commentary on the federal Constitution, the series played only a minor role in securing ratification.

Delivered today in history – Oct 6, 1787 – James Wilson’s State House Yard Speech, on the other hand, framed the way in which friends of the Constitution explained the instrument and answered their many critics.

By the end of 1787 it had been reprinted in thirty-four newspapers in twelve states and circulated throughout the colonies as a pamphlet.

Wilson, who was one of just 6 people to sign both the Declaration of Independence and the Constitution for the United States, and was nominated by Pres. George Washington as the 3rd seat on the first Supreme Court – had a much more tangible effect on the ratification debates than some of the more “famous” founders we hear about today.

On the dawn of the first true test for the Constitution’s palatability, Wilson sought out to explain how the Constitution should be understood in the eyes of those who drafted the document that same summer. In addition, he intended to preemptively answer some of the fiercest critics of the model, and refute some of the most common themes of opposition expected to come up against it.

By that time, Wilson was an extremely well-known lawyer in Philadelphia. During the imperial crisis with Britain, he wrote a well-regarded pamphlet that backed the standard patriot notion that Parliament lacked the legal authority to intervene in the internal matters of the colonies.

By 1776, he had become an advocate for colonial independence within a delegation in the Continental Congress that was wholly divided on the issue. As part of the Confederation Congress, he worked to solidify an alliance with France, and made a fortune on land speculation.

In the runup to Wilson’s speech, those who opposed the Constitution – often deemed Anti-Federalists – made central to their opposition the critique that the document lacked a bill of rights. Such an addendum, they argued, was necessary to impose explicit prohibitions on the extension of power against the general government.

George Mason, brilliant Virginian statesman and writer of the Virginia Constitution of 1776, left Philadelphia “in an exceeding ill humor indeed,” according to his peer James Madison, largely because of his failure to convince fellow delegates that a bill of rights was a non-negotiable requirement.

“Brutus,” a persuasive enemy of the Constitution in New York, condemned the framework on the basis that a “grand security to the rights of the people is not to be found” in the document. While in France, Thomas Jefferson wrote that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

To these charges, Wilson answered that a bill of rights – in the context of the system proposed – was unnecessary and redundant. It “would have been superfluous and absurd,” Wilson professed, to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.”

In other words, the proposed Constitution only allowed the general government to exercise the powers enumerated. To restrict it from exercising powers it was never granted in the first place – through a bill of rights – was counterintuitive.

To the assertion that the Constitution gave the general government powers which were not explicitly stated, Wilson countered that “everything which is not given is reserved.” The document did not grant powers by “tacit implication,” he insisted, “but from the positive grant expressed in the instrument of the union.”

Therefore, all powers granted were explicit in the Constitution’s text, and those that were undocumented remained under the jurisdiction of the localities. This guarantee – though implicit at the time – was eventually made explicit in 1791 by way of the Tenth Amendment.

Responding to Brutus’ implication that the Constitution would homogenize the state governments into a national entity, Wilson responded that “the existing union of the States, and even this projected system is nothing more than a formal act of incorporation.” Contrary to this claim, he noted that the entire constitutional system depended on the primacy of the states.

For instance, the state governments were necessary to amend the document, select Senators to fill the upper house, and determine the qualifications for voting for members of the House of Representatives. The supposition “that the annihilation of the separate governments will result from their union” was accordingly “absurd,” Wilson insisted.

Ultimately, Pennsylvania ratified the Constitution in mid-December assuming many of the explanations Wilson provided. Even more consequentially, the themes he invoked in the State House Yard Speech were adopted by leading Federalists in the other states, and clearly influenced the ratification proceedings throughout the states.

Edmund Randolph claimed that the general government would endeavor to violate the constitution for exercising any power “not expressly delegated therein,” an idea implied by Wilson’s assertion that all powers granted were explicit. Likewise, James Iredell declared in North Carolina that the “powers of the government are particularly enumerated and defined: they can claim no others but such as are so enumerated.”

Echoing Wilson’s argument that the states were integral to the federal system, Oliver Wolcott of Connecticut declared that the states “are the pillars which uphold the general system.” These declarations – which unambiguously laid the foundation for ratification in the states – followed a logical pattern that originated with and flowed from Wilson’s oratory.

Though The Federalist is often cited – by academics and federal judges – as the definitive commentary on the federal Constitution, the series played only a minor role in securing ratification. The State House Yard Speech, on the other hand, framed the way in which friends of the Constitution explained the instrument and answered their many critics. In this way, Wilson’s narrative had a much more tangible effect on ratification.

Ironically, all of this came to pass despite the fact that Wilson was one of the most notorious arch-nationalists of his time. During the Philadelphia Convention that drafted the Constitution, he favored a national referendum to elect the president, giving the executive an absolute veto over any law passed by Congress, adding the power to tax exports, permitting everlasting inferior federal courts that could not be dissolved by the legislature, and even bestowing upon Congress the power to ability to enact “mercantile monopolies” and charter corporations.

Despite his own ideological proclivities, Wilson articulated the plain truth – that the Constitution was a federal model based on enumerated powers rather than general authority. The framework divided powers not only between federal branches, but also between local and central authorities.

Rather than divesting general grants of power, provisions within the apparatus were to be the only ones exercised in the first place. Those that ratified, then, did so on the basis of these assurances rather than accepting the trepidations of the document’s skeptics at face value.