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Newpublius introduced me to Compact Theory yesterday.
I believe I;ve argued it without haveing a name for it.
Compact theory is the theory that the federal government gets its power from the states.
James Madison and Thomas Jefferson, respectively, in the Virginia and Kentucky Resolutions of 1798 expressed this theory.
Madison: "the powers of the Federal government . . . result[] from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact." And "in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil."
Jefferson was stronger: "the Constitution of the United States is, in fact, a compact, to which each State is a party." "[T]he government created by this compact was not made the exclusive or final judge of the extent of its powers." And "as in all other cases of compact among parties 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."
It was the heart of nullification and secession. "South Carolinians justified decisions to declare federal tariffs, particularly the so-called Tariff of Abominations of 1828, unconstitutional and then leave the union on the ground that the Constitution is a compact between the states, which vests each state with the power to determine whether the national government or other states have violated that constitutional bargain."
In Federalist 22, Hamilton calls the idea that "a party to a compact has a right to revoke that compact" a heresy.
The Constitution was ratified by the states. Compact theory says the states can deratify.
Chief Justice John Marshall in McCulloch v. Maryland, 19 U.S. 316, 403 (1819): The Constitution "was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several States. . . . [W]hen they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments."
Daniel Webster advocated thay view in his debate with Robert Hayne in the Senate in 1830: "[I]t 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."
Lincoln in his first inaugural address maintained, "The Union is much older than the Constitution, it was formed, in fact, by the Articles of Association in 1774."
The South Carolina Declaration of Causes (1860) and the Mississippi Resolutions (1861) developed Jefferson’s premises to justify Southern states's secession from the Union.
Justice Clarence Thomas, dissenting in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995): "The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole."
Sources:
Compact Theory of the U.S. Constitution
Jefferson’s Views on the Union as a Compact Among the States
Compact theory