On May 28, 1787, Ellsworth joined the Constitutional Convention in Philadelphia as a delegate from Connecticut along with Roger Sherman and William Samuel Johnson. More than half of the 55 delegates were lawyers, eight of whom, including both Ellsworth and Sherman, had previous experience as judges conversant with legal discourse. Ellsworth in particular played an important role in having participated in the exclusion of judicial review from the Constitution at the Convention and later in having put it into force in the 1789 Judiciary Act.
Ellsworth took an active part in the proceedings beginning on June 20, when he proposed the use of the name, the United States, to identify our nation under the authority of the Constitution. The words "United States" had already been used in the Declaration of Independence and Articles of Confederation as well as Thomas Paine's The American Crisis. It was Ellsworth's proposal to retain the earlier wording in order to sustain the emphasis on a cooperative federation rather than a single national entity. Three weeks earlier, on May 30, 1787, Edmund Randolph of Virginia had moved to create a "national government" consisting of a supreme legislative, an executive and a judiciary. Ellsworth accepted Randolph's notion of a threefold division, but moved to strike the phrase "national government." From this day forward the "United States" was the official title used in the Convention to designate the government, and this usage has remained in effect ever since. The complete name, "the United States of America," had already been featured by Paine, and its inclusion in the Constitution was the responsibility of Gouverneur Morris when he made the final editorial changes in the Constitution.
Ellsworth played a major role in the passage of the Connecticut Plan. During debate on the Great Compromise, often described as the Connecticut Compromise, he joined his fellow Connecticut delegate Roger Sherman in proposing the bicameral arrangement whereby members of the Senate would be elected by state legislatures as indicated in Article I, Section 3 of the Constitution. Ellsworth's version of the compromise was adopted by the Convention, but it was much later revised by Amendment XVII to substitute a popular vote similar to what was used for the House of Representatives.
Needed to gain the passage of the Connecticut Plan was the support of the three southern states, Georgia and the two Carolinas, additional to the small state coalition of the North. It therefore be no surprise that Ellsworth favored the Three-Fifths Compromise on the enumeration of slaves and opposed the abolition of the foreign [slave trade]. Stressing the fact that he had no slaves of his own, he spoke twice before the Convention, on August 21 and 22, in defense of slavery as an issue to be limited to state authority, thus permitted by the Constitution. His intention was probably to help secure the support of the Southern States that was needed to obtain the acceptance of the Connecticut Compromise in order to avoid a complete breakdown in the Convention. By cooperating with the states of Georgia and North and South Carolina regarding slavery, the northern states inclusive of Connecticut secured the needed majority to save the Convention from falling apart.
Along with James Wilson, John Rutledge, Edmund Randolph, and Nathaniel Gorham, Ellsworth served on the Committee of Detail that prepared the first draft of the Constitution based on resolutions already passed by the Convention. All other deliberations of the Convention were interrupted from July 26 to August 6, 1787, while the Committee of Detail completed its task. The two preliminary drafts that have survived as well as the text of the Constitution submitted to the Convention were in the handwriting of Wilson and/or Randolph. However, Ellsworth's role in its compilation would be indicated by his 53 contributions to the Convention as a whole from August 6 to 23, when he departed from the Convention for business reasons. As tabulated by Madison in his Records, only James Madison and Gouverneur Morris spoke up more than Ellsworth during these sixteen days.
Though Ellsworth left the Convention near the end of August and did not sign the final document, he wrote the Letters of a Landholder to promote its ratification. He also played a dominant role in Connecticut's 1788 ratification convention, during which he emphasized the benefits of judicial review as a guarantee of federal sovereignty. It seems more than a coincidence that both he and Wilson served as members of the Committee of Detail without mentioning judicial review in the initial draft of the Constitution, but then stressed its central importance at their ratifying conventions just a year preceding its inclusion by Ellsworth in the Judiciary Act of 1789.
Ellsworth's first project was the Judiciary Act, described as Senate Bill No. 1, which effectively supplemented Article III in the Constitution by establishing a hierarchical arrangement among state and federal courts. Years later Madison stated, "It may be taken for certain that the bill organizing the judicial department originated in his [Ellsworth's] draft, and that it was not materially changed in its passage into law."[Brown, 185] Ellsworth himself probably wrote Section 25, the most important component of the Judiciary Act. This gave the Federal Supreme Court the power to veto state supreme court decisions supportive of state laws in conflict with the U.S. Constitution. All state and local laws accepted by state supreme courts could be appealed to the federal Supreme Court, which was given the authority, if it chose, to deny them for being unconstitutional. State and local laws rejected by state supreme courts could not be appealed in this manner; only the laws accepted by these courts could be appealed. This seemingly modest specification provided the federal government with its only effective authority over state government at the time. In effect, judicial review supplanted Congressional Review, which Madison had unsuccessfully proposed four times at the Convention to guarantee federal sovereignty. Granting the federal government this much authority was apparently rejected because its potential misuse could later be used to reject the Constitution at State Ratifying Conventions. Upon the completion of these conventions the previous year, Ellsworth was in the position to render the sovereignty of the federal government defensible, but through judicial review instead of congressional review.
