Compact Theory of the U.S. Constitution
Compact theory is the subject of some confusion because there are at least two conceptions of it. Broadly understood, compact theory is a political theory of founding polities and communities associated by Americans with the Mayflower Compact of 1620. One sees this theory expressed later, for example, in the preamble to the Massachusetts Constitution (1780), which says: “The body politic is formed by a voluntary association of individuals: It is a social compact by which the whole people covenants with each citizen and each citizen with the whole people.” Narrowly defined, compact theory is a legal theory advanced by John C. Calhoun and others, especially southerners, on the nature of the U.S. federal union as a compact of states. This article focuses on the latter conception. Three conclusions follow from the compact conception of American constitutionalism. First, national powers are strictly limited, in that all powers remain in the states unless the federal Constitution explicitly declares otherwise. Second, states have the authority to nullify federal laws on constitutional grounds. Third, states retain the right to secede from the union. Indeed, this interpretation of the origins of the United States grants states primacy to interpret the U.S. Constitution. It also allowed southern states to defend and preserve their “peculiar institution,” slavery, and the social system they constructed around slavery.
The Virginia and Kentucky Resolutions of 1798 are the seminal expressions of this compact theory. They were drafted by James Madison and Thomas Jefferson, respectively, as protests against Congress’s 1798 enactment of the Alien and Sedition Acts. Contemporary Americans regard the Sedition Act as a violation of the freedom of speech protected by the First Amendment, but Democratic-Republicans in the late eighteenth century condemned those measures as violations of the national government’s limited powers. Madison’s Third Resolution declared, “the powers of the Federal government . . . result from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact.” The Sedition Act was deemed unconstitutional because the Constitution did not explicitly give Congress the power to regulate speech. The measure, Madison stated, “exercises . . . a power not delegated by the Constitution.” Madison was vague on the consequences of compact theory. The Virginia Resolutions declared, “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.” Madison did not elaborate on what interposition meant. Late in his life, he denied that nullification was a constitutionally valid form of interposition.
Jefferson’s Kentucky Resolutions were stronger and asserted that compact theory entailed a state’s natural right to nullify federal laws. He agreed with Madison that the Constitution was a compact between the states. The Kentucky Resolutions more clearly than the Virginia Resolutions, however, claimed a state power to declare federal laws unconstitutional: “the government created by this compact was not made the exclusive or final judge of the extent of its powers.” Each state could determine whether a federal law was constitutional. Jefferson insisted, “as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Compact theory was at the heart of nullification and secession. Though inspired by John C. Calhoun, who opposed secession, South Carolinians justified decisions to declare federal tariffs, particularly the so-called Tariff of Abominations of 1828, unconstitutional and then leave the union on the ground that the Constitution is a compact between the states, which vests each state with the power to determine whether the national government or other states have violated that constitutional bargain. Calhoun’s defense of nullification in 1828 quoted the Virginia and Kentucky Resolutions at length in support of the proposition that “the Constitution of the United States is, in fact, a compact, to which each State is a party.” The South Carolina government’s 1860 Ordinance of Secession echoed Jefferson’s Kentucky Resolutions when declaring, “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.” The Constitution of the Confederate States begins with a commitment to compact theory. The preamble to that text declares, “We the people of the Confederate States, each State acting in its sovereign and independent character.”
Like many northerners of his time, Alexander Hamilton also held a compact view of the Constitution, but his understanding rejects Calhoun’s theory. In Federalist 22, Hamilton calls the idea that “a party to a compact has a right to revoke that compact” a “heresy.” Yet, acknowledging that some people think a state may withdraw from the Articles of Confederation, Hamilton argues that the Constitution avoids this possibility by resting the Constitution “on the solid basis of the CONSENT OF THE PEOPLE” [emphasis in the original], thereby placing “the streams of national power” on the legitimacy of the people and beyond the states’ ability to control. Later, U.S. Senator Daniel Webster of Massachusetts stoutly rejected Calhoun’s ideas in his second reply to Senator Robert Hayne of South Carolina in 1830, saying that the federal Constitution is “the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people . . . . the State legislatures . . . however sovereign, are yet not sovereign over the people.”
Earlier, Chief Justice John Marshall in McCulloch v. Maryland, 19 U.S. 316, 403 (1819) had offered perhaps the canonical statement that the people are constitutionally sovereign in the United States. The Constitution, he stated, “was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several States. . . . [W]hen they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.” Abraham Lincoln rejected the underlying premise of Calhoun’s compact theory when he insisted that the states were part of a perpetual union long before the Constitution was ratified. His first inaugural address maintained, “The Union is much older than the Constitution, it was formed, in fact, by the Articles of Association in 1774.” Independent states did not agree on the Constitution of the United States, in this view, because no state was ever an independent sovereign. Calhoun’s theory of union was actually similar to the late eighteenth-century view represented by many Antifederalists. The Antifederalist view persisted, and historically many nineteenth-century Americans in the North and the South understood the American federal system as a state-centered compact. However, using it as a defense of slavery and a right to secession badly tarred compact theory with racism.
Compact theory as a force in American constitutional politics was seemingly buried at Appomattox in 1865. During the second half of the nineteenth century and most of the twentieth century, when Americans argued about federalism, they relied on the structure of the Constitution rather than on claims that states are independent sovereigns. Justice Clarence Thomas’s dissent in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) may signal a revival of compact theory. When claiming state power to impose term limits on members of Congress, he asserted, “The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.” Neither Thomas nor any other Supreme Court justice has expanded on this assertion, but if the Supreme Court becomes increasingly committed to federalism, some version of compact theory might enjoy a renaissance.
|BIBLIOGRAPHY Daniel J. Elazar, Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy (New Brunswick, NJ: Transaction Publishers, 1998); Donald S. Lutz, “The Declaration of Independence as Part of an American National Compact,” Publius: The Journal of Federalism 19:1 (Winter 1989): 41-58; Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988); Louis Henkin, “The United States Constitution as Social Compact,” Proceedings of the American Philosophical Society 131:3 (September 1987): 261-269; Donald S. Lutz, “From Covenant to Constitution in American Political Thought,” Publius: The Journal of Federalism 10:4 (Autumn 1980): 101-133; Andrew C. McLaughlin, “Social Compact and Constitutional Construction,” American Historical Review 5:3 (April 1900): 467-490; Tim Dunkin, “Restoring the Compact Theory: Vital to Restoring the Constitution” (2015) at https://tenthamendmentcenter.com/2015/09/03/restoring-the-compact-theory-vital-to-restoring-the-constitution/; and David Benner, Compact of the Republic: The League of States And The Constitution (Minneapolis: Life & Liberty Publishing, 2015).|
Mark A. Graber
University of Maryland Carey School of Law
Last updated: January 2019