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by Edward Jayne

September 14, 2009

         The Founding Fathers usually credited with the creation of the United States include Washington, Franklin, Jefferson, Hamilton, Madison and Adams, additional to Paine in helping to trigger the American Revolution. A generally recognized second tier of leaders includes such eminent figures as George Mason, Richard Henry Lee, Edmund Randolph, and Patrick Henry of Virginia; James Wilson, Robert Morris, and Gouverneur Morris of Pennsylvania; John Jay of New York; John Dickinson of Delaware; William Paterson of New Jersey; John Rutledge of South Carolina; Samuel Adams of Massachusetts; and Roger Sherman of Connecticut.  Also from Connecticut but easily overlooked was Oliver Ellsworth, whose depiction as an austere figure addicted to snuff gave him a comic aspect that has been featured in the occasional historic accounts of situations and encounters in which he was involved.  Yet his role was at least as important as most of the figures listed above. As much as anybody Ellsworth guided our nation into its future constitutional destiny.  

         Today Ellsworth is primarily remembered for having served in the Continental Congress, for having been a judge both for the Continental Congress and on the Connecticut state superior court, for having participated in the Constitutional Convention until his unexplained departure just three weeks before it was signed, and for having led the debate on the acceptance of the Constitution at the Connecticut Ratifying Convention.  He is also remembered for having authored the popular Letters to a Landholder supportive of the Constitution, for having served in the U.S. Senate during Washington’s presidency, for having been the third Chief Justice of the Supreme Court, and for having led a diplomatic mission to France in order to prevent war between the two nations.  Unfortunately, the journey to and from France was beset with heavy seas, and Ellsworth contracted an illness that obliged his withdrawal from public life.  He died in 1806 at the age of sixty-two. This is a brief summary that suggests an illustrious career that nevertheless falls short of pivotal importance. However, it fails to tell the full story--a narrative that is almost totally unknown by our nation today.

         Listed here are nine reasons why Ellsworth’s role was essential to the creation of the United States.

         FIRST, and probably least important, it was Ellsworth who gave our nation the name of The United States.  Preceding the Constitutional Convention, Paine, Jefferson, and others spoke of the united states in generic terms such as “the unified states” or “the group of states.” At the Convention, delegates from the large states kept talking of the “nation,” but as a small-state delegate Ellsworth preferred the earlier description as a unified group rather than a single unit necessarily dominated by the large states.  So why not describe the group as before, but with capital letters--“the United States”? Suddenly the generic description would become the proper name with the implications of an alliance rather than a fully unified nation. On June 20, 1787, Ellsworth proposed this tactical choice in his very first recorded contribution at the Convention beyond having seconded a couple of Sherman’s motions. Support was unanimous among fellow delegates, and while authoring the final draft of the Constitution Gouverneur Morris added the words, “of America,” producing the full wording accepted today, The United States of America.

         SECOND, Sherman, Johnson, and Ellsworth successfully promoted the so-called Connecticut Compromise that broke the deadlock between the large and small states about representation in Congress.  The large states wanted proportional legislative representation that would give them better representation than the small states.  On the other hand, the small states wanted equal representation giving them just as many representatives as the large states. The tradeoff they finally made was a bicameral arrangement whereby the House of Representatives exercised proportional representation while the Senate exercised equal representation. Ellsworth himself proposed the plan that was finally accepted whereby members of the House of Representatives would be elected by popular vote and members of the Senate would be elected by state legislatures. This arrangement was later rejected by the Seventeenth Amendment in favor of using the popular vote for both the Senate and House of Representatives.  But more important was the fact that the Constitutional Convention was on the brink of dissolving, and the Connecticut Compromise based on Ellsworth’s proposal kept the Convention alive. Indeed, Ellsworth's proposal bore unacceptable consequences, but at the time it preserved sufficient harmony to protect the Constitutional Convention from the earlier fate of the Annapolis Convention the year before.

