In discussions about the U.S. Constitution, it’s crucial to return to foundational principles, including natural law and the historical context of its creation. The Constitution did not spontaneously appear as a supreme entity creating subordinate bodies; rather, it was formed by thirteen independent nations entering into a contractual union. This perspective, championed by many of the Founding Fathers, underscores the idea that the Constitution is a compact between sovereign states.
The Constitution as a Compact Among Sovereign States
Thomas Jefferson, a key figure in the early American republic, articulated this view in the Kentucky Resolution of 1798. In response to federal legislation that Kentucky deemed unconstitutional, Jefferson asserted that “the several states composing the United States of America are not united on the principle of unlimited submission to their general government, but 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” [1]. This statement emphasizes that the states, as sovereign entities, delegated specific, limited powers to the federal government through a contractual agreement.
The nature of this compact is further illuminated by Article VII of the Constitution itself, which states: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same” [2]. This article highlights that the Constitution was established between the ratifying states, not imposed upon them by a pre-existing, all-powerful federal authority. It signifies a voluntary agreement among independent parties.
The Tenth Amendment to the Constitution reinforces this concept of limited government and reserved powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” [3]. This amendment explicitly states that any powers not expressly granted to the federal government, or forbidden to the states, remain with the states or the people. This clearly delineates the boundaries of federal authority as defined by the original compact.
Jefferson, in the Kentucky Resolution, further stressed the continued sovereignty of the states post-ratification: “The several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy” [1]. This radical assertion posits that the states, as the creators of the compact, retain the ultimate authority to determine if the federal government has overstepped its constitutional bounds, with nullification as a legitimate recourse.
Preserving the Contract: The Role of States and Article V
James Madison, often referred to as the “Father of the Constitution,” echoed the contractual nature of the union during the Virginia Ratifying Convention. He explained that “clearly, according to the expositors of the law of nations, that a breach of any one article by any one party leaves all other parties at liberty to consider the whole convention to be dissolved, unless they choose rather to compel the delinquent party to repair their breach” [4]. This view implies that if one party to the contract (the federal government) violates its terms, the other parties (the states) have the right to either dissolve the agreement or compel compliance.
Madison reiterated this principle in the Virginia Resolution of 1798, which, like the Kentucky Resolution, sought to nullify federal acts. He declared that the Virginia Assembly “doth explicitly and peremptorily declare that it views the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting the compact, as no further valid that they are authorized by the grants enumerated in that compact” [5]. This underscores the strict adherence to enumerated powers within the Constitution as interpreted by the states.
Madison, despite being a Federalist who supported a stronger union, still recognized the states’ right to resist federal overreach. He believed that the states, as the creators of the federal government, had a duty to preserve the union by ensuring the federal government operated within the confines of the Constitution [6].
The Unamendable Clause and the 17th Amendment
Article V of the Constitution outlines the amendment process, but it also contains a crucial provision that protects the voice of the states: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate” [2]. This clause, often referred to as an “unamendable clause” by the Founders, ensured that states could not have their equal representation in the Senate removed without their explicit permission. This was a critical safeguard against larger states dominating smaller ones, reflecting the principle of state sovereignty within the federal structure [7].
The Electoral College, similarly, was designed to ensure that the President is chosen by the states, rather than solely by popular vote, which would concentrate power in heavily populated areas [8]. This mechanism prevents a few large cities or states from unilaterally deciding the outcome of presidential elections, further highlighting the Founders’ intent to balance popular will with state representation.
However, the passage of the 17th Amendment in 1913 altered the original design by mandating the direct election of senators by the people, effectively removing the state legislatures’ role in selecting senators [9]. This amendment raises a significant constitutional question: if Article V stipulates that no state can be deprived of its equal suffrage in the Senate without its consent, is the 17th Amendment, which fundamentally changed the nature of state representation in the Senate, constitutionally valid if not every state explicitly consented to this change? From the perspective of the compact theory and the “unamendable clause,” the 17th Amendment could be seen as a violation of the original contract.
