Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society. Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale behind what he calls “Marshallian federalism” Barber is at his best. Marshall advocated an “ends-oriented constitutionalism.” (16) He believed that the US government was limited in the sense that the government was confined to seek the ends set forth in the Constitution. Marshall’s “positive understanding” (32) of government power sought to help secure the people’s happiness and to instruct them as to their “true interests.” (19) Marshall defended “implied national powers, liberal construction of national power, and national legislative supremacy.” (52) In the midst of this celebration of expansive power, Barber admits, “Under the right circumstances, any and every area of social life could become subjects of concern to policy makers working for ends like national security and prosperity.” (44) Barber then scales back this claim by insisting that Marshallian federalism includes a “rule against pretexts,” meaning that Congress could not pass laws “whose actual motivating purpose is different from its stated purpose.” (68-69) This would guarantee limited “in the sense of properly motivated” government. Barber clearly identifies the presuppositions of “Marshallian federalism”: “a national community that predates the Constitution,” the responsibility of “the national government… for facilitation or securing” the “community’s controlling values,” and the denial that “individual states can lawfully avoid the burdens of pursuing these values.” (50) Nationalism presupposes a certain kind of American society – a Lockean liberal society (65) – and uses the power of the federal government to enforce it. Barber holds that the ends of Marshall’s nationalism “include national security, national prosperity, equal opportunity, and a secular and rationalist political culture.” (51) He mentions later that current Marshallian federalists should be motivated “by the values of today’s progressive liberals.” (68)
Barber criticizes two competitors to his Marshallian federalism as inadequate for fulfilling the promise of the US Constitution. Process federalism and dual federalism embrace a “constitutionalism of institutions and rights” instead of Marshall’s “constitutionalism of ends.” (21) Both, according to Barber, rely on skepticism about the ends of good government. Process federalists desire to protect individual rights through national political action irrespective of ends. (15) Barber believes the skepticism about proper ends makes process federalism indefensible. So too with dual federalism. Barber attacks the five defenses of dual federalism offered by Sandra Day O’Conner in Gregory v. Ashcroft (1991). O’Conner argued decentralization worked better for a “heterogeneous society,” increased democratic participation, allowed for experimentation in state government, allowed states to develop better policies through competition for citizens, and checked “abusive power.” (94-95) Barber attempts to refute all five. He gives many arguments, some of them complex, but essentially his complaint is that defending dual federalism is protecting a means rather than an end. Barber’s nationalism, by committing itself to ends, works best. He contends that “the ambiguities of the nation’s constitutional text and history make responsible choice” among constitutional theories “depend on an argument – a showing that one theory is best for the country.” (172) By rejecting outright the traditional appeal to history because of its supposed ambiguities, Barber forces process federalists and dual federalists to make national arguments about ends, bringing the argument into the realm of philosophy and political science. (120) Thus Barber rejects the approach of his nationalist heroes Marshall and Abraham Lincoln who appealed to history for their nationalist views of the Union. (143)
Barber fails to appreciate fully important justifications that supporters of states’ rights in the Early Republic used to defend their position. Historian Douglas Bradburn remarked in his recent book on American citizenship, “Supporters of the decentralized nature of American nationhood considered the arrangement a fulfillment of the promises of the Revolution of ’76 – as the best protection of the natural rights of man, the purpose of all government.” “And anyone,” continues Bradburn, “who called for a strong national state or encouraged a national standard for American citizenship dissented from the common view.” That would include Barber’s champion, John Marshall. Many advocates of states’ rights argued that the United States had divided power wisely in order to prevent consolidated power. A strong national center, left unchecked by a strict division of powers, could sometimes do good things, but most often, given the flawed nature of man, could do even greater evil. Thus states’ rights was an institutional arrangement to protect liberty. Citing Madison in Federalist 40 and 45, Barber claims that it is irrational for anyone to defend an institutional arrangement of government against doing what is good. (3-4, 7, 21) But many people working in constitutional systems do just this. Take James Madison’s veto of the Bonus Bill, which funded internal improvements, in 1817:
“I am not unaware of the great importance of roads and canals and the improved
navigation of water courses, and that a power in the national legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition between the general and the state governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it….”
Madison’s view was not uncommon. In fact many American republicans believed that only a virtuous citizenry, people willing to sacrifice for a greater good, would be able to preserve liberty and prevent the destructive consolidation of power.
