1 The Moral Necessity of Metaphor: Rooting History in a Figure of Speech, Harper's Mag., May 1986, at 62, 68.Google Scholar

2 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547 (1985).Google Scholar

3 For a valuable perspective on the novelty of American federal theory, see the substantially unpublished dissertation by Patrick Riley, Historical Development of the Theory of Federalism, Sixteenth-Nineteenth Centuries (Harvard University, 1968). esp. ch. xvi, as read in light of the preceding chapters. For the Founders' own avowals—and protestarions—of novelty, the evidence abounds: e.g., Madison's Federalist Papers No. 37 at 233 and No. 14 at 88 0. Cooke ed., Cleveland: World Publishing Co., 1961). Cf. 1 Max Farrand, ed., The Records of the Federal Convention of 1787, at 338 (4 vols.; rev. ed. New Haven, Conn.: Yale University Press, 1937) (“Farrand, Records”): Madison's Notes of June 20, reporting remarks of the soon-to-be Anti-Federalist John Lansing on the Virginia Plan: “He had another objection. The system was too novel & complex.”Google Scholar

In contemplating throughout this essay what I consider the positive capability of ambiguity, I have been especially influenced by William E. Connolly, Politics and Ambiguity (Madison: University of Wisconsin Press, 1987). e.g., at xi: “the competing ideals of individualism and communalism, liberalism and radicalism, negative freedom and positive freedom, tend to converge in obscuring the ambiguous character of standards, ideals, and ends most worthy of endorsement.”Google Scholar

For a characterization (by the leading historian of American federalism as it is embodied in constitutional law) of Madison's federal theory as “ambiguous,” see Harry N. Scheiber, Federalism and the Constitution: The Original Understanding, in Lawrence M. Friedman & Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives 85, 87 (Cambridge, Mass.: Harvard University Press, 1978).Google Scholar

4 Quoting Martha A. Field, Comment—Garcia v. San Antonio Metropolitan Transit Authority: The Demise of a Misguided Doctrine, 99 Harv. L. Rev. 84, 85 (1985). Cf. Laurence H. Tribe, American Constitutional Law 154 (Mineola, N.Y.: Foundation Press, 1978) (re: “the Younger doctrine” and its aftermath in general, “it is clear from the Supreme Court's decisions that a concern for federalism is the chief underpinning of the Younger cases. The Court, however, has explained neither the exact content nor the precise status of that concern”). Cf. also Geoffrey R. Stone et al., eds., Constitutional Law 209 (Boston: Little, Brown & Co., 1986) (apparent consensus on the Court that “federalism serves important values”; “the real dispute” arises “over how the[se] values of federalism are to he protected”). See also the symposium in 19 Ga. L. Rev. 789 (1985). esp. the introduction by A.E. Dick Howard, at 789, Garcia and the Values of Federalism: On the Need for a Recurrence to Fundamental Principles.Google Scholar

5 The documentary record would seem to leave little room for doubt about Wilson's actual importance. See, e.g. Max Farrand's estimation of Wilson's standing at the Federal Convention itself; Farrand. The Framing of the Constitution of the United States 197 (New Haven, Conn.: Yale University Press, 1913) (“Farrand, Framing”) (Wilson was “[s]econd to Madison and almost on a par with him. … In some respects he was Madison's intellectual superior”). Nevertheless, the durability of Wilson's renown has proved to be quite another matter. By the time of his early death in 1798, Wilson had already fallen into the obscurity in which his name still languishes. In a previous essay (cited infra note 12), 1 tried to begin to contribute both to earlier explanations for Wilson's fall and to earlier efforts to rehabilitate him. Professor Samuel H. Beer has kindly apprised me that his forthcoming synoptic study of American federalism will, in its treatment of the founding, focus largely on Wilson. 1 am also told that Professor Carry Wills will shortly be publishing a book on Wilson.Google Scholar

6 In trying to take Wilson's rhetoric seriously, I need not subscribe entirely to—but I must and do gratefully acknowledge the influence of—the approach to “law as rhetoric” exemplified in the work of James Boyd White, who “has been the foremost rhetorician of law in our academic culture” (quoting Richard H. Weisberg, Law and Rhetoric, 85 Mich. L. Rev. 920, 920 (1987)). See, e.g., White's Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684 (1985), esp. at 701: “Rhetoric, in the highly expanded sense in which 1 speak of it, might indeed become the central discipline for which we have been looking so long.” White's article is a version of a chapter in his book Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985). Cf. White's more recent exposition of his “literary-rhetorical view of intellectual and cultural life” in Thinking About Our Language, 96 Yale L.J. 1960, 1965 (1987).Google Scholar

For a useful dictionary of terminology—often figurative and/or rhetorical—associated with American federalism, see William H. Stewart, Concepts of Federalism (Lanham, Md.: University Press of America, 1984) (published as part of the Terminology of Federalism project of the Association of Centers for Federal Studies). And for recent examples of analysis and critique of the rhetoric of American federalism, see Peter Gabel, The Mass Psychology of the New Federalism: How the Burger Court's Political Imagery Legitimizes the Privatization of Everyday Life, 52 Geo. Wash. L. Rev. 263 (1984); Mark Tushnet, Deviant Science, 59 Tex. L. Rev. 815, esp. at 825 (1981) (on a Madisonian conception of “the social psychology of federalism” inhering in the “ties of affection and sentiment to the locality”). See also Milner S. Ball, Lying Down Together: Law, Metaphor, and Theology 72–76, 79–80. 90, 91, 113–14 (Madison: University of Wisconsin Press, 1985).Google Scholar

On the Founding itself, see John Zvesper's work treating the decade of the 1790s, Political Philosophy and Rhetoric: A Study of the Origins of American Party Politics (Cambridge: Cambridge University Press, 1977), e.g., at 15: “The major theme of this study is the tension between the practical aims and the rhetorical necessities of modern political philosophy.”Google Scholar

The published work that is perhaps closest, in its approach and focus, to what I am attempting in the present essay is that of Albert Furtwangler, viz., his American Silhouettes: Rhetorical Identities of the Founders (New Haven, Conn.: Yale University Press, 1987); and The Authority of Publius: A Reading of the Federalist Papers (Ithaca, N.Y.: Cornell University press, 1984). Cf. Daniel Walker Howe, The Political Psychology of The Federalist, 44 Wm. & Mary Q., 3d ser., at 483 (1987), esp. at 486, including the citations in n.4.Google Scholar

7 See text infra at note 31.Google Scholar

8 See, e.g., the characterizations of Wilson by contemporary witnesses in 3 Farrand, Records 91–92 (William Pierce) & 236–37 (a French diplomat); George W. Corner, ed., The Autobiography of Benjamin Rush: His “Travels Through Life” together with his Commonplace Book for 1789–1813, at 150 (Princeton, N.J.: Princeton University Press, 1948) (“Corner, ed., Autobiography of Rush”); John Bach McMaster & Frederick D. Stone, eds., Pennsylvania and the Federal Constitution, 1787–1788, at 183 (Lancaster: Historical Society of Pennsylvania, 1888) (“McMaster & Stone”): Wilson was said, by an Anti-Federalist critic, to be “a man of sense, learning and extensive information”; Burton A. Konkle, The Life and Times of Thomas Smith, 1745–1809, A Pennsylvania Member of the Continental Congress 193–94 (Philadelphia, 1904) (Jasper Yates, commenting on Wilson's Nov. 24, 1787 speech at the Pennsylvania ratifying convention) (repub. on microfiche frame 242 in the microfiche supplement to The Documentary History of the Ratification of the Constitution, vol. 2 Ratification of the Constitution by the States: Pennsylvania, ed. Merrill Jensen (Madison: State Historical Society of Wisconsin, 1976) (“Jensen, ed.”).Google Scholar

For testimonials to Wilson's erudition and/or profundity by some later authorities, see 1 Robert Green McCloskey, ed., The Works of James Wilson 2 (Cambridge, Mass.: Harvard University, Belknap Press, 1967) (2 vols. consecutively paginated) (“McCloskey, Works”); McCloskey's short artick, James Wilson, in 1 Leon Friedman & Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions 79, 79 (New York: R.R. Bowker Co., 1969) (“McCloskey, James Wilson”); McMaster & Stone at 758; Randolph G. Adams, ed., Selected Political Essays of James Wilson §1-42 (New York: Alfred A. Knopf, 1930) (“Adams, Selected Essays”). See also Adams, The Legal Theories of James Wilson, 68 U. Pa. L. Rev. & Am. L. Reg. 337, esp. at 337–38 (1920) (reprinted as ch. 7 in Adams, Political Ideas of the American Revolution: Britannic-American Contributions to the Problem of Imperial Organization, 1765–1775 (3d ed. New York: Barnes & Noble, Inc., 1958) (“Adams, Legal Theories”), (“Adams, Political Ideas”).Google Scholar

9 1 McCloskey, Works 222–23 and passim. Google Scholar

10 See, e.g., Morton White, Philosophy, The Federalist, and the Constitution (New York: Oxford University Press, 1987). Cf. Paul Eidelberg, The Philosophy of the American Constitution (New York: Free Press, 1968). But for a brief critique of Morton White's “static … account of philosophy” in The Federalist, see the review by G. Edward White in 74 J. Am. Hist. 499–500 (1987). And for an interesting critique of Eidelberg's application of “Aristotelian criteria,” see Paul Peterson, The Meaning of Republicanism in The Federalist, in Daniel J. Elazar, ed., Republicanism, Representation, and Consent: Views of the Founding Era 43–76 (New Brunswick, N.J.: Transaction Books, 1979) (reprinted from 9 Publius, The Journal of Federalism (1979)).Google Scholar

11 A convenient and broad (even if slightly dated) attempt at a survey of current proponents of this view is to be found in Laurence E. Wiseman, The New Supreme Court Commentators: The Principled, the Political, and the Philosophical, 10 Hast. Const. L.Q. 315 (1983). For criticism of the “philosophical” approach to American constitutional theory, see, e.g., Michael Walzer, Philosophy and Democracy, 9 Pol. Theory 379 (1981); and John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 56–60 (Cambridge, Mass.: Harvard University Press, 1980).Google Scholar

12 See Stephen A. Conrad, Polite Foundation: Citizenship and Common Sense in James Wilson's Republican Theory, 1984 Sup. Ct. Rev. 359 (“Conrad, Polite Foundation”). Cf. the work of Lawrence Eliot Klein, refining and extending arguments in Klein's dissertation, The Rise of “Politeness” in England, 1660–1715 (Johns Hopkins University, 1983); e.g., Lawrence Klein, The Third Earl of Shaftesbury and the Progress of Politeness, 18 Eighteenth-Century Stud. 186 (1984-85); and Lawrence E. Klein, Berkeley, Shaftesbury, and the Meaning of Politeness, 16 Stud, in Eighteenth-Century Culture 57 (1986). And cf. comments on the ideal of “politeness” in J.G.A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century, e.g., 114–15, 236–37, and passim (Cambridge: Cambridge University Press, 1985) (“Pocock, Virtue”). Indeed. a prominent review of this collection of essays by Professor Pocock focuses on precisely the theme in question: Mark Goldie, The Rise of Politeness, Times Literary Supp., June 27, 1986. at 715; cf. the review by Conrad, 5 Law & Hist. Rev. 286 (1987).Google Scholar

13 E.g., David F. Epstein, The Political Theory of The Federalist 114–18 (Chicago: University of Chicago Press, 1984) (“Epstein, Political Theory”); Aviam Soifer, Truisms That Never Will Be True: The Tenth Amendment and the Spending Power, 57 U. Colo. L. Rev. 793, 812 n.77 (1986).Google Scholar

14 The Federalist No. 37, at 234–37 (J. Cooke ed. 1961). But notice the apparent contrast between the way Madison here speaks of the sciences, including political science, and the way Hamilton, in Federalist No. 9, at 51, speaks on the same subject: “The science of politics, however, like most other sciences has received great improvement [of late]. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” The tension in evidence here is nicely captured in Morton White's discussion of the “principles” of the American Revolution itself, in The Philosophy of the American Revolution 230–39 (New York: Oxford University Press, 1978).Google Scholar

15 1 McCloskey, Works 101 (cited in note 8).Google Scholar

16 The phrase is Epstein's (cited in note 13); see at 117; cf. at 114, where Epstein characterizes the passage in question as “a short essay concerning the human understanding.”Google Scholar

