FReeper Book Club: The Debate over the Constitution, James Wilson's Speech

A Publius/Billthedrill Essay | 4 February 2010 | Publius & Billthedrill

[Bigun]

Well said my FRiend! Well said indeed!

[Publius]

Could you ping your group?

[rlmorel]

Agreed. It was a major mistake.

[whodathunkit]

•At 7, Wilson takes up Hamilton’s argument that a bill of rights was not necessary. Hamilton had argued that such a bill of rights would have been too long and would have left out rights. At this point in time, state ratifying conventions had yet to demand a bill of rights as the price for ratification. Was Hamilton right, and why or why not?

The argument was not about establishing Rights. It was about how to protect the rights that already existed. Hamilton's view would be preferred in a perfect society but when applied to the realities ( and compromises ) necessary to ratify the Constitution, He underestimated the need of the People to be reassured that an effort was being made to protect those Rights. I find it interesting that the efforts made from both sides of the Bill of Rights argument was so impassioned even though the ultimate goal of protecting those rights were one and the same. They both understood that the powers of government are ultimately derived from the People, yet to many observers the disparity of the arguments that seemed so polarizing were simply different paths leading to the protection of the Rights of Man. Hamilton expected the electorate to understand their rights inherently, in that respect He was mistaken.

•At 22, Wilson points out that the proceedings of the Supreme Court are regulated by Congress, a reference to Article III. Congress has the right to determine what kinds of cases the Supreme Court may or may not hear, but that right has been used sparingly. Was there a defect in the Convention’s thinking about the Judiciary, and why or why not?

The fact that a court decision could and would become the law until legislation was enacted to affirm or reverse a decision, must have been a significant factor in their debates. The power of the people to control the Supreme Court through their elected representatives was relied on to provide a balance.

The political party system that we have today was not existent at the time. There was a very real need for a Judicial power that would have jurisdiction over those specific cases that simply didn't lend themselves to State Judiciaries. A couple of examples would be the use of waterways separating several states and conflicting territorial claims between States.

English Common Law was in use then as it is now.

"That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was latter adopted in the U.S. that is based on precedent instead of statutory laws."

Again, here we have the power of 'We the People' as the ultimate judicial authority and any statutory laws to be enacted would be by consent of the People. Or so they thought.

[LearsFool]

•At 22, Wilson points out that the proceedings of the Supreme Court are regulated by Congress, a reference to Article III. Congress has the right to determine what kinds of cases the Supreme Court may or may not hear, but that right has been used sparingly. Was there a defect in the Convention’s thinking about the Judiciary, and why or why not?

Wasn't that precisely the situation in Hamdan a couple years ago? If memory serves, Congress had named the D.C. District Court as supreme in such cases. Yet the case was appealed to the Supreme Court, and the Court heard the case in violation of the law.

Even Scalia wrote, in his dissent, (my paraphrase) "We have no jurisdiction nor authority to hear this case and render an opinion on it. To do so would violate the Constitution. But here's my opinion anyway, so there!"

I find it interesting that the efforts made from both sides of the Bill of Rights argument was so impassioned even though the ultimate goal of protecting those rights were one and the same.

What an excellent point! If only the heated political debates of our time were over how best "to secure these rights", rather than over who has dibs on the raping and pillaging of our country.

[r-q-tek86]

In short, having this most magnificent Constitution is (to mix my metaphors even further) like owning a nice Mossberg home-defense pump shotgun. Just having it is not enough. Admiring its flawless design and construction is not enough. For it to do its job requires something of us; and if we haven't got what it takes, this tool will be taken from our hands and used against us.

What a great analogy. Very well said.

[r-q-tek86]

These threads are very interesting. Thanks for taking this on.

One small request... can you post a link to the successive thread when you post the new threads? I expect that I will refer back to these threads in the future and building in that continuity will be a help.

BTW, what’s the latest on the AS book?

[Publius]

The thread is up.

[airborne]

James Wilson had been one of the lesser known delegates from Pennsylvania at the Convention, the best known being Benjamin Franklin, the most famous commoner in the world.

We should all be as "common" as Franklin!

[PGalt]

OUTSTANDING post, commentary, questions, thread. WOW! Fantastic project. Thanks to all.

History/education/current events/BUMP!

[TBP]

Judge Wilson was a close ally of John Dckinson, but brokewith him to cast a vote for independence.

[jla]

^

[Mad-Margaret]

I didn’t realize that we had to sign up again after I received the first post about the new subject for the FReeper Book Club. Please add me to the list. Glad you are tackling this. They certainly aren’t teaching it at schools anymore — elementary, high, college, or even law schools!

[stylin_geek]

The invention of the Electoral College was brilliant.

If there is one thing that needs to be taught in school these days, it’s the Electoral College.

I like Wilson’s somewhat theoretical view regarding what the Constitution already implied at that point in history. Unfortunately, his theory flies in the face of human nature.

I suggest those pushing for a Bill of Rights had a somewhat cynical and realistic view in regards to human nature and power.