In addition, Barber does not seem to understand the view of union in the thought of early states’ rights thinkers. He mentions several times that states’ righters will lose any debate in which they enter on a national scale because “the practice of exchanging reasons assumes what states’ righters implicitly deny: that Americans are united in a common good or in the quest for a common good.” (17) Barber seems to think that the states’ rights school believed that Americans owed all of their allegiance to the states. For example, he castigates John C. Calhoun for serving as vice-president, secretary of war, secretary of state, and as a US Congressman. Calhoun’s public service “justify doubt that Calhoun saw himself as a Carolinian only, instead of a Caroline-American.” (12) This is an odd point and presumes that states’ righters were somehow unpatriotic, a common nationalist slur, instead of those who fought in the American Revolution and built republican governments throughout the United States. Barber correctly points out that Calhoun (and other states’ righters) possessed a conception of liberty that was national in scope. In other words, Calhoun expected that all Americans must accept his view of liberty in order for it to work. (This fact would undermine Barber’s claim that dual federalism is a “constitutionalism of institutions and rights” rather than a “constitutionalism of ends.”) The states’ rights school did not see itself as separate from the union. In fact, the theory of states’ rights presumed a union that divided power between a general government and component governments. The question was how to balance these powers. For states’ righters the Union was a means to preserve liberty, the goal of republican governments, not an end in itself.
Although nationalists like Barber view calls for states’ rights as “antiliberal,” the early advocates of states’ rights and corollary ideas such as nullification viewed themselves as fulfilling just and liberal ends. (51, 146-7, 192) Three events from the Early Republic question his portrayal. Take the Virginia and Kentucky Resolutions. Jefferson and Madison, facing a federal government dominated by Federalists in all three branches, used the ideas of nullification and interposition to protect politicians and journalists from being arrested for criticizing or ridiculing the federal government. The Federalists possessed a legal defense of the Sedition Act, but it certainly seemed to fail a common sense reading of the First Amendment. Liberals throughout the eighteenth and nineteenth centuries defended freedom of speech as a fundamental political right. Secondly, the nullification controversy in South Carolina concerned another pet liberal idea of the nineteenth century, free trade. The nationalists of the early 1830s tended to support the “American System” of Henry Clay of which a protective tariff was part. The nationalists were thus on the side of neo-mercantilism and economic protectionism, a kind of “crony capitalism” and a throwback to the European imperial policies of the colonial world. Certainly nullifiers were also concerned about the issue of slavery, but the tariff as an economic issue concerned the debate between freed trade and mercantilism. The nullifiers took the classical liberal side. Thirdly, the case of Wisconsin’s approach in the 1850s to the Fugitive Slave law can hardly be described as antiliberal or racist. Refusing to turn over human beings who had escaped the horrors of enslavement, Wisconsin nullified the Fugitive Slave Act in 1859. Attachment to a states’ rights interpretation of the Constitution knew no regional home as scholars have increasingly demonstrated. Northern and southern politicians invoked states’ rights, often when it suited their interests and sometimes on matters of principle. Barber’s failure to discuss adequately the history of states’ rights in the Early Republic is the major weakness of the book.
Barber has written a helpful book to reveal clearly the rationale of nationalism. While he condemns the originalism of the states’ rights school (45-46), he relies on his own originalism, a commitment to what he calls “secular public reasonableness,” as the unalterable, “unamendable” foundation of the American constitutional system. (184) He defines it, quoting Federalist 1, as “the disposition to establish a maintain ‘government from reflection and choice.’” (184) But it is much more than that. Barber believes that the American Constitution was the triumph of secularism and bourgeois liberalism. It must be defended against all threats, particularly from the “Religious Right,” those who place “blind” faith in “market forces,” “homophobia masked as tradition, and dogmatism of all varieties” (except, of course, the dogmas of progressive liberalism). (192) Barber believes that a revival of states’ rights constitutionalism will doom the Republic:
“States’ rights federalism in our time will not mean what it meant in the nineteenth century. Because the states cannot hope to govern business corporations gone global on the shoulders of modern technology, states’ rights in our time will achieve what the original states’ righters feared most: rule by a monied elite. This monied power will become a government unto itself whose logic precludes the idea of social justice and makes government an agent of those who were lucky enough to get there first.” (208)
Barber’s concern is a good one. But ironically, it was the nationalism he celebrates that allowed for such a situation to transpire. The fact that nationalists have failed to control the powerful institutions they helped to create and legally protect means that the old states’ rights warnings against all consolidated power were prescient.
