Interview With A Founding Father

His red judge’s robe looked faded and theatrical by daylight. People at the bus stop stared at him, and his face flushed near the color of the robe. But he busily ignored them.

“There were market sheds here, where we assembled.” Judge Wilson is trying to re-create the route of the Grand Procession that marched through Philadelphia on July 4, 1788, to celebrate the ratification of the Constitution by ten states. We have started, where the parade did, at South and Third streets. “At ten piers along the way we had ships representing each new state; they saluted us with their cannon.” He glanced absentmindedly back and forth across the street, trying to find a familiar building. “There’s St. Peter’s. It has not changed.”

I tell him there is a house farther on, on the left, that he must have visited: the Powel House. “Is that it? It looks smaller now that it does not stand alone.”

“And your house was just beyond, at Walnut?”

“Yes.”

But he tries to hurry me by the site, which now holds an apartment building done in the bunker-colonial style of Society Hill’s modern structures. I have to clutch his robe, to his obvious distress, and make him read the plaque. “This is one of the few places where your name is publicly displayed in Philadelphia. You are a signer of the Declaration of Independence, and you are buried in Christ Church yard; but the placard in front of the cemetery mentions only the other five signers there, not you.”

“You know very well why.” He eyes me with asperity. “I was buried first in North Carolina. It was not till—1906, was it?—that my body was brought back to Christ Church.”

“You should remember the date. It is your body.”

“I cannot keep track of what you do with things in this terrible century. Look what you have done to the Republic we left you. If you knew what it cost, you would take better care of it.”

“What do you mean?”

“Presidents resigning in disgrace...”

“Well, you died in disgrace, a Supreme Court Justice.”

“A matter of private debt. Nothing I could not have settled in time, if they had only given me time.”

“And you were an expert on finance, hired by the Bank of North America to explain the mystery of credit.”

“I explained very well. But that was theory. I had a hard time making theory fit with facts in my life. Don’t most people?”

“Then why be surprised that the Republic does not reflect your theory any more?”

“What disturbs me about the Republic is not the discrepancy between fact and theory but the lapse of theory altogether. Where is the ideal of the citizens in action?”

“That is why I wanted you to look at the plaque on this apartment building. It says that ‘Fort Wilson’—the place where citizens attacked your house for harboring loyalists in the Revolution—stood here.”

“That was a rabble—”

“It was a state militia—”

“—Out of the control of its own officers. That was the intimidation that went on under the Pennsylvania Constitution of 1776—the one I changed at the state convention of 1790.”

“Did you think of this bloody battle at your house, of the six men killed there, when you marched past it nine years later in the Grand Procession?”

“No, there was no time for that. That procession was a miracle of timing and coordination. Every artisan company had its float or marching group. The whole town was put on wheels or on foot. Yet only one man marched as the embodiment of Pennsylvania; only one man gave a speech that day. I was the man.”

“Well, yes, Dr. Franklin was bedridden by then.”

“I gave Franklin’s speeches in the drafting convention. He had turned to me by then for his politics. He had completely forsworn the old state constitution.”

He was getting testy again. I reminded him that he was on loan for an interview today because there was so little demand for him. James Madison was signed up for every day of 1987 and for months afterward. George Washington was not granting interviews. Franklin, talking all day long, was booked forever. “Even William Paterson was harder to talk with than you.”

“Yes,” he said bitterly, “though Madison and I—the two Jemmys, they called us—blocked Paterson and rammed the Constitution through. I was the one who gave Madison his defense against the charge that we were traitors.”

“Who were traitors?”

“All of us at the drafting convention. We were plotting the overthrow of the government, mon!” His Scots accent comes out when he waxes revolutionary. “We had all sworn oaths to the various constitutions—state and federal—and we meant to break them. Why do you think we were meeting in secret? If our legislatures had known what we were up to, they would have recalled us for breaking our instructions. We had sworn that the Confederation should be perpetual, that it could not be changed without unanimous assent of the states. Yet our plan called for a breakup of that Confederation if any nine states could be found to ratify the new one. We posted guards at the State House so no one could hear what we were up to.”

“But the world would know when you published the document.”

“That’s when we scurried back to our lairs as private citizens. The convention went out of existence; no one could find it after it broke up. George Washington took the records home to Mount Vernon, where no one would have the nerve to ask for them.”