         THIRD, crucial to the success of the Connecticut Compromise was an earlier and less deserving compromise between the small northern states and the three states from the deep south--Georgia and the two Carolinas.  This was a tradeoff between the small northern states’ toleration of slavery in the Constitution and, more specifically, their support of a 3/5 population count for slaves in southern states in exchange for the southern states’ support of the Connecticut Compromise. Without this tradeoff, the Connecticut Compromise was not possible and the Convention was effectively doomed. It turned out that Georgia’s delegates voted against the Connecticut Compromise anyway, but there were just enough votes from the two Carolinas for the compromise to gain passage. All delegates from the small northern states cooperated with this pact, but it was Ellsworth alone who actually stood before the Convention on August 17 and 22, toward the very end of the Convention, to remind fellow delegates of the need to write slavery into the Constitution. His words featured the importance of states rights, as transcribed by Madison: “Let every state import as it pleases.  The morality or wisdom of slavery are considerations belonging to the states themselves.” Ellsworth had no slaves of his own, nor did any of his family or neighbors, but he actively promoted the compromise because it was crucial in the creation of the United States.

         FOURTH, Ellsworth was elected to the Committee of Detail (described by Madison as the Committee of Five) with four other Convention delegates: John Rutledge of South Carolina, Edmund Randolph of Virginia, James Wilson of Pennsylvania, and Nathaniel Gorham of Massachusetts.  Their task was to combine in a single preliminary draft of the Constitution the twenty-two resolutions that had been gathered from the Virginia Plan, the New Jersey Plan, the Pinckney Plan, and various other proposals along with amendments passed on the convention floor. The rest of the Convention took a vacation from July 26 to August 6 while these five delegates spent ten days in confronting this solemn task.  Later during the Convention they kept meeting with each other in order to incorporate new amendments into their basic draft of the Constitution. The only record of what happened in the Committee of Detail during the initial ten-day period or during later deliberations were the written rough drafts by Rutledge, Randolph and Wilson. However, these drafts alone are not a particularly useful indication, since the individuals identified as their authors might have done nothing more than serve as amanuenses for the others as they argued the ideas and wording under consideration.

         More indicative of the level of input by participants during the Committee of Detail’s sessions would have been their contributions to debate during the Convention afterwards to clarify their intentions while compiling the document. Ellsworth turns out to have been the most outspoken during his seventeen days of attendance between the report of the Committee of Detail to the Convention as a whole and his sudden departure after August 24. Having been silent for as many as three weeks upon his arrival at the Convention, Ellsworth was reported by Madison to have made 53 contributions during his attendance after the Convention reconvened as compared to 49 contributions by Wilson, 30 by Randolph, 25 by Rutledge, and 20 by Gorham. In fact, Ellsworth spoke up more than anybody else on the floor except for Madison (55) and Gouverneur Morris (59). It is to be conceded that Ellsworth’s contributions were usually brief as recorded by Madison, but he was obviously trying to clarify the Committee of Detail’s intentions rather than proposing anything new that required greater elaboration.  In effect the brevity of Ellsworth’s remarks very likely suggests he had assumed the role of clarifying the implications of the choices made by the Committee of Detail, further suggesting that he himself was significantly responsible for these choices.

         Based on this evidence alone, it can be tentatively suggested that Ellsworth had very likely played an aggressive role in the Committee of Detail similar to his later dominance at the Connecticut Ratification Convention and in the United State Senate.  Gorham’s contribution would seem to have been relatively modest, and Randolph’s later refusal to sign the Constitution because he suspected skullduggery was involved would suggest his alienation from others on the committee--as might well have been justified in light of Wilson, Rutledge, and Ellsworth’s later contributions to debate supportive of enlarging the powers of the Supreme Court at a later time.  A coordinated effort among these three delegates both during the Committee of Detail and during Convention afterwards would therefore be suggested, if not totally confirmed, by Madison’s Notes published in 1840, four years after his death.

         FIFTH and perhaps most important, Ellsworth along with Rutledge and Wilson effectively postponed giving the federal government its sovereign authority over the rights of all the state governments. If they had written this authority into the Constitution, it would have been rejected at the Convention, to say nothing of the state ratifying conventions. Under the Articles of Confederation, our nation’s central government had lacked this authority, and during the 1787 Convention most of the delegates made it plain they were still unwilling to concede it to the federal government. Ellsworth himself was actually quoted by Madison as having declared as late as August 20, “The U.S. are sovereign on one side of the line dividing the jurisdictions--the States on the other--each ought to have power to defend their respective sovereignties.” However, genuine sovereign power of federal authority was obviously needed despite the reluctance of state government, but the remedy favored at the Convention, the review of state laws by Congress, was no longer possible.  Four times Madison had submitted on the floor of the Convention an amendment giving the national legislature the power of congressional review in revoking state laws found to be unconstitutional. When Madison first proposed his amendment it was quickly accepted with a unanimous vote, but it was later reconsidered and thereafter defeated three times in a row, the last time by a single vote that made it obvious nothing better was obtainable.