17 1 McCloskey, Works 98.Google Scholar

18 Id. at 371 (Wilson against Cartesian “love of system”); cf. at 200.Google Scholar

19 Id. at 99. In his law lectures Wilson recalls these earlier passages when he later turns to the importance of the “social operations” of the human mind, at 229ff. See my discussion of these “social operations,”infra text at note 82ff.Google Scholar

20 See 1 McCloskey, Works 200, for an example of Wilson's vehemently shunning reductionism.Google Scholar

21 For Wilson's earnestly—even if problematically—-empirical conception of political science, see id. at 390. Cf. Madison in Federalist No. 14 at 83–69, 87 & passim (J Cooke ed. 1961), on the importance in political science of “good sense” and of knowledge of one's own particular situation and experience. For analysis of The Federalist that posits an interplay there between “Lockean rationalism” and “Humean empiricism,” see Morton White, Philosophy, The Federalist, and the Constitution passim (New York: Oxford University Press, 1987).Google Scholar

22 I take this phrase from Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013, 1031 & passim (1984).CrossRefGoogle Scholar

23 Cf. James Madison's Autobiography, ed. Douglass Adair, 2 Wm. & Mary Q., 3d ser., 191 (1945), esp. at 197, where Madison contemplates the polite theme of the contemporary “taste for the improvement of the mind and manners.”CrossRefGoogle Scholar

24 Cf. Epstein, Political Theory (cited in note 13). esp. at 62 & 64. Still, it has become common for scholars to notice, and even emphasize, something nor unlike an apparent moralism in Madison's occasional remarks—thus Meyer Reinhold, in his Classica Americana: The Greek and Roman Heritage in the United States 145 (Detroit: Wayne State University Press, 1984) (citing Paul Merrill Spurlin, Montesquieu in America, 1760–1801, at 261–62 (University: Louisiana State University Press, 1940)): “The primacy of virtue in a republic had the support also of Madison, who said in the debate on the constitution at the Virginia ratifying convention: ‘No theoretical checks, no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.’”Google Scholar

As these remarks might be taken to indicate, it is unlikely that Madison believed, and it is inconceivable that he would have professed at the Virginia ratifying convention, that the American republic could entirely dispense with “virtue” or “moral foundations.” Again, my point of contrast between Madison and Wilson is a matter of relative emphasis and of differing conceptions of the American moral economy—not a matter of a wholesale difference in operative constitutional theory. Cf. Lance Banning, Some Second Thoughts on “Virtue” and the Course of Revolutionary Thinking, in J.G.A. Pocock & Terence Ball, eds., Conceptual Change and the Constitution (Lawrence: University of Kansas Press, forthcoming 1988) (manuscript kindly sup plied by Professor Banning) (“Pocock & Ball. eds.”).Google Scholar

Moreover Hamilton, in Federalist No. 31, at 194–95 (J. Cooke Cooke ed. 1961), tends to pair in a single phrase “the sciences of morals and politics” to affirm the “principles of moral and political knowledge” (emphasis added) and the “degree of certainty” that attends them, even if it is a lesser degree than is sometimes found in “mathematics,” e.g., in the “maxims,” or axioms, or “geometry.”Google Scholar

25 E.g., 1 McCloskey, Works 289–90. Cf. Lance Banning, The Practicable Sphere of a Republic: James Madison, the Constitutional Convention, and the Emergence of Revolutionary Federalism, in Richard Beeman et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity 162, 182 (Chapel Hill: University of North Carolina Press, 1987) (“Beeman et al., Beyond Confederation”).Google Scholar

26 1 McCloskey, Works 303; 2 McCloskey, Works 778; cf. vol. 1 at 174, 290. & 315. Contrast Hannah Arendt, On Revolution (rev. ed. Harmondsworth, Eng.: Penguin Books, 1965) (“Arendt, On Revolution”), esp. at 203: “What counted was neither wisdom nor virtue, but solely the act [of Foundation] itself, which was indisputable.” Cf. my text infra at note 44.Google Scholar

27 Federalist No. 51, at 349 (J. Cooke ed. 1961). Cf. Washington, in a letter of Feb. 7, 1787, to Marquis de Lafayette, as excerpted in Michael Kammen, ed., The Origins of the American Constitution: A Documentary History, 101, 102 (New York: Viking Penguin, 1986) (under the proposed Constitution “the general government is arranged [such] that it can never be in danger of degenerating into a monarchy, an Oligarchy, an Aristocracy, or any other despotic or oppressive form, so long as there shall remain any virtue in the body of the People.”).Google Scholar

28 Federalist No. 51, at 349 (J. Cooke ed. 1961).CrossRefGoogle Scholar

29 In Madison's 1788 Remarks on Mr. Jefferson's Draft of a Constitution, in Marvin Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison 56 (1st ed. Indianapolis: Bobbs-Merrill Co., 1973) (“Meyers, Mind of the Founder, 1st ed.”).Google Scholar

The shifts in point of view within this paragraph are intentional. Through them 1 mean to allude to an important problem to which I try to remain sensitive throughout this essay: the ambiguous relationship between, on the one hand, Madison's actual statements and restatements of his constitutional theory at particular times, and, on the other hand, reified “Madisonian theory” as it has been variously synthesized so as to take on a significance of its own quite distinct if not necessarily different from anything or even everything Madison actually said.Google Scholar

30 See, e.g., Wilson's speech of Nov. 24, 1787, in the Pennsylvania ratifying convention, in Jensen, ed., at 349 (cited in note 8); cf. at 362.Google Scholar

31 1 McCloskey Works 296 (remarking, in his law lectures, on the significance of the “next election” as a “remedy” for “mischief” in government); cf. 2 McCloskey, Works 724, in a celebrated pamphlet of 1774: “If, then, the inhabitants of Britain possess a sufficient restraint upon any of these branches of the legislature, their liberty is secure, provided they be not wanting to themselves.” And cf. the very similar formulation of this thought in Jensen, ed., at 349; cf. at 362.Google Scholar

32 Cf. George M. Dennison, The “Revolution Principle”: Ideology and Constitutionalism in the Thought of James Wilson, 39 Rev. Pol. 157 (1977). esp. at 164ff.Google Scholar

33 Andrew C. McLaughlin, James Wilson in the Philadelphia Convention, 12 Pol. Sci. Q. I, 15 (1897).CrossRefGoogle Scholar

34 See, e.g., Montesquieu's fable of “the Troglodytes”in The Persian Letters (1721), ed. & trans. J. Robert Loy, at 59–66 & 284–85 (New York: World Publishing Co., 1961).Google Scholar

35 On the distinct but related issue of interpreting the political theory of Hume himself as “modernizing” or not. and, indeed, “republican” or not, see Duncan Forbes, Hume's Science of Politics, in G.P. Morice, ed., David Hume: Bicentenary Papers 39 (Edinburgh: Edinburgh University Press, 1977) (“Morice on Hume”). Cf. Forbes, Hume's Philosophical Politics (Cambridge: University Press, 1975); Frederick G. Whelan, Order and Artifice in Hume's Political Philosophy (Princeton, N.J.: Princeton University Press, 1985); David Miller, Philosophy and Ideology in Hume's Political Thought (Oxford: Clarendon Press, 1981).Google Scholar

From Whelan's “perspective” on this matter, “it is ironic than an uncharacteristic speculation of Hume's [in the essay Idea of a Perfect Commonwealth] was apparently influential in shaping the thought of James Madison… The irony is that Hume offers this highly untypical essay as a speculative exercise, almost a jeu d'esprit. and he begins it with the disclaimer that to ‘try experiments merely upon the credit of supposed argument and philosophy, can never be the part of a wise magistrate…’ Hume's empiricism of course permits and indeed encourages cautious experimentation … within limits that are difficult to specify. The confidence that the Federalist authors and other American revolutionaries expressed in philosophy or science as a guide to fashioning new governments, however, often seems to have exceeded these limits.” Whelan, supra, at 342–43. But see James Moore, Hume's Political Science and the Classical Republican Tradition, 10 Can. J. Pol. Sci. 809 (1977). esp. at 833–39.Google Scholar

36 1 allude here to themes prominent in a sequence of scholarly literature commonly traced to several articles by Douglass Adair, beginning with “That Politics May Be Reduced to a Science”: David Hume, James Madison, and the Tenth Federalist, 20 Huntington Lib. Q. 343 (1957). Those articles, and later scholarship in the same vein, are conveniently reviewed, and pointedly disputed, by James Conniff in The Enlightenment and American Political Thought: A Study of the Origins of Madison's Federalist Number 10, 8 Pol. Theory 381 (1980). For an account of Madisonian theory as Humean in ways that Adair's articles, and work derived from them, do not tend to emphasize, see Roy Branson, James Madison and the Scottish Enlightenment, 40 J. Hist. Ideas 235 (1979).Google Scholar

37 Cf. one of Wilson's most characteristic and most quoted public remarks, e.g., as one reporter recorded it from Wilson's Nov. 24, 1787 speech: “After a period of six thousand years has elapsed since the Creation, the United States exhibit to the world, the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government, under which they would wish that they and their posterity should live.” Jensen, ed., at 353; cf. at 342 (cited in note 8). In this or a similar formulation Wilson's remark has been quoted by, e.g., Donald H. Meyer, The Democratic Enlightenment 154 (New York: G.P. Putnam's Sons, Capricorn Books, 1976); and by Farrand, Framing, at 62 (cited in note 5). Cf. Hamilton's seemingly less reassured and less reassuring view of the same historic moment as a “crisis,” in which Americans had yet to resolve “the important question, whether societies of men are capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.” Federalist No. 1, at 1 (J. Cooke ed. 1961).Google Scholar

38 Jensen, ed., at 353; cf. at 342. See also 1 McCloskey, Works at 80. And cf. 2 McCloskey, Works at 785, and my discussion in sec. VII infra at note 213.Google Scholar

39 1 McCloskey, Works 80. Cf. Madison in Federalist No. 37, e.g., at 235 (J. Cooke ed. 1961): “Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.”Google Scholar

40 See, e.g., Montesquieu's Considerations on the Causes of the Greatness of the Romans and Their Decline (1734, 1748), trans. David Lowenthal (Ithaca, N.Y.: Cornell University Press, 1968); cf. Montesquieu's fable of “the Troglodytes” (cited in note 34).Google Scholar

41 1 McCloskey, Works 263 (citing Beccaria's famous Essay on Crimes and Punishments, ch. 26).Google Scholar

42 Jensen, ed., at 362; cf. at 348.Google Scholar

43 1 McCloskey, Works 77–79. Cf. Jensen, ed., at 343: “even at the Revolution [of 1688], when the government was essentially improved, no other principle was recognized, but that of an original contract between the sovereign and the people-a contract which rather excludes than implies the doctrine of representation.” Cf. at 354. And see generally Stanley N. Katz, The American Constitution: A Revolutionary Interpretation, in Beeman et al., Beyond Confederation, at 23–37, esp. 32–33 (cited in note 25); David S. Lovejoy, The Glorious Revolution in America (New York: Harper & Row, 1972). e.g., at 182 (reference to assertion of a principle of “consent to laws and taxes”); H.T. Dickenson, The Eighteenth-Century Debate on the “Glorious Revolution,” 61 History 28 (1976).Google Scholar

44 Arendt, On Revolution ch. 5, at 199, 203, and passim (cited in note 26). Cf. Richard S. Kay, Preconstitutional Rules, 42 Ohio St. L.J. 187 (1981); Kay. The Illegality of the Constitution, 4 Const. Commentary 57 (1987); Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Mich. L. Rev. 621 (1987); Ackerman, 93 Yale L.J. at 101ff. (cited in note 22).Google Scholar

45 Arendt at 201–3.Google Scholar

46 Cf. Gordon S. Wood, The Creation of the American Republic, 1776–1787, esp. ch. XV (New York: W.W. Norton, 1969) (“Wood, Creation”).Google Scholar

47 1 McCloskey, Works 297.Google Scholar

48 Id. 79, 103–5, 214, 216, 221–22. Cf. Conrad, Polite Foundation, esp. at 375–76 (cited in note 12). And cf. Donald W. Livingston, Hume's Philosophy of Common Life 25 (Chicago: University of Chicago Press, 1984): “Until well into the twentieth century, Hume's philosophical writings were viewed as skeptical in an especially vicious way.”Google Scholar

49 Here I am quoting from Hume's Section I, Of the Different Species of Philosophy, in An Enquiry Concerning Human Understanding (1777 ed.), at paras. 5 & 9, in Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. LA. Selby-Bigge; 3d ed., ed. P.H. Nidditch, at 9 & 11 (Oxford: Clarendon Press 1975) (“Nidditch, ed.”).CrossRefGoogle Scholar

