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In United States constitutional theory, compact theory is a rejected interpretation of the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
which asserts the United States was formed through a compact agreed upon by all the
states State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
, and that the federal government is thus a creation of the states. Consequently, under the theory, states are the final arbiters over whether the federal government has overstepped the limits of its authority as set forth in the compact. Compact theory contrasts with
contract theory From a legal point of view, a contract is an institutional arrangement for the way in which resources flow, which defines the various relationships between the parties to a transaction or limits the rights and obligations of the parties. From an ...
, which holds that the United States was formed with the consent of the ''people''—rather than the consent of the ''states''—and thus the federal government has supreme jurisdiction over the states. Compact theory has never been upheld by the courts. Compact theory featured heavily in arguments by southern political leaders in the run up to the
American Civil War The American Civil War (April 12, 1861May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States between the Union (American Civil War), Union ("the North") and the Confederate States of A ...
that states had a right to nullify federal law and to secede from the union. It also featured in southern arguments opposing desegregation after the 1954 Supreme Court decision in ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
''. The theory also entered into the
Mexico–United States border crisis The Mexico–United States border crisis is an ongoing migrant crisis in North America concerning the Illegal immigration to the United States, illegal migration of people into the United States across the Mexico-United States border. U.S. Pres ...
of the early 2020s.


Supreme Court rulings

The
US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
has rejected the idea that the Constitution is a compact among the states. Rather, the Court has stated that the Constitution was established directly by the people of the United States, not by the states. In one of the Supreme Court's first significant decisions, '' Chisholm v. Georgia'' (1793), Chief Justice
John Jay John Jay (, 1745 – May 17, 1829) was an American statesman, diplomat, signatory of the Treaty of Paris (1783), Treaty of Paris, and a Founding Father of the United States. He served from 1789 to 1795 as the first chief justice of the United ...
stated that the Constitution was established directly by the people. Jay noted the language of the Preamble of the Constitution, which states that the Constitution was ordained and established by "We the people," and he stated: "Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound." This view has been repeatedly affirmed by the Court. In ''
Martin v. Hunter's Lessee ''Martin v. Hunter's Lessee'', 14 U.S. (1 Wheat.) 304 (1816), was a landmark decision of the Supreme Court of the United States decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in civi ...
'' (1816), the Supreme Court explicitly rejected the idea that the Constitution is a compact among the states: "The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by 'the people of the United States.'" The Court contrasted the earlier
Articles of Confederation The Articles of Confederation, officially the Articles of Confederation and Perpetual Union, was an agreement and early body of law in the Thirteen Colonies, which served as the nation's first Constitution, frame of government during the Ameri ...
with the Constitution, characterized the Articles of Confederation as a compact among states, and stated that the Constitution was established by not the states but the people. Likewise, in '' McCulloch v. Maryland'' (1819), the Supreme Court stated that the federal Constitution proceeded directly from the people and was not created by the states. It stated that the Constitution was binding on and could not be negated by the states. It again contrasted the Articles of Confederation, which was established by the states, to the Constitution, which was established by the people. After the Civil War, in '' Texas v. White'' (1869), a case discussing the legal status of the southern states that had attempted to secede, the Supreme Court stated that the union was not merely a compact among states but was "something more than a compact."


Arguments in favor

Leading proponents of this view of the U.S. Constitution primarily originated from Virginia and other southern states. Notable proponents of the theory include
Thomas Jefferson Thomas Jefferson (, 1743July 4, 1826) was an American Founding Fathers of the United States, Founding Father and the third president of the United States from 1801 to 1809. He was the primary author of the United States Declaration of Indepe ...
. Under this theory and in reaction to the Alien and Sedition Acts of 1798, Jefferson claimed the federal government overstepped its authority, and advocated nullification of the laws by the states. The first resolution of the Kentucky Resolutions began by stating:
Resolved, that the several States composing the
United States of America The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 states and a federal capital district, Washington, D.C. The 48 contiguo ...
, are not united on the principles of unlimited submission to their General Government; but that by 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 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; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Meanwhile, James Madison had asserted in Federalist No. 39 that "the people" were not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong;" the Constitution was "to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves;" and "the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration." Likewise, as noted in Article VII of the Constitution, ratification took place not by a single popular convention but conventions of only the ratifying states and would carry the Constitution into effect only between those ratifying states.


Arguments against

Others have taken the position that the federal government is not a compact among the states but was instead formed directly by the people in their exercise of their sovereign power. The people determined that the federal government should be superior to the states. Under this view, the states are not parties to the Constitution and do not have the right to determine for themselves the proper scope of federal authority but instead are bound by the determinations of the federal government. The state of Vermont took that position in response to the Kentucky Resolutions.
Daniel Webster Daniel Webster (January 18, 1782 – October 24, 1852) was an American lawyer and statesman who represented New Hampshire and Massachusetts in the U.S. Congress and served as the 14th and 19th United States Secretary of State, U.S. secretary o ...
advocated that view in his debate with Robert Hayne in the Senate in 1830:
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.... When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government, which should stand on a new basis; not a confederacy, not a league, not a compact between States, but a ''Constitution''; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches with prescribed limits of power, and prescribed duties. They ordained such a government, they gave it the name of a ''Constitution'', therein they established a distribution of powers between this, their general government, and their several State governments.
The leading 19th-century commentary on the Constitution, Justice
Joseph Story Joseph Story (September18, 1779September10, 1845) was an American lawyer, jurist, and politician who served as an associate justice of the Supreme Court of the United States from 1812 to 1845. He is most remembered for his opinions in ''Martin ...
's ''Commentaries on the Constitution of the United States'' (1833), likewise rejected the compact theory and concluded that the Constitution was established directly by the people, not the states, and that it constitutes supreme law, not a mere compact.