 Douglas Bradburn, The Citizenship Revolution: Politics and the Creation of the American Union, 1774-1804. (Charlottesville: University of Virginia Press, 2009), 2.
 The speech is reprinted in: TheAnnals of America, volume 4 (Chicago: Encyclopedia Britannica, 1968), 463.
 Many works have documented the points I make in this paragraph. See the following three for examples: Kevin Gutzman, Virginia’s American Revolution (Lanham, Maryland: Lexington Books, 2007). John F. Devanny, Jr., “A Loathing of Public Debt, Taxes, and Excises: The Political Economy of John Randolph of Roanoke,” Virginia Magazine of History and Biography 109 (2001): 387-416. Thomas Woods, Jr., Nullification (Washington, DC: Regnery, 2010), 59-86.
Gordon Lloyd has spent much of his career studying the Founding period. One of the many fruits of his diligent work has been his four excellent websites designed to teach the Philadelphia Convention, the Federalist-Antifederalist debates, the Ratification Conventions, and the Bill of Rights to students. To say that Lloyd knows the Founding well is an understatement. In his essay, Lloyd argues that a return to the thought of the Founders, who envisioned a federal republic, is a potential solution to confronting the Neo-Progressives who promote a national democracy, a “centralized Administrative State,” an imperial presidency, and an activist judiciary. He notes, however, that the usual parsing of The Federalist will not suffice because the current problem is “actually a perversion of the good government-good administration teaching” of that work. Instead he offers the Antifederalists, which, in contradistinction to much of the historiography on the Founding, he construes as a coherent group. “My Antifederalists,” Lloyd writes, “are a composite of Agrippa, Brutus, Cato, Centinel, Federal Farmer, Old Whig, Plebian, and Melancton Smith.” Antifederalism, for Lloyd, reminds Americans “that free government means limited government.” They demonstrated that “the form of government and the means by which power is exercised matter when we are talking about securing the blessings of liberty.” Given Lloyd’s stated political goals, reviving the Federalism of the ratification conventions rather than Antifederalism would better serve his agenda.
As Lloyd indicates many scholars, especially those sympathetic to certain Antifederalist concerns, have noted that the Antifederalists carry an undeservingly bad reputation. Their reputation cemented their place in the narrative of American history as losers. During the nineteenth century nationalists sometimes called their opponents Antifederalists, especially when these opponents cited state sovereignty, states’ rights, or an attachment to a view of the United States as a confederation of states. By labeling these ideas as “antifederal,” the nationalists condemned them to the failed past, to a Lost Cause. The Antifederalists lost. Thus their ideas lost as well. Anyone who revives these ideas is invoking failed doctrines that had been tried, proved wanting, and were replaced by the far-sighted nationalists who wrote and ratified the U.S. Constitution. By definition, then, the real Americans – the ones that matter today – are the nationalists who wisely foresaw an immensely powerful federal government that could advance the cause of justice (however defined) over whatever area it wished to act. Antifederalists and their descendants, usually fingered as southern states’ righters, hinder progress and are best ridiculed or ignored.
In reality, the story of Antifederalism and ratification was much more complex. Pauline Maier’s recent tome Ratification: The People Debate the Constitution (2010) offers some interesting examples that hint at a different account. Most importantly, as Maier notes, neither the Federalists nor the Antifederalists of the ratification battles were monolithic in their concerns or strategies. Some Federalists were strongly nationalistic; some were not. Some Antifederalists wanted a weak federal government; some wanted a strong, but strictly limited, one. One, therefore, must ask who exactly one means by “Antifederalists” or “Federalists.” All too often scholars lean on Brutus, Centinel, and Federal Farmer to express Antifederalism and The Federalist Papers, which Maier suggests influenced relatively few people during ratification, to encompass the Federalist side. If the story was more complicated and the two sides more diverse, then the way one reads the Federalist-Antifederalist rhetoric must change from regarding the documents as representations of two sides in a debate over political philosophy to a multi-layered conversation among groups responding, often philosophically, to the questions of the moment. Reading the debates in context of the public conversation over ratification produces a different narrative.