50 Cf. the following passage, as quoted from Hume—in order to illustrate his epistemology at its most Pyrrhonist extreme—in Henry Laurie, Scottish Philosophy in Its National Develop ment 62 (Glasgow: James Maclehose & Sons, 1902): “The most perfect philosophy of a natural kind only staves off our ignorance a little longer; as perhaps the most perfect philosophy of the moral or metaphysical kind serves only to discover larger portions of it.” Contrast, however, the analysis of Hume's speculative philosophy by John P. Wright, The Sceptical Realism of David Hume (Minneapolis: University of Minnesota Press, 1983); see esp. Wright's last chapter, on Descartes and Malebranche as important sources for Hume's “sceptical realism” in his conception of human nature.Google Scholar

51 Cf. Hume in sec. IX, pt. II, para. 228 of An Enquiry Concerning the Principles of Morals, in Nidditch, ed., at 279 (cited in note 49): “Truths which are pernicious to society, if any such there be, will yield to errors which are salutary and advantageous.” For an interpretation of Hume's practical philosophy that is particularly attentive to the Common Sense context and content of Hume's writings generally, see David Fate Norton, David Hume: Common-Sense Moralist, Sceptical Metaphysician (Princeton, N.J.: Princeton University Press, 1982) (“Norton on Hume”).Google Scholar

52 Cf. 1 McCloskey, Works 147 & passim (cited in note 8).Google Scholar

53 On Hume as a partisan of “politeness,” see John Christian Laursen, From Court to Commerce: David Hume and the French Vocabulary of “Politeness” in the Scottish Enlightenment (essay presented at a conference on “The Political Thought of the Scottish Enlightenment in Its European Context,” Edinburgh, Aug. 1986, and distributed by the Conference for the Study of Political Thought). Cf. Laursen, Sceptical Politics in Hume and Kant: Letters, Philosophy, and the Language of Politics chs. 2 & 4 (Ph.D. diss., Johns Hopkins University, 1985). And see Ralph S. Pomeroy, Hume's Proposed League of the Learned and Conversible Worlds, 19 Eighteenth-Century Stud. 373 (1986); Nancy S. Struever, The Conversable [sic] World: Eighteenth-Century Transformations of the Relation of Rhetoric and Truth, in Rhetoric and the Pursuit of Truth: Language Change in the Seventeenth and Eighteenth Centuries 77, esp. 79–94 (Los Angeles: Clark Memorial Library, University of California, 1985).Google Scholar

54 Forbes, in Hume's Science of Politics, at 42 (cited in note 35), reminds us that “Rousseau wrote in his Confessions of Hume's ame republicaine' “; and Forbes himself refers to “Hume's republicanism,” albeit a republicanism “purely academic.” Cf. Moore, 10 Can. J. Pol. Sci. (cited in note 35).Google Scholar

55 Stephen A. Conrad, Citizenship and Common Sense: The Problem of Authority in the Social Background and Social Philosophy of the Wise Club of Aberdeen, esp. chs. 4–8 (New York: Garland Publishing Co., 1987) (“Conrad, Citizenship”).Google Scholar

56 The most forceful recent exposition of this point is, I believe, David Fate Norton, Hume and His Scottish Critics, in McGill Hume Studies, ed. Norton et al., 309 (San Diego, Cal.: Austin Hill Press, 1976). For a contrasting interpretation of Reid's truth claims, see Paul Vernier, Thomas Reid on the Foundations of Knowledge and His Answer to Skepticism, in Stephen F. Barker & Tom L. Beauchamp. eds., Thomas Reid: Critical Interpretations 14 (Philadelphia: Philosophical Monographs, 1976) (“Barker & Beauchamp on Thomas Reid”).Google Scholar

57 See Beattie's own advertisement to the 1790 edition, published in Edinburgh, at p. iii of the facsimile reproduction, intro. James R. Irvine (Delmar, N.Y.: Scholars' Facsimiles & Reprints, 1976).Google Scholar

58 Benjamin Rush, in a letter of March 19, 1789, in I L.H. Butterfield, ed., Letters of Benjamin Rush 507 (2 vols.; Princeton, N.J.: Princeton University Press, 1951) (“Butterfield, Rush Letters”). Nevertheless, it would seem that Rush's characterization was grounded, at most and at best, on a “sublimation of politics.” for which Professor George Dargo provides the most compelling concise explanation of which I am aware; Dargo, Parties and the Transformation of the Constitutional Idea in Revolutionary Pennsylvania, in Patricia U. Bonomi, ed., Party and Political Opposition in Revolutionary America 98. esp. at 111 (Tarrytown. N.Y.: Sleepy Hollow Press, 1980). On Wilson's “sublimation” of politics, see my text infra at sec. VII.Google Scholar

59 See, e.g., Andrew Hook, Scotland and America: A Study of Cultural Relations, 1750–1835, ch. 6, esp. at 79 (Glasgow: Blackie, 1975). Cf. Henry F. May, The Enlightenment in America at, e.g., 209, 343ff. (New York: Oxford University Press, 1976). And see Rush's Aug. 1, 1786 letter to Beattie, informing him that Rush had just procured Beattie's admission to the American Philosophical Society, and assuring Beattie that, “The American Revolution, which divided the British Empire, made no breach in the republic of letters.” 1 Butterfield, Rush Letters 394 (cited in note 58).Google Scholar

60 In addition to the works by Hook and May cited in note 59, and to Donald H. Meyer, The Democratic Enlightenment (New York: G.P. Putnam's Sons, Capricorn Books, 1976), see D.H. Meyer, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972); Garry Wills, Inventing America: Jefferson's Declaration of Independence (Garden City, N.Y.: Doubleday & Co., 1978): Wills, Explaining America: The Federalist (Garden City, N.Y.: Doubleday & Co., 1981). For what I believe remains the most cogently argued warning against overemphasizing this Scottish influence on the American Founding, see Ronald Hamowy, Jefferson and the Scottish Enlightenment: A Critique of Garry Wills's Inventing America: Jefferson's Declaration of Independence, 36 Wm. & Mary Q., 3d ser., 503 (1979).Google Scholar

61 Alasdair MacIntyre, After Virtue: A Study in Moral Theory 272 (2d ed. Notre Dame, Ind.: University of Notre Dame Press, 1984) (in “Postscript to the Second Edition”).Google Scholar

62 See, e.g., James H. Hutson, The Creation of the Constitution: Scholarship at a Standstill, 12 Revs. Am. His. 463 (1984); cf. Hutson, Riddles of the Federal Constitutional Convention, 44 Wm. & Mary Q., 3d ser., 411 (1987).Google Scholar

63 See, e.g., Frank I. Michelman, The Supreme Court, 1985 Term—Forward: Traces of Self Government, 100 Harv. L. Rev. 4 (1986); cf. Michelman, The Place of Republicanism in American Constitutional Law (paper presented at Annual Meeting, Association of American Law Schools, Los Angeles, Jan. 1987; manuscript kindly supplied by the author). See also William E. Nelson, Reason and Compromise in the Establishment of the Federal Constitution, 1787–1801, 44 Wm. & Mary Q., 3d ser., 458, esp. 483–84 (1987).Google Scholar

64 I McCloskey, Works 162.Google Scholar

65 See, e.g., David A. Hollinger's observations on the current “linguistic imperialism” in his field, in American Intellectual History: Some Issues for the 1980s, in the collection of Hollinger's essays In the America Province: Studies in the History and Historiography of Ideas 176 (Bloomington: Indiana University Press, 1985). On the “linguistic turn” in intellectual history more generally, see Donald R. Kelley. Horizons of Intellectual History: Retrospect, Circumspect, Prospect, 48 J. Hist. ldees 143 (1987). For samples of the linguistic turn in contemporary American constitutional theory, see the relevant articles in symposia like 58 So. Cal. L. Rev. 277 (1985) and 60 Tex. L. Rev. 373 (1982).Google Scholar

66 See Wilson's opinion in the case of Chisholm v. Georgia, 2 Dallas 419, 453–54 (1793). Cf. I McCloskey. Works 216–17, 193–94 (cited in note 8).Google Scholar

67 See, e.g., I McCloskey, Works 231, 237–38.Google Scholar

68 Id. at 135. Cf.L.A. Richards on the representative 18th-century Common Sense literary criticism of Kames, in Richards, The Philosophy of Rhetoric 16 ff. & 98 ff. (New York: Oxford University Press, 1936). On the important connection between Kames and Reidian Common Sense, see Conrad, Citizenship chs. 5–6 & passim (cited in note 55).Google Scholar

69 Federalist No. 37, at 236–37 (J. Cooke ed. 1961).CrossRefGoogle Scholar

70 I McCloskey, Works 231.Google Scholar

71 An Enquiry Concerning Human Understanding, in Nidditch, ed., at 9, 10 (cited in note 49).Google Scholar

72 Páll S. árdal, Convention and Value, in Morice on Hume 51. 56 (cited in note 35).Google Scholar

73 For an example of a similar reaction to Hume from a modern scholar particularly concerned with questions of language, culture, and epistemology, see the much praised albeit controversial work of Owen Barfield, e.g., his Poetic Diction: A Study in Meaning (London, 1928). esp. Preface to the Second Edition (2d ed. New York: McGraw-Hill Book Co., 1952, 1964). Nevertheless, contrast the readings of Hume by some leading modern scholars, e.g., Norman Kemp Smith, The Philosophy of David Hume: A Critical Study of Its Origins and Central Doctrines (1941; reprint ed. New York: Garland Publishing Co., 1983); and Norton on Hume (cited in note 51).Google Scholar

74 A Treatise of Human Nature, bk. I, pt. III, sec. X, ed. L.A. Selby-Bigge (1888); 2d ed., ed. P.H. Nidditch, at 121 (Oxford: Clarendon Press, 1978).Google Scholar

75 1 McCloskey, Works 213–14.Google Scholar

76 For an overview, see Keith Lehrer, Reid's Influence on Contemporary American and British Philosophy, in Barker & Beauchamp on Thomas Reid 1–7 (cited in noted 56). Cf. Louise Marcil-Lacoste, Claude Buffier and Thomas Reid: Two Common-Sense Philosophers (Kingston & Montreal: McGill-Queen's University Press, 1982) (“Marcil-Lacoste”). See also the fledgling journal Reid Studies, edited by Melvin T. Dalgarno and published by the University of Aberdeen; and the multivolume series of publications of Reid's hitherto unpublished manuscripts, under the general editorship of Charles Stewart-Robertson.Google Scholar

77 See James Beattie's London Diary, 1773, ed. Ralph S. Walker, at 42 and passim (Aberdeen: University of Aberdeen, 1946).Google Scholar

78 1 McCloskey, Works 216 (cited in note 8).Google Scholar

79 E.g., id. at 213–15.Google Scholar

80 Id. at 217; cf. at 194 (Reid an “experienced judge of human nature”).Google Scholar

81 Cf. my text at note 66 supra. On Reid's Baconianism in general, see Marcil-Lacoste at 131–40 (cited in note 76). On the avowed Baconianism of the rhetoric of Reid's moral science in particular, see Charles Stewart-Robertson, The Pneumatics and the Georgics of the Scottish Mind, 20 Eighteenth-Century Stud. 296 (1987).Google Scholar

82 1 McCloskey, Works 229.Google Scholar

83 Id. at 230ff. At this point in his lectures, Wilson makes an interesting reference to his earlier express reservations about relying for knowledge on “definitions.” Cf. my text supra at note 17.Google Scholar

84 1 McCloskey, Works 230; cf. at 200, 228-29 (Wilson contra Hobbist reduction of the social passions into “selfishness” and “self-love”). Cf. infra note 112.Google Scholar

85 Cf. Wilson's remark that Reid's philosophy would open “the most enrapturing prospects.” 1 McCloskey, Works 201.Google Scholar

86 Id. at 229.Google Scholar

87 See, e.g., Gladys Bryson, Man and Society: The Scottish Inquiry of the Eighteenth Century (Princeton, N.J.: Princeton University Press, 1945); Ronald L. Meek, Social Science and the Ignoble Savage (Cambridge: Cambridge University Press, 1976).Google Scholar

88 1 McCloskey, Works 161ff. (cited in note 8).Google Scholar

89 Cf. Chisholm v. Georgia, 2 Dallas 419. 454 (1793).Google Scholar

90 1 McCloskey, Works 162. The titles of Reid's two last, and longest, works are Essays on the Intellectual Powers of Man (1785) and Essays on the Active Powers of the Human Mind (1788).Google Scholar