         Apparently the alternative possibility of substituting judicial review for congressional review had been mentioned among the delegates off the floor of the Convention, but this was a brand new concept relevant to the issue of national sovereignty, and Ellsworth and the rest on the Committee of Detail excluded it from consideration with the justifiable reason that it had not been mentioned in any of the resolutions submitted for inclusion in the Constitution.  The question remains whether this omission might also have been considered useful in helping to postpone the implementation of judicial review until a later time.

         The stance of Wilson, Rutledge, and Ellsworth relevant to the possibility of judicial review became evident on August 23, toward the end of the Convention. When it was proposed that one further attempt be made to add the congressional review of state laws to the Constitution, Madison resisted the suggestion, saying “He had been from the beginning a friend to the principle; but thought the modification might be made better.”  It seems more than likely that Madison used this particular word “modification” to refer to judicial review, since this was in fact the alternative to congressional review finally implemented. After two other delegates expressed their opposition to another vote, Wilson could not help himself and took the floor to insist on the need to impose federal authority in the judgment of state laws: “that the firmness of justices is not of itself sufficient.  Something further is requisite.”  Obviously he was suggesting an arrangement whereby the decisions of state judges, additional to their pledged “firmness” in their loyalty to the Constitution, could be examined and reversed at a higher level.

          Rutledge and Ellsworth immediately challenged Wilson’s proposal, as they already had on August 15 regarding the judicial review of federal law passed by Congress.  Once again they made it obvious that they wanted every aspect of the issue to be dropped from consideration on the floor of the Convention. Rutledge’s words were plain enough: “If nothing else, this alone would damn and ought to damn the Constitution.  Will any state ever agree to be bound hand & foot in this manner?” Ellsworth immediately followed with his final speech before his departure from the Convention, in which he limited his concerns to legislative and executive review with no suggestion of the possibility of judicial review.  In retrospect, it seems more than likely that both Rutledge and Ellsworth fully agreed with Wilson regarding the need for federal review through the use of the judiciary, but that they were convinced the issue was best postponed until after the Constitution had been ratified.  Meanwhile, Rutledge was doing everything needed to revise the Constitution for the later imposition of judicial review, and it was Ellsworth who finally authored the Judiciary Act that was to impose judicial review.

         Among the several amendments that turned out to be useful toward the later implementation of judicial review. Rutledge’s June 5 motion against permanent inferior federal courts necessitated giving federal status to state courts for this purpose, and his August 23 amendment requiring all state judges to declare their oath of allegiance to the Constitution made possible an appeals system whereby state laws could be reviewed by federal judges.

         Also useful was the so-called “supremacy clause” suggested by the New Jersey Plan to establish the Constitution plus all treaties and federal laws as the supreme law of the land for all judges in every state.  Luther Martin later proposed this clause in order to guarantee the independent sovereignty of state constitutions, and on August 23 Rutledge proposed it again with its full wording. As such it was later written into Article VI of the Constitution by the Committee of Detail.  It clearly established the priority of the federal Constitution over all state constitutions and state laws, but without clarifying how this authority could be exercised.

         The crucial expedient to make possible a postponement of the adoption of judicial review was provided by the “assignment clause” first mentioned in Article 9 of the Virginia Plan.  The clause was later imbedded in Article III, Section 2 of the Constitution: “with such Exceptions, and under such Regulations as the Congress shall make.” This gave Congress sufficient latitude at a later time both to grant state courts their authority subsidiary to the Federal Supreme Court and finally, and just as important, to grant the federal Supreme Court its veto over state supreme court decisions. As Wilson, Rutledge, and Ellsworth must have realized from the beginning, any law to establish the appropriate hierarchy among these courts would necessarily include the procedures relevant to the operation of this hierarchy, and herein judicial review could be declared.  

         Interestingly, both Ellsworth and Wilson seemed sufficiently confident of support for the Constitution at their respective state ratifying conventions just a few months after the Convention to have taken the opportunity to speak favorably of the possibility of using judicial review in defense of federal sovereignty.  Here, then, was palpable evidence of exactly the “takeover” conspiracy that Randolph, Martin, and others wanted to prevent.  Wilson declared, “If a law should be made inconsistent with those powers bestowed by this instrument [the Constitution] in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void.  For the power of the constitution predominates.”  And Ellsworth declared, “If the states go beyond their limits, if they make a law which is a usurpation upon the federal government the law is void; and upright, independent judges will declare it to be so.”  It was as simple as that--something that could not even be mentioned at the Constitutional Convention itself.    

