Compact or Collectivism

By Al Benson Jr.

Underneath all the national anger in the country over Comrade Obama’s supposed ineptitude (I think much of it is by design rather than ineptness) there also simmers a strong disagreement over just how we should interpret the Constitution. Now I have to admit up front that I have some problems with the Constitution. I find myself much more in line with the thinking of Patrick Henry that I do with that of Alexander Hamilton. In fact, a couple years ago I did a whole series of articles on the Constitution for a blog spot that pulled the plug awhile back. Even though the original blog spot that carried them has gone by the wayside, other sites picked them up and they are still out there. You can find them on http://www.dixienet.org and http://www.spofga.org and I even found one on sonsoflibertyandamericanrevolution.blogspot.com Some of these will probably shock some folks because you never read anything like this before, but if you can, plow through them a little at a time anyway.

In my “huntin’ and peckin’” for some of this material I came across a brief article posted by the Ludwig von Mises Institute simply entitled United States Constitution. It stated that: “By the early 19th century, two schools of thought regarding interpretation of the Constitution had developed, commonly referred to as the ‘Nationalist’ theory and the ‘Compact’ theory. The Nationalist theory argues that the Constitution formed a sovereign nation, under which the states are subordinate in power to the federal government. Thus, the powers of secession and nullification, according to the theory, are unconstitutional. Prominent advocates of the Nationalist theory include Alexander Hamilton, John Marshall, Daniel Webster, and Abraham Lincoln.”

The article then went on to define the other theory, the Compact theory, by saying that: “The Compact theory argues that the Constitution was a compact, that is, the voluntary agreement of thirteen sovereign states to create a general government to take on specific roles. According to the theory, the compact was voluntary and the states retain their sovereignty, so any state has the right, under the Constitution, to secede from the Union. Some proponents of the Compact theory also argued that nullification, that is, a state’s refusal to obey a law of the general government, was also constitutional. Prominent advocates of the Compact theory include Thomas Jefferson, Abel P. Upshur, and Jefferson Davis.” That briefly sums up the two positions and as long as we live under this Constitution (which the federal government almost totally ignores except at swearing in ceremonies) my natural choice would be the latter rather than the former.

I have been told that most of the founding fathers were of the Nationalist persuasion, Hamilton, Madison, Washington, and this may be somewhat accurate. If so, then there is all the more reason for the articles I wrote that are previously mentioned regarding the Constitution. However, that is not where Thomas Jefferson was coming from. In an article on the Tenth Amendment Center website, writer Gennady Stolyarov II wrote of Jefferson that: “Jefferson portrayed the Union as voluntarily entered into by the states; the states were ‘not united on the principle of unlimited submission to their general government’ (KR 153).”

He continued: “The Union was created by the ratification of the Constitution, which served as a ‘compact’ by which the states ‘delegated…certain definite powers’ to the general government (KR 154). The government’s exercise of powers not expressly granted to it by the Constitution was thus illegitimate . For Jefferson, the Constitution both defined and limited the Union’s nature and essence.”

And Jefferson gave a warning which has almost been totally ignored when he warned that the federal government should never be “the exclusive or final judge of the extent of the powers delegated to itself (KR 154), since that would allow the government to define the scope of its powers…”

The Future of Freedom Foundation has a website that carries different articles relating to freedom. In one that was posted on December 20, 2011, author Tom Woods Jr. reviewed a book written by Luigi Marco Bassani called Liberty, State, & Union: The Political Theory of Thomas Jefferson. Mr. Woods observed that: “To assess Jefferson’s endorsement of the Constitution we need to bear in mind the very limited consequences that its ratification entailed in his view. In an era in which ‘Tenther’ (i.e., a supporter of the Tenth Amendment to the Constitution ) has, absurdly enough, become a term of derision, Jefferson’s approach to the Union is a splash of cold water: The true theory of our constitution is surely the wisest and best, that the states are independent as to everything within themselves, & united as to everything respecting foreign nations. Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very inexpensive one; a few plain duties to be performed by a few servants…

Woods then observed that Bassani turned to the discussion of states rights. He says: (“States’ rights,” a phrase Jefferson himself used, is of course a shorthand term; Jefferson understood as well as anyone that states do not have rights in the sense that individuals do.) Jefferson was a principal architect of the compact theory of the Union, which conceives the states as a collection of self-governing, sovereign communities (the states)). (More precisely, it is the peoples of the states who are sovereign; no governmet is sovereign in the American system.) These communities, according to the compact theory, have not forfeited their sovereignty by delegating a portion of their sovereign powers to a central government that is to act as their agent…That it is the peoples of the states (often referred to in shorthand merely as ‘the states’), rather than the American people in the aggregate, who are sovereign is evident from history…The British acknowledged the independence of those states by naming them individually. Article II of the Articles of Confederation declared, “Each state retains its sovereignty, freedom and independence”; the states must have had that sovereignty to begin with in order to retain it in 1781,when the Articles took effect. And when the Constitution was to be ratified, it was ratified by each state separately, not in a single national vote. This simple historical overview establishes a very strong prima facie case that the states remained sovereign and were never collapsed into a single whole…What that meant for Jefferson and many of the thinkers who followed in his footsteps was that in the last resort the states, the constituent parts (and creators) of the Union, had to have the power of nullification, the refusal to allow the enforcement of unconstitutional federal laws within their borders.” The states do, indeed, need some kind of protection by which they can prevent the abuse of federal power from destroying the very system they themselves created.

Bassani noted that “…the Kentucky Resolutions of 1798 which vindicate the compact theory—and which countless historians have tried to run away from—contain ‘the whole of Jefferson’s theory of the federal union.” He stated also that Jefferson’s draft contained the term “nullification” which was later taken out by chicken-hearted legislators, but in Jefferson’s thinking it was an integral part of the whole.

So all of the statesmen of that period did not buy into the “perpetual Union” theory. The “perpetual Union” folks are free to believe in that. It’s probably what their history professors taught them, but that doesn’t necessarily mean that it’s the gospel.