When the Constitution was written and ratified there was no free-floating principle of sovereign immunity, but now the Supreme Court has recognized one.
Natural Law and Democracy: The Philosophy of James Wilson
James Wilson, signer of the Declaration of Independence, important figure at the Constitutional Convention, and among the first justices of the US Supreme Court (1789-1798), argued more forcibly than any other Framer that philosophical skepticism is the enemy of self-government. Wilson argued that the philosophers John Locke (1632–1704) and David Hume (1711–1776) advanced theories that were antithetical to democratic government, because they deny to human nature the moral properties necessary to a knowledge of justice. Republican and democratic government, as many Framers acknowledged, requires a virtuous citizenry. The colonists sought independence from England because they thought that subjugation to the King and Parliament of England to be slavery. James Wilson argued in his philosophical writings that the ordinary person has the capacity to be virtuous and just by means of an innate capacity to know the “natural law,” and he defended the “revolution principle” (popular sovereignty) for that reason.
Wilson assisted at the writing of the Preamble to the Constitution which affirms this in stating that “We the people . . . do ordain and establish this Constitution.” He argued for popular sovereignty. The actions of King and Parliament in England had abrogated the sovereignty which properly belonged to the colonists. In principle, no government is entirely sovereign over a people; governments come and go at the will of the people, they are entrusted with the power to legislate and execute the law by the people. The citizen’s duty is to obey rightly instituted law insofar as that law is just and right. This is because only God is owed complete and absolute obedience. God is goodness and justice in Himself, and there is a particular duty to obey God as source of justice. This is only part of his argument for popular sovereignty, but it was central to his understanding of natural law.
From 1790–1792, James Wilson gave a series of lectures on the principles of the American Constitution. It is a work of original philosophy, later published as the Lectures on Law. In this work Wilson articulates why the American democratic experiment is just, in a manner both erudite and learned. The lectures show the relevance of what he calls the ‘moral sense’ to natural law to domestic law, international law, common law, criminal law, and theories of evidence. He intended to turn these lectures into a textbook to replace Blackstone’s Commentaries in the law schools of America, but died before completing the work.
The Lectures begin with a discussion of the characteristics of law, particularly natural law, in categories familiar to those who have read Thomas Aquinas. That tradition found its way into England law through Tudor theologian Richard Hooker, whose Laws of the Ecclesiastical Polity was written around 1600. In using Hooker, Wilson places the American Constitution within the context of a metaphysic commonly seen in medieval philosophy, which is that God is the source of justice, Justice Himself, ruler of creation, whose providential ordering of creation is apparent to human kind through reason and scripture. Wilson’s dependence upon Hooker’s scholastic treatment of law startles the reader out of the complacent assumption that the Framers were devoted to modern rights theory, the principle of autonomous individualism, and Lockean liberalism.
Wilson’s debt to the Anglican theologian Hooker is evident in two ways: first in his metaphysical account of law, and second in the principle of consent. Following Hooker, he states that the author of Law is God himself. The order and proportion that govern the universe reflect that law. The eternal law is that “law, the book of which we are neither able nor worthy to open . . . . He is law to himself as well to all created things.” God made the law celestial to rule the angels. God governs the irrational and inanimate parts of creation by general and fixed rules revealed in the study of natural philosophy. God made a law fitted for human nature, a law for reason, which is “communicated to us by reason and conscience, the divine monitors within us.” We make laws for ourselves guided by reason and conscience, and in conscience lie the first principles of that natural law.
Wilson’s argument which speaks so directly of God’s governance of mankind appears overtly theological—a confusion of religion and political philosophy. Yet to him and other Christian thinkers, the order that rules the universe was a matter of observed fact. He spoke of divine revelation as a friend to law, not a replacement for it. Natural law is not a matter of religious belief. Because God is the source of both revelation and law, revelation and law are “twin sisters.”
Second, Wilson applies Hooker’s principled argument for consent to the American context. He quotes from the first book of Hooker’s Laws:
The lawful power of making laws to command whole politick societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever on earth to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore which publick approbation hath not made so.
To summarize Wilson’s debt to Hooker: first, to impose laws without the people’s consent is “mere tyranny”; and second, people are fitted for self-government because they have a natural capacity to know the natural law. It is surely in this context that Wilson understands the “laws of Nature and of Nature’s God” in the Declaration of Independence. On this account, the American project is only possible because order and proportion pervade the universe, and because each person is possessed of faculties “intellectual and moral” by which to know the laws of Nature and to know God.
In addition to Hooker, Wilson turns to Cicero who had argued that the first principles which guide reason are natural, practical principles of virtue:
In the most uninformed savages, we find the communes notitiae, the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd. . . . These seeds are placed in their minds by nature, though, for want of culture and exercise, they lie unnoticed.
According to both Wilson and Cicero, culture and education develop and shape the exercise of the first principles. The laws of nature are not apprehended in a pre-societal state, without education or the benefits of a rightly ordered society. Evil customs, corrupt habits and bad ideas obscure the natural moral sense and limit the development of virtue and the exercise of reason. Wilson wrote: “Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments.” Thus, Wilson can also account for why human beings fail to institute just regimes, even though each person has the capacity to know the natural law, the seeds of virtue within them.
To seek justice is natural to mankind. Through extended argument, Wilson shows that a moral sense exists in each soul. At one point he concluded, “A Lucretius or a Hobbes cannot discard the sentiment of praise and admiration respecting some moral forms, nor the sentiments of censure and detestation concerning others.” They may be metaphysical skeptics, they may deny that there is justice, but they found it impossible to eradicate the sentiments which seek to know moral forms from their models of human nature.
To Wilson, Hobbes was quite correct in linking moral skepticism to despotism. But Hobbes was wrong about human nature, as are Locke and Hume. Hence the need to illustrate how the principles of justice operate in the human soul. It was to counter a doctrine which had become increasingly commonplace in philosophical circles, namely that truth is a matter of perception, no more than a theory or image.
Although a society may be led astray by corrupt theories, common sense can prevail:
I know very well, that, in the business of life, the dictates of common sense will always, and that in the business of government, the spirit of liberty will sometimes prevail over false theories of politicks and philosophy. But is this a reason why those false theories should be received, or encouraged or propagated?
The Declaration of Independence and the American Constitution read in light of the arguments set forth in Wilson’s Lectures would enrich debate about the intentions of the Framers. Wilson places before us a very important question: if people do not have the natural capacity to determine their own good and the good of others in a reasonable way, is it possible to defend democracy and the principle of consent?