Founding Federalist by Michael Toth

Author:Michael Toth [Toth, Michael]
Language: eng
Format: epub
Tags: Biography & Autobiography, Historical
ISBN: 9781497636309
Google: rVE6AwAAQBAJ
Publisher: Open Road Media
Published: 2014-04-08T02:43:04+00:00

CHAPTER FIVE

COURT-MAKER

In forming this branch, our objects are—a fair and open, a wise and impartial administration of justice, between the public and individuals, and between man and man.

—“Federal Farmer,” January 18, 1788

“A BILL FOR ORGANIZING THE JUDICIARY”

Following the ratification of the Constitution, Oliver Ellsworth was selected by Connecticut’s legislature to serve in the inaugural class of the United States Senate. The new senator reported promptly to the federal capital in New York. “Most of the members from the Eastern States are arrived,” Ellsworth wrote Abigail after completing the three-day journey from Hartford, “but not a sufficient number yet from the Southward to proceed to business.” Although the Senate lacked the necessary number of lawmakers to open its doors officially, Ellsworth was not content with sitting idle. Now forty-four, and seasoned from his multiple national and state posts, the Connecticut senator seemed focused. In the weeks that he waited for the Senate to open its chambers, Ellsworth readied himself for legislative action, pondering perhaps how he could seize from the outset a leading role in the new Senate. “I employ my time as I presume a numbers of others do,” he explained to Abigail, “in looking into & preparing for the business we are soon to enter upon.”1

When a quorum of lawmakers finally assembled in April 1789, the Senate appointed its first committee, which was tasked with compiling “a bill for organizing the Judiciary of the United States.” Because the proceedings of the First Senate were closed to the public, it is uncertain whether Ellsworth was responsible for pushing the creation of federal courts to the top of the chamber’s legislative agenda. However, it would be plausible if Ellsworth, a former state judge, prompted his colleagues to focus their attention first on establishing a national system of courts. The available records from the inaugural Senate’s proceedings and the correspondence of the senators do make clear that Ellsworth directed the enactment of the historic Judiciary Act of 1789. The bill, Ellsworth’s most significant legislative accomplishment during his seven years in the U.S. Senate, has the essential marks of the New Divinity–trained Connecticut senator’s consensus-driven moderate Federalism.

“THE SORE PART OF THE CONSTITUTION”

In the summer of 1787, supporters of a stronger central government at the Constitutional Convention prevailed on a crucial point. The federal government, they convinced their fellow delegates, needed its own courts. The opposing point of view was expressed by John Rutledge early on in the proceedings when the influential South Carolina delegate declared that he was against “establishing any national tribunal except a single supreme one.” Rutledge was immediately seconded by Roger Sherman of Connecticut, Ellsworth’s political mentor. According to James Madison’s notes, Sherman, an eighteenth-century fiscal conservative, “dwelt chiefly on the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose.”2

The delegates, in short, had no trouble creating a Supreme Court, but they were split over the proper number of lower federal courts. As with other matters, the rival camps reached a compromise.

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