The first major jurisdictional issue faced by the new nation’s Supreme Court was Chisholm v. Georgia (1793: 2 U.S. (2 Dall.) 419. Page 2 U. S. 429. ). At issue was a claim brought by Alexander Chisholm of South Carolina, representing the estate of Robert Farquhar. The latter had lent material support to Georgia in the Revolutionary cause and now found it necessary to sue for satisfaction of the terms. Georgia refused to appear, contending that it was a sovereign state and thus immune to such litigation in federal courts.
As one who had done so much to bring it about, Wilson was not to treat the Constitution as “organic”
One of the finest legal minds among the framers of the U.S. Constitution was the native Scot, James Wilson, appointed to the Court by President Washington. The Court then was comprised of five justices, each writing a separate opinion. Wilson’s was the most discerning, the most analytical. One might find in Wilson’s approach the earliest engagement with “originalism” in that he first attempts to match the position adopted by Georgia to the actual language of the controlling text. What he is quick to observe is that nowhere in the Constitution does the word “sovereign” appear. True, the 4-1 ruling of the Court against Georgia set the stage for the 11th Amendment, but Wilson’s opinion in 1793 was faithful to the letter and, indeed, the spirit of the Constitution. As one who had done so much to bring it about, Wilson was not to treat the Constitution as “organic”. Such refinements, as the light of future times might point to, were readily achieved by the process of amendment, not by finding unsuspected implications in otherwise well-formed English sentences.
On this point, it was not Wilson’s attempt to be coy. He was fully aware that the entire purpose of reducing the principles of governance to a written constitution was to establish clear lines of authority. He certainly would not have resisted reference to the United States as a “sovereign nation”, for this would signal no more than utter immunity to the authority of other nations over the affairs of the United States. However, the notion of State sovereignty was different, suggesting immunity against the people of the United States, for they finally ground the political authority of the whole. Thus, in an especially summoning passage in his opinion, Wilson declares that, with respect to the United States, sovereignty is in the man. It is the collective body of a self-governing people that establishes the distribution and degree of authority over their lives.
One might hear an echo of Aristotle in this, where he identifies the power that reason has. He speaks of it not as tyrannical rule, but princely rule. Where large numbers of persons are self-governing but beyond the reach of reason’s rule, there is only anarchy. Yet, even under tyrants, a rational being might live that life of self-control and self-sufficiency that is royal in all but the trappings.
People KEEP the governments they deserve, unless so overpowered
We take it as a truism that people get the government they deserve. This can’t be so, for each person is born into a political world not of their making or choice. It is more accurate to say that people KEEP the governments they deserve, unless so overpowered as to have no means with which to change it. In matters of this sort we, of all the world’s people, have no excuse. Each of us is sovereign. We have the blessing and the duty to conduct our affairs as would the truly princely person.