91 See 1 McCloskey, Works 202ff. (on the relationship between external and internal “sense”).Google Scholar

92 E.g., id. at 201.Google Scholar

93 Cf. id. at 199 (general concurrence of the will and the understanding). Cf. discussion of this passage in Conrad, Polite Foundation 381ff. (cited in note 12).Google Scholar

94 1 McCloskey. Works 161–62.Google Scholar

95 Id. at 162.Google Scholar

96 Id. (emphasis added).Google Scholar

97 E.g., id. at 163–64.Google Scholar

98 Cf. Norman S. Fiering, Irresistible Compassion: An Aspect of Eighteenth-Century Sympathy and Humanitarianism, 37 J. Hist. Ideas 195 (1976).CrossRefGoogle Scholar

99 1 McCloskey, Works 162. Cf. bibliographical glossary in 2 McCloskey at 854.Google Scholar

100 1 McCloskey, Works 163; cf. 2 McCloskey 855. Also cf. Wilson on “moral perception” as an operation of “the understanding,” e.g., at 1 McCloskey 233.Google Scholar

101 Cf. Robert Eberwein, James Beattie and David Hume on the Imagination and Truth, 12 Tex. Stud. Literature & Language 595 (1971). For an account of Hume's conception of the imagination that sets it in the broad context of 18th-century literary theory generally, see James Engell, The Creative Imagination: Enlightenment to Romanticism 52 & passim (Cambridge, Mass.: Harvard University Press, 1981). For an especially pertinent analysis by a leading historian of philosophy that focuses on “the imagination” in arguing that “[t]he whole of Hume's constructive philosophy of human nature was unperceived by Reid and Beattie—and so by the later critics who took their cue from Reid and Beattie,” see D.D. Raphael, “The true old Humean philosophy” and Its Influence on Adam Smith, in Morice on Hume at 23, 25 (cited in note 35).Google Scholar

102 As Professor Pocock has recently suggested, this increased interest in the imagination is a matter to which historians of literature and of philosophy have attended so carefully for so long now that it is all the more remarkable that historians of political thought have thus far done so little to come to terms with its significance. Pocock, Virtue 66–67 & n.46 (cited in note 12).Google Scholar

103 1 McCloskey, Works 139 (cited in note 8); Wilson here cites Francis Hutcheson, A System of Moral Philosophy (cf. bibliographical glossary in 2 McCloskey at 852). Cf. infra note 111.Google Scholar

104 I venture this remark at the encouragement of Professor Aileen Ward, who has been kind enough to share with me her reaction to the passage in question: that it was quite unusual at that time (the early 1790s) for a writer, at least an Anglophone writer, to wax as expressly self-conscious as Wilson does here about the moral purpose of metaphor. For Ward's own wide-ranging study of the theory of metaphor, see her The Unfurling of Entity: Metaphor in Poetic Theory (New York: Garland Publishing Co., 1987).Google Scholar

105 1 McCloskey, Works 101; cf. 2 McCloskey, Works 778, for another instance of Wilson's articulately self-conscious use of metaphor, in his 1788 July Fourth Oration.Google Scholar

106 Cf. 1 McCloskey, Works 201, 205, 223–25, 371–72; cf. at 213. Cf. Henry Guerlac, Newton's Changing Reputation in the Eighteenth Century, in Carl Becker's Heavenly City Revisited, ed. Raymond O. Rockwood, at 3 (Hamden, Conn.: Archon Books, 1968); Charles C. Gillis, pie, The Edge of Objectivity: An Essay in the History of Scientific Ideas (Princeton, N.J.: Princeton University Press, 1960).Google Scholar

107 Cf. Morton White, The Philosophy of the American Revolution 157–60 (New York: Oxford University Press, 1978).Google Scholar

108 E.g., 1 McCloskey, Works 183. Cf. Donald W. Livingston, Hume's Philosophy of Common Life 11–15 & passim (Hume on the authority of “experience”) (cited in note 48).Google Scholar

109 An especially concise and balanced discussion of this familiar matter is Michael Lienesch, Interpreting Experience: History, Philosophy, and Science in the American Constitutional Debates, 11 Am. Pol. Q. 379 (1983).CrossRefGoogle Scholar

110 Cf. Dennison, 39 Rev. Pol. 157, esp. at 190–91 (cited in note 32).CrossRefGoogle Scholar

111 Cf. 1 McCloskey, Works 139; cf. at 87, 164–65, 200.Google Scholar

112 See esp. id. at 228–29. Whether Wilson's reading of Hobbes was the correct reading or even a defensible reading is a question that I do not mean to address. For a recent interpretation that finds in the Leviathan something quite different from the “asocial individualism” often found there, by Wilson's contemporaries and ours, see Ron Replogle, Personality & Society in Hobbes's Leviathan, 19 Polity 570 (1987). Cf. supra note 84.Google Scholar

113 E.g., 1 McCloskey, Works, esp. at 227, 233–36.Google Scholar

114 Cf. id., esp. at 130.Google Scholar

115 Cf. id. at 161, 211, 231, 280.Google Scholar

116 E.g., id. at 238–39, 280; Jensen, ed., at 356, 358–59 (cited in note 8); cf. id. at 344–45, 346.Google Scholar

117 1 McCloskey, Works 239.Google Scholar

118 Among the many relevant excellent studies, two are of special interest here: Stephen Botein, Cicero as Role Model for Early American Lawyers: A Case Study in Classical “Influence,” 73 Classical J. 313 (1978); and even closer to my own emphasis, Robert A. Ferguson, Law and Letters in American Culture 74 (Cambridge, Mass.: Harvard University Press, 1984) (on the Ciceronian ideal as calling for “professional knowledge, where ‘profession’ meant ‘the search after truth’… moral duty … an intrinsic love of learning and literature”).Google Scholar

119 Cf. Wilson's resistance to “defining,” or “conceiving” of, law as a rule at all. He favored, instead, a conception of “law”as relation rather than as “rule.” See 1 McCloskey, Works 100–101 (but see at 63); see also at 123, for Wilson's appreciation of this idea of law as a “Roman” ideal. Cf. Arendt, On Revolution 187ff. (cited in note 26).Google Scholar

120 2 Farrand, Records 87 (cited in note 3). For a biographical sidelight that may be important in understanding Wilson's position here, see Charles Page Smith, James Wilson: Founding Father, 1742–1798, at 114–15 (Chapel Hill: University of North Carolina Press, 1956) (“Smith on James Wilson”).Google Scholar

121 Jensen, ed., at 348 (cited in note 8); cf. at 361–62.Google Scholar

122 E.g., 1 McCloskey, Works 239, 270.Google Scholar

123 Id. at 239; cf., e.g., at 109.Google Scholar

124 Id. at 239, 270, 401; Chisholm v. Georgia, 2 Dallas 419, 455 (1793). Cf. George Armstrong Kelly, Mortal Man, Immortal Society? Political Metaphors in Eighteenth-Century France, 14 Pol. Theory 5 (1986).Google Scholar

125 1 Farrand, Records 605 (cited in note 3).Google Scholar

126 See, e.g., George H. Sabine, Cicero and the Roman Lawyers, ch. 9 in Sabine's A History of Political Theory, esp. at 171–72 (New York: Henry Holt & Co., 1937).Google Scholar

127 Chisholm v. Georgia, 2 Dallas 419, 455–56 (1793). Cf. William Penn's remark in his preface to the Frame of Government: “Governments, like clocks, go from the motion men give them; and as governments are made and moved by men, so by them they are ruined too”; as quoted by Gerhard Casper, Constitutionalism, in 1 Leonard W. Levy et al., Encyclopedia of the American Constitution 473, 476 (4 vols.; New York: Macmillan Publishing Co., 1986).Google Scholar

Moreover, Professor John Christian Laursen tells me that he finds “a parallel” between Wilson's language as quoted here and Kant's formulation of his Sixth Proposition in the Idea for a Universal History with a Cosmopolitan Purpose; see Kant's Political Writings, ed. Hans Reiss, trans. H.B. Nisbet 46–47 (Cambridge: Cambridge University Press, 1970). Yet how different Kant's (and Penn's, and even Madison's) qualms sound from Wilson's optimism! E.g., in the Sixth Proposition, when addressing the challenge of obtaining “for public justice a supreme authority which would itself he just,” in light of the “problem” that “is both the most difficult and the last to be solved by the human race”–namely “[t]he difficulty … [that] man is an animal who needs a master,” Kant writes: “But this master will also be an animal who needs a master. Thus while man may try as he will, it is hard to see how he can obtain for public justice a supreme authority which would itself be just, whether he seeks this authority in a single person or in a group of persons selected for this purpose. For each of them will always misuse his freedom if he does not have anyone above him to apply force to him as the laws should require it. Yet the highest authority has to be just in itself and yet also be a man. This is therefore the most difficult of all tasks, and a perfect solution is impossible. Nothing straight can be constructed from such warped wood as that which man is made of.”Google Scholar

128 Conrad, Polite Foundation 366-74 (cited in note 12).Google Scholar

129 See the following pair of companion essays on the current posture of scholarly debate on this topic: Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 63 Wm. & Mary Q., 3d ser., at 3 (1986); Joyce Appleby, Republicanism in Old and New Contexts, 63 Wm. & Mary Q. 3d ser., at 20 (1986). Cf. J.G.A. Pocock, Between Cog and Magog: The Republican Thesis and the Ideologia Americana, 48 J. Hist. ldeas 325 (1987).Google Scholar

130 1 McCloskey, Works 146 (cited in note 8). Cf. Wilson's rewriting of Pope's aphorism “Man never is, but always to be blest” so as to render it both “more consolatory” and “more just”: “man ever is; for always to be blest.”Id. (The emphasis is Wilson's.)Google Scholar

131 Judith N. Shklar, Ordinary Vices 70 (Cambridge, Mass.: Harvard University, Belknap Press, 1984) (“Shklar, Ordinary Vices”).Google Scholar

132 On Publius's aim not to reform and improve but merely to harness and control human nature, see Maynard Smith, Reason, Passion and Political Freedom in The Federalist, 22 J. Pol. 525 (1960); cf. Howe, 44 Wm. & Mary Q. at 494 (cited in note 6).CrossRefGoogle Scholar

133 E.g., John Adams in a letter of 1785: “The social science will never be much improved, until the people unanimously know and consider themselves as the fountain of power”; 9 Charles Francis Adams, ed., The Works of John Adams, Second President of the United States 538, 540 (10 vols.; Boston: Little, Brown & Co., 1850–56, 1854). Cf. David Freeman Hawke, Benjamin Rush: Revolutionary Gadfly 358–80 (Indianapolis: Bobbs Merrill Co., 1971).Google Scholar

134 Cf, 1 McCloskey, Works 26ff. & 43–48 (editor's Introduction); McCloskey, James Wilson 85–86, 94–95 (cited in note 8); Smith on James Wilson at 159ff. & passim (cited in note 120). For more recent scholarship that treats the facts and the political significance of social mobility in the Philadelphia of Wilson's day, see Thomas M. Doerflinger, A Vigorous Spirit of Enterprise: Merchants and Economic Development in Revolutionary Philadelphia ch. 6 (251–80) (Chapel Hill: University of North Carolina Press, 1986), esp. at 255 (citing Steven James Broebeck, Changes in the Composition and Structure of Philadelphia Elite Groups, 1756–1790 (Ph.D. diss., University of Pennsylvania, 1972)).Google Scholar

135 E.g., 1 McCloskey, Works 157.Google Scholar

136 Id. at 240.Google Scholar

137 For an example of Wilson's own articulation of such disappointments, see his Nov. 24. 1787 speech in Jensen, ed. at 347–48 (cited in note 8); cf. at 360–61.Google Scholar

138 1 McCloskey, Works 209, 394: cf. at 387–88: a universal opinion is entitled to “the character of a first principle of human knowledge.”Google Scholar

139 Cf. Frederick M. Kenner, The Chain of Becoming—The Philosophical Tale, the Novel, and a Neglected Realism of the Enlightenment: Swift, Montesquieu, Voltaire, Johnson, and Austin (New York: Columbia University Press, 1983), esp. pt. I, The Chain of Becoming, and ch. 2. The Chain of Being, the Chain of Events, and the Chain of Becoming.Google Scholar

140 See, e.g., Rogers M. Smith, Liberalism and American Constitutional Law 208–9 (Cambridge, Mass.: Harvard University Press, 1985); Epstein, Political Theory 210 n.60 (cited in note 13); Gordon S. Wood, Interests and Disinterestedness in the Making of the Constitution, in Beeman et al., Beyond Confederation 69, 83 (cited in note 25).Google Scholar

