1,700 words
There are two compact theories fundamental to American political philosophy, at least prior to the Antebellum Period. The first, the Social Compact Theory, came straight from Europe. The other, the Compact Theory of States is more unique to the United States and Canada and is the subject of this blog piece. In essence, the theory is this: The Constitution is a compact between otherwise sovereign states, that those states may nullify Federal law within their boundaries if the law be deemed unconstitutional, that states have the right to judge law as unconstitutional or not as it relates to their jurisdiction, and finally that states retain the right of secession as a last resort against Federal overreach.
The Social Compact Theory was championed by US founders of the Democratic-Republican Party, such as James Madison and Thomas Jefferson. By necessity, however, its roots go back further than the Union. In the American colonial era, each of the original 13 states had been independent colonies. Though Englishmen and subjects of the British Crown, the peoples of these colonies had their own respective governors and legislatures. The only difference between the relations of Georgia and New York, for instance, and the relations between Georgia and Quebec would have been one of demographics. Not only were the colonies separate from each other, they were also distinctly separate from Great Britain. You have no doubt heard the slogan “No taxation without representation,” but that phrase is lacking in context in most instances. The consensus was that the British government had no right to tax the colonies at all, these colonies who had always governed themselves prior to the events leading to the Revolution and many of whose founders had voyaged across the Atlantic explicitly to escape European rule.
I will cite from the settlement of the Revolutionary War, the Treaty of Paris. “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States.” Note that each individual state of the time is listed as “independent” and “sovereign,” and that “viz” is an abbreviation of the Latin phrase videre licet, used to mean “that is to say.”
By the time the Constitutional Convention was called to resolve disputes and economic hardships, these states were already more or less unified under the articles of Confederation and Congress. Yet even so, it was not upon Congress to pass the Constitution of its own will. The Constitution had to be ratified in each state. If a state did not ratify the Constitution, the Constitution simply did not apply in that state. The condition thereof is paramount to the Compact Theory of States.
Consider also the Articles of Confederation. Although the Articles referred to the US as a “perpetual union,” Article II stated, “Each state retains sovereignty, freedom, and independence, and every Power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” The much-ignored Tenth Amendment of the Constitution mimics this language: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Bill of Rights—and the Tenth especially—were added to appease the anti-Federalist proponents of the Compact Theory.
We’ll move on to the Federalist administration of President John Adams. Adams signed into law the Alien and Sedition Act. Today, the act is considered in violation of the First Amendment as it outlawed criticizing the government, with the convenient exception of the vice president, who happened to be the Democratic-Republican (anti-Federalist) Thomas Jefferson. Reasonably enough, this outraged the Democratic Republicans, but their argument against the act was not quite the same as the contemporary condemnation. Jefferson and James Madison—writing the Virginia and Kentucky Resolutions in secret to avoid being arrested for their criticism of federal government—argued the act was unconstitutional not only because it violated a fundamental right but also because Congress did not have express authority to force such legislation on the states when the power was not listed in the Constitution nor “necessary and proper” in enforcing a power that was listed. They warned, “Let these Acts stand, that it might be necessary for the individual states of the Union to assert the powers they possessed under the Tenth Amendment, and then the states would declare these Acts void and of no force.”
Thus said the author of the Declaration of Independence and the Father of the Constitution in agreement. To their eyes, the consequences for abusing the Constitution were clear: Nullification or even secession. Madison wrote in the same document, “in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil.” Fortunately enough, this was not necessary as the Federalists lost the next election, and Jefferson himself became the third president of the United States in what he termed the “Revolution of 1800,” the first time our republic saw a peaceful transfer of power between political parties.
In a classic example of political hypocrisy, the Federalists changed their tune when they no longer held control of the federal government. The New England States (The affective domain of the Federalists) were already threatening secession themselves in protest of Jefferson’s 1807 embargo on “all foreign nations,” though especially targeted at Great Britain and France. It was increasingly ironic as, in 1815, the New England Federalist Party held the Hartford convention over concerns of increasing federal power and the still ongoing War of 1812. They demanded a Constitutional amendment that demanded two-thirds of Congress to admit new states, restrict trade, or declare war. It was only three days later, however, that Andrew Jackson’s victory at New Orleans spelled the end of the War of 1812, and the Federalist Party was never again a serious political force from that point on.