         SIXTH, having been elected to the very first session of the U.S. Senate, Ellsworth quickly assumed the role of its de facto Senate Majority leader. Indignant reports of fellow senators such as McClay and Burr made it plain that Ellsworth’s leadership verged on legislative tyranny. Not surprisingly, Ellsworth’s first and most important task (“Senate Bill Number 1” of the first session of the U.S. Senate) was to write the Judiciary Act and obtain its passage as mandated by the Constitution’s assignment clause.  Other senators helped, for example William Paterson, Ellsworth’s college friend and fellow delegate at the Convention, but the overwhelming consensus among everybody involved, including Madison in the House of Representatives, was that Ellsworth was the single dominant author of the Act, which established a vertical hierarchy of federal and state courts that on one hand confirmed the authority of the Supreme Court at the very top and on the other hand installed all state courts, no matter how small, within the system below.  These retained their status and authority as state courts, yet their decisions relevant to the Constitution were subject to appeal to the state supreme courts, and then to the Federal Supreme Court itself.  

         The most important component of the Act was Section 25, which included exactly two sentences--a short one introduced by others as an afterthought that didn’t matter much, and a gargantuan 307-word sentence that could only have been composed by Ellsworth himself to obscure the law in the very act of putting it into effect. [see the Appendix] The original draft seems to have been in the handwriting of a clerk, but its author was undoubtedly Ellsworth. Section 25 essentially declared that any constitutional issue decided by a state supreme court could then be appealed to the Federal Supreme Court if and only if the state supreme court has rendered a positive judgments.  This simple procedure imposed federal sovereignty by means of judicial review, and at the same time it conceded states’ rights on a limited basis both in originating legal action ultimately decided by the Federal Supreme Court and in giving state supreme courts first choice in negating a law that might otherwise be appealed. The Federal Supreme Court could render its decision only if the state supreme court’s decision had been positive, so state courts could use a negative decision to keep the issue out of the hands of the Federal Supreme Court.  Limited at least to this extent, Section 25 provided exactly the enabling feature that had been missing from both the Articles of Confederation and the Constitution itself.  The authority of the Federal Supreme Court was accordingly constrained in the beginning, but it steadily grew upon itself resulting from the cumulative weight of its decisions over the many decades that followed. 

         In affording the federal government its sovereignty over state governments in all matters of law relevant to the Constitution, Ellsworth’s sentence is arguably the single most important portion of the Constitution--except of course that it is nowhere to be found in this document.  Instead, its guarantee of federal sovereignty was relegated to a barely decipherable section of the Judiciary Act that was hardly mentioned in debate upon the passage of the Judiciary Act in either the Senate or House of Representatives, almost as if by a shared understanding among everybody involved. It did not even seem worthy of consideration that Section 25 entailed an unavoidable tautological effect, since it secured the final authority of the Constitution, while the Constitution guaranteed the rule of federal law as spelled out by Section 25.  Niggling issues such as this could be ignored once the task had been completed--a constitution defended by a mere federal law that nobody quite understood.

          It accordingly seems probable that Section 25 was written to be overlooked, and, if and when it was scrutinized, that it was sufficiently confusing to be ignored.  Its most cursory inspection discloses almost breathtaking stylistic demands compared to the Constitution’s prose style in its final draft by Gouverneur Morris. Ellsworth himself was able to write with clarity as exemplified in his Landholder series, and he had participated in the early authorship of the Constitution as well as having authored the second sentence of Section 25 in its entirety, but with strikingly opposite results. This could only have been intended. For in fact the Judiciary Act involved controversial issues that were still potentially disastrous to the establishment of the federal government two years after the Constitutional Convention.  Not only did it impose a vertical hierarchy that conceded a crucial role to state courts, but it offset this generosity in Section 25 by using this hierarchy to impose effective federal sovereignty despite the libertarian concerns of a formidable minority of Americans. Uncompromising obscurity therefore made excellent sense, and with such effectiveness that even today there are scholars who mistakenly ascribe the attainment of Judicial Review to the 1803 Supreme Court’s Marbury vs. Madison decision of Chief Justice Marshall rather than the Judiciary Act.  As demonstrated in chap. 9 of my piece, “An Accidental Conspiracy,” this is simply not the case.