141 1 Farrand, Records 605 (cited in note 3). Cf. 2 McCloskey, Works 776 (Fourth of July Oration, 1788) (cited in note 8). And see Thomas A. Horne, Bourgeois Virtue: Property and Moral Philosophy in America, 1750–1800, 4 Hist. Pol. Thought 317, esp. 337ff. (1983). Quite correctly. in my view, Horne at 339 places Wilson in a class of moralists about whom Horne says: “The most important characteristic of the property theory found in these moralists is that property rights are derived from moral duties in such a way as to make such rights subordinate to the public good. Property rights do not define the public good; they cannot stand against it.”Google Scholar

The distinctiveness of Wilson's idea of the “most noble” end of government and society. as expressed here, is all the more evident if one accepts Martin Diamond's characterization of “the new political science” of the American founders in general: “the new political science gave a primacy to the efficacy of means rather than to the nobility of ends: The ends of political life were reduced to a commensurability with the human means readily and universally available. In place of the utopian end postulated by the ancients, the forced elevation of human character. the moderns substituted a lowered political end, namely human comfort and security…. This removal of the task of character formation from its previously preeminent place on the agenda of politics had an immense consequence for the relationship of ethics and politics in modern regimes.” Diamond, Ethics and Politics: The American Way, in Robert H. Horwitz, ed., The Moral Foundations of the American Republic 75, 83 (3d ed. Charlotresville: University Press of Virginia, 1986). Cf. Arendt, On Revolution 90 (cited in note 26) (“Montesquieu's great insight that even virtue must have its limits”); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition 491–92 (Princeton, N.J.: Princeton University Press. 1975) (“Pocock, The Machiavellian Moment”).Google Scholar

142 1 McCloskey, Works 132–43, 206, 213—esp. at 137 & 141: “Reason judges either of relations or of matters of fact”; cf. at 136, on a secondary class of moral truths that are deduced by reasoning. Cf. also Smith, 22 J. Pol. (1960) (cited in note 132).Google Scholar

143 See, e.g., D. Daiches Raphael, The Moral Sense (London: Oxford University Press, 1947). Cf. the specific passages and cross-references in the anthology, 2 Raphael, British Moralists, 1650–1800, at 172–75, 267ff., 300–301 (2 vols.; Oxford: Clarendon Press, 1969). Cf. Howe, 44 Wm. & Mary Q at 492, 497, & passim (cited in note 6).Google Scholar

144 1 McCloskey, Works 133, 143, 203, 209, 225.Google Scholar

145 Id. at 135. Cf. Benjamin T. Spencer, The Quest for Nationality: An American Literary Campaign 56 (Syracuse, N.Y.: Syracuse University Press, 1957) (quoting Noah Webster's remark that language is “not framed by philosophers”). But for Webster, this notion was, of course, a premise not for universalism but nationalism, in the restrictive sense. Cf. Richard Bridgman, The Colloquial Style in America 6–8, 43 (New York: Oxford University Press, 1966).Google Scholar

146 1 McCloskey. Works 135.Google Scholar

147 Id. at 142, 393. Cf. Madison as quoted by Adrienne Koch at xv in her Introduction to her edition of Notes of the Debates in the Federal Convention of 1787, Reported by James Madison (Athens: Ohio University Press, 1966) (“Koch, Notes”).Google Scholar

148 On “pure diction” in this sense and in this context, see Donald Davie, Purity of Diction in English Verse, esp. at 29–40 (London: Routledge & Kegan Paul, 1967).Google Scholar

I have been forcefully reminded by Professor Aubrey Williams that the uses Wilson made of Augustan verse (and prose) amount to a selective appropriation that cannot he and should not he our own—if only (but probably not only) because we have now come to know the Augustans better than Wilson and his polite contemporaries cared or dared to during the “Victorian Prelude” of the late 18th century. Cf. Maurice J. Quinlan, Victorian Prelude: A History of English Manners, 1700–1830, esp. ch. 8, Changing Taste and Temperament (rev. ed. London: Frank Cass & Co., 1965). For examples of authentically Augustan verse impolite to the point of the scatological, Professor Williams recommends Jonathan Swift's “Dick, a Maggot,”“A Beautiful Young Nymph Going to Bed,” and “Cassinus and Peter.”Google Scholar

149 Quoting Paul Fussell, The Rhetorical World of Augustan Humanism: Ethics and Imagery from Swift to Burke (Oxford: Clarendon Press, 1965). See esp. ch. 9 (at 211–32), the title of which is taken from Burke: “The Wardrobe of a Moral Imagination.” Fussell's concluding sentences at 232 capture a point central to his argument about why the Augustan humanists took rhetoric so seriously: “And as we have seen, just as ‘drapery’ is the dress of man, style is the dress of thought. The dress may vary from Poor Tom's rags to Johnson's ‘laced or embroidered waistcoast’, but in expression as well as in action external conventions are indispensable: the ‘dresses’ which clothe thought come from the same objective ‘moral’ wardrobe as the conventions and institutions which humanize and dignify man. Styles and institutions are ultimately the same thing. and in either to try to invent one's own is to renounce one's humanity.”Google Scholar

Whether Fussell gives an accurate account of “Augustan humanism” in general, or any part of it. is not a question 1 mean to confront here—any more than I mean to try to resolve questions about the philosophical or ethical merit of Wilson's own “mimetic literalism.” But for an authoritative critique of such naive literalism as purveyed in the polite literary theory of the ubiquitous Kames (who was Reid's patron and whose ideas are fairly taken as just the sort of 18th-century Atlantic orthodoxy Wilson meant to endorse), one need look no further, as I have said, than I A. Richards' Philosophy of Rhetoric itself (New York: Oxford University Press, 1936). And for a more recent—and an authentically Johnsonian—critique of the mimetic confusion of “words” with “things” (where “things” include both “nature” and “morals”), see Jean H. Hagstrum, Samuel Johnson Among the Deconstructionists, 39 Ga. Rev. 537, esp. at 540 (1985), quoting René Wellek: “‘the relation of mind and world is more basic than language’”: and at 546, quoting Johnson against “the shameful act of ‘imposing words’ (the ‘daughters of earth’) for ideas (clear mental images) or for things (the ‘sons of heaven’).”Google Scholar

150 This is my reformulation of a provocative generalization couched in very similar terms by Daniel Cottom, in a hook to which I am greatly indebted, The Civilized Imagination: A Study of Ann Radcliffe, Jane Austen, and Sir Walter Scott 24 (Cambridge: Cambridge University Press, 1985) (“Cottom, The Civilized Imagination”).Google Scholar

151 Cf. Linda K. Kerber, Federalists in Dissent: Imagery and Ideology in Jeffersonian America, esp. ch. 6, Images of Social Order (Ithaca, N.Y.: Cornell University Press, 1970).Google Scholar

152 See text at note 177 infra Google Scholar

153 A passing remark by James Wilson's first editor, his son Bird. suggests that the elder Wilson himself was not the one who assigned the separate lectures their respective titles. 1 Mc-Closkey. Works 64 (in Preface by Bird Wilson) (cited in note 8).Google Scholar

154 Cf. Conrad. Polite Foundation. esp. at 361 ff. (cited in note 12).Google Scholar

155 Smith on James Wilson 114–15 (cited in now 120).Google Scholar

156 See generally id., e.g., at 3, 10, 25, 136, 202, 266, 294. Cf. McMaster & Stone at 183 & 187 (cited in note 8) (on Wilson's “lofty carriage”); 3 Farrand, Records 92 (cited in note 3): “No man is more clear, copious, and comprehensive than Mr. Wilson, yet he is no great orator. He draws the attention not by the charm of his eloquence, hut by the force of his reasoning”; Sanderson's Biography of the Signers to the Declaration of Independence, rev. & ed. Robert T. Conrad 499, 520 (Philadelphia: Thomas, Cowperthwait & Co., 1848).Google Scholar

157 Corner, ed., Autobiography of Rush 150 (cited in note 8).Google Scholar

158 McMaster & Stone, at 758–59 (Sketches of the Members of the Pennsylvania Convention, quoting from Graydon's Memoirs).Google Scholar

159 See Jensen, ed., at 339 (cited in note 8), ed. note (quoting “Centinel” and Francis Hopkinson); cf. microfiche frame 242 Uasper Yates: “one of the most sensible, learned and elegant speeches … on the new Constitution of the United States, that my ears were ever gratified with”).Google Scholar

160 See, e.g., Richard E. Amacher, American Political Writers, 1588–1800, at 146 (Boston: Twayne Publishers, 1979).Google Scholar

161 E.g., Ralph A. Rossum, James Wilson and the Pyramid of Government: The Federal Republic, 6 Pol. Sci. Reviewer 113 (1976) (reprinted in Ralph A. Rossum & Gary L. McDowell, eds., The American Founding: Politics, Statesmanship, and the Constitution 62 (Port Washing ton, N.Y.: Kennikat Press, 1981)). Cf. Geoffrey Seed, James Wilson 95 (Millwood, N.Y.: KTO Press, 1978) (“Seed on Wilson”).Google Scholar

162 1 McCloskey, Works 185 (cited in note 8). Cf. Conrad, Polite Foundation 368 & passim (cited in note 12).Google Scholar

163 Kenneth Silverman, A Cultural History of the American Revolution: Painting, Music, Literature, and the Theatre in the Colonies and the United States from the Treaty of Paris to the Inauguration of George Washington. 1763–1789. at 83–84 (New York: Thomas Y. Crowell Co., 1976).CrossRefGoogle Scholar

164 Consider, e.g., John Adams's famous remark, “The science of government is my duty to study. more than all other sciences. … 1 must study politics and war, that my sons may have liberty to study mathematics and philosophy, geography, natural history and naval architecture. navigation, commerce, and agriculture, in order to give their children a right to study painting. poetry. music, architecture, statuary, tapestry and porcelain”; quoted in Adrienne Koch, Power, Morals, and the Founding Fathers: Essays in the Interpretation of the American Enlightenment 101 (Ithaca, N.Y.: Cornell University Press, 1961). Cf. Linda K. Kerber, Federalists in Dissent, esp. chs. 1 & 4 (cited in note 151); Emory Elliott, Revolutionary Writers: Literature and Authority in the New Republic, 1725–1810 (New York: Oxford University Press, 1982).Google Scholar

165 Cf. Clinton Rossiter, 1787: The Grand Convention 159ff. (reprint ed. New York: W.W. Norton. 1987).Google Scholar

166 For a convenient overview of Americans' limited consideration before 1787 of the matter of national union. see Samuel H. Beer, Federalism. Nationalism, and Democracy in America (Presidential Address. American Political Science Association, 1977), 72 Am. Pol. Sci. Rev. 9, 10-12 (1978). Cf. Merrill Jensen, The Ideal of a National Government During the American Revolution, 58 Pol. Sci. Q. 356 (1943). Two recent and important works that address this matter are Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress, esp. at 183–191 (New York: Alfred A. Knopf, 1979); and Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775–1787 (Philadelphia: University of Pennsylvania Press, 1983).Google Scholar

167 1 Farrand, Records 324 (June 19th) (cited in note 3); cf. at 329. Indeed, Wilson's remarks at the Philadelphia Convention remain today “[t]he authority perhaps most often cited” in support of this argument for the historic Revolutionary foundation of American nationalism. Raoul Berger, Federalism: The Founders' Design 22 (Norman: University of Oklahoma Press, 1987); cf. at 33, where Berger tries to portray Wilson as later “departing from his earlier remarks”; nevertheless Berger does so by quoting Wilson's later remarks out of context, and indeed, by going so far as to quote Wilson's dicta in an important Supreme Court case of 1796 without reference to the holding of the Court, in which Wilson joined.Google Scholar

168 See, e.g., Seed on Wilson 26 (cited in note 161), for Wilson's and John Adams's efforts in this regard. Cf. William Winslow Crosskey & William Jeffrey, Jr., Politics and the Constitution in the History of the United States: vol. 3, The Political Background of the Federal Convention 99–105 (Chicago: University of Chicago Press, 1980) (on John Dickinson's own 1776 plan for a strong plan of union and its influence on Dickinson's former pupil Wilson). Cf. James H. Hutson, John Dickinson at the Federal Constitutional Convention, 40 Wm. & Mary Q., 3d ser., at 256, esp. 262 (1983); Milton E. Flower, John Dickinson: Conservative Revolutionary 237 & passim (Charlottesville: University Press of Virginia, 1983).Google Scholar