Once the Judiciary Act was adopted by the Senate, Ellsworth sponsored the Senate's acceptance of the Bill of Rights promoted by Madison in the House of Representatives. Significantly, Madison sponsored the Judiciary Act in the House at the same time. Combined, Judiciary Act and Bill of Rights gave the Constitution the "teeth" that had been missing in the Articles of Confederation. Judicial Review guaranteed the federal government's sovereignty, whereas the Bill of Rights guaranteed the protection of states and citizens from the misuse of this sovereignty by the federal government. The Judiciary Act and Bill of Rights thus counterbalanced each other, each guaranteeing respite from the excesses of the other. However, with the passage of the Fourteenth Amendment in 1865, seventy-five years later, the Bill of Rights could be brought to bear at all levels of government as interpreted by the judiciary with final appeal to the Supreme Court. Needless to say, this had not been the original intention of either Madison or Ellsworth.
Ellsworth was the principal exponent in the Senate of Hamilton's economic program, having served on at least four committees dealing with budgetary issues. `These issues included the passage of Hamilton's plan for funding the national debt, the incorporation of the First Bank of the United States, and the bargain whereby state debts were assumed in return for locating the capital to the south (today the District of Columbia). Ellsworth's other achievements included framing the measure that admitted North Carolina to the Union, devising the non-intercourse act that forced Rhode Island to join the union, and drawing up the bill to regulate the consular service. He also played a major role in convincing President Washington to send John Jay to England to negotiate the 1794 Jay Treaty that prevented warfare with England, settled debts between the two nations, and gave American settlers better access to the midwest.
In the spring of 1796, Ellsworth was appointed Chief Justice of the United States, but his contribution was brief and deservedly overshadowed by the accomplishments of his successor, John Marshall, who succeeded him in 1800.
Ellsworth was a candidate in the 1796 United States presidential election, receiving eleven votes in the electoral college, sharing with John Adams the distinction of gaining most votes in both New Hampshire and Rhode Island.
As United States Envoy Extraordinary to the Court of France, Ellsworth led a delegation there between 1799 and 1800 in order to settle differences with Napoleon's government regarding restrictions on U.S. shipping that might otherwise have led to military conflict between the two nations. The agreement accepted by Ellsworth provoked indignation among Americans for being too generous to Napoleon. Moreover, Ellsworth came down with a severe illness resulting from his travel across the Atlantic, and the Federalist party had fallen into disarray and was easily defeated by Republicans led by Jefferson. As a result, Ellsworth retired from national public life upon his return to America in early 1801. He was nevertheless able to serve again on the Connecticut Governor's Council until he died in Windsor in 1807. He is buried in the cemetery of the First Church of Windsor. It is entirely a matter of speculation, but Ellsworth's conciliatory negotiations with Napoleon might have contributed to Napoleon's sudden choice three years later to sell the Louisiana Territory to the United States for $15 million.
In retrospect, Ellsworth's role in helping to establish the United States as a viable sovereign nation was important but could be easily overlooked. A good part of the reason for this was that he did not distinguish himself as an orator but worked as much as possible behind the scenes. He was said to have been dominant in his eloquence at the January, 1788, Connecticut Ratifying Convention, but later as the de facto Senate majority leader he seems to have kept his arguments relatively short and to the point. His written prose could on occasion be tortuous, as best illustrated by the operative sentence in Section 25 of the Judiciary Act (the second of only two sentences). Over three hundred words long, this sentence is almost impossible to decipher as an explanation how state courts were answerable to federal authority. But perhaps this opacity was intentional, since the expansion of federal power specified by Section 25 was mostly overlooked in debate both in the Senate and House of Representatives despite having been the most important and potentially controversial portion of the Judiciary Act.
That Ellsworth promoted the federal government as a unified confederacy without the limitations imposed by the Articles of Confederation enhanced his popularity during the first several decades of our nation's history, especially in the South preceding the Civil War. In 1847, thirteen years before the Civil War, John Calhoun praised Ellsworth as the first of three Founding Fathers (including Sherman and Paterson) who gave the United States "the best government instead of the worst and most intolerable on the earth." [Brown, 164-65] However, rapid industrialization and the centralization of our national government since the Civil War have led to the almost complete neglect of Ellsworth's pivotal contribution at the inception of our government. Few today know much of anything about him. The one full-length biography by William Garrott Brown, published in 1905 and reprinted in 1970, is excellent but difficult to obtain.
Ellsworth's twin sons followed their father in public service. William Wolcott Ellsworth married a daughter of Noah Webster and became Governor of the State of Connecticut. His twin brother, Henry Leavitt Ellsworth, became mayor of Hartford, then the first commissioner of the U.S. Patent Office, and later the president of Aetna Life Insurance Company. He was influential in the creation of Agriculture Department, and he was appointed by President Jackson to supervise the so-called Trail of Tears, the transfer of Cherokee Indians from Georgia to the Oklahoma Territory that cost approximately 4,000 lives. Henry Leavitt was also a friend of the inventor Samuel Morse, and his daughter Annie Ellsworth proposed the first message transmitted by Morse over the telegraph, "What hath God wrought?"
Even if Ellsworth was viewed as "a valuable acquisition ot the Court," and "a great loss to the Senate," he resigned after just 4 years due to his "constant, and at times excruciating pains," sufferings made worst by his Europe travels, as special envoy to France.