Influence on American Civil War

In the years before the Civil War, the compact theory was used by southern states to argue that they had a right to nullify federal law and to secede from the union. For example, during the Nullification Crisis of 1828-1832, John C. Calhoun argued in his South Carolina Exposition and Protest that the states, as the parties to a compact, had the right to judge for themselves whether the terms of the compact were being honored. Calhoun described this "right of judging" as "an essential attribute of sovereignty," which the states retained when the Constitution was formed. Calhoun said the states had the right to nullify, or veto, any laws that were inconsistent with the compact. When the southern states seceded in 1860-61, they relied on the compact theory to justify secession and argued that the northern states had violated the compact by undermining and attacking the institution of slavery and the slaveholders' property rights. The Southern states stated that they were therefore justified in withdrawing from the compact among the states. Former Confederate President
Jefferson Davis Jefferson F. Davis (June 3, 1808December 6, 1889) was an American politician who served as the only President of the Confederate States of America, president of the Confederate States from 1861 to 1865. He represented Mississippi in the Unite ...
was an avid supporter of the Compact theory, and devoted large portions of his two volume book " The Rise and Fall of the Confederate Government" to explaining the Compact Theory. Still concerned that people would not understand what the Compact Theory was, he wrote a second book, " A Short History of the Confederate States of America", to explain it once more.


Mexico–United States border crisis

During the Mexico–United States border crisis of 2023-24, Republican Texas governor
Greg Abbott Gregory Wayne Abbott ( ; born November 13, 1957) is an American politician, attorney, and jurist who has served since 2015 as the 48th governor of Texas. A member of the Republican Party (United States), Republican Party, he served from 2002 to ...
asserted the federal government had "broken the compact" by not acting adequately to end what he characterized as an "invasion" of migrants. He ordered the Texas National Guard to secure the state's southern border. The
Biden administration Joe Biden's tenure as the List of presidents of the United States, 46th president of the United States began with Inauguration of Joe Biden, his inauguration on January 20, 2021, and ended on January 20, 2025. Biden, a member of the Democr ...
Justice Department wrote Abbott in July 2023 to assert he was exceeding his authority. A three-judge panel of the Fifth Circuit Court of Appeals ruled in December 2023 that Texas must remove 1,000 feet of floating barrier the state had placed in the
Rio Grande The Rio Grande ( or ) in the United States or the Río Bravo (del Norte) in Mexico (), also known as Tó Ba'áadi in Navajo language, Navajo, is one of the principal rivers (along with the Colorado River) in the Southwestern United States a ...
river earlier in the year. The
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
in January ruled 5-4 that the federal Border Control could remove razor wire that the Texas National Guard had installed. Abbott responded that the ruling infringed on state sovereignty and that Texas had a right to secure the border that superseded federal authority. Abbott's argument was nearly identical to that of the 1860 South Carolina Declaration of Secession. Abbott then sought to impede border patrol agents, precipitating the Standoff at Eagle Pass. Twenty-five of 26 Republican governors and Republican Speaker of the House
Mike Johnson James Michael Johnson (born January 30, 1972) is an American lawyer and politician serving as the List of speakers of the United States House of Representatives, 56th speaker of the United States House of Representatives since 2023. A member ...
supported Abbott's position. The conflict set the stage for a potential
constitutional crisis In political science, a constitutional crisis is a problem or conflict in the function of a government that the constitution, political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variat ...
.


See also

* Anti-Federalism *
Classical republicanism Classical republicanism, also known as civic republicanism or civic humanism, is a form of republicanism developed in the Renaissance inspired by the governmental forms and writings of classical antiquity, especially such classical writers as Ar ...
*
Decentralization Decentralization or decentralisation is the process by which the activities of an organization, particularly those related to planning and decision-making, are distributed or delegated away from a central, authoritative location or group and gi ...
* Interposition *
Jeffersonian democracy Jeffersonian democracy, named after its advocate Thomas Jefferson, was one of two dominant political outlooks and movements in the United States from the 1790s to the 1820s. The Jeffersonians were deeply committed to American republicanism, wh ...
*
Social contract In moral and political philosophy, the social contract is an idea, theory, or model that usually, although not always, concerns the legitimacy of the authority of the state over the individual. Conceptualized in the Age of Enlightenment, it ...
*
States' rights In United States, American politics of the United States, political discourse, states' rights are political powers held for the state governments of the United States, state governments rather than the federal government of the United States, ...


References

{{Authority control Political theories Theories of law Constitutional law States' rights Nullification crisis Kentucky and Virginia Resolutions The Federalist Papers