“Why would Washington break his oath to the Confederation?”

“Oh, he had none, laddie. He was one of the few of us who held no civil office under the Confederation. But he was encouraging others to break their oaths, as calm as could be. There were many who wanted to skulk out of that chamber and never meddle more with this dangerous business. But they had not the nerve to skulk out under his eyes, I tell you.”

“I have always heard that Washington did practically nothing at the convention.”

“He sat there. That did everything. If he had gone, we all would have. Franklin was too weak to protect us by that time. We needed something to hide behind. He gave us that.”

“Was that his only purpose?”

“That was his good to us. We did him good, too, especially we Jemmys. We gave him a four-month course in government he would never forget. We knew we were tutoring the ruler if our plan went through. He fatigued you just by the intensity of his listening. I was speaking to him the whole time, and I spoke more than anyone but Madison and that insufferable ladies’ man Gouverneur Morris. I poured out my learning for the man, and I certainly expected a higher post than the one he gave me.”

“You wanted to be Chief Justice.”

“Yes. I could understand the politics of his giving the job to Jay in the first place. But to be passed over for Rutledge and Ellsworth! That was humiliating.”

“What do you think you taught Washington most forcefully in the convention?”

“Accountability to the people. They are the sovereigns; he is just their servant.”

“Is that what is meant by limited government?”

“Republicanism is not necessarily more limited in what it does than any other form of government. It just differs in the justification for its energy.”

“But what about the checks and balances we all learn about as central to the Constitution?”

“Do you have a text of the Constitution there? Find me the term checks in there. Find balances there.”

“Well, but it pits one power against another.”

“Show me where,” Wilson says triumphantly, grabbing my little copy of the Constitution and waving it in my face. He always considered the document peculiarly his own. “It is an empowering document, not a limiting one. Just look at the Preamble. Each of the first three articles says that the powers of legislation, execution, and judging all shall be in the particular department.”

“Yes, but those powers are meant to check each other.”

“It’s not in the text.”

“It’s just common sense. Three equal powers are bound to contend with and control each other.”

“Equal?” His face reddened. “Where is equal?. You cannot execute laws, or give judgment on the laws, until you have laws. There is no equal in the text or in the very idea of a republic, a government in which people govern themselves by laws. As Madison put it in The Federalist (which, by the way, did not get near the circulation in 1787 of my two speeches on the Constitution), ‘In republican government the legislative authority, necessarily, predominates.’”

“Then why have separate powers at all, if two are to be subordinated to the one?”

“Well, division of labor makes for efficiency. The Congress found that out under the Articles of Confederation when it had to deliberate on all the matters that should have gone to a separate executive or judiciary department. That Congress had to stretch the Articles, to create a kind of executive not provided for. But the real reason for separation is to prevent the same people from making general law and applying it to particular cases; that would corrupt the legislator by making private concerns his legislative duty.”

“You talk like Rousseau.”

Wilson looks over his shoulder with an impulse of caution. A bag lady on the corner of Chestnut Street, appraising his red dress, seems to think it a little too worn. “You noticed that about Rousseau, eh? I thought I kept it pretty hidden. Rousseau’s name was not popular in my circles. I never used it.”

“Sure you did. You cited The Social Contract three times in your law lectures of 1790.”

“Oh, but I never published those; my son did after my death. I don’t know what I would have done with the citations. They were just sketched in for the lectures. I meant to rewrite the lectures as the great treatise on American law.” His speech dwindles off in reverie. “They would have made my name.” He is gazing at what looks like the drawing of a house’s frame lifted above actual houses along Third Street. “What is that?”

“It marks the site and the scale of Franklin’s house.”

“You mean that is Market Street ahead? Where are the stalls? This is where the guns from the harbor saluted me during the procession. I turned and bowed toward the docks.”

“You later became familiar with another kind of dock.”

He hesitated, about to turn away and leave me. But the expounding fever was upon him. He could never resist lecturing a pupil. “Rousseau, now, understood the real point of republican government: that the people never surrender their sovereignty to the government. They retain the power to change government anytime they want, any way they want.”

“Why was that so important to you?”