169 Koch, Notes 162 (cited in note 147).Google Scholar

170 I Farrand, Records 253 (cited in note 3); Jensen, ed., at 348 (cited in note 8). Cf. 1 Farrand 49: “On examination it would be found that the opposition of the States to federal measures had proceded [sic] much more from the Officers of the States, than from the people at large”; cf. also at 133.Google Scholar

For an especially probing reconsideration of the “ends” of American federalism, see a classic article by Martin Diamond—which is interesting not least for its argument that the formulation of a complete theory of the ends of American federalism came not at the Founding but with Tocqueville: The Ends of Federalism, 3 Publius 129 (1973). See esp. 146–147, where Diamond discusses Tocqueville's hopes that “disinterested” and “instinctive” patriotism would develop in America as a result of decentralization: “Thus, free institutions, generated and sustained by administrative decentralization, draw men into interested cooperation and then, Tocqueville hopes, by habituation into an authentic sympathy with their fellow men…. Administrative decentralization is the leading artifice for the creation of that new kind of patriotism.” See also 142–43, where Diamond discusses Tocqueville's notion of federal “decentralization” as a check against despotism.Google Scholar

171 For but one example of Hamilton's avowedly consolidationist nationalism, see 1 Far-rand, Records 286 (“a compleat sovereignty in the general Governmt.”); cf. at 355 for remarks of William Samuel Johnson to the effect that “One Gentleman alone (Col. Hamilton) … boldly and decisively contended for an abolition of the State Govts.” Cf. Wilson, in id. 137, 322-23, and 2 Farrand, Records 10. For evidence that such a distinction, between consolidationism and Wilson's own position, was perceived by contemporaries at the Convention, see l Farrand, Records 355 (johnson). For other consolidationist remarks besides Hamilton's, see id. at 136–37, 424 (George Read).Google Scholar

172 Cf. Gerald Stourzh. Alexander Hamilton and the Idea of Republican Government (Stanford, Cal.: Stanford University Press, 1970) (“Stourzh, Alexander Hamilton”), at 82–83 and at corresponding endnote 23, esp. for Hamilton's quotation of Pope, in Federalist No. 68: “Though we cannot acquiesce in the political heresy of the poet who says–'For forms of government let fools contest-/That which is best administered is best.'—-yet we may safely pronounce, that the true test of good government is its aptitude and tendency to produce good administration.” Stourzh observes, at 83, that this is “a recurring theme of Hamilton's political writing.”Google Scholar

173 Cf. Banning. in Beeman et al., Beyond Confederation (cited in note 25); Banning, The Hamiltonian Madison: A Reconsideration, 92 Va. Mag. Hisr. & Biog. 3, 7, & passim (1984). But see contra. Charles F. Hobson, The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government, 36 Wm. & Mary Q., 3d ser., at 215 (1979).Google Scholar

174 Cf. 1 Butterfield. Rush Letters 507 (cited in note 58).Google Scholar

175 See Raymond Williams' notion of “keywords” as words, involving “ideas and values,” that are of sufficient strategic importance in contests for power and authority such that those who care about victory are likely to be moved to invoke these words, and to try to appropriate them. Keywords are, then, keys to entire agonistic vocabularies and are evidence of contests deemed suitable for. and worthy of, articulate dispute. Williams, Keywords: A Vocabulary of Culture and Society 16–17 & passim (rev. ed. New York: Oxford University Press, 1983). Cf. n new work that was, unfortunately, published too late for me to profit from it in writing and revising the present article. Daniel T. Rodgers, Contested Truths: Keywords in American Politics Since Independence (New York: Basic Books, 1987).Google Scholar

176 On the ambiguous nature of the term “federalism” at the Founding, the best discussion remains. I believe, Martin Diamond, The Federalist's View of Federalism, in George C.S. Benson, ed., Essays in Federalism 21, esp. at 24ff. (Claremont. Cal.: Institute for Studies in Federalism, 1961). Among the many important discussions of the ambiguities of “republicanism” at the Founding, I find especially helpful Linda K. Kerber, The Republican Ideology of the Revolutionary Generation, 37 Am. Q. 474 (1985).Google Scholar

177 For the authoritative modern edition of the pamphlet in question—Observations on the New Constitution, And on the Federal and State Conventions. By a Columbian Patriot (Boston, 1788)—see 4 Herbert J. Storing, ed., The Complete Anti-Federalist 270 (7 vols.; Chicago: University of Chicago Press, 1981). 1 quote here from p. 275. The editor, at 286, suggests that Warren's reference is to Wilson's Nov. 24, 1787 speech; see Jensen, ed., note 8, at 341–42 (cited in note 8). Cf. the same 1788 pamphlet, reprinted in Pamphlets on the Constitution of the United States, ed. Paul Leicester Ford 1 (Brooklyn, N.Y., 1888; reprint ed. New York: Da Capo Press, 1969). Ford attributed the pamphlet to Elbridge Gerry.Google Scholar

On the case for Warren's authorship, and on her Anti-Federalist views generally, see Lester H. Cohen, Explaining the Revolution: Ideology and Ethics in Mercy Otis Warren's Historical Theory, 37 Wm. & Mary Q., 3d ser., at 200, 202ff. (1980).Google Scholar

178 1 McCloskey, Works 185. Cf. note 162 supra. Google Scholar

179 Cf. Diamond, 3 Publius 129 (1973) (cited in note 170). Also cf. Arendt, On Revoiution 44ff., 136, & passim (cited in note 26), to the effect that the American Revolution augmented merely the means not the ends of government.CrossRefGoogle Scholar

180 Cf. Wayne C. Booth, Metaphor as Rhetoric: The Problem of Evaluation, in Sheldon Sacks, ed., On Metaphor 47, 67 (Chicago: University of Chicago Press, 1979) (“Booth, Metaphor”).Google Scholar

181 For a compelling recent argument in support of this point, see John M. Murrin, A Roof without Walls: The Dilemma of American National Identity, in Beeman et al., Beyond Confederation at 333 (cited in note 25). Cf. J.R. Pole, Enlightenment and the Politics of American Nature, in Roy Porter & Mikulá Teich, eds., The Enlightenment in National Context 192, 208–9 (Cambridge: Cambridge University Press, 1981) (“Pole, Enlightenment”). See also Joshua I. Miller, Local Ideas in Early American Politics: Decentralist Ideas and Practices, 1630–1789 (Ph.D. diss., Princeton University, 1984).Google Scholar

182 Richards, The Philosophy of Rhetoric 93, 96, 126–27 (New York: Oxford University press, 1936). Cf. Paul Ricoeur, The Rule of Metaphor: Multi-disciplinary Studies of the Creation of Meaning in Language, trans. Robert Czerny et al., at 76 (Toronto: University of Toronto, 1975) (“Ricoeur, Rule of Metaphor”) (“The pioneering job done by I.A. Richards' The Philosophy of Rhetoric cannot be overestimated”).Google Scholar

183 For Madison's own anticipation of this argument in Federalist No. 10, see 1 Farrand, Records 134–36 (cited in note 3).Google Scholar

184 Cf. Pocock, Virtue 16n. & 271 (cited in note 12); and Pocock, The Machiavellian Moment 522ff., 538, & passim (cited in note 141). On Hamilton's express appreciation—by 1777 of the conceptual novelty of the “representative democracy” of the American republics, see Scourzh, Alexander Hamilton 50ff. (cited in note 172).Google Scholar

185 1 Farrand, Records 53 (cited in note 3). Cf. John Zvesper, The Madisonian Systems, 37 West. Pol. Q. 236, 252 (1984).Google Scholar

186 Federalist No. 10, at 64 (J. Cooke ed., 1961).Google Scholar

187 1 Farrand, Records 321 (cited in note 3).Google Scholar

188 Richards, The Philosophy of Rhetoric, at Lecture V, “Metaphor,” esp. at 96–97 (New York: Oxford University Press, 1936). Cf. Morse Peckham, Metaphor: A Little Plain Speaking on a Weary Subject, in Peckham, The Triumph of Romanticism 401, 406 (Columbia: University of South Carolina Press, 1970) (“Peckham, Metaphor”); Geoffrey N. Leech, A Linguistic Guide to English Poetry 151 (Harlow, Eng.: Longman, 1969); Ricoeur, Rule of Metaphor 24, 57, & passim (cited in note 182).Google Scholar

189 Leech at 157 (cited in note 188).Google Scholar

190 Ricoeur, Rule of Metaphor 81–82. 83 (aurhor's notes omitted) (cited in note 182).Google Scholar

191 At least one leading senior scholar of Madisonian political thought, Professor Marvin Meyers, considers that this shift of position “must” have left Madison “theoretically embarrassed.” Meyers, Mind of the Founder at xlii (rev. ed. Hanover. N.H.: University Press of New England, 1981) (“Meyers, Mind of the Founder,” rev. ed.).Google Scholar

192 1 McCloskey, Works 235 (cited in note 8).Google Scholar

193 Id. at 267.Google Scholar

194 Id. at 311-12, 301–3; 2 McCloskey, Works 785; cf. at 721–46. Indeed, to Wilson, the extension of the principle of political representation in America was an important part of what made American republicanism unique. Cf. Jensen, ed., at 343–44, 354–55 (cited in note 3).Google Scholar

195 Cf. 1 McCloskey, Works 364.Google Scholar

196 See, e.g., I Farrand, Records 133 (cited in note 3).Google Scholar

197 Meyers, Mind of the Founder, 1st ed., at 36 (cited in note 29): “let it be observed—that the same active and predominant passion of the human breast, which prompts mankind to arrogate superiority and to the acquirement of riches, honor and power, which restricted to the selfish purposes of an individual we term ambition, is when extended to the disinterested object of aggrandizing a community, what we dignify with the appelation of patriotism—that the exertion of this principle being as advantageous to a republic, as it is useful to a man, whoever will make the interest of his country his own, and shew a blind devotion to its views and prejudices, will … be honoured with the flattering distinction of patriot.” These are words ascribed to Madison writing in 1783. Cf. the implications, for any theory of disinterested patriotism in an extended sphere, that are evident in Madison's remarks written in what Meyers. at 502, indicates was “[a]bout 1821”: “We must not shut our eyes to the nature of man, nor to the light of experience. Who would rely on a fair decision from three individuals if two had an interest in the case opposed to the rights of the third? Make the number as great as you please, the impartiality will not be increased, nor any further security against injustice he obtained. than what may result from the greater difficulty of uniting the wills of a greater number” (at 504). Contrast Wilson on “expanded patriotism,” in 1 McCloskey. Works 268.Google Scholar

198 Epstein, Political Theory 90 (cited in note 13) (discussing Hume's essay Of the Independency of Parliament, and Madison's Federalist No. 10).Google Scholar

199 I Farrand, Records 135 (cited in note 3).Google Scholar

200 Here, again, I do not mean to assert that there was a wholesale difference between Wilson's and Madison's ideas in this respect. After all, the theme in question here is prominent in some of Madison's own 1791 and 1792 National Gazette essays, on the civic capability of political parties. See Edward C. Dreyer, Making Parties Respectable: James Madison's National Gazette Essays (paper presented to American Political Science Association and Center for the Study of the Constitution, Chicago, Sept. 5, 1987) (drawing heavily on earlier work by Lance Banning and John Zvesper). Thus, one should beware the temptation to hold Madison hostage to what may seem the puzzling inconsistencies with which he can be charged if one focuses exclusively on his contributions to The Federalist. Cf. Morton White. Philosophy, The Federalist, and the Constitution 159–68, esp. 166 (New York: Oxford University Press, 1987).Google Scholar

201 1 McCloskey, Works 268. Yet, again, any assertion of a thoroughgoing difference between Wilson and Madison in this respect seems to me dubious—not to mention imprudent, in light of some of the most careful and subtle recent scholarship on Madison's “nationalism,” e.g., Drew R. McCoy, James Madison and Visions of American Nationality in the Confederation Period: A Regional Perspective, in Beeman et al., Beyond Confederation 226, 244, & passim (cited in note 25).Google Scholar

202 See 1 Butterfield, Rush Letters 453, 454–55 (cited in note 58). Cf. text infra at note 246.Google Scholar

203 I Farrand, Records 52.Google Scholar

204 2 Farrand. Records 501. For an interesting reconsideration of this matter from the vantage point of 1987, see Eric R.A.N. Smith & Peverill Squire, Direct Election of the President and the Power of the States, 40 West. Pol. Q. 29 (1987).CrossRefGoogle Scholar

