Elusive Foundation: John Marshall, James Wilson, and the Problem of Reconciling Popular Sovereignty and Natural Law Jurisprudence in the New Federal Republic

Chief Justice John Marshall\u27s opinion in Marbury v. Madison is generally regarded as the cornerstone of American judicial review. Marshall\u27s opinion in Marbury skillfully invoked the distinctive American concept of popular sovereignty and linked that concept to the written Constitution. Marshall argued that judicial review provided the best means for enforcing the people\u27s will, as declared in the written Constitution, without resort to the drastic remedy of revolution. Marshall warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what we have deemed the greatest improvement on political institutions - a written constitution. In Marbury and subsequent cases, Marshall based his constitutional decisions on the supreme authority of the Constitution\u27s text. Marshall used interpretive canons drawn from the common law and natural law as helpful tools for defining the meaning of the Constitution\u27s terms, but he avoided any direct reliance on unwritten principles of natural law. By portraying the Supreme Court as a faithful agent of the people\u27s will embodied in the Constitution\u27s text, Marshall sought to encourage popular acceptance of the Court as the principal interpreter and guardian of the Constitution. In developing his theories of popular sovereignty and judicial review, Marshall drew upon the ideas of other Founders, including James Wilson. During the ratification of the Constitution, Wilson declared that the Constitution\u27s principles of popular consent represented the great panacea of human politics. By affirming the right of the people to mold [their government] into any shape they please, the Constitution provided a remedy for every distemper in government. While Wilson\u27s concept of popular sovereignty was similar to Marshall\u27s, Wilson advocated a far more ambitious role for the courts in the new federal republic. Wilson called upon American judges and lawyers to develop a new science of law based on principles of natural law and psychological insights furnished by the Scottish Enlightenment theories of moral sense and common sense. Wilson believed that this new legal science would enable judges to work in concert with jurors and elected officials in bringing society closer to the perfection intended by humankind\u27s divine Creator. As judges performed their function of judicial review, Wilson contended that they must enforce applicable principles of natural law as well as the text and purposes of the Constitution. Thus, as Professor Robert McCloskey has observed, Wilson envisioned a grand moral consensus that would reconcile the venerable Western idea of a binding higher law with the relatively new idea of the will of the people. Wilson tried to persuade the public to accept his methodology for harmonizing natural law and popular sovereignty on three occasions - in defending the Framers\u27 decision to omit a bill of rights from the original Constitution, in deciding Chisholm v. Georgia, and in instructing the grand and petit juries in Henfield\u27s Case. On all three occasions Wilson\u27s efforts were rejected, and he was accused of undermining the Constitution, threatening the residuary sovereignty of the states, and subverting the liberties of the people. This article suggests several reasons why Wilson failed, and why Marshall rather than Wilson is remembered today as the principal founder of the American doctrine of judicial review