The Constitution of the United States is a Federal Compact.
The Constitution of the United States was not instrumental creating a national government, and it is not a contract. These points will be argued in more detail underneath three basic points that are found below.
1. Contract vs. Compact
The Constitution of the United States is not a contract. A true contract is always based on the explicit understanding of both parties, both of which agree to certain acquired rights and duties (or privileges and obligations) as found in the contract itself (whether written or unwritten). This is why contracts are justifiably enforceable, even by a civil government – since there are harmed parties deserving of reparation when a lawful contract is violated by one of the parties to it.
The US Constitution does not bear all of the features that are required for the accurate use of the term “contract”. Where is the meeting of the minds of all the applicable parties? In fact, where is even the legal (as distinguishable from lawful) enforce-ability except as found within the system it, itself, was the instrument of creation? Are the people of the united States parties, and if so – when did they, individually, explicitly agree to the terms? Could you, as an individual, obligate your neighbor to a set of terms you wrote, or someone you elected wrote – let alone men who wrote it 227 years ago? When did you, or I, sign this contract of “ours”?
In fact, as I argue elsewhere – the Constitution of the United States doesn’t even have signers in the full sense of the term, but witnesses (see here). The delegates could not presume authority to sign on behalf of another – let alone for entire nations of people, any more than you, as an individual, could obligate your neighbor to the same. The delegates of the convention had no right or authority to create a government except as would effect them personally – and therefore, it was up to the people of the individual states to manifest some sort of consent for the document in order for it to become applicable.
The US Constitution is a compact. The Constitutions, far from being based on some form of enforce-ability, are based on voluntary cooperation. A compact simply espouse the basis on which a group of entities have determined to cooperate with each other. And since there is no contractual enforce-ability, it will only last as long as the people have it in mind. Even the preamble to the Constitution of the Commonwealth of Massachusetts, which was the model for the United States Constitution, recognizes this fact in stating, in part, that: “The body politic is formed by a voluntary association of individuals; it is a social compact…“.
2. Federal vs. National
The Constitution of the United States created a federal government, not a national one. The states are not the equivalent of counties to a consolidated state housed in D.C. – but rather retained the place that they had had even under the Articles of Confederation (the first federal Constitution of the american states).
Article Two of the Articles of Confederation states that: “Each state retains its 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.” In fact, the preamble of the Articles, in the spirit of federalism did not begin with “We, the People” – but rather began with “We” and then subsequently listed all of the participating States.
The spirit behind that provision was not repealed by the U.S. Constitution, but as is seen in the state ratifying conventions – was still a basis for the new federal Constitution. In fact, in an attempt to ensure that this was not forgotten or ignored – the understanding was formalized in the Tenth Amendment of the US Constitution, which states that “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“.
It should be understood that the Tenth Amendment did not introduce federalism into the Constitution, but was merely a formality, if you will – a reinforcement of what was understood as a crucial feature already implicitly present (as was the entirety of the Bill of Rights). In a similar fashion, Patrick Henry – following his reading of the Bill of Rights, or first ten amendments to the United States Constitution, became furious at the failure to include an explicit recognition (notice that an implicit recognition was still assumed) of state sovereignty. Henry stated that:
“I wrote the first of those amendments in these words…’Each state in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.’ But they have omitted it…and changed it into this equivocal thing…’or to the people.’ My sons, this Constitution cannot last. It will not last a century. We can only get rid of it by a most violent and bloody struggle.” (source: here)
The Latin term foedus, from which we derive the word federal, means “covenant, league, treaty, alliance”. Later on, it even specifically came to indicate “a state formed by agreement among independent states“.
This understanding is even found in an analysis of the Constitutions of America. Article Six of the Utah Constitution creates a legislature, while Article One of the United States Constitution creates a Congress. The difference is crucial to a correct understanding of federalism. A Legislature is a legislative body within a nation (in this case, Utah), while a Congress is a meeting of separate nations.
Examples of this are abundant. In 1765, there was the Stamp Act Congress – where nine of the Colonies sent ambassadors (or “embassadors”, as Noah Webster would prefer ) to meet together to discuss how to respond to the tyrannical Stamp Act. This understanding continued into the First and Second Continental Congress’s – both of which had delegates from independent governing bodies in the colonies – which, post-Declaration of Independence, became “Free and Independent States”.
Even further back in history there are many other examples; In ancient Greece there was the Congress at Corinth. The Congress of Westphalia followed the 30 yrs. war in Europe, and the Congress of Vienna which similarly followed the Napoleonic Wars. And to name just one more example, even the Congress of Panama was when the central american nations met to determine a unified policy in relation to Spain. All of these involve the meeting of separate nations – not an unlimited (or even semi-limited) legislative body over all of the participating nation-states.
Emer de Vattel, in Law of Nations, states that “Several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: Their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted.” (pg. 84)
The enormous difference between nationalism and federalism is even demonstrated with an analysis of the Constitutional Convention of 1787 itself. Although the Convention was supposed to simply be about forming amendments to the Articles of Confederation, there was a clique of people (James Wilson, Alexander Hamilton, and even James Madison included) who did not only desire a change to the Articles, but to propose and form a newly centralized national government. Even the Virginia Plan (formally proposed by Edmund Randolph) called for a “national” government. Yet, ultimately, the main provisions of the Virginia Plan that were nationalist and general (nearly unlimited) in feature were all voted down, in favor for a document that was federal and limiting in nature. (see James Madison and the Making of America, by Kevin Gutzman, pp. 49-131)
The federalist impulse was clear even in the state ratifying conventions, where the state convention members who were very critical of the newly proposed Constitution were, without exception, assured that it was a federal document, limiting in feature. Even James Madison, the nationalist himself at the Constitutional Convention of 1787, championed federalism in The Federalist No. 39 – which was written in an attempt to gain popular support of ratification of the US Constitution in the state of New York. Keeping in mind that this essay is one that is attempting to sell the product, if you will, of the US Constitution; it is very revealing that in it, Madison even goes as far as to say that: “The act, therefore, establishing the Constitution, will not be a national, but a federal act.”
