Caffeinated Politics

Each year, I select a book for the Fourth of July period that places me into the era of our nation’s founding. It was very easy to make the selection this year, as we received a free copy of Jesse Wegman’s The Lost Founder about the life and times of Founding Father James Wilson. Celadon Books sent the copy with the request that, when we finished reading it, we share our thoughts on social media and post on book review websites.

(Before venturing further, I need to note that my husband is also named James Wilson, who grew up in Corinth, Maine. We have been a couple for 26 years as of this writing.)

As I read the book, two thoughts kept bouncing around. First, James Wilson proved to be an essential figure in American history. Secondly, this is a masterful work of historical recovery. It adds gravitas to the intellectual architecture of the early Republic. The very stuff I yearn for each year on Independence Day when reading about the Founders.

Among the many revelations that landed with unexpected force, one stood out because of my interest in the Supreme Court’s formative period. Wegman’s demonstration that James Wilson, not John Marshall, deserves primary credit for articulating the principle of judicial review was a new understanding for me. Long before Marbury v. Madison, Wilson argued that the courts must possess the authority to judge the constitutionality of actions taken by the legislative or executive branches, grounding this power in the sovereignty of the people and the supremacy of the Constitution. Wegman’s account makes clear that judicial review was not an invention of the early nineteenth century, but a foundational idea embedded in Wilson’s constitutional philosophy.

This is where it is perfectly fine to relish being nerdy and intrigued by a deeper understanding of our history. I will try to encapsulate this story, but reading it in full in The Lost Founder is my all-out recommendation.

The dispute stems from Hayburn’s Case (1792), a conflict over Congress’s attempt to have federal courts perform administrative duties in evaluating Revolutionary War pension claims. Under the Invalid Pensions Act of 1792, disabled veterans were instructed to apply to their local federal circuit court, which would examine the evidence and determine whether the applicant qualified for a pension. Crucially, however, the Act allowed the Secretary of War to revise or reject the court’s findings, and Congress itself could overturn those decisions, meaning judicial determinations were not final but subject to executive and legislative revision.

Federal judges immediately objected. In the Pennsylvania Circuit Court, Justices James Wilson and John Blair, along with District Judge Richard Peters, refused to proceed with William Hayburn’s pension application, arguing to President George Washington that Congress could not constitutionally assign non‑judicial duties to Article III courts, nor allow the executive or legislature to overrule judicial decisions. They insisted that such a scheme was “radically inconsistent” with judicial independence and the separation of powers. Attorney General Edmund Randolph then petitioned the Supreme Court for a writ of mandamus ordering the circuit court to comply with the Act, but the justices—who themselves sat on the circuit courts—expressed doubts about the constitutionality of the arrangement. Before the Court could issue a ruling, Congress revised the law in 1793, mooting the case.

Although the Supreme Court never issued a formal opinion, Hayburn’s Case stands as the first instance in which federal judges refused to enforce an act of Congress on constitutional grounds, marking the earliest practical exercise of judicial review in American history. This practice is one of the vital outcomes of the Court’s efforts to function as the independent branch of government that our governmental system requires.

Wegman shows that Wilson was a man of contradictions, advocating on the one hand for the power always to be in the hands of the people while on the other hand also being adamant about the constitutional form of government that would best serve a new nation, all the time using his skills and knowledge to power forward. He was very much aware of the type of people who should be at the vanguard, leading the nation into its infancy.

Clearly, our nation needed people with exceptional intellectual caliber. When it came to the Supreme Court, I would argue even more so because the Constitution is strikingly sparse on how the judiciary should actually function. Article III establishes a Supreme Court, but it does not define its internal structure, its procedures, or even the full scope of its authority. In that vacuum, the nation needed legal thinkers who understood not only the mechanics of English common law but also the philosophical foundations of republican government. Wilson, as the book demonstrates in the opening chapters, was trained in Scottish Enlightenment reasoning, steeped in colonial legal practice, and one of the few Framers who had thought deeply about sovereignty and constitutional supremacy. I would think any conclusion about his background would support the view that he was well suited, perhaps even uniquely positioned, to give the Court direction. His belief that the Constitution was an expression of the people’s will, superior to any act of government, provided the judiciary with a principled basis for independence and for reviewing the actions of the legislative and executive branches.

Wilson has something else that the book showcases over the chapters. He had what might be termed institutional imagination. Wilson’s lectures, circuit‑court opinions, and constitutional arguments supplied a coherent theory of judicial power at a moment when nothing about the judiciary was guaranteed. He knew the institution would be molded and was therefore profoundly concerned that it should lean into being the utmost guardian of the Constitution. I firmly believe that if he were here today, he would be aghast at the shame of the Court often being a passive enforcer of legislative will, driven by political pressure.

The book ends with a bright light that shows why originalism is a flawed concept and why, more than ever, Wilson’s philosophy needs to be re-examined by the citizenry.

After spending so much time with Wegman’s portrait of Wilson, I sincerely hope people read The Lost Founder. It is rare to find a historical study that both reshapes one’s understanding of how the Declaration of Independence was fashioned and of the building blocks of the Constitution, while reminding us of a man who seemingly was lost to history. This book shines with clarity, depth, and a driving narrative energy that makes the early Republic feel startlingly current and present.

This book is a keeper and is placed in the chronological style of arranging my bookshelves devoted to history. Finally, I truly appreciated the font style that mimicked the look of old newspapers and pamphlets from the time and was used to introduce each chapter.