Understanding the Constitution #21: Our Union is a Contract not a Compact
In her recent proposal for a “national divorce,” Rep. Marjorie Taylor Greene envisions “red” and “blue” states, each able to deny voting rights to those of opposing political views. Her thinking raises the question of just what “United” means in “United States”, and she is not alone. Some states have enacted legislation allowing their citizens to ignore federal laws. Five counties in eastern Oregon want to become part of less-liberal Idaho. In a June 2021 national poll, 37 percent of respondents, including Republicans, Democrats and Independents, indicated their “willingness to secede” from the union to join with other states who share similar partisan views.
The nature of our national “marriage,” to apply Greene’s metaphor, is not new. After a battlefield defeat for George Washington in the French and Indian War, Benjamin Franklin blamed that loss “on the present disunited state of the British colonies” and published the cartoon “Join, or Die,” showing a snake cut into pieces, each representing one colony. In 1754 Franklin gathered colonial representatives in Albany and proposed a “Plan of Union.” Colonial legislatures rejected its call for a national Congress and executive fearing that would diminish their power.
The Revolutionary War pushed the now-independent states toward union. The Declaration of Independence referred to them as these “united States,” still focusing on the jealously-guarded sovereignty of each. Yet the Articles of Confederation on July 8, 1776 called them the “United States of America.” The government created by the Articles was, in practice, just an alliance of states. It couldn’t enforce efforts to raise money or prevent states from erecting trade barriers against each other. Had France not come to our aid, the “United States” might have ended in the 1770s.
The 1783 Treaty of Paris recognized the United States as a sovereign nation, but it was weak. That led to the 1787 Constitutional Convention, at the time called the “Federal Convention” since states instructed delegates to do no more than tinker with the Articles of Confederation. Ignoring their instructions, its delegates created a stronger national union. The Preamble for the Constitution recognized this, saying “We, the People of the United States.” An earlier draft had said “We, the People of …” and then named each state.
The Constitution would be ratified by the “whole people” not by the states. State conventions, not state legislatures, voted on it. The United States was thus understood by its creators not as a “compact” of states in which they could leave at any time but as a “contract” among all the people of the new nation. This view would be affirmed by Supreme Court rulings as early as 1816 (Martin v. Hunter’s Lessee) and 1819 (McCulloch v. Maryland).
President George Washington was deeply troubled by the centrifugal forces of the “spirit of party” and “factions” which emerged in the early republic. In his 1796 Farewell Address, he reminded Americans that their union was “a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize.” A “government for the whole is indispensable,” he said, reminding them that the Constitution is “sacredly obligatory upon all” until changed.
He feared he would be ignored. His fear was justified as the nation lurched toward Civil War. It took Abraham Lincoln and military victory to affirm the United States is indeed a contract of Americans, not a compact of states. After the war, the “united States” in Jefferson’s Declaration became increasingly viewed as the “United States.” That union won two World Wars, created material wealth and a dramatic expansion of protected rights. It forged a strong national defense, foreign policy and commercial treaties and robust responses to natural disasters, pandemics and the ravages of old age - just a few examples of the value of that contract – and all beyond the capabilities of divorced “red” and “blue” states.
The distinction between “contract” and “compact” is not just an artifact of history. It reflects different ways of thinking about America. In “compact thinking” we see the states and each other as having reached an agreement of convenience. Any party to the compact can dismiss it, demonize its political opponents and/or exit when its individual interests no longer see the value. In “contract thinking” we see states and each other as having made a legal, binding agreement which we must honor until the whole people alters it. In “contract thinking” we have to listen and negotiate to maintain a relationship; divorce is not an option. As Lincoln put it at the end of his First Inaugural: “We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection.”
He was echoing Washington who said in his Farewell Address that we are held together by both “sympathy and interest” – emotional and practical ties. He encouraged “indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest.”
Whatever our divisions, and there will always be healthy disagreements, ignoring this invites treating our contract as a compact.
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