James Wilson and the Moral Foundations of Popular Sovereignty

71 Pages Posted: 4 May 2015

See all articles by Ian C. Bartrum

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: May 2, 2015

Abstract

This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our understanding of Wilson’s account by revealing its roots in moral sentimentalism.

With these roots established, I am able to offer a historically contextualized normative account of popular sovereignty. I identify two justifications: (1) “free and independent” citizens provide the most reliable epistemological connection to natural law; and (2) the purpose of government is to provide citizens the necessary freedom to make autonomous moral judgments. With these justifications in place, I am able to offer two suggestions on how the structure of popular sovereignty can guide our modern constitutional constructions: (1) The federal government — not the states — should remain the primary and presumptive guardian of individual rights; and (2) we should identify sovereignty, not privacy, as the common theme underlying both textual and unenumerated rights. To that end, the judicial inquiry should focus on whether we can justify a particular intrusion into moral agency in terms of some greater benefit to moral autonomy writ large.

Keywords: James Wilson, Popular Sovereignty, Moral Sentimentalism, Constitutional Construction, Structuralism, Legal Theory, Jurisprudence, Natural Law

Suggested Citation

Bartrum, Ian C., James Wilson and the Moral Foundations of Popular Sovereignty (May 2, 2015). Buffalo Law Review Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2601837

Ian C. Bartrum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/ian-bartrum

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