         SEVENTH, Madison obtained passage of the Bill of Rights in the House of Representatives at about the same time as Ellsworth obtained passage of the Judiciary Act in the Senate.  So the two of them switched roles.  Ellsworth sponsored Madison’s Bill of Rights with the Senate at the same time as Madison sponsored Ellsworth’s Judiciary Act with the House of Representatives. It seems likely that this presumably coincidental occurrence was coordinated, for in fact the two acts effectively complemented each other.  The Judiciary Act declared federal authority to reject state laws at odds with federal laws, and the Bill of Rights specified individual freedoms as well as state and local powers that could not be infringed on by federal authority vested in the Supreme Court.  Each of these Acts both limited and helped to define the other.

          EIGHTH, Ellsworth’s authority in the Senate was essential to the success of Washington’s two terms in office. According to John Adams, he was “the firmest pillar of Washington’s administration.”  Among his many accomplishments, he obtained the passage of Hamilton’s complete economic program for funding the national debt, assuming the state debts, and establishing a United States bank. The only modifications were limited to the minor suggestions by Ellsworth himself.  He also initiated the strategy of sending the Jay mission to England in order to avert war.  All in all, his dominance in the Senate guaranteed its full support of Washington’s policies despite the increasing factionalism elsewhere in the government.  So it was probably the biggest mistake in Ellsworth’s career to become the Chief Justice of the Supreme Court.  Without his presence, the Senate could no longer anchor Federalist policy, and as much as anything this contributed to the limitation of the Adams presidency to a single term.  In the words of Adams to his wife Abigail on March 5, 1796, “Yesterday Mr. Ellsworth’s Nomination was consented to as Chief Justice, by which we loose [sic] the clearest head and most diligent hand we had.”

         And NINTH, Ellsworth’s contribution as the third Chief Justice of the Supreme Court turned out to be relatively inconsequential, overshadowed by that of his successor, John Marshall.  It might accordingly seem to have been a blessing that Ellsworth was chosen to lead a delegation to France in 1800 in order to negotiate a treaty (or “convention”) with Napoleon, thereby ending an undeclared naval war between France and the United States.  Just as the Jay mission had patched up relations with England, Ellsworth’s mission obtained similar results with France. Ellsworth and Napoleon seem to have been impressed with each other, Napoleon having said when he first saw Ellsworth, “We must make a treaty with this man.” If anything, Napoleon was reported to have been even more impressed with Ellsworth’s fellow envoy, William Davie.  The final treaty seemed to give Napoleon everything he wanted with few concessions to American interests.  American public response was furious, compounding its anger about Adams’ use of the Alien and Sedition Act.  As a result the Federalists were readily defeated in the 1800 election. In bad health because of his voyage to France, Ellsworth retired from national politics at the same time as the Federalist Party was driven from politics, and he ceased to play a major role in our nation’s history. 

         Why can this particular episode with Napoleon be included among the rest as one of Ellsworth’s major contributions to the creation of our nation?  Just three years later, Napoleon was confronted with a variety of major decisions, and despite mounting antagonism with Jefferson’s administration, he all of a sudden made a spontaneous gift of the Louisiana Purchase to the United States. The cost of $15 million he charged was very little compared to the value of the territory even at that time. The United States actually doubled in size, and the total expenditure amounted to approximately four cents per acre.  Of course there is no way of proving this, but it seems possible that Napoleon had Ellsworth, Davie, and the rest of the earlier U.S. mission in mind when he made this gift. They had bestowed on him a generous treaty, and he in turn just might have reciprocated with an enormous transfer of land to the United States.  Of course there is no way to prove this, but it is a consideration.

         So why has Ellsworth’s role been forgotten?

         First and foremost, Ellsworth tended to be aloof in his relations with others. His hostile fellow Senator McClay described him as being obstinate, conceited, and, worst of all, uncandid--in fact just about the most dishonest man he had ever met. Ellsworth seemed to be constantly parlaying in back halls additional to his speeches before the Senate.  Ellsworth also seemed almost a caricature of himself much of the time--tall, stiff, arrogant, and addicted to snuff, traces of which could always be seen on his clothing. As Adams explained with a backhanded compliment in the letter to his wife already quoted, “Though Ellsworth has the Stiffness of Connecticut: though His Air and Gilt are not elegant: though he cannot enter a Room nor retire from it with the Ease and Grace of a Courtier: Yet his Understanding is as sound, his Information as good and his heart as steady as any Man can boast.”  Ellsworth’s problem was that many of his contemporaries had comparable understanding and were not similarly lacking in the graces. He could effectively carry a debate, sometimes with extraordinary aggressiveness, and he could just as effectively collaborate with fellow delegates at the Convention and with fellow Senators in Congress.  However, his personal relations with others seem to have been standoffish unless he was negotiating political choices at the time.

