October 2004 | Volume 55, Issue 5
Overrated When it comes to the Founders of the American Republic, it’s tough to find an overrated figure. By definition, Francis Bacon said in his Essays, “founders of States and Common-Wealths” take “first place” in the race of fame. When the founders in question create one of the freest and at the same time most stable commonwealths in history, the question becomes even trickier. How do you overrate George Washington’s virtue? Unlike Julius Caesar, Oliver Cromwell, and Napoleon Bonaparte, George Washington never sought supreme power for himself, even when, arguably, it was within his reach.
Two or three decades ago Thomas Jefferson might have been a plausible candidate for most overrated Founder—but not now. Sally Hemings, his alleged courtesan, and James Callender, his noxious scribe, have left Jefferson’s once godlike reputation in shreds. If anything, we need to remind ourselves that the guy who wrote the Declaration of Independence, designed Monticello, created the Democratic party, orchestrated the Louisiana Purchase, and founded the University of Virginia was not a run-of-the-mill jerk.
My candidate for the most overrated Founder today? James Madison. Begin with the tag “Father of the Constitution.” It’s enormously misleading. No one man sired the Constitution; that precious parchment was instead the result of the joint efforts of more than 50 men who attended the Philadelphia convention. The document that emerged in 1787 reflected no one man’s vision or grand design; the Constitution was, on the contrary, the product of dealmaking, horse-trading, and compromise. A number of Madison’s own recommendations were rejected by the convention. True, he kept the best records of the proceeding, but any court stenographer today could do as well. And yes, he gave a lucid exposition of the meaning of various constitutional provisions in the Federalist Papers , but so too did Alexander Hamilton.
When in the 1790s Hamilton laid out a brilliant scheme for restoring the young Republic to fiscal health, Madison balked. Where, he asked, did the Constitution authorize Congress to create a bank? Hamilton responded by citing the arguments in Madison’s own Federalist No. 44 , in which Madison maintained that many powers are granted to Congress by “implication” in the Constitution. Later Madison flirted with the wrongheaded idea that states can ignore federal laws they don’t like. As Secretary of State under Jefferson, he helped engineer the notorious embargo—a proscription of all foreign trade—which swiftly destroyed a large part of the American economy. Then came his Presidency, during which the British sacked Washington and set fire to the White House and the Capitol. No wonder, if the gossip of the day can be believed, President Madison rarely went to bed sober.
Underrated No one today thinks of James Wilson of Pennsylvania as the father of anything. He was not a glamorous figure, but Wilson packed a vast amount of brainpower behind his high brow and thick spectacles. Born in Carskerdy, Scotland, he studied at St. Andrews, Glasgow, and Edinburgh before emigrating to America in the 1760s. He studied law under John Dickinson, bought a, farm near Carlisle, Pennsylvania—a Scotch-Irish enclave —and became an influential lawyer specializing in (and profiting from) land deals. In 1776 he was one of the signers of the Declaration of Independence; 11 years later he was a delegate to the Philadelphia convention that drafted the Constitution. Wilson spoke at almost every session in Philadelphia—more often, indeed, than Madison himself. Later he served as an associate justice of the U.S. Supreme Court, where his practice of writing clear, cogent opinions is said to have influenced the great Chief Justice John Marshall. Sadly, he died in 1798 a broken man, ruined by speculation and hopelessly in debt.
His achievement was threefold. First, he brought with him to America the principles of the Scottish Enlightenment, a far more beneficent approach to the organization of human affairs than the French one (which, thanks to the celebrity of smart alecks like Voltaire, has long gotten the lion’s share of attention in textbooks and college history surveys). The French philosophes wanted to perfect mankind, and to this end they developed a variety of unworkable or despotic schemes in which enlightened mandarins would decide what was best for the world. Very different was the approach of Scottish philosophers like David Hume and Adam Smith. They studied man as he was and drew attention to those humble but useful practices (like commerce) that enable men to live peacefully and prosperously. James Wilson was at the forefront of those Americans who, in the tradition of Hume, Smith, and the great British judge Lord Mansfield, wanted to make American commercial codes more efficient.
Second, Wilson was a strong nationalist. He knew that if America remained a weak confederation of semi-sovereign states, a truly free, continental market in goods and ideas (like the one we now enjoy) could never come into being. To this end he worked with Washington, Madison, Hamilton, and Gouverneur Morris to create a stronger national government. He was one of the most influential delegates to the Philadelphia convention, where his legal learning, knowledge of history, and powers of public speaking commanded respect.
Finally, he was one of the earliest and most articulate proponents of judicial review, the theory that Chief Justice Marshall enshrined in Marbury v. Madison and a practice that on more than one occasion has proved to be a bulwark of liberty against government encroachment. A constitution doesn’t amount to much if the legislature is free to disregard it. Still, if Wilson deserves credit for pointing out the benefits of judicial review, he was less conscious of its dangers. He envisioned the Supreme Court as a kind of “council of revision,” in which justices would act as veritable philosopher-kings and strike down laws not only for constitutional reasons but on policy grounds as well. Such an approach anticipated the kind of antidemocratic judicial activism that the Harvard law professor James Bradley Thayer warned against more than a century ago. A man with many good ideas and a couple of bad ones, James Wilson is one Founder who ought to be better known.