205 2 McCloskey, Works 789 (cited in note 8).Google Scholar

206 Cf. Smith on James Wilson at 300–303 (cited in note 120).Google Scholar

207 2 McCloskey, Works 792–93.Google Scholar

208 For a short restatement of the view that Madison, and Hamilton, in The Federalist, “set forth” a “republican” theory of “refined representation … through the election of the best men, to promote … responsiveness to constituents and care for the common good of society,” see Jean Yarbrough, Representation and Republicanism: Two Views, in Daniel J. Elazar, ed., Republicanism, Representation, and Consent: Views of the Founding Era 77 (New Brunswick, N.J.: Transaction Books, 1979); reprinted from 9 Publius (1979). Yarbrough tends to contrast (e.g., at 97) this conception of “refined representation” with the contemporary British conception of “virtual representation.”CrossRefGoogle Scholar

For emphasis, to the point of overemphasis, on this same theme in both Madison's and Wilson's ideas on representation, see Garry Wills, Explaining America: The Federalist 238–47 (Garden City, N.Y.: Doubleday & Co. 1981). The best corrective of Wills's misapprehension of Madison in this respect is Banning, 72 Va. Mag. Hist. & Biog. at 12–14 & passim (cited in note 173); cf. Epstein, Political Theory 99-107 (cited in note 13).Google Scholar

209 For a hint of Wilson's grudging resignation to the fait accompli with respect to the indirect election of senators in the national legislature, see I McCloskey, Works 414ff. Cf. Seed on Wilson 106 (cited in note 161).Google Scholar

210 For portrayals of this routine, see 2 McCloskey, Works 787–88 & I McCloskey, Works 404–5. Cf. Conrad, Polite Foundation 384 (cited in note 12); and Michelman, 100 Harv. L. Rev. at 54 (cited in note 63).Google Scholar

211 This is not to say that Wilson disagreed with Madison about the importance of “regulating” that “esprit de corp” the “ebullition” of which tends to factionalism. See 1 McCloskey, Works 266–67.Google Scholar

212 2 McCloskey, Works 789; cf. 1 McCloskey, Works 405.Google Scholar

213 2 McCloskey, Works 785. (Note what we today would consider the inversion in Wilson's use of the terms “infancy” and “childhood”; Wilson's meaning is nevertheless clear enough.) Cf. Hamilton's views on the political science of republican elections, e.g., in Federalist No. 35 and No. 36 esp. Hamilton's prescient insight about the importance of a “scientific” understanding of the “psychology” of voting behavior, an insight discussed in Judith N. Shklar, Alexander Hamilton and the Language of Political Science, in Anthony Pagden, ed., The Languages of Political Theory in Early-Modern Europe 339 (Cambridge: Cambridge University Press, 1987).Google Scholar

214 Beer, 72 Am. Pol. Sci. Rev. at 10 (cited in note 166).Google Scholar

215 Federalist No. 47, at 327 (J. Cooke ed. 1961).Google Scholar

216 I McCGskey, Works 403; cf. id. at 312; 2 McCloskey. Works 764, 786. Cf. Jensen, ed., at 344 (cited in note 8); cf. at 355.Google Scholar

217 E.g., Jensen, ed., at 343–44.Google Scholar

218 1 McCloskey, Works 313.Google Scholar

219 Id. at 402. Cf. “the People” as “noble source” and “abundant fountain,” in Jensen, ed., at 349; cf. at 363. And cf. Madison's use, at the Philadelphia Convention, of this rather commonplace figure of speech for “the People”; 2 Farrand, Records 476 (cited in note 3). Raoul Berger, Federalism: The Founders' Design at 44 n.114 (Norman: University of Oklahoma Press, 1987) gives other instances of it.Google Scholar

220 I Farrand. 359.Google Scholar

221 See esp. William Poaell Jones, The Rhetoric of Science: A Study of Scientific Ideas and Imagery in Eighteenth Century English Poetry 9ff. & passim (Berkeley: University of California Press. 1966). Cf. Douglas Bush, Newtonianism, Rationalism, and Sentimentalism, ch. 3 in Science and English Poetry: A Historical Sketch, 1590–1950. at 51–78 (New York: Oxford University Press. 1950); J.H. Randall, Jr., The Newtonian World Machine. in Arnold B. Arons & Alfred M. Bork, eds., Science & Ideas: Selected Readings 138. 158ff. (Englewood Cliffs, N.J.: Prentice-Hall, 1964).Google Scholar

Of special interest for my purposes: L.L. Laudan, Thomas Reid and the Newtonian Turn of British Methodological Thought, in Robert E. Butts & John W. Davis, eds., The Methodological Heritage of Newton 103 (Toronto: University of Toronto Press, 1970); and Louise Marcil-Lacoste, Reid's Understanding of Newton's Methodological Rules, in Marcil-Lacoste at 124–31 (cited in note 76).Google Scholar

222 Jensen, ed., at 341 (cited in note 8); cf. at 352. On “The Bonds of a Metaphor,” see Richard Sennett, Authority 77–83 (New York: Alfred A. Knopf, 1980).Google Scholar

223 1 McCloskey, Works 313 (cited in note 8).Google Scholar

224 Id. at 403.Google Scholar

225 Cf. 1 Farrand, Records 132–33 (cited in note 3), for a remark by Wilson, on June 6, that I think is especially revealing of the complexity of his theory of political representation: “The Govt. ought to possess not only 1st. the force but 2ndly. the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively.” Wilson thus urged that not just the will hut the complete mind, or sense, of each citizen and of “the publick mind” he represented. And Wilson's emphasis on the importance of the Common Sense distinction between will and understanding, or will and knowledge, would then seem to suggest an important—perhaps a central—place in Wilson's republican theory of representation for the authority of what the People “know,” not merely what they want. The implication is, I believe, that Wilson envisioned republican institutions that would, in thus representing the full self, effectively represent the People, both individually and collectively, at their best, as judged in light of what they know is best. Cf. Conrad, Polite Foundation, at 381ff. (cited in note 12).Google Scholar

That Wilson's is not a Burkean theory of virtual representation would seem to be clear, not just implicitly, from so much of what Wilson says elsewhere, hut also expressly. in Wilson's unequivocal rejection of the unrepublican “creed” he clearly perceived in Burke's writings. See 2 McCloskey, Works 574ff.Google Scholar

226 Banning, in Beeman et al., Beyond Confederation, esp. at 184ff. (cited in note 25).Google Scholar

227 Jensen, ed., at 354 (cited in note 8).Google Scholar

228 Chisholm v. Georgia, 2 Dallas 419, 462.Google Scholar

229 Eg., 1 McCloskey, Works 73, 406 (cited in note 8); 2 McCloskey, Works 573.Google Scholar

230 E.g., Chisholm v. Georgia, 2 Dallas 419, 463. Contrast Arendt, On Revolution, esp. at 107 (cited in note 26).Google Scholar

231 2 McCloskey. Works 573–74 (emphasis added); cf. at 576.Google Scholar

232 Sir Joshua Reynolds, Discourses Delivered to the Students of the Royal Academy, ed. Roger Fry 206, 209 (London: Seeley & Co., 1905). I owe this reference to Cottom, The Civilized Imagination 17 (cited in note 150).Google Scholar

233 Cf. Conrad, Polite Foundation (cited in note 12).Google Scholar

234 1 Farrand, Records 416 (cited in note 3).Google Scholar

235 Cf. Wood, Creation 530 (cited in note 46); Smith on James Wilson, at 235–36 (cited in note 120).Google Scholar

236 1 Farrand. Records 405–6 (emphasis added).Google Scholar

237 Cf. McLaughlin, 12 Pol. Sci. Q. 13 (cited in note 33).Google Scholar

238 1 McCloskey, Works 245 (quoting Cicero's Pro Balbo, ch. 13).Google Scholar

239 See Wilson's Address to the Inhabitants of the Colonies…. [1776], in Adams, Selected Essays 103, 106 (cited in note 8): “Now the same collective Body cannot delegate the same Powers to distinct representative Bodies.”Google Scholar

240 Cf. Randolph Adams' judgment that Wilson in 1776 anticipated what eventually became the theory of the British Commonwealth; id. at 12.Google Scholar

241 See, e.g., Adair, 2 Wm. & Mary Q. 199–200 (cited in note 23).Google Scholar

242 2 McCloskey. Works 786.Google Scholar

243 1 McCloskey, Works 158.Google Scholar

244 1 Farrand, Records 133 (cited in note 3).Google Scholar

245 An especially good treatment of Ramsay as a high Federalist will be found in Peter S. Onuf, State Sovereignty and the Making of the Constitution, in Pocock & Ball, eds. (manuscript kindly supplied by Professor Onuf) (cited in note 24).Google Scholar

246 1 Butterfield, Rush Letters 453, 454–55 (cited in note 58).Google Scholar

247 But note Wilson's qualifications, e.g., in 1 McCloskey, Works 267 (cited in note 8).Google Scholar

248 Note, however, that Rush, unlike Wilson, went further in his nationalism, e.g., in that he, at the Pennsylvania ratifying convention, “insinuated that he saw and rejoiced at the eventual annihilation of the state sovereignties”; McMaster & Stone, at 300 (cited in note 8), quoted in part by Wood, Creation 529 (cited in note 46). Cf. “Harrington”-probably Rush-in a May 30, 1787 essay reprinted in John P. Kaminski & Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, vol. 13-Commentaries on the Constitution, Public and Private 116, 118–19 (Madison: State Historical Society of Wisconsin, 1981): “Let the states … come forward, and first throw their sovereignty at the feet of the convention.” 1 owe this reference to Onuf (cited in note 245).Google Scholar

249 1 McCloskey, Works 236.Google Scholar

250 1 Farrand, Records 49 (May 31).Google Scholar

251 1 McCloskey, Works 227. In expounding on how man's “social affection acts … unmixed and uncontrolled,” Wilson at id. quotes Ep. IV, vv. 39–46:Google Scholar

There's not a blessing individuals find, But some way leans and harkens to the kind. No bandit fierce, no tyrant mad with pride, No caverned hermit rests self-satisfied. Who most to shun or hate mankind pretend Seek an admirer, or would fix a friend. Abstract what others feel, what others think. All pleasures sicken, and all glories sink.Google Scholar

Cf. at 241 (Wilson's quotation from Ep. II).Google Scholar

252 1 McCloskey, Works 233–34. In picturing the process of “moral abstraction” as a mental faculty partaking of “our passions and affections … our moral perceptions. and the other operations of our understandings [SIC],” Wilson quoted Ep. IV, vv. 365–372:Google Scholar

The centre mov'd, a circle straight succeeds, Another still, and still another spreads. Friend, parent, neighhor first it will embrace, His country next, and next all the human race; Wide and more wide, th' o'erflowings of the mind Take ev'ry creature in, of ev'ry kind; Earth smiles around, with boundless bounty blest,Google Scholar

And heav'n beholds its image in his breast.Google Scholar

But contrast Pope's scatological use of the same metaphor, concentric circles in water, in The Dunciad, bk. III, lines 403–10. I owe this reference to Aubrey Williams; cf. supra note 148.Google Scholar

In Hume's Treatise of Human Nature the image of concentric circles is invoked, although not precisely in those terms, for something very like what Wilson himself (1 McCloskey, Works 266; cf. at 162) acknowledges to be a principle of “concentricity” in our relations with others. See the Treatise. bk. III, pt. II, sec. 11. Nidditch, ed., at 488 (cited in note 74): “Now it appears, that in the original frame of our mind, our strongest attention is confin'd to ourselves; our next is extended to our relations and acquaintance; and ‘tis only the weakest which reaches to strangers and indifferent persons.” Cf. sec. I (at 463–84): “A man naturally loves his children better than his nephews, his nephews better than his cousins, his cousins better than strangers, where every thing else is equal.” Cf. also the discussion in sec. III (501–13), “Of the rules, which determine property,” for Hume's notions of the progressive weakening of connections as the degree of succession becomes more distant. I owe these references to my good friend Professor Edward (“Ned”) McClennen.Google Scholar

Cf. to Hume's ideas and language what a student of Adam Smith's Theory of Moral Sentiments calls Smith's “theory of the spheres of human intimacy”: Russell Nieli, Spheres of Intimacy and the Adam Smith Problem, 47 J. Hist. Ideas 611, 620ff. (1986). And cf. Cicero, as quoted by Wilson, in 1 McCloskey, Works 162.Google Scholar

The difference here between Wilson, on the one hand, and Hume and Smith and Cicero, on the other, would seem to turn on Wilson's emphasis on overcoming, through the cultivation of moral abstraction and an expanded patriotism, what Wilson himself acknowledges to be the psychology of centripetal “concentricity” that all four thinkers find in human nature.Google Scholar

