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Wednesday, April 29, 2015

"It certainly is a vile law system, calculated for expense..."

Hey, so it's Oliver Ellsworth's birthday.  Who?   Why, Oliver Ellsworth of Connecticut, born in 1745.  Not a Founder most people know, but some should have a real love/hate relationship with him

Let's start with the Constitutional Convention in Philly on May 30, 1787, when Edmund Randolph proposed "that a national Government ought to be established."  This was recapitulated on June 19 with quite a number of additional proposed resolutions:

1. Resolved that it is the opinion of this Committee that a national government ought to be established consisting of a Supreme Legislative, Judiciary, and Executive.

2. Resolved. that the national Legislature ought to consist of Two Branches.

3 Resolved that the members of the first branch of the national Legislature ought...

4 Resolved. that the members of the second Branch of the national Legislature ought...

Yadayadayada, lots of "national" this and "national" that.  Which concerned Ellsworth who moved on June 20:

to alter [the first proposal] so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary." This alteration he said would drop the word national, and retain the proper title "the United States."

He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment to the articles of Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions.

And thus the Government of the United States got its name, as well as its federal (as opposed to national) form.  So thanks, Activist Judge Ellsworth, I guess.  Our States' Rightsers like Ted Cruz should love him for that.

Yet oddly enough, he was fairly involved in debates about what we would call judicial review today.  After Philadelphia, he was prominent in the Connecticut Ratification Convention, and observed:

If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the federal government the law is void; and upright, independent judges will declare it to be so.

So naturally, he was the principle author of the Judiciary Act of 1789, which further cemented the role of our Judiciary in reviewing the law (annoying conservatives of the day like Maclay).  And it was Chief Justice Ellsworth's SCOTUS that ruled in favor of Hamiltonian construction (sorry, Jemmy) regarding our nation's first luxury tax (which the Roberts Court referenced when upholding Obamacare's mandate/penalty).

An interesting guy, who was instrumental in giving us an important component of constitutional law.  With that pedigree, this might be why Ted Cruz et al (not to mention Texas history books) don't speak of Ellsworth.  

Makes me dig him that much more...


April 29, 2015 in Constitution, Schmonstitution | Permalink


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