Many historians today tell a dismal tale of woe about our Founding, but Wood sees it whole with defects that do not blot out its real virtues.
Far too many jurists and scholars treat the American Founding as if it began and ended with the words and deeds of only a few prominent men. There are a host of problems with this tendency to simplify, not the least of which is that it leaves by the wayside some interesting individuals who had a profound influence on key documents even though their accomplishments were not sufficient to warrant their elevation to the status of “famous Founder.” Oliver Ellsworth, coauthor of the Connecticut Compromise, architect of the Judiciary Act of 1789, and James Madison’s senatorial counterpart on the conference committee that reconciled the Senate’s version of the Bill of Rights with the House’s version, is one such Founder.
Ellsworth was born in Connecticut in 1745. Tutored as a young man by the influential New Divinity minister Joseph Bellamy, he began his college education with the Congregationalists of Yale College and finished it at the Presbyterian College of New Jersey (now Princeton). Upon graduation, he studied law under Jesse Root and was admitted to the Connecticut bar in 1771. Like his mentor Roger Sherman (whom I featured first in this series for Law & Liberty), he was a committed Calvinist.
He served his state in a variety of offices, including as a member of the lower and upper houses of the General Assembly, the committee responsible for ensuring Connecticut’s troops were paid, and Connecticut’s Board of War, as well as being a Superior Court judge. From 1778 to 1783, he was a member of Connecticut’s delegation to the Continental Congress.
In 1787, Ellsworth, Sherman, and William Samuel Johnson were chosen to represent the state at the Constitutional Convention. Ellsworth advocated a national government that was stronger than the one created by the Articles of Confederation, but unlike the extreme nationalists he believed that its powers should be strictly limited. He and Sherman brokered the Connecticut Compromise, and he was a member of the important five-person Committee of Detail.
A leading advocate of the Constitution’s adoption, Ellsworth published 13 pro-ratification essays under the pseudonym, “A Landholder.” According to an account that was published in a Connecticut newspaper, at the state’s ratifying convention “all the objects to the Constitution vanished before the learning and eloquence of a Johnson, the genuine good sense and discernment of a Sherman, and the Demosthenian energy of an Ellsworth.”
In 1788, Connecticut’s General Assembly selected Ellsworth and William Samuel Johnson to be the state’s first two U.S. senators. We have few details of Ellsworth’s service because the body was closed to outside observers and its journal did not include debates. But he is widely credited by contemporaries and later historians with being the chief draftsman of the Judiciary Act of 1789.
We can infer that Ellsworth was an active participant in debates over the Bill of Rights because the Senate’s proposed changes to the House’s version of the amendments are in his handwriting and, as mentioned, when it came time to reconcile the Senate and House versions, he led the Senate’s delegation to the conference committee.
James Madison, of course, chaired the House delegation. With him were Roger Sherman and Delaware’s John Vining. There is no reason to believe that Senator Ellsworth, or his colleagues Senator Charles Carroll of Maryland or Senator William Paterson of New Jersey, simply deferred to their colleagues from the lower house. The final report of this House-Senate conference committee was penned by Ellsworth.
When Supreme Court justices have used to history to elucidate the First Amendment’s religion clauses, they have appealed to Madison 189 times but to Ellsworth only thrice. It is true that the House debates were better recorded, but jurists regularly go beyond these debates to cite other texts written by Madison. As William R. Casto and Michael C. Toth have shown, Ellsworth’s views on religious liberty and church-state relations may be discerned in a similar manner.
As is the case with Roger Sherman, one suspects that Ellsworth tends to be left out of the picture because he wanted a less strict separation between church and state than did Madison. (For that matter, Madison wanted a stricter separation than did virtually all of the other Founders.) To be clear about this, Ellsworth did not desire a national establishment. Also he was glad that the U.S. Constitution banned religious tests for office-holders. At the same time, he remained supportive of the established church in his home state. Indeed, in one of his Landholder essays, he praised the prohibition of religious tests in the Constitution’s Article VI but noted that “I heartedly approve of our [state] laws against drunkenness, profane swearing, blasphemy, and professed atheism.”
In 1796, President Washington nominated Ellsworth to be the third Chief Justice of the U.S. Supreme Court. In 1799, in the midst of an undeclared war with France, President Adams appointed him to be one of three commissioners to America’s old ally. Although they were unable to resolve every controversy, the delegates succeeded in negotiating a treaty that ended the fighting. Unfortunately, the international travel was ruinous for Ellsworth’s health and, upon his return in 1800, he resigned from the Supreme Court. He died in 1807 in Windsor, Connecticut.
Ellsworth deserves to be better known. By no means is this to suggest that he was as important or influential as a Madison. At the same time, it is intellectually dishonest to pretend that his views are irrelevant for understanding the original intentions of the men who drafted the First Amendment. And if one is interested in the original understanding of those who adopted the First Amendment, there are excellent reasons to think that Ellsworth’s views are representative of the 50 to 75 percent of Americans of that era who were Calvinists.