Now and then the topic of contract or compact as it applies to our Constitution comes up on the web. Outwardly, it’s a sleep-worthy subject. Who cares one way or the other? My American Heritage Dictionary doesn’t help very much in distinguishing between the two. Where contracts imply two parties negotiating across a table, a compact is along the lines of a group of people agreeing to do certain things. Contracts also have an element of enforceability typically not associated with compacts.
The subject isn’t as mundane as it appears because it touches the core of our self-worth as republican citizens. It was important enough for our framing generation to address in 1789 as James Madison shepherded a Bill of Rights through the first Congress.
Every nation is the product of its history, and the 17th century struggles of Englishmen to wrest a few prerogatives from King James II in the form of a Bill of Rights figured large to Americans in 1789. This was the central rift between Federalists and Anti-Federalists, that all governments, according to Anti-Federalists, were contracts between the people and their rulers. As such, respected men like Patrick Henry and George Mason could demand a Bill of Rights to establish “a plain, strong, and accurate criterion by which the people might at once determine when, and in what instance their rights were violated.”
Federalist James Iredell recognized the break in history represented in the Constitution. “In other countries, where the origin of government is obscure, and its formation is different from ours, government may be deemed a contract between the rulers and the people.” But “our government is founded on much nobler principles. The people are known with certainty to have originated it themselves. Those in power are their servants and agents; and the people, without their consent, may new-model their government whenever they think proper.” Bills of Rights had historically been wrested at sword-point from sovereigns. In America the people are sovereign. To the Federalists, a Bill of Rights was non-sensical and introduced the danger that the people would eventually view the government and not themselves as sovereign.
The great danger in regarding the Constitution as a contract, said James Wilson, was that “we exclude the idea of amendment; a contract once entered into between the governor and governed becomes obligatory, and cannot be altered but by the mutual consent of both parties,” In time, and certainly by the mid-20th century, Americans generally accepted the Anti-Federalist view that the Constitution is a contract between society and government. Government is all-powerful with the exception of rights and limitations itemized in the first ten amendments and elsewhere in the Constitution . After all, the Constitution and pursuant statutes are the law of the land. Being members of society, we are all contractually obligated to obey.
Iredell’s “noble principle” slowly slipped away from the American soul. Our situation has more in common with battered wife syndrome than as a society that penned an agreement, a compact, among ourselves. In the face of a physically stronger husband, the battered wife just takes his abuse in the forlorn hope that she will someday be loved. Similarly, too many Americans believe, like the battered wife, that the government/husband is naturally good, and that society/wife just needs to be patient and quietly try to change the government/husband’s ways. They’ll eventually come around. In time, the battered wife wonders if she is at fault for her husband’s behavior, just as many today think we get the treatment from government we deserve.
Only a few days after ratification of the Bill of Rights, James Madison didn’t appear all that proud of his accomplishment. Instead of celebrating the incorporation of fundamental rights into the Constitution, he curiously wrote that the great danger to liberty in the extended republic of America was that Americans may become “insignificant in their own eyes.”1 He recognized that words on paper cannot substitute for proud citizens, covetous of liberty, who understand the Constitution as a compact among themselves, and not an unamendable community contract with the national government.
Liberty is a goner if the American people sit back and do not put forth the effort to defend THEIR compact, their Constitution of government.
General Reference: Wood, G. S. (1969). The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press. 541-42.
1. “Public Opinion” National Gazette, December 19th 1791.