The Bell Foundry

Rediscovering and recovering lost and endangered American liberties by studying our Founders' ideas, contemporaries, and etymology – because our united States "…are, and of Right ought to be Free and Independent States…"

A case for a compact theory of the Union

The compact theory of the Union is the idea that the existing states or colonies of America created a central, federal government by compact (agreement), and as such, the several states are “ the final arbiters over whether the federal government had overstepped the limits of its authority as set forth in the compact.”  Many of the Founders’ writings upheld this idea.  Thomas Jefferson, in the very first resolution of the Kentucky Resolutions of 1798, firmly establishes the validity of the compact idea:

“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself…each party has an equal right to judge for itself…”

as does James Madison in the Virginia Report of 1800.   I’ve added clarifications (as I interpret the quote) in parentheses:

“…the ultimate right of the parties (the states) to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority (any aspect or branch of the Federal Government), as well as by another, by the judiciary, as well as by the executive, or the legislature.”

Madison clearly explains here that the several states 13_coloniesmust be the judges of federal governmental usurpation of authority.

The opposite view is known as the nationalist theory of the Union, and was famously propagated by Daniel Webster and Abraham Lincoln.  The nationalist view considers the United States was already ‘one people’ at the inception of the Constitution, and not made up of separate, distinct colonial societies.  Daniel Webster counters in a senate debate with Robert Hayne in 1830:

[I]t cannot be shown, that the Constitution is a compact between State governments. The Constitution itself, in its very front, refutes that idea; it, declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States; but it pronounces that it is established by the people of the United States, in the aggregate…”

However, Madison (one of the principal authors of the Constitution) destroys this view by explicitly pointing out in Federalist #39 that the Constitution IS established by the several states:

“On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.”

He continues:

“That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”

It’s important to note the difference between the terms federal and national.  A federation “…is a political entity characterized by a union of partially self-governing states or regions under a central (federal) government.”  A national government implies total or mostly total control by a central government.

Lincoln, in his 1861 Special Message to Congress, clearly displayed his belief in a nationalist theory:

“The Union is older than any of the States; and, in fact, it created them as States.”

ArticlesofConfederationFirst of all, the Union was not older than the states.  Even under the Articles of Confederation (a precursor to the Constitution), a ‘firm league of friendship’ was created between what were recognized as already existing states upon those states’ assent to the Articles:

“Article III.  The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.”

If there already was in existence a union of states before the loose confederation that the Articles established, then what could that union have been?  The idea of any substantial union pre-existing the states seems very hard to comprehend.

Secondly, the Union did not create the states.  That part of Lincoln’s statement could only be true in the semantic sense – that the governing state bodies had previously been referred to as ‘colonies,’ and were afterward referred to as ‘states’ upon entry into the Union.  The pre-constitutional existence and  sovereignty of the states is also confirmed in Article II:

“Article II.  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.”

Before presumptuously declaring that the Union had created the states, Lincoln, in the same Message, belabored the point that the states had never even been called ‘states’ before joining the Union:

“Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution-no one of them ever having been a State out of the Union…”

We have already seen, based on Articles II and III that this cannot be true.  The states WERE states, even ‘out of the Union.’  However, as additional confirmation that the ‘state’ title seems to be only a question of semantics, Akhil Reed Amar, speaking on Virginia’s joining the Union in his 1999 lecture, titled Abraham Lincoln and the American Unionpoints out that:

“…to rename her [Virginia] ‘colonial’ House of Burgesses a ‘state’ House of Burgesses involved no great shift of identity or institutional practice; to say that Virginians should henceforth be coercively governed by a newfangled ‘Union’ dominated by non-Virginians was an altogether different thing.”

As further proof of the errors of Lincoln’s view, consider again a specific part of the previous quote from the Kentucky Resolutions:

“…that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself…”

To say that the states gave up their sovereignty upon joining the Union, in light of the views of Jefferson and Madison at the time of constitutional ratification (1787-88) and the Resolutions of 1798, seems an absurdity.  The states DID delegate (relinquish, give) SOME powers to the Federal Government for mutual protection – but it seems highly unlikely that this would have been done without much more deliberation.  As Amar further expounds:

“Had 1776 been widely understood as a moment when Virginia somehow merged into some larger sovereign “Union” there would have been considerable conversation about this-especially given the conventional wisdom in 1776 that democracy could thrive only in a geographically small jurisdiction with a relatively homogenous population shaped by a common climate and a common culture. Yet no deep and sustained conversations of this sort are evident in 1776 to warrant so dramatic a change in Virginia’s deeply rooted identity.”


One comment on “A case for a compact theory of the Union

  1. revisedhistory
    December 30, 2013

    There is a new article on nullification up on

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