Ilya Somin reconsiders federalism and the protection of individual freedoms.
Oliver Ellsworth’s moderate federalism advanced the Connecticut Compromise at the Constitutional Convention of 1787, the Judiciary Act of 1789, and helped ameliorate the blunt edge of the Alien and Sedition Acts with jury nullification. He is now remembered only by scholars of the era. Perhaps his legacy should be reconsidered.
Michael C. Toth’s Founding Federalist: The Life of Oliver Ellsworth is a well-written, informative biography of the important Connecticut Federalist. Part of the Intercollegiate Institute Press’s “Forgotten Founders” series, Toth’s volume highlights Ellsworth’s importance at the Philadelphia Convention and in shaping the federal court system. Toth argues that Ellsworth “was a moderate, a conciliator, a principled man who often sought compromise.” “Nevertheless,” he continues, “as a forger of consensus he played a significant role in creating our union.” (ix) As a moderate nationalist, Ellsworth entered national politics to strengthen central power while maintaining a federal structure.
Born in 1745 in Windsor, Connecticut, Ellsworth embodied New England’s culture. His education by “New Divinity Calvinists” formed the basis of his political vision, as Toth skillfully demonstrates. (9) Ellsworth believed that one needed to “improve” the world “through prudent governance.” (12) He also accepted the idea of “corporate accountability” – that God punished and rewarded not only individuals but also communities. (15) Toth notes, “Ellsworth’s theological convictions led him to the belief that God would hold the whole political community responsible for the sins of a few.” (16) Thus he advocated “national solutions to prevent an adverse divine judgment, particularly in cases where a minority of states stood against the consensus of the nation.” (17) Ellsworth argued for the “moral value of political unity” and considered it “God’s plan for America to join” as a “federal republic.” (17-18) After his education at Princeton (he left Yale after a short time), Ellsworth married into the Wolcott family, one of the ruling families of Connecticut, and became a successful lawyer. (21-29) When the Revolution broke out, Ellsworth served in the new state government and eventually in the Continental Congress. Toth summarizes the lessons Ellsworth learned during the Revolution, “By the end of his tenure in the wartime Congress, Oliver Ellsworth had come to believe that individual states needed to cede some of their authority – in this case, over the federal government’s ability to raise money – in order to provide for the ‘common defense’ of all the states.” (48) Ellsworth wanted to “maintain the principle of local rule while also creating a general government strong enough to preserve the harmony of the republic.” (49)
Ellsworth’s nationalism, shaped by his theological beliefs and wartime experiences, played an important role at the Philadelphia Convention in 1787. Toth portrays the nationalists as a coalition of individuals who shared a commitment to strengthening the central government but who differed on the particulars of the program. (see 58-90) Ellsworth represented Connecticut along with his political mentor Roger Sherman. Toth insists that at Philadelphia Sherman would often suggest an important compromise and Ellsworth, “the seasoned litigator,” took on “the role of persuader in chief.” (58) The two “voted together 80 percent of the time.” (58) Ellsworth supported Sherman’s “Connecticut Compromise” and gave a memorable speech on June 29 in which he coined the phrase Madison would later use in Federalist 39 to describe the new government, “partly national, partly federal.” (64) He also backed compromise over slavery, of which Toth notes that “this time, the fruits of Ellsworth’s pragmatism were bitter.” (82) Toth demonstrates that Ellsworth clashed with other nationalists over a number of smaller issues, but his ability to compromise helped to salvage the broader nationalist agenda. (77-80) He believed that he had worked to preserve the union and avoid the “‘bloodshed’” that would inevitably follow its collapse. (86)
Ellsworth became an important Federalist spokesman during the ratification process. He spoke at the Connecticut ratification convention and penned thirteen essays, signed “A Landholder,” in defense of the Constitution. Toth argues that Ellsworth believed the new Constitution would protect national security and would improve the economy by allowing the government to sign meaningful trade deals with foreign powers, especially Britain. (100-101) In the debates, Ellsworth defended the federalism of the Constitution as separating “powers between two separate levels of government according to the characteristics of the particular power.” (107) Toth contends, “As Ellsworth saw it, the Constitution gave the federal government the authority over issues where the interests of the nation was concerned, such as the regulation of interstate commerce and national defense.” He continues, “The states never had authority to act in these areas, Ellsworth believed, so the states forfeited no power that they truly had possessed prior to the adoption of the Constitution.” (109) Ellsworth defended the role of the federal courts, as he saw them, against anti-Federalist attacks. Toth claims that Ellsworth “was unique among the founders in outlining the role that the federal judiciary might play in the new government.” (116) Ellsworth advocated the federal judiciary as the “arbiter of constitutional questions.” (118) He believed that federal judges would be independent voices that could defend American citizens and the Constitution from attack. (118) The judiciary, for Ellsworth, became the most important branch of government.
