James Wilson and the Moral Foundations of Popular Sovereignty

The doctrine of popular sovereignty—the notion that ultimate political authority resides with the people—remains enigmatic in American constitutional theory despite its prominence in founding documents and judicial construction. Bartrum traces the intellectual roots of popular sovereignty to James Wilson's revolutionary conception that the American people, unlike subjects under Hobbesian social contract models, retained essential sovereign dignity and autonomy while delegating limited enumerated powers to a federal government organized into specified institutions. Wilson's innovation resolved an enduring tension: how to place the sovereign people under the rule of law. Unlike the Hobbesian commonwealth model where people surrender sovereignty entirely, the American Constitution preserved popular sovereignty through specified legal processes and amendment mechanisms. Bartrum examines competing historical accounts of popular sovereignty, particularly the Federalist versus Anti-Federalist versions, demonstrating how courts have marshaled the discredited Confederate account to support state sovereignty doctrines. The article provides historical and theoretical context for structural constitutional arguments, informing modern debates—including structural claims surrounding the Affordable Care Act's individual mandate and NFIB v. Sebelius. By grounding popular sovereignty in Wilson's specific philosophical vision rather than competing structural conceptions, Bartrum enriches constitutional interpretation beyond purely textual or originalist methodologies.

Topics: Constitutional Law · Legal History

Keywords: popular sovereignty · James Wilson · federalism · structural constitutional law · NFIB v. Sebelius · Affordable Care Act · founding principles