Nullification and Resistance: Applying Federalist No. 46
The concept of nullification, as articulated by Jefferson in the Kentucky Resolution, suggests that states can declare federal laws unconstitutional and thus refuse to enforce them. This idea aligns with the agency analogy: if a client (the states) hires a contractor (the federal government) to perform specific tasks, and the contractor deviates from the agreed-upon terms, the client is not obligated to pay for or accept the unauthorized work [10].
James Madison, in Federalist No. 46, explored the means by which states could resist federal overreach. He argued that “the means of opposition to the federal government going beyond its bounds are powerful and at hand” [11]. Madison listed several forms of resistance: “the disquietude of the people, their repugnance, and perhaps refusal to cooperate with the officers of the Union, the frowns of the executive magistracy of the state, the embarrassment created by legislative devices, which would often be added on such occasions would oppose in any state difficulties not to be despised” [11].
Breaking down Madison’s terms:
- Disquietude of the people: According to Samuel Johnson’s dictionary, a common reference during the Founding era, “disquietude” meant “uneasiness, anxiety, disturbance, wanted tranquility” [12]. This suggests a persistent, active agitation and lack of peace until the federal government rectifies its unconstitutional actions. Historical examples from the pre-Revolutionary period illustrate this: colonists engaged in acts like tarring and feathering tax collectors, forcing judges from their seats, and ransacking officials’ homes to disrupt the enforcement of British tyranny [13]. These actions, though considered extreme by modern standards, were seen by the Founders as necessary means to compel government compliance with the people’s will.
- Repugnance of the people: In the context of Federalist No. 46, “repugnance” meant disobedience or resistance, not merely disgust [12]. This implies a refusal to comply with unconstitutional federal mandates. The Kentucky and Virginia Resolutions are prime examples of this “repugnance” in action, as states explicitly declared their intent not to obey federal laws they deemed unlawful [1, 5].
- Refusal to cooperate with the officers of the Union: Madison suggested actively withholding cooperation from federal agents when they are enforcing unconstitutional edicts. This could manifest in various ways, such as refusing to assist IRS agents in collecting unconstitutional taxes, OSHA agents enforcing overreaching regulations, or even local police if they are acting as agents of illegal federal mandates. The principle here is that citizens are not obligated to aid in the enforcement of laws that violate the fundamental compact.
Conclusion
The understanding of the Constitution as a compact among sovereign states, as espoused by Jefferson and Madison, provides a framework for analyzing the limits of federal power and the rights of states to resist overreach. The “unamendable clause” in Article V and the historical context of resistance highlight the Founders’ intent to protect state sovereignty. When the federal government acts outside its enumerated powers, the states, as parties to the original contract, are presented with the dilemma of either nullifying the unconstitutional act or compelling adherence to the original agreement. This historical and philosophical perspective challenges conventional interpretations of federal supremacy and underscores the ongoing tension between centralized authority and state autonomy in the American constitutional system.
Sources
[1] Jefferson, Thomas. “Kentucky Resolution of 1798.”
[2] U.S. Constitution, Article V and Article VII.
[3] U.S. Constitution, Amendment X.
[4] Madison, James. Statement at the Virginia Ratifying Convention, 1788. (Note: Specific quote may require more precise source citation, such as The Debates in the Several State Conventions on the Adoption of the Federal Constitution.)
[5] Madison, James. “Virginia Resolution of 1798.”
[6] Madison, James. The Federalist Papers, No. 46.
[7] Farrand, Max. The Records of the Federal Convention of 1787. (Discussions surrounding Article V and the “unamendable clause”).
[8] Hamilton, Alexander. The Federalist Papers, No. 68.
[9] U.S. Constitution, Amendment XVII.
[10] Legal principle of contract law, specifically agency.
[11] Madison, James. The Federalist Papers, No. 46.
[12] Johnson, Samuel. A Dictionary of the English Language. (Original editions, commonly used in the 18th century).
[13] Maier, Pauline. From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776.