“Don’t you see? The opponents of the Constitution said we were breaking the Articles’ rules for amendment—as if the people can make any authority higher than themselves. The people are not bound, Rousseau says, even by the social contract. They made it; they can unmake it at will.”

“But how are the people as a whole to know when they want to overthrow a government?”

“They have to find a way. We made up the devices of the drafting convention and ratifying conventions. We broke all the rules—articles and state constitutions too—by an appeal back to the people.”

“But the people did not vote directly on the Constitution, only for delegates to the ratifying conventions.”

“That was the most directly democratic procedure that could be used at the time. Even most state constitutions had not been ratified except by state legislatures sitting on ordinary business—the same bodies that ratified the Articles.”

“Well, Rousseau would not call that an expression of the general will. He wanted an assembly of all the citizens at one meeting.”

“Yes, but he violated one of his own rules. His assembly, formulating the general will, had to resolve itself into a committee of the whole in order to make the particular government. That legal fiction did not separate his legislators from his governors in a real way. Our popular vote, followed by the delegates’ action did—so long as the popular vote was a universal one.”

“Which, of course, it was not in your day. Not even women voted then.”

“They were not fully citizens yet. But those who were citizens voted. Besides, I was the only one at the drafting convention who wanted a popular vote for the President and senators as well as for representatives. You have caught up with me on senators but not yet on the President.”

“Yet you helped invent the Electoral College, which still elects our President indirectly.”

“Just as a second-best. I was for direct vote everywhere, in the Pennsylvania Constitution as well as the federal one. In fact, I was for mandatory voting. If one does not vote, one cannot be a citizen.”

“Force them to be free?”

“Ah, you do have Rousseau on your mind, don’t you? But how can you say a people is self-governing if it does nothing to formulate the general will? Don’t you still force people to serve on juries?”

“Yes.”

“Making laws is even more important than enforcing them. In time of war do you make citizens serve in the military?”

“Depends on the war.”

“Well, governing a country well is more important than defending it. How many citizens vote now?”

“More than half.”

“Do you still call your country a republic?”

“Of course. Don’t you?”

He hands me back the Constitution with an air of defeat. “Don’t you do anything to make people act like citizens?”

“Naturally. We have a public school system meant to form citizens.”

“Do people attend?”

“They have to. It’s required.”

You force them to go to school so they can vote intelligently, but you do not force them to vote? I knew you were absentminded about politics; I did not know you were simpletons. Who governs you instead of the people?”

“Well, we normally think of the government as headed by the President. We speak of the Carter government, for instance, or the Nixon government.”

“And only half the people voted for these Presidents?”

“Well, normally about a half of the half that turned out.”

“And what does this man of government do?”

“Makes policy, sets the agenda for Congress, defends the country.”

“How does he defend the country?”

“As Commander in Chief.”

“Are you at war?”

“Not at the moment.”

“Then what power has he as Commander in Chief? He is that with regard only to the armed forces, not to the citizens.”

“Well, we live in a different world from yours.”

“So I notice.” He is looking up at a jet’s contrails.

“In an age of nuclear war,” I continue, “the President has to be able to respond to the threat of attack with our own nuclear response.”

“Of course—after Congress has declared war.”

“I’m afraid there would not be time for that in these days. He would have a matter of minutes to decide on activating the codes that release our missiles.”

“And there is no intervention between his deciding that and the action taking place?”

“No constitutional one.”

The judge abruptly sits down on the dirty street curb, holding his wig. “So there is no Constitution left. This is worse than I thought.”

“Well”—I try to cheer him up—“that is just for nuclear war. We hope that won’t happen. It is a once-in-a-lifetime matter.”

Wilson rises, still wary. “Are your other wars declared by Congress, before this super-President of yours wages them?”

“Some are. Most recent ones have not been.”

He sits down again time with a deliberately forlorn air. “How does war get declared then?”

“The President sends troops off to Vietnam, or Beirut, or Grenada—or somewhere.”

“And Congress does not question this kind of act?”

“It tries to, but the President opposes it with executive privilege.”

Wilson jumps up and grabs the Constitution back. “Privilege? Where is that? What have you done to this Constitution? Privilege is not a republican term. It is like prerogative—something meant to protect government from the people. Government is legitimate only if it is an expression of the people. A people’s own expression has to be transparent to it. The people have to know what they are doing through all their intermediaries.”