         There is little evidence of Ellsworth having had close friendships with fellow public servants beyond his mentor Sherman and his college companion Paterson.  At times he worked closely with such figures as Wilson, Rutledge, and Madison, yet Madison was quoted as having said toward the end of his life that despite his high respect for Ellsworth there had never been any exchange of letters. In 1789 Washington traveled into New England and actually visited Ellsworth’s home in Windsor, Connecticut, but he only spent “near an hour” with him and his family and then traveled on to spend the night elsewhere.  The most memorable aspect of Washington’s visit was his having dandled Ellsworth’s twin sons Billy and Harry on his knees while singing the Ballad of Derby Ram.  In retrospect, this short a visit was both an honor and insult after the cooperative relationship between the two that persisted for two presidential terms after the Constitutional Convention. 

         Secondly, there is little record of Ellsworth’s speeches and publications except for the Landholder series.  At the Convention Madison made an effort to summarize Ellsworth's remarks on the floor of the Convention preceding the Committee of Detail but afterwards tended to tally his contributions rather than spelling them out. Likewise, there was no record whatsoever for the crucial ten days Ellsworth spent with the Committee of Detail, nor was there adequate record of Ellsworth’s speeches and motions during the eight years he spent in the Senate. Moreover, because the Senate provided Washington with automatic support, modern historians explore the story of his two terms in office relevant to what was happening elsewhere in his administration. That Ellsworth locked down the Senate supportive of Washington's administration let public attention be diverted to other issues at the time. Nor does there seem to have been any record of his negotiations with the French in 1800.  Ellsworth apparently thrived during private consultation lacking in public scrutiny, but as a result his historic contribution is more difficult to ascertain in retrospect.  We are left with little more than a sampling of his prose except for the transcript of his defense of the Constitution at the Connecticut Ratifying Convention, his energetic 1787 Letters to a Landholder, written in defense of the Constitution, and his tortuous exercise in obscurity in Section 25 of the Judiciary Act.  In sum, his contribution was insufficiently documented compared to that of his most prominent contemporaries.

         As a third explanation, neither the American public nor its historians enjoy the thought that conspiracy and opportunistic tradeoffs might have played a major role at the very inception of our nation.  Ellsworth’s historic contribution unfortunately featured a variety of such transgressions, most notably in promoting slavery in order to implement the Connecticut compromise and then in excluding judicial review from the Constitution so it might be added once the Constitution was fully ratified. Nor is it comfortable to recognize that the enabling act that secured federal sovereignty was nothing more than a law slipped into passage with almost no debate whatsoever.  What later generations wanted to emphasize about the origins of our nation were the clean and principled achievements of such figures as Washington, Franklin, and Jefferson, not the often disingenuous interplay among Ellsworth, Wilson, Rutledge, and even Madison, all of whom were more directly involved in the formation and implementation of our nation’s constitutional government.

         The fourth and perhaps most important explanation is that Ellsworth became a favorite of antebellum Southern statesmen such as Clay and Calhoun because of his defense of slavery at the Constitutional Convention as well as his restricted application of judicial review that limited the origin of constitutional issues to state courts as well as having limited the positive rulings of state supreme courts subject to repeal by the Supreme Court. This might have seemed a minor concession to the small states, but it was later considered essential among states rights proponents. Calhoun actually praised Ellsworth along with Sherman and Paterson to a lesser extent, for having created the United States as a “federal instead of a national government.” Significantly, the Constitution drafted by the southern states during the Civil War duplicated the original Constitution except in having increased both its defense of states rights and the legalization of slavery, two of the issues that could be rightly or wrongly identified with Ellsworth’s intentions. 