Ellsworth, a U.S. Senator from Connecticut in the first Congress, shaped the federal courts system by his role in crafting the Judiciary Act of 1789. As Congress considered legislation to implement a tariff (the Tonnage Act), legislators worked to create a system of federal courts “to enforce the nation’s revenue system.” (140) Senator Ellsworth argued that the new federal courts could do what the Confederation Congress and state courts had not done – force the states to comply with the Treaty of Paris to improve relations with Britain. (150,153) The controversial aspect of the Judiciary Act, however, concerned the appellate jurisdiction of the Supreme Court and how it would be exercised. Ellsworth influenced the controversial Section 25 of the Act, which “conferred on the state judiciaries the responsibility to enforce certain areas of federal law.” (167) Toth notes, “Under Section 25, if the state court ruled that the federal government had exceeded its constitutional powers, the losing party would have to appeal the case to the Supreme Court.” (170) For Toth, Section 25 demonstrated Ellsworth’s moderate nationalism in that he conceived the state courts to play an important role in enforcing federal law, a role other nationalists opposed. But Ellsworth did not comment on the implications of the Judiciary Act to the concept of state sovereignty. States’ rights advocates would attack Section 25 of the Judiciary Act for decades.
In 1796 President Washington nominated Ellsworth to be chief justice of the U.S. Supreme Court, where he became involved in the contentious battles over the Jay Treaty and the Sedition Act. Ellsworth, who had long favored smooth commercial relations with Great Britain, supported the Jay Treaty and advised Washington to resist the efforts of House Democratic-Republicans to force him to reveal his instructions to Jay. (185-186) As the Federalist Congress responded to the Quasi-War and XYZ affair with the Alien and Sedition Acts, Ellsworth again displayed his nationalism. The Chief Justice “recognized the existence of federal common law, which, in his view, justified Congress in enacting a statute [the Sedition Act] that protected the national government.” (190) Under the new law, “Congress authorized citizen-jurors not only to resolve factual questions but also to determine whether a party’s speech constituted libel under the Sedition Act.” (189) Ellsworth thought that this was a good idea. He “believed that by calling on citizen-jurors to apply federal common law, national security could be enhanced without sacrificing locally protected liberties.” (190) Toth points out that Ellsworth’s belief in a federal common law aligned him with other Federalists, but that his “conviction that civilian jurors, standing on constitutional grounds, could prevent a prosecution based on a validly enacted federal statute” – in other words, jury nullification – set him apart from many nationalist allies. (192) Toth concludes: “His jurisprudence offered something to his era’s proponents of national security and to defenders of democratic civil liberties: the recognition of federal common law allowed federal officials to exercise the powers necessary to protect the national government, while the incorporation of the jury ensured that these same common-law principles were applied fairly. Taken together, the separate parts of Ellsworth’s judicial approach gracefully bridged a gulf between the dominant currents of the nation’s political life, combining the democratic spirit of the Anti-Federalists with the practical-minded nationalism of the Federalists.” (194) After one more controversial action – Ellsworth served as one of President Adams’s negotiators for peace with France – Ellsworth retired to Connecticut. He died in 1807.
Throughout his excellent account of Ellsworth’s life and career, Toth provides the reader with important insights into the nationalist movement of the Early Republic. As part of their rhetorical strategy, the nationalists portrayed their opponents as self-interested, small-minded, unprincipled, local politicians who invoked state sovereignty either to protect their bases of power or because of “unenlightened” prejudice. (131) The strategy worked because it was sometimes true. But, not always. There is an instructive example buried in Toth’s narrative concerning the inveterate Maryland states’ righter Luther Martin. Teasing out the implications can allow the reader to appreciate Ellsworth’s importance.
Toth distinguished among nationalists in the book. In his discussion of the Philadelphia Convention, he gives the following explanation for the differences between Roger Sherman and Ellsworth:
“Unlike Sherman, Ellsworth was from the younger generation of American leaders, whose formative political experiences (the War for Independence followed by the crisis of the Articles of Confederation) had led them to favor a greater degree of centralization. By contrast, older political hands such as Sherman had loyalties to their states that predated, by several decades in Sherman’s case, the era in which gatherings among the various leaders of the states became regular.” (65)
The comparison is accurate in a number of cases. But it implies that state loyalty was a relic of the past. The future belonged to the nationalists. This must be qualified.