253 1 McCloskey, Works 268 (cited in note 8).Google Scholar

254 Id. at 267.Google Scholar

255 Jensen, ed., at 345 (cited in note 8).Google Scholar

256 Id. at 361.Google Scholar

257 1 Farrand, Records 153–54 (cited in note 3). Cf. Madison's “recurrence,” on June 8, to “the illustrations borrowed from the planetary System”: id. at 165 (“This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political system”). Cf. as well, Robert Davidson, An Oration on the Independence of the United States of America 15 (Carlisle, Pa.: Kline & Reynolds, 1787). as quoted by Lienesch, 11 Am. Pol. Q. at 397 (cited in note 109).Google Scholar

258 See. e.g., 1 McCloskey. Works 264 & 2 McCloskey, Works 764; Jensen. ed., at 344 (all cited in note 8). Bur most interesting of all, perhaps, is Wilson's faith that codification of the law could prevent such nation-state conflicts. See the long quotation from a letter Wilson wrote to Washington in 1791, in which Wilson offered to undertake the task of codifying the law of the United States (!), in Lucien Hugh Alexander, James Wilson, Patriot, and the Wilson Doctrine, 183 N. Am. Rev. 971, 976 (1906). Cf. Perry Miller, The Life of the Mind in America: From the Revolution to the Civil War (Books 1–3) 240–41 (New York: Harcourt, Brace 6. World, 1965); 1 McCloskey, Works 59–64 (Wilson's 1791 letter to the Pennsylvania Speaker of the House, proposing a similar codification of Pennsylvania law). Contrast Madison's views, at least later in life: e.g. see Meyers. Mind of the Founder, 1st ed., at 431 (cited in note 29).Google Scholar

Also cf. 1 Farrand, Records 166–67. 356 (cited in note 3).Google Scholar

Furthermore, unlike Madison, Wilson tended to see the human propensity to factionalism as generally amenable to regulation through the civic regimens of republicanism. Cf. McCloskey, Works 266–67.Google Scholar

259 Id. at 267–68; Jensen. ed., at 346; cf. at 351: 2 Farrand, Records 615.Google Scholar

260 1 McCloskey. Works 268–69 (emphasis added). And, in fact, Wilson did pursue the logic of his theory of moral abstraction, from a conception of national citizenship to a conception of international citizenship. See. e.g. id. at 162–64. Cf. my text infra at note 301.Google Scholar

261 Bush, Science and English Poetry 64, 67 (cited in note 221). Granted, Bush's approach to Thomson must now seem a little too simple, in light of work like that of Ralph Cohen, The Unfolding of The Seasons (Baltimore: Johns Hopkins Press, 1970). But Cohen's reading of Thomson occasionally approximates Bush's views as quoted here; see, e.g., Cohen at 328–29.Google Scholar

262 1 The Spirit of the Laws, bk. V, ch. 2; trans. Thomas Nugent, intro. Franz Neumann, at 40 (two vols. in one. New York: Hafner Publishing Co., 1949).Google Scholar

263 Bush, Science and English Poetry at 63 (“Pope was much too clever to be a philosopher”).Google Scholar

264 Cf. J.M. Cameron, Doctrinal to an Age: Notes Towards a Revaluation of Pope's Essay on Man, in Maynard Mack, ed., Essential Articles for the Study of Alexander Pope 353, esp. at 358–59 (rev. ed. Hamden, Conn.: Archon Books, 1968). For an interesting and relevant aside from Wilson on Pope, see 2 McCloskey 596–97 (cited in note 8). And for what remains the seminal work of modern scholarship on Pope's Essay on Man, see Maynard Mack's Introduction to his edition of the poem, in the Twickenham series (London: Merhuen, 1950).Google Scholar

265 Cf. Morse Peckham, Metaphor 420 (cited in note 188).Google Scholar

266 Walter Jackson Bate, From Classic to Romantic: Premises of Taste in Eighteenth-Century England (New York: Harper & Bros., 1946), esp. ch. 3 (“Johnson and Reynolds: The Premise of General Nature”). Cf. Donald Davie, Purity of Diction in English Verse 40–53 (London: Routledge & Kegan Paul, 1967); and Ricoeur, Rule of Metaphor 99 (cited in note 182).Google Scholar

267 Cf. Peckham, Metaphor, esp. at 401–2.Google Scholar

268 Cf. Booth, Metaphor, at 68 (cited in note 180).Google Scholar

269 E.g., I Farrand, Records 405 (cited in note 3). On the Grand Design itself, which is now generally attributed to Sully rather than to Henry himself (cf. Madison's own revision of his Nores, id.), see Peace Projects of the Seventeenth Century…, ed. J.R. Jacob & M.C. Jacob (New York: Garland Publishing Co., 1972). Cf. Desmond Seward, The First Bourbon: Henri IV, King of France and Navarre 186–201 (London: Constable, 1971). Also of interest here-and most to the point perhaps-is Heinrich Mann's novel, trans. from the German by Eric Sutton, Henry, King of France (Woodstock, N.Y.: Overlook Press, 1985), esp. “Book Eight: The Great Plan.”Google Scholar

270 For Wilson's survey, see 1 McCloskey, Works 247–54 (cited in note 8).Google Scholar

271 Id. at 259–60.Google Scholar

272 Id. at 260 (quoting from the Essay on Man, Ep. IV. vv. 265–66).Google Scholar

273 Id. at 261.Google Scholar

274 Id. at 260.Google Scholar

275 Id. at 261.Google Scholar

276 Cf. Ricoeur, Rule of Metaphor 99 (cited in note 182) (on the attenuated “polarity” between “singular identification” and “general predication”); and cf. the analogous distinctions (e.g., vehicle/tenor, focus/frame, modifier/principal subject) that Ricoeur draws from the work of I A. Richards, Max Black, and others, at 99 and passim. Google Scholar

277 Cf. Dennison, 39 Rev. Pol. (cited in note 32).Google Scholar

278 As quoted in Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (1979), trans. Richard Nice, at 257 (Cambridge, Mass.: Harvard University Press, 1984).Google Scholar

279 McCloskey, James Wilson 85 (cited in note 8); cf. 1 McCloskey, Works 25 (editor's Introduction).Google Scholar

280 Jensen, ed., at 210–16, 213 (cited in note 8).Google Scholar

281 See id. at 192–98, esp. 198 n.1.Google Scholar

282 The pamphlet by Mercy Warren that I have discussed briefly, in my text supra at note 177ff., is another exception in this respect, as its authoritative modern editor points out: see 4 Herbert J. Storing, ed., The Complete Anti-Federalist 271 (Chicago: University of Chicago Press, 1981).Google Scholar

283 Jensen, ed., at 213–14.Google Scholar

284 Cf. Rufus King's anticipation of this theme on June 19 at the Federal Convention, as King's words are recorded in Madison's Notes: 1 Farrand, Records 323 (cited in note 3): “He conceived that the import of the terms ‘States’‘Sovereignty’'national'‘federal,’ had been often used & applied in the discussion inaccurately & delusively.”Google Scholar

285 Jensen. ed., at 213. Cf. Smith on James Wilson at 266 (cited in note 120) (quoting the same Anti-Federalist writer).Google Scholar

286 E.g., Jensen, ed., at 169–70 (the State House Speech).Google Scholar

287 Charles Warren, A History of the American Bar 348 (Boston: Little, Brown Co., 1911), at 348; cf. 346–47, 349. Cf. Perry Miller, The Life of the Mind in America: From the Revolution to the Civil War (Books 1–3) 141 (New York: Harcourt, Brace & World, 1965).Google Scholar

288 This term was suggested to me by Professor R. Kent Newmyer.Google Scholar

289 Cf. Seed on Wilson 141 (cited in note 161).Google Scholar

290 2 Dallas 419, 454–56. For a convenient, and typically acute, exposition of how the logic of Wilson's republican theory was, by the time of his law lectures, pointing beyond the concept of “sovereignty” altogether, see Adams, Political Ideas 185ff. (cited in note 8). But see Pole, Enlightenment 210 (cited in note 181).Google Scholar

And for two recent corroborations of Robert McCloskey's general claim that Wilson's ideas often anticipated those of later American constitutional theorists, especially where Wilson might seem to have been out of step with the development of republican theory in his own time, see Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism after Garcia, 1985 Sup. Ct. Rev. 341, esp. 346–59; and Akhil Reed Amar, Of Sovereignty and Federalism, 95 Yale L.]. 1425, esp. at 1520 (1987), where Amar selects as authority in support of his own conception of what American federalism should be precisely those passages from Wilson's Chisholm opinion that reveal Wilson at his most quintessentially Common-Sensical.Google Scholar

291 See, e.g., Doyle Mathis, Chisholm v. Georgia: Background and Settlement, 54 J. Am. Hist. 19, 25ff. (1967); Mathis, The Eleventh Amendment: Adoption and Interpretation, 2 Ga. L. Rev. 207, 224ff. (1968); and the citations collected in Wilfred J. Ritz, American judicial Proceedings First Printed Before 1801, at 146–48 (Westport, Conn.: Greenwood Press, 1984).Google Scholar

292 Alfred H. Kelly et al., The American Constitution: Its Origin and Development 167 (6th ed. New York: W.W. Norton, 1983). But see generally William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of jurisdiction Rather than a Prohibition Against jurisdiction, 35 Stan. L. Rev. 1033 (1983).Google Scholar

293 Fletcher, 35 Stan. L. Rev. at 1058 (cited in note 292). That the Chisholm case had an effect on the People at, but only at, the symbolic level is reaffirmed in John Orth, The Judicial Power of the United States (New York: Oxford University Press, 1987) at 19: “Chisholm was part of the high drama of public affairs”; and at 28: “The search for the original understanding on state sovereign immunity…. The understanding of the electorate let alone of the populace as a whole upon a topic so esoteric was undoubtably nil.”Google Scholar

294 Cf. the remark in Archibald Cox, The Role of the Supreme Court in American Government (New York: Oxford University Press, 1976), at 117: “The Court must know us better than we know ourselves. Its opinions may, as I have said, sometimes be the voice of the spirit, reminding us of our better selves.”Google Scholar

295 Cf., e.g., the views collected in David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888, at 15, nn.75 6 & 76 (Chicago: University of Chicago Press, 1985). See also Julius Goebel, jr., The Common Law and the Constitution, in W. Melville Jones, ed., Chief Justice John Marshall: A Reappraisal 101 (Ithaca, N.Y.: Cornell University Press, 1956), at 112: “Even the professor on the Court, Mr. Justice Wilson, held in check the academic penchant for display, giving way to it only in Chisholm v. Georgia” (footnote omitted).Google Scholar

296 2 Griffith J. McRee, Life and Correspondence of James Iredell, One of the Associate Justices of the Supreme Court of the United States 382 (2 vols. 1857. Reprint ed., 2 vols. in 1; New York: Peter Smith, 1949).Google Scholar

297 Fletcher, 35 Stan. 1. Rev. at 1058 n.115 (cited in note 292) (citing Charles Warren).Google Scholar

298 1 McCloskey, Works 1–6, 46–47 (editor's Introduction) (cited in note 8); McCloskey, James Wilson 79–80. 89–90, 95–96 (cited in note 8), esp. at 96: “Perhaps he has been unappreciated by the future, [SIC] because America, though following in his footsteps, has never quite caught up with him.”Google Scholar

299 Onuf. State Sovereignty and the Making of the Constitution. in Pocock & Ball, eds. (cited in note 24).Google Scholar

300 Cf. Ira L. Strauber, The Rhetorical Structure of Freedom of Speech, 19 Polity 507 (1987), esp. at 528. Note that Strauber, in his approach, aligns himself with others, including James Boyd White (see works cited in note 6) and Lief H. Carter. See Carter, Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics (New York: Pergamon Press, 1985).Google Scholar

301 See 1 McCloskey, Works 270–83, esp. 282–83. Cf. Adams, Selected Essays 38–42 (cited in note 8).Google Scholar

302 Connolly, Politics and Ambiguity 128 (Madison: University of Wisconsin Press, 1987).Google Scholar

303 Id. at 160–61.Google Scholar

304 Id. at xi-xii.Google Scholar

305 Shklar, Ordinary Vices 71–72 (cited in note 131).Google Scholar

306 George W. Corner, ed., The Autobiography of Benjamin Rush: His “Travels Through Life” together with his Commonplace Book for 1789–1813, at 236–37 (Princeton, N.J.: Princeton University Press, 1948).Google Scholar