“But you convened in secrecy at Philadelphia.”

“We were conspirators, mon. We were overthrowing a government. But the government we set up was not a secret one. It was one the people ordained and established to rule themselves. Those who keep secrets from them are not their representatives, cannot be speaking for them.”

“Well, what should we do? Call a convention to amend the Constitution? The Constitution itself allows for that.”

“That’s the difference between anything you call now and the one we held in 1787. Our form of government did not allow us to create a republic. We went ahead and did it anyway.”

We turned off Third Street, heading west toward where the Grand Procession had ended. Wilson’s memory is caught up now in the excitements of that day. “The warship float began to labor up this incline, though it was drawn by ten horses. It had a ‘crew’ of twenty-five seamen on its decks.”

“Was that your favorite float?”

“No, my favorite was the New Roof of the Grand Federal Edifice, with its thirteen pillars upholding a dome. At the end of the march, at Bush Hill, I mounted that float and gave the one speech of the day.”

The judge is panting now as he climbs an incline between shops boarded up. “The whole city went out from its confines and gathered in the field, forming all the other floats in a circle around the Federal Edifice. I spoke from the center of the circle, praising what the people had wrought. No other government was formed with such popular participation and debate at every level. I can tell you what I said, from heart: The Constitution ‘was discussed and scrutinized in the fullest, freest, and severest manner—by speaking, by writing, and by printing—by individuals and by publick bodies—by its friends and by its enemies. What was the issue? Most favourable....’” He was in full oration now, breathless but unstoppable—till the site of Bush Hill stopped him. We were on Sixteenth Street, crossing Spring Garden. The entire area was cluttered with dust from demolition and high-rise construction. Bulldozers were at work on the site where the entire city had gathered, once, to pledge itself to a new political creation. There was not a marker anywhere to recall that event.

“You have not fared well, Judge Wilson, in the hearts of your citizens.”

“My lodging there was always precarious, I am afraid. But I never doubted their right to govern themselves, so long as they showed they were willing to govern.”

“Well, we do mean to remember your Grand Procession on its bicentenary.”

“On July 4, 1988?”

“No, we thought we would fold it together with the end of the drafting convention in September 1787. I suppose we have the date wrong.”

“That, among other things. What is it, precisely, you are celebrating in 1987?”

“The Constitution.”

“It is a funeral ceremony then?”

“Of course not. We are celebrating all the things that have happened to the Constitution, up to now. Come and see.”

“Oh,” he said, with a stricken look. “I think not”—and his robe dimmed abruptly in the bulldozers’ dust as he fled.

JAMES WILSON, IN BRIEF

He was born in Scotland in 1742 near St. Andrews, where he attended the university and divinity school. After four years of tutoring in Scotland and Amer- ica, he read law with John Dickinson, the leading pamphleteer of the early Revolutionary cause. Wilson wrote his own pamphlet, one of the earliest statements of American independence from Parliament, which Thomas Jefferson greatly admired.

A signer of the Declaration of Independence, Wilson was cast as a conservative in his oppo sition to Pennsylvania’s state constitution of 1776 and his defense of Robert Morris’s bank. But he advanced the most radically “popular” theories at the convention that drafted the United States Constitution in 1787, where he was James Madison’s principal ally in promoting the Virginia Plan. Wilson’s speeches for the draft were the. ones most cited in the ratifying period, during which he guided Pennsylvania’s early endorsement of the Constitution by a two-thirds majority.

He also led the convention that rewrote the state constitution of 1776. In 1789 President Washington appointed him to the new Supreme Court, and in 1790 he began the first public law lectures devoted to expounding the Constitution. His decision against “states’ rights” in the Chisholm v. Georgia case (1793) was countered by rapid passage of the Eleventh Amendment, which John Marshall did not find ways to circumvent until 1821.

Born desperately poor, Wilson had admired Scottish “lairds” of the Enlightenment like Lord Kames of Edinburgh. In America he speculated heavily in land schemes, embarrassing the Adams administration when he was jailed for debt while trying to ride circuit as a Justice of the Supreme Court. He died, to many people’s relief, in a tavern at Edenton, North Carolina, in 1798.

—G.W.