The Compact Theory would be reinforced when, after about 28 years of rule, the Democratic-Republicans began to lose influence. Particularly, by John C. Calhoun’s South Carolina Exposition and Protest, written by the then vice-president in protest against the 1828 Tariff of Abominations. To simplify, this tariff was perceived as benefiting the northern industrial states as the expense of the southern agrarian states. Calhoun wrote, “The facts are few and simple. The Constitution grants to Congress the power of imposing a duty on imports for revenue, which power is abused by being converted into an instrument of rearing up the industry of one section of the country on the ruins of another. The violation, then, consists in using a power granted for one object to advance another, and that by the sacrifice of the original object.” His state, South Carolina, then declared the tariff unconstitutional and therefore void within the jurisdiction of the state, thus beginning the Nullification Crisis.
The Federal response to Calhoun and South Carolina sent mixed signals. President Jackson threatened to invade any state that nullified the tariff and even to have Calhoun hanged. On the other hand, Congress passed the Compromise Tariff of 1833. South Carolina accepted the compromise and convened to repeal their nullification—but as a matter of principle, they also nullified the Force Bill that allowed Jackson to use force against them.
In 1860, however, South Carolina was back in rebellion. Their Ordinance of Secession after the election of Abraham Lincoln went, “In every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.” In other words, the United States had broken their contract (The Constitution) with South Carolina, and if a State did not maintain the right to secede as a final resort, then the very idea of States’ rights itself was an illusion.
Mind! In relaying this, it is not my intention to be a Confederate apologist. Regardless of any justification, legitimate though it be, a main cause of the War Between States that followed was the abhorrent institution of slavery. But neither can I be comfortable with the Federal overreach of the administration of Lincoln and his successors. And in our fervent denouncing of such institutions, we must be mindful that we are not emotionally manipulated into foregoing the philosophy on which our union of republics was founded.
Lincoln contradicted this theory when he mimicked Webster in emphasizing the “perpetual union” language of the Articles of Confederation and the “We the People” of the Constitution’s Preamble. Yet the Preamble is not inherently clear on whether it is the people of the United States as a whole or the people of the United States respectively (The views of most founders would suggest the latter), and the concept of a perpetual union is mere rhetoric that, in practice, is not logically consistent with the ideal of states’ rights. Nonetheless it was enough for Lincoln to raise an army as Andrew Jackson had threatened before, thus provoking a conflict that saw 600,000 people dead and Constitutional precedent severely damaged to this day, while states’ rights became needless entwined with the despicable stain that was the institution of slavery.
This Webster-Lincolnite philosophy was indicative of a larger movement emerging in the world at the time at the cost of millions of lives: Nationalism. But American nationalism is unique because, while general nationalism seeks self-determination for all nations, American nationalism instead suppresses the nations within the United States. It is a historically asinine attempt to portray these United States as a single entity rather than a friendship of 50 entities under a compact. That is the perversion which now dominates American federalism. Maintaining our self-governance has been one of the great fights of the last 150 years, and the Compact Theory of our fathers is losing.
Sources
An Ordinance to Dissolve the Union between the State of South Carolina and Other States," or the South Carolina Ordinance of Secession, South Carolina, 1860, digital.scetv.org/teachingAmerhistory/lessons/Ordinance.htm.
“Compact Theory of the U.S. Constitution.” Compact Theory of the U.S. Constitution - Federalism in America, encyclopedia.federalism.org/index.php/Compact_Theory_of_the_U.S._Constitution.
Dunkin, Tim. “Restoring the Compact Theory: Vital to Restoring the Constitution.” Tenth Amendment Center, 4 Sept. 2015, tenthamendmentcenter.com/2015/09/03/restoring-the-compact-theory-vital-to-restoring-the-constitution/.
Https://Digital.scetv.org/TeachingAmerhistory/Lessons/expositionandprotest1828.Htm.
Jefferson, Thomas, et al. “The Virginia and Kentucky Resolutions of 1798 and '99; with Jefferson's Original Draught Thereof. Also, Madison's Report, Calhoun's Address, Resolutions of the Several States in Relation to State Rights. With Other Documents in Support of the Jeffersonian Doctrines of '98.” The Portal to Texas History, 28 Sept. 2014, texashistory.unt.edu/ark:/67531/metapth498008/.
“M'CULLOCH v. STATE OF MARYLAND Et Al.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/17/316.
“Monticello.” Kentucky and Virginia Resolutions, www.monticello.org/site/research-and-collections/kentucky-and-virginia-resolutions.
Roesch, James Rutledge, et al. Abbeville Institute, 29 May 2014, www.abbevilleinstitute.org/review/a-compact-theory/.
Thomas, Steven. America's Homepage and the Virtual Tour of Washington, D.C., ahp.gatech.edu/rights_brit_colonies_1764.html.
“Transcript of Treaty of Paris (1783).” Our Documents - Transcript of Treaty of Paris (1783), www.ourdocuments.gov/doc.php?flash=false&doc=6&page=transcript.
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