In reaction to the Alien and Sedition Acts of 1787 and it’s more tyrannical features in relation to free speech and the press, James Madison anonymously authored The Virginia Resolutions of 1798 (a standard of the concept of state Nullification, or state refusal to either allow specific federal statute to apply and be enforced within it’s jurisdiction, or to participate in its enforcement of the same), which stated that the states were “duty bound” to oppose any federal overreach.
In the resolutions, Madison not only made arguments that the Sedition Acts violated the first amendment (an argument “intra-state” if you were to assume a national government) but also that it violated the federal structure itself. In other words, he stated that the loose interpretation of the US Constitution which would be necessary to constitutionally justify the Alien and Sedition Acts were not only the wrong interpretation – but that the result of which would, essentially, “consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or, at best, mixed monarchy.”
Notice that the consolidation of the states was viewed as a negative! And, likewise, please notice the function of the word “transform”, which obviously indicates that this consolidation would fundamentally change the Union as it was, and even how it was perceived early on in the history of the united States.
3. The Declaration of Independence vs. The Gettysburg Address
Whereas the Declaration of Independence obviously enshrines the federal government as being composed of “Free and Independent States”, each uniting based on voluntary cooperation based on the good of all participating parties – President Abraham Lincoln and the radical Republicans championed a much different view. In The Gettysburg Address, a speech that is often even memorized by children attending school, Lincoln asserts (without even going through the effort of arguing with anything other than the sword!) that the founders brought forth “a new nation” (singular). This hollow and usurpatious assertion was, at it’s heart, basically a fait accompli. Though subtle, the implications are enormous – and they strike at the heart of the debate surrounding the entire basis and structure of the Union – which, in turn, distracts from the even deeper issues of purpose.
Lincoln and the Republicans had to justify their bloody and unnecessary war against the southern states with the philosophy of nationalism. Instead of respecting the sovereignty of the “Free and Independent” southern states right to secede, and cease associating with the union – Lincoln resorted to bloodshed, in order to enforce a document which had as it’s foundation the principle of volunteerism. As with all tyrants and usurpers throughout history, the tyrant must create a narrative (as poor as it may be) to cover-up the reality of their violent and unjustifiable means to their own pet end.
Is it any wonder, given the federal nature of the US Constitution, that Treason is even defined as “levying war against them” (them, meaning the States), or in “adhering to their enemies“?
Even the term civil war is misapplied to the american conflict of 1861-1865. A civil war is a war within a nation – and, in fact, during this same time period there was what could accurately be termed “civil war” in Missouri over the question of whether or not they should stay in the Union or join the Confederacy. Yet, that is not what occurred between the Union and the Confederacy – and thus, it would be more properly termed the War Among the States.
Ultimately, the U.S. Constitution was an international document, an international agreement – and the so-called “civil war” was clearly a violation of the underlying premise behind the ability of nations to voluntarily cooperate.
The U.S. Constitution has a term within it (found in Article One, Section Eight) that is too often overlooked: the Law of Nations. The 1828 Noah Webster Dictionary defines the term “Laws of Nations“, in part, as: “the rules that regulate the mutual intercourse of nations or states. These rules depend on natural law, or the principles of justice which spring from the social state...”.
Emer de Vattel seems to agree with this definition, in the Law of Nations, when he states both a similar definition and that: “There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals…Hence it follows that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns.” (see preface, and pg. 67)
In a tragic sense of irony, the Federal Government that is supposed to act in harmony with this implicit form of international law (with the Congress even being supposed to define the punishments of the violations thereof), is often one of the worst violators. All too often, they not only are rejecting the bases and terms of the federal compact which was instrumental in it’s very creation (a Constitution based on the law of nations, itself, as it applies between the States), but even violate the basic understanding that legitimate government actions/agreements are all bound by the same set of moral principles by which individual persons are.
HISTORICAL DOCUMENT OR CHARTER OF MORAL COMMITMENTS?
In addition to the Constitution of the United States being a Federal Compact, is the question which will be dealt with more thoroughly in the article on “How the US Constitution should be interpreted” in this Constitution Day series.
The question is whether the US Constitution is simply a Historical document, or something deeper – an attempt at principles that apply just as much today as it did then. Certainly, there would be an angle of folly to work so hard on a system based on a written constitution if it was not intended to last beyond their time.
Keep in mind that it was shown in an earlier article that one of the features of an unwritten constitution is that it is a “collection of historical documents, statutes, decrees, conventions, traditions, and royal prerogatives”. (Black’s Law Dictionary, 9th Ed. – term “unwritten constitution”)
The Constitution of the United States, on the other hand, was a written document that stands as – even more than merely a historical document – a charter of moral commitments to freedoms, such as “free speech” and “due process”. It is a document which was an attempt to enshrine Principles and concepts which span even their own limited understanding, as it should transcend our own limited understanding of those concepts. Even all of the the technicalities and rules of administration were merely a means to the goal of the protection of freedom generally – and, thus, should be read in light of that understanding.