Philadelphia Reflections

Marshall's Predecessor, Oliver Ellsworth

Judiciary Act of 1789. Sec. 25. That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceedings upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

Section 25 (In Full)

Oliver Ellsworth was a scion of several old Connecticut families, had nine children who were not only distinguished themselves, but whose descendants were similarly gifted, rich, and important members of New England society. The Ellsworth give every sign of possessing a very good gene pool. Unfortunately, Oliver's last years were agonized by some disease which gave him constant and sometimes excruciating pain making him terse and abrupt; eventually, he had to resign as Chief Justice after an unbearable recrudescence of his disease. His career almost reads as if he designed it to prepare the Chief Justice's role for his own enjoyment, but instead had to turn it over to John Marshall to enjoy. Associate Justice Joseph Story's career, in turn, reads as though he had been groomed to evangelize Ellsworth and Marshall's Constitutional achievements. Without Story's prolific writing all this Judicial revolution would merely have taken second place in public attention, competing with convulsive political battles, the shooting of Hamilton by Burr, wars and near-wars with European powers, dramatic increases in the population and land mass of the United States, a populace delirious with notions of its own sovereignty, and The Industrial Revolution. Publicity might not have been necessary in a calm, peaceful world, one with time and communication systems allowing public notice of what was happening.

Oliver Ellsworth had been a member of the Continental Congress, was an ardent rebel against British rule, had a flourishing law practice in Windsor, Connecticut, and later in George Washington's presidency was a leader in promoting Hamilton's economic and banking upheaval. He was, so to speak, Mr. Federalist. During the First Congress, he quickly invented and exercised the role we now would describe as Senate majority leader. Like others who had participated in the political science seminar we now call the Constitutional Convention, he had already formed his political beliefs, and when Congress finally opened, he hit the ground running. To understand Ellsworth however, is to understand his deeply-held preference for secrecy, which his opponents characterized as deviousness. He much preferred private negotiations to persuasive oratory, and for five years was able to prevent the Senate from having either minutes or visitors. In this instance, he began his negotiations about the Judiciary Act with James Madison, ostensibly about the Bill of Rights, which was the main activity in the House of Representatives at the moment. No wonder Senator Maclay of Pennsylvania said of Ellsworth, "He will absolutely say anything, nor can I believe he has a particle of principle in his composition," and "I can in truth pronounce him one of the most uncandid men I ever knew possessing such abilities."

On four occasions during the Constitutional Convention, Madison had proposed and been defeated on motions to create Congressional Review of State Laws, that is, the ability of Congress to declare State Laws unconstitutional. Ellsworth, fearing it would jeopardize state ratification of the new constitution, opposed and helped defeat the motions. Now, things were different, and Ellsworth negotiated Senate agreement to much the same idea, provided it could be changed to Judicial Review, and also provided the House of Representatives would agree to pass the Judiciary Act currently under development in the Senate. The deal was made, and both bills were duly passed. Whether Madison or anyone else understood what was in the Judiciary Act, is now unclear. Accordingly, the two-sentence Section 25 of the Judiciary Act of 1789 is appended for individual reader appraisal. In essence, it says the U.S. Supreme Court may hold unconstitutional a decision of a state supreme court to reject an appeal from an unconstitutional act. That is, the 25th section of a bill to organize and coordinate the Federal and State Court systems contained a mysteriously written, two sentence, a transformation of Congressional Review into Judicial Review. From this point onward, the U.S. Supreme Court was empowered -- by Congress -- to declare state laws unconstitutional. Wrapped in the same bicameral deal was an implicit subtle shift in emphasis of the Bill of Rights from protecting the States from the federal government, to one of protecting the people from any and all government over-reaching. It was a noble achievement, facilitated by some questionable maneuvers by the umpires to help it along.

Originally published: Thursday, August 02, 2012; most-recently modified: Thursday, May 23, 2019