Interview with Michael C. Toth author of
Why should people be interested in Oliver Ellsworth?
The U.S. Senate, for one. Ellsworth was the primary spokesman for the winning side at the Constitutional Convention. It’s odd but Americans know a lot more about Alexander Hamilton and James Madison. Both men deserve a lot of credit. They were responsible for the Constitutional Convention meeting at all. But this is not to say that Hamilton and Madison were necessarily the fathers of the Constitution that came from the Convention. Ellsworth took the floor on several occasions to support the equal state vote in the Senate. When Madison, who opposed the measure, wrote about the equal state vote in the Senate in the Federalist papers he, in fact, used a phrase from Ellsworth to defend the measure. According to Ellsworth and the Federalist, the construction of the Senate was one of the reasons why the U.S. was designed to be “party federal, partly national.”
What else did Ellsworth accomplish?
He wrote articles in favor of the Constitution, then argued successfully at Connecticut’s ratification debate in favor of the new plan. He went on to the First Senate. There, he was responsible for the Judiciary Act of 1789, which established the U.S. federal court system. The structure put in place by Ellsworth’s act remains in place today. He was the leading consensus builder in the Senate, and a favorite of President Washington. Aaron Burr said that if Ellsworth “if had happened to spell the name of the Deity with two d’s, it would have taken the Senate three weeks to expunge the superfluous letter.” Always looked to for challenging assignments, Ellsworth served as U.S. Chief Justice after several controversial nominees saw their nominations go up in political flames. Later, he served a special envoy dispatched by President Adams to France.
What was his view of the Constitution?
Ellsworth viewed the Constitution as a Federalist document – that is, one that was neither nationalist, extinguishing the role of the states, nor anti-Federalist, allowing no role for the national government. He sought principled compromise. Ellsworth believed that it was possible to identify issues that were truly national. He believed further that national institutions could be set up to operate alongside local institutions. In fact this was nothing new. At Connecticut’s ratification convention, he used a simple example to prove this point. He reminded the citizens of Connecticut that the Continental army, under Washington, had operated military courts. In other words, there was a separate legal system working within the United States – namely, the military courts. Such courts did not interfere with the workings of state courts. Ellsworth’s point was that the federal government could operate similarly. It would take jurisdiction over federal issues in the same way that the military had taken jurisdiction over military cases. There was room for another level of government.
What were Ellsworth’s reasons for being a Federalist?
He believed that there was not just room for another level of government, but that such a level was needed. There were issues that the states simply could not control. National defense was an obvious one. Reading the public speeches of the Founders, one is reminded how concerned they were with the specter of a nation that would be divided, then conquered. Another, related reason was economic. Along with other residents of Connecticut, Ellsworth was none too pleased with the import taxes that New Yorkers placed on goods that arrived at this state’s ports. It was a sad fact of nature that Connecticut had no such port that rivaled Boston or Manhattan. So they were stuck buying goods that arrived at other states. Before the Constitution, the states could – and did – tax goods that arrived at their ports. Connecticut consumers paid the price, and all the tax revenue went to another state’s coffers. Apart from this reason, Ellsworth also believed that a unified nation was more likely to receive better trade treatment from the European powers, most notably the British.
What was Ellsworth’s personal life like?
Ellsworth married Abigail Wolcott, a niece of the state’s longtime governor, Oliver Wolcott. It was a very happy marriage. During his frequent absences for political duties outside Connecticut, Ellsworth wrote tenderly to Abigail. He did not like being away from home, and regularly expressed his desire to be back with Abigail and their children. They had eight children. Seven survived to adulthood. Two of Oliver’s sons followed him into public service.
Was Ellsworth religious?
He was. Ellsworth’s first introduction to religion came from his parents, who, like most of their fellow residents of Windsor, a old town in Connecticut’s central river valley, worshiped at a Congregationalist church. Ellsworth’s own religious commitments were deepened during his early schooling, which began exactly as the First Great Awakening was active in Connecticut. Ellsworth would associate with a school of Calvinism that is known by scholars as “New Divinity” Calvinism. The influences of “New Divinity” theology is discussed at length in the book. Most importantly, it drove Ellsworth to believe that God sought political order. Thus, righteous leaders were destined to make the difficult political compromises that were necessary to please God. When Ellsworth left his studies for the ministry to become a lawyer, he was making it clear that he wanted to be a righteous leader. Ellsworth’s theological reasons for seeking political stability likely contributed as well to his becoming a key compromise builder at the Constitutional Convention and in the U.S. Senate during the tumultuous 1790s.
What kind of Supreme Court justice was Ellsworth?
Once again, Ellsworth sought to build consensus around what he believed to be the Constitution’s central principles. And to build consensus, Ellsworth relied upon argumentation – that is, the force of reason, not the force of sheer power. It’s important to remember that the 1790s were a very tumultuous time politically. This was particularly the case with the federal courts – a new institution for Americans. Ellsworth became chief justice only when the nomination of John Rutledge of South Carolina failed, and two other potential nominees waved off on Washington’s offer to serve on the high court. One of the reasons why serving on the Supreme Court was so difficult was it meant traveling around the country to hear cases. In this role, the Supreme Court justices gave instructions to the citizen jurors. One of Ellsworth’s jury instructions shows best the type of judge that he was. At the time, Americans were debated whether the federal government had the power to prohibit treasonous speech. Many said no because such a power did not appear in the Constitution. But Ellsworth disagreed. And he explained to a South Carolina jury exactly why. Ellsworth believed that the U.S. Constitution was built around Anglo-American common law, “the maxims and principles,” in his words, that were “brought from the country of our ancestors.” Under common law, the government had the power to prohibit language that was intended to disturb the peace. But Ellsworth’s invocation of common law was not a selective process. As he also made clear, the common law assigned considerable responsibility to citizen jurors. Unlike Federalists who viewed citizen jurors as standing in the way of necessary treason prosecutions, Ellsworth saw the civilian jurors as absolutely required, under the same legal principles that allowed the federal government to protect the nation from treasonous speech. Ellsworth’s solution was then to opt to educate and encourage the civilian jurors to choose for themselves to apply the longstanding common law rules in accordance with the facts of the case.
What does Ellsworth have to teach us today?
That things did not have to turn out the way that they did at the American founding. Our government could have looked a lot differently. Had Madison and Hamilton not pushed for a Constitutional Convention, who knows when or whether the states would have adopted an effective federal government? Had practical politicians such as Ellsworth not been present at the Constitutional Convention, the more nationalistic plans of Hamilton and Madison might have gone forward. But would they have been ratified? And by all the states? And if so, would they have worked? The founding period leaves a lot of questions. But it does also provide some answers for us today. One important lesson that Ellsworth’s career teaches is that politics also provides a range of what one historian called “theoretical combinations.” Ellsworth proves this point. At the Constitutional Convention, he refused to budge on one issue: the state’s needed to be represented equally in the Senate. But once the national government was formed with the state’s having an equal voice in the Senate, Ellsworth was willing to give the national government a range of powers that were opposed by those who became known as anti-Federalists. So Ellsworth showed that it was possible to be a de-centralist with respect to how the national government was composed, but a Federalist with respect to its powers. This ability to combine visions without merely splitting the difference is, to me, the genius of the founding era’s contribution to American politics.