The issue of state sovereignty provides one lens through which to appreciate the complexity of ratification and address Lloyd’s political concerns about centralization. Positions on state sovereignty and its exact meaning varied greatly during the 1780s despite the ubiquitous use the term. Nevertheless, Antifederalists expressed concern in state after state that the new Constitution, through the consolidation of power, would destroy the sovereignty of the states (which had been encapsulated in Article II of the Articles of Confederation, the so-called Burke Amendment). Federalists at the ratification conventions in many states answered the Antifederalists’ concerns by denying such a threat existed. As Maier shows, the Federalists in states such as Virginia and New York worried that the Antifederalists represented the views of the majority. Thus, Federalists needed to assuage the fears of Antifederalists in order to secure ratification. Federalists allowed, and in some states encouraged, Antifederalists to suggest amendments to the Constitution and even included these in official ratification statements for the new Congress to consider (though, as Lloyd emphasizes, conditional ratification was rejected). In most states, Antifederalists included a modified Burke Amendment in their suggestions, which eventually found its way into the Ninth and Tenth Amendments to the U.S. Constitution.
Some scholars have argued that Federalist rhetoric in many of the ratification conventions contributed greatly to states’ rights constitutionalism in the Early Republic. When Antifederalists complained that the new Constitution would bring consolidation and destroy state sovereignty, Federalists assured them that their fears were greatly exaggerated. This happened in state convention after state convention. Thus, when the ratification conventions approved the new Constitution, many delegates trusted that the interpretations offered by the Constitution’s defenders would hold. (Lloyd refers to a similar type of exchange in his discussion of the judiciary and Federalist #78.) Maier notes this dynamic in Virginia, but it also applied to Pennsylvania, whose ratification convention was hardly an open, democratic process. Federalists in Pennsylvania, as Maier tells it, tried to suppress Antifederalist editorials in the press and refused to record their speeches at the ratification convention. Stung by the unfair process of ratification in the state, Antifederalists reacted by publishing a diatribe against the Federalists and calling immediately for amendments. Federalists such as George Washington were bothered, and in later ratification conventions, Antifederalists were freer to express their concerns.
Some Federalists in Pennsylvania responded by allaying Antifederalist fears. Tench Coxe, in several essays, assured Antifederalists that the new Constitution was not a consolidated government and would not destroy the sovereignty of the states. He noted in his September 1788 essays written under the title “An American Citizen” that U.S. Senators would “be chosen by the legislature of a free, sovereign, and independent state,” a conscious use of the language of the Burke Amendment. In his essays under the title of “A Freeman,” addressed to disgruntled Pennsylvania Antifederalists in January and February 1788, he insisted that the new government would not extinguish the states and was constructed on the sovereign states. John Dickinson, writing under the pseudonym “Fabius” in neighboring Delaware, noted in 1788 that the states were the ones who could (that is, they had the power to) defend themselves from any future aggression by the general government. Coxe listed the many powers of the states and concluded that powers had been divided under the new Constitution between the state and federal governments. A consolidation had not occurred. Coxe and Dickinson sounded much like later defenders of states’ rights.
The rhetoric of state sovereignty was not the invention of Antifederalists but rather the public sentiments of the majority of the convention delegates, both Federalists and Antifederalists. The Federalists affirmed state sovereignty, though often qualifying the meaning of the concept, while defending the Constitution. Many Antifederalists took them at their word and hoped that future amendments would clarify any remaining ambiguities. As Lloyd mentioned, “The Antifederalists had, in fact, been incorporated within the new American System.” In 1789 hard-core nationalists like James Wilson, Rufus King, and Alexander Hamilton could hold private beliefs that the states were not sovereign, but in the public debates during the ratification conventions and in the press, many of their Federalist allies had disagreed with that perspective. The nationalist position of a consolidated union with relatively powerless, non-sovereign states was the position of a small minority. It seems logical to conclude that if the Federalists had tried to gain ratification in each of the thirteen states by proclaiming the private beliefs of extreme nationalists, the Constitution would not have been ratified. Even Hamilton referred to the union as a “confederate republic” in Federalist #9, a conscious use of the language of the majority.
The people of the several states ratified the Constitution believing that the new document improved the operation of the federal government without destroying the sovereignty of the people of the states. Later, nationalists began to claim that the states were not sovereign and that the national government possessed the final word on all constitutional matters. Many, including men like Madison and Jefferson who had supported ratification in 1788, felt betrayed. Nationalists had forgotten (or ignored) the promises made during ratification.