         And fifth, Ellsworth’s priorities ceased to be considered important after the Civil War.  With the victory of the union armies, the North imposed the Fourteenth Amendment, requiring all state and local governments to abide by the Bill of Rights as finally interpreted by the Supreme Court.  As a result, the initial effort of Ellsworth, Madison, and others to secure a viable balance between states’ rights and federal authority ceased to have much relevance to our nation’s future. Initially, the Bill of Rights (Madison’s contribution) had been intended to protect state and local authority as well as individual rights against federal intrusion such as might have occurred through the Supreme Court’s application of judicial review (Ellsworth’s contribution).  However, the Fourteenth Amendment turned inside out this arrangement supportive of state and local independence by permitting the Supreme Court’s use of judicial review to enforce the Bill of Rights at every level of government.  Once interactive on a complementary basis, judicial review and the Bill of Rights were accordingly integrated in an entirely new arrangement once judicial review could be used to guarantee the Bill of Rights at all levels of government.

         Of course vestigial traces of federalism are everywhere to be observed even today, but with the passage of the Fourteenth Amendment the primary concern shifted from interstate relations to an emphasis on individual and corporate rights as protected by the authority of the Supreme Court. This expanded defense of individual freedom` brought to the fore such issues as the pursuit of civil rights, but it also enlarged the possibilities for corporations on presumably the same basis because of their supposed “personhood.” The expansion of their operations on a national scale as interpreted by the Supreme Court permitted heavy industrialization and a centralization of banking to an extent not even Hamilton might have anticipated. Railroads, factories, and Wall Street speculation became important to our nation’s destiny, as did enlarged immigration, rapid urbanization, labor unions, the later export of factories abroad, and inevitably the relentless growth of the federal government to deal with all the problems both directly and indirectly involved--wars, depressions, and the like.  Needless to say, none of this had been fully anticipated at the time of the Constitutional Convention.

         It might be said in retrospect that Ellsworth performed a kind of jujitsu in having exerted the right pressure exactly when and where needed to keep the Constitutional Convention alive, then to draft an effective Constitution, then to give it teeth, and finally--perhaps--to double the geographical size of our nation, not that this was his intention at the time.  Then again Ellsworth might be said to have served our nation in the capacity of a midwife whose extractive skills could later be ignored by future mainstream historians insistent on telling an uplifting story (or narrative) of national achievement. Infant America was what primarily mattered, not the intricate procedures brought into play by those who delivered it.  As a result, Ellsworth’s pivotal contribution turned out to be what might be described as a useful embarrassment best overlooked in favor of the visible and more inspiring contribution of his illustrious contemporaries. Nevertheless, Ellsworth’s ingenuity was essential to the cause. When the Constitutional Convention took place, our forefathers were entangled in a seemingly inextricable conflict of interests among quarrelsome ex-colonies.  However, their efforts led to a single powerful state--the most powerful in the world by the mid-twentieth century.  Whatever his intentions, and to whatever extent he was able to fulfill them, Ellsworth played a central role in having made this happen.  His success was in having established a functional unity among these states preceding their full unification that was necessarily postponed until the Civil War.  To the extent that this political achievement necessitated effective preliminary manipulation, it was Ellsworth as much as anybody who performed this necessary task. 

APPENDIX

The second and final sentence of Section 25 in the Judiciary Act--307 words long--was probably authored by Ellsworth (he’s the only candidate who has ever been mentioned) to give the Supreme Court its authority to reverse state supreme court decisions considered unconstitutional.  Without this limited judicial authority, the Constitution provided no more federal sovereignty over the state governments than the Articles of Confederation had. Ellsworth and others on the Committee of Detail seem to have been fully aware of this deficiency, so the task was postponed until Ellsworth could address it in the Judiciary Act.  Even then, it seems, he strove to obscure the meaning of the single sentence that declared the principle of judicial review by tortuously elaborating its fullest application. However, a shorter imbedded sentence can be extrapolated from the full sentence that spells out the Supreme Court’s authority over state law in relatively simple terms. As insisted by Rutledge at one point during the Convention, this imbedded wording could not have been articulated in any variation whatsoever in the 1787 Constitution without having guaranteed its rejection at the Convention, much less the later state ratification conventions. Yet the principle it declared turned out to be essential to the future sovereignty of our nation. The significant phrases and clauses that compose this imbedded sentence are printed in bold here to make its meaning plain. 

For more information on Ellsworth’s life and career, William Garrott Brown’s excellent biography The Life of Oliver Ellsworth is highly recommended.  My own piece, An Accidental Conspiracy, explains in greater depth the complex maneuvers involved in the imposition of judicial review beginning with the Committee of Detail.