The counter evidence comes from Madison’s Notes covering the days between Wednesday, June 27 and Friday, June 29, 1787, the days preceding Ellsworth’s influential “partly national, partly federal” speech at the Convention. On June 27 and June 28, Luther Martin gave lengthy speeches defending state sovereignty and calling for equal representation for states under the proposed constitution. Martin’s diatribes brought lengthy rebukes from Madison and James Wilson on June 28. On Friday June 29 Madison argued that the states, under the Articles of Confederation, had severe limitations on their sovereignty. He admitted that “under the proposed Govt. the powers of the States will be much farther reduced.” (Notes 213) Alexander Hamilton followed to support Madison’s points. Then, after a few shorter speeches, Elbridge Gerry insisted “that we never were independent States, were not such now, & never could be even on the principles of the Confederation.” He continued, “The States & the advocates for them were intoxicated with the idea of their sovereignty.” (Notes, 217) Luther Martin had heard enough. Madison, obviously tired of Martin by this point, recorded his comments as follows:
“Mr. L. Martin. remarked that the language of the States being sovereign & independent, was once familiar & understood; though it seemed now so strange & obscure. He read those passages in the articles of Confederation, which describe them in that language.” (Notes, 217)
Immediately after Martin’s speech, the convention voted that representation in the House would not be equal. Then, turning to the question of voting in the Senate, Ellsworth gave his “partly national; partly federal” speech in which he did not mention the word sovereignty but did argue that “the rule of suffrage…be the same with that established by the articles of confederation.” (Notes 218) He concluded his speech with the memorable line, the gist of which Toth explicates well, “Let a strong Executive, a Judiciary & Legislative power be created; but Let not too much be attempted; by which all may be lost.” (Notes, 219) Ellsworth promoted compromise on the form of government but remained silent on the question of sovereignty. Perhaps this is why, as Toth notes, both John C. Calhoun and Daniel Webster could publicly praise Ellsworth during the 1830s. (91-92) But Luther Martin was neither old nor was his advocacy of state sovereignty a result of ancient prejudice. Toth tells us that Martin had been Ellsworth’s classmate at Princeton and that Martin was originally from New Jersey. (21) Martin merely insisted that state sovereignty was the explicit, constitutional stance that emerged from the Revolution. The nationalists, then, proposed radical changes.
This example suggests that Ellsworth’s moderate nationalism did not attract much support from his opponents because he did not directly address the sovereignty question. While Ellsworth, as Toth ably shows, adjusted his positions at the Philadelphia Convention, on the Judiciary Act, and on the Sedition Act to account for “anti-Federalist” (Toth uses this term to denote critics of the nationalist agenda) criticisms, he never clearly addressed the question of sovereignty, which, to men like Martin and numerous Jeffersonian Republicans, was the major political question of the Early Republic.
Finally, while the advocates of state sovereignty are usually portrayed as self-interested sectionalists, nationalists usually escape such opprobrium. Ellsworth’s life is instructive here. Speaking of Ellsworth’s compromises over slavery and the question of an export tax at the Philadelphia Convention, Toth notes, “A ban on export taxes also helped Connecticut market its agricultural produce to its overseas, namely West Indian, trading partners.” (88) Nationalists, then, could also act in self-interested (even sectional) ways. After retiring, Ellsworth opposed efforts in Connecticut to end the state’s religious establishment. Toth notes that Ellsworth believed religion to be useful for republican societies. Therefore, churches were “the proper recipients of public aid.” (211) In fact, Ellsworth’s particular brand of New England Calvinism served, as Toth shows repeatedly, as the major inspiration for his politics. Is not this a local prejudice? After Ellsworth died in 1807, his family found his final statement:
“I have visited several countries and I like my own the best. I have been in all the states of the Union, and Connecticut is the best state. Windsor is the pleasantest town in the state of Connecticut, and I have the pleasantest place in the town of Windsor. I am content, perfectly content, to die on the banks of the Connecticut.” (211)
Ellsworth was a New Englander at heart. His loyalties lay with his home. For Ellsworth the glory of the United States lay in its protection of federalism, which for him meant the ability to appreciate one’s specific culture and locale, enjoy a measure of local self government, and take advantage of the protection of a distant, but powerful, federal government. But other Americans saw the particulars of federalism differently. Perhaps Ellsworth’s resistance to addressing those differences clearly, despite his impressive contributions to establishing the federal government under the Constitution, led to his obscurity.
James Madison, Notes of the Debates in the Federal Convention of 1787, (Athens, Ohio: Ohio University Press, 1966).