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William Ewald, The Committee of Detail, 28 Const. Comment. 197 (2012).

We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court.  Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison.  That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman.  Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.

One interesting chapter of that biography has just appeared in article form.  It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail.  Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point.  Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution.  We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record.

Ewald begins his analysis of the Committee’s work by situating it as one of three important acts in the Constitution’s development.  Act I precedes the Committee’s appointment in late July 1787; it includes the initial introduction of the Virginia Plan, the Convention’s deliberations on that plan in Committee of the Whole, and the eventual decision to commit the resolutions in that plan, as amended, to the Committee of Detail for elaboration.  Act III includes the Convention’s work following the Committee of Detail’s report in early August 1787.  In that piece of the drama, delegates worked through the text line by line, suggesting changes and adding new provisions.  Ewald observes that historians, drawing on Madison’s notes, devote most of their attention to Acts I and III.  They virtually ignore Act II, the interlude during which the convention adjourned to let the Committee of Detail hash out particulars.  Ewald sets out to reclaim the importance of the Committee’s work and to highlight its contributions to the document.

Ewald performs this reclamation task quite well.  He shows that the Committee contributed a great deal to the final terms of the Constitution; indeed, he finds that, in terms of pages, the Committee was far more productive, page for page and day for day, than its more celebrated prequel and sequel.  He also explains why the Committee’s work has been so widely ignored:  its members simply failed to compile a documentary record comparable to the detailed notes that Madison made of the deliberations in Acts I and III.  Historians, after all, need sources.  What little we do have by way of sources on the Committee’s work have come to light slowly over time.  Ewald explains how these sources came into the hands of historians, an interesting and parlous story.  Randolph’s early Committee draft was found among the papers of George Mason (Randolph’s fellow Virginian and non-signer of the final document).  Wilson’s own drafts surfaced much later in the archives of the Historical Society of Pennsylvania and had been largely ignored both by their donors and by the archivists.

Ewald has held Wilson’s documents in his hands, and his hands-on engagement with the sources adds much to his understanding of their meaning.  For example, he contrasts Wilson’s fine penmanship with the sloppier handwriting of Randolph and Rutledge; he speculates that Wilson’s primacy in preparing the two final drafts may have had as much to do with the legibility of his hand as with his intellectual leadership on the Committee.  Randolph’s earlier draft, by contrast, may reflect his own attempt to capture the sentiments of the convention and may have been written before the Committee began to deliberate.  If so, Randolph deserves credit for many of the innovative features of the Committee’s work that first appeared in his draft, including the first full draft of what became Article III.

Students of the federal court system, who have long attended more closely to the Committee of Detail than other constitutional historians, will welcome the many insights that Ewald contributes to our understanding of its work.  One topic of Committee consideration was the suability of states in federal court.  Randolph’s original draft provided for federal jurisdiction over suits between two states.  Perhaps his willingness to embrace state suability – a position he reaffirmed as the attorney for the plaintiff in Chisholm v. Georgia – took shape in the course of his Committee work.  In fact, a provision added to Randolph’s draft set the stage for Chisholm by authorizing federal jurisdiction over disputes between a state and the citizens of another state.  While this language was inserted by Rutledge, Ewald explains that it was the likely product of Committee deliberations, with Rutledge acting as the chair.  While we cannot determine who proposed the additional language that led to the nation’s first constitutional crisis and the ratification of the Eleventh Amendment, the Committee’s willingness to embrace state suability was certainly congenial to Wilson.  The 1790 Pennsylvania state constitution, which Wilson drafted in large part, included a provision authorizing and directing the state assembly to provide for state suability, and he was among four Justices who voted to uphold Chisholm’s right to sue the state of Georgia.  Wilson, who added the “we the people” formulation to the preamble as a member of the Committee of Detail, emphasized popular sovereignty while denying that the states enjoyed sovereign immunity from suit.

Another curious historical juxtaposition arises from Oliver Ellsworth’s participation on the Committee.  A delegate and judge from Connecticut, Ellsworth went on to serve as one of that state’s first two senators and later as Chief Justice of the United States.  As Senator, Ellsworth took the lead in drafting the Judiciary Act of 1789, with its provision for district courts, circuit courts, and one Supreme Court staffed by peripatetic Justices who also rode the circuits.  At the time, Ellsworth’s Act was viewed by many as a temporary expedient (and indeed it lasted only until 1891, when Congress abandoned circuit riding in favor of permanent circuit court judges).  That perception of expediency led to calls for reform, one of which was addressed by Congress to Edmund Randolph, who was serving as the nation’s first Attorney General.  Randolph responded in December 1790 with the report that bears his name, advocating a greater separation of state and federal courts, an end to circuit riding, and the adoption of something like what became the Anti-Injunction Act of 1793.  Randolph also argued that the jurisdictional language of the Act should more carefully follow the language of Article III.

Knowing as we now do that Randolph may have had substantial pride of authorship in such phrases as cases “arising under” the Constitution, laws, and treaties of the United States, we can perhaps better understand the frustration he felt at the Judiciary Act’s failure to follow form.  What’s more, Randolph’s approach to jurisdiction may have come at the expense of Ellsworth’s different vision of the federal judicial role.  One cannot avoid speculating that Ellsworth viewed his leadership in the Senate as an opportunity to make his own mark on the federal judiciary and perhaps to win a point that had failed to carry two years earlier in debates at the Committee of Detail.  Nor can we quite avoid the conclusion that Randolph believed that these departures from the text, if not the spirit, of Article III took the judicial department in the wrong direction.

Ewald’s contributions focus less on the details of the judicial article than on the larger debates that shaped the evolution of the Constitution.  He nicely connects likely position-taking in debates at the Committee level to positions that players later advocated on the floor of the Convention.  He is deeply read in the nuances of drafting history and sees the forces that influenced the delegates.  We come away from his project with a much deeper awareness of the impact of the Committee’s work, including the distinctly nationalizing contributions Wilson made to the debate, both within the Committee and at the Convention.  As a new convert to the notion that Scotland may have much to teach us about the origins and meaning of Article III, I find the reclamation of our most Scottish of Founding Fathers welcome news indeed.

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Cite as: James E. Pfander, James Wilson, the Committee of Detail, and the Federal Judiciary, JOTWELL (October 8, 2013) (reviewing William Ewald, The Committee of Detail, 28 Const. Comment. 197 (2012)),