At least two plausible possibilities exist to explain the political break up after the ratification conventions. First, the Federalists were dishonest in their affirmations of state sovereignty during the ratification contest. Pauline Maier relates the story of young John Quincy Adams listening to the stories of Theophilus Parsons, a Massachusetts Federalist who had attended the state’s ratification convention, about the tricks pulled on the Antifederalists in order to gain ratification. Adams regarded the supposed “tricks” as “meanness,” and in the words of Maier “made them a strange basis for boasting.” Indeed, if the success of the Federalists was based on lies and deception, then the legitimacy of the Republic, as Washington had realized after the Pennsylvania ratification debacle, could be called into question. Second, recalling Maier’s depiction of Federalists as a heterogeneous group, the Federalists, because they never really agreed with each other’s broader goals, divided ideologically after the Constitution went into effect. Nationalists, the most outspoken group, received most of the attention and thus gave the impression that the Federalist position had been, indeed, nationalism.
One’s view of the ratification conventions and their aftermath shapes one’s portrayal of the rest of American political and constitutional history. If the sovereignty of the people of the states was the default position, a foundation of the revolutionary settlement expressed during the ratification conventions, then the story of the Early Republic becomes one of declension – how the Republic devolved into centralism and consolidation. That story came to be told by Americans who maintained belief in a federal republic and often repeated the Antifederalist warnings that Lloyd recounts so well. If Federalist unity on the narrow goal of ratification covered a multitude of broader political positions, then the subsequent narrative of American history becomes more complex. One would have to explain how the Federalist coalition came apart and track the results of such a fracture. Here, Antifederalist polemics, though applicable when taking the long view, might not explain historical and constitutional change. Both narratives are related, however, in that they identify centralization as a consequence of American constitutional development.
If Gordon Lloyd desires a federal government that obeys the Constitution as understood by the majority sentiments of the ratifiers, reviving Antifederalism might not be his best choice. Invoking Antifederalists, despite his efforts to salvage their reputation, probably will be counterproductive. Perhaps more Federalism as expressed by the majority public sentiments of the Federalists during the ratification process would be a better choice. If one desires, however, a more decentralized republican system, then one could invoke the spirit of the Antifederalists, many of whom recognized that self-government works best on a smaller, human scale. But that is a different issue, one which, in his efforts to push away from Calhoun and the Jeffersonians in his essay, Lloyd hints at but does not entertain.
 Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 92-95. Saul Cornell has also focused upon the diversity within Antifederalism in his The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina Press, 1999).
 For her point on The Federalist, see Ratification, 84-85.
 Forrest McDonald, E Pluribus Unum: The Formation of the American Republic, 1776-1790, 2nd edition (Indianapolis: Liberty Fund, 1979), 311-313. Walter Bennett, American Theories of Federalism (Tuscaloosa: University of Alabama Press, 1964), 46, 78. Aaron N. Coleman, “Debating the Nature of State Sovereignty: Nationalists, State Sovereigntists, and the Treaty of Paris (1783),” The Journal of the Historical Society 12, no. 3 (September 2012): 309-340.
 Maier, Ratification, 256, 293, 341.
 See especially, M.E. Bradford, Original Intentions: On the Making and Ratification of the US Constitution (Athens, GA: University of Georgia Press, 1993). Kevin R. C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” The Review of Politics 66, no. 3 (Summer 2004): 469-497. W. Kirk Wood, Nullification, A Constitutional History, 1776-1833, Volume 1 (Lanham, MY: University Press of America, 2008), 40-63.
 Maier, Ratification, 297-298, 98-122.
 Maier, Ratification, 116-120.
 Maier, Ratification, 127.
 Coxe’s essays are reprinted in Friends of the Constitution: Writings of the ‘Other’ Federalists, 1787-1788, eds. Colleen A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1998), 475.
 Reprinted in: Friends of the Constitution, 88-101.
 Reprinted in: Friends of the Constitution, 69.
 Reprinted in: Friends of the Constitution, 101. See also: Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776-1876 (Lawrence: University Press of Kansas, 2000), 7-25.
 Maier, Ratification, 209.
 See Forrest McDonald and Ellen Shapiro McDonald, “Federalism in America: An Obituary,” in Requiem: Variations on Eighteenth-Century Themes (Lawrence: University Press of Kansas, 1988), 195-206.
 See Donald Livingston, “American Republicanism and the Forgotten Question of Size,” in Rethinking the American Union for the Twenty-First Century (Gretna, LA: Pelican Publishing, 2012), 125-165.
In response to: The Constitutional Liberty of the Antifederalists
Gordon Lloyd persuades us to arm our resistance to bureaucratic, total government today by appealing to the Antifederalists of the founding era. “The constitutional impediments to the completion of the Progressive national democracy project actually rest on promoting the Antifederalist rather than the Federalist features of the Constitution and Bill of Rights.” Presumably, Lloyd means…
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).