FORMATION OF PARTNERSHIPS

 

The last posting reported that during the lifetime of the first generation of settlers in the New England colonial area a religious debate developed.  That contention pitted those who idealized religiosity being the product of the intellect as opposed to being more passionately based as expressions of the will.  The purpose of this posting is to contextualize the debate as one that did not challenge the basic federalist landscape that the colonists established under their covenantal arrangement.

          This landscape is described by Daniel Elazar,

 

Indeed, it is the development of the social, economic and constitutional as well as the political bases of American federalism in the colonial period that created the federalist political culture which influenced the framers of the Constitution to invent the federal system.  As in every other aspect of American life, the colonial background was crucial.  It was within the five generations of American colonial history that the basis was laid for a covenantal federalism.  Indeed, it was so well laid that Americans have taken it utterly for granted and have virtually ignored it ever since.[1]

 

This posting describes how this general relationship between federal thinking and the evolvement of basic social institutions among these settlers took form.  It is through institutional arrangements that one can detect and to a degree measure the attributes of a people’s culture, including its political culture.  One can term these arrangements as the “roots” of a culture and of its various components.

          Elazar focuses his commentary on the settlers’ economy, social structures and processes (along with their functions), and the religious elements.  One of the first points Elazar makes is that one can trace these developments all the way back to the Mayflower Compact (1620) and that he cites that document as an example of a covenant.  Why?  It is an agreement that situates its signees to unite in order to seek common purposes but with the understanding that each signee retains his/her “respective integrity.”[2]

          To further contextualize this development, one should keep in mind that among the colonies, there were countless expressions of unity.  They committed the involved participants to establish, maintain, and/or assume united efforts.  They were numerous covenants and compacts that the colonists drew up and agreed to from the time of the Mayflower Compact to the US Constitution[3] – and beyond in the years of this nation’s history.  They, the agreements, affected the behavior of colonists, but also affected their formation of their ideals – a reciprocal relationship.

          As for the economy, what federal/covenantal attributes can one detect?  There, one can find that British and Dutch trading companies were organized around federal elements.  They were royal entities that enjoyed monopolistic advantage, but they were also set up as shareholder ownership arrangements which, in turn, controlled their business operations. 

Often, these shareholders attempted to control their operations from Europe, but this eventually failed due to the long distances involved in handling the inherent politics.  There were exceptions in that in some limited cases the shareholders were themselves settlers.   Usually, these actors were politically influential individuals in the respective settlements who in addition to their political power also enjoyed economic power as well.  But the point is that this shareholder structure reinforced a federal model of organization. 

The organization of trading ships also provides an example.  On those ships, the typical organization had crew members sign up not merely as simple employees.  They instead signed a ship’s articles.  Through that instrument, these members agreed to submit to the ship’s authority, which was ultimately in the person of the captain, in exchange for an agreed upon portion of the ship’s profits.  This model interestingly reappeared in American history in the way wagon trains were organized as they made their way westward.  Each of these examples were incidents of efforts being arranged through the instrument of a compact.

Important to consider or recognize in these arrangements, is that the path leading to the necessary collaborative effort was this essential step in forming an agreement that held a level of sanctity (either religiously or securely based).  So, one would think that this model would apply to religious entities.  Did it?  Yes, and initially, as this blog has reported, that tie-in started with the Puritans. 

And, in turn, that Puritanical mode of organization can be traced to the biblical accounts of the Jewish covenant with God.  This is further cited due to the essential attributes that characterized those covenants.  While this agreement was believed to be with an all-powerful entity, God, the signees retained their integrity. 

Why?  Because only a sufficiently free agent can enter into a meaningful agreement.  While this calls on God to forsake a degree of His omnipotence, the resulting agreement is established as a partnership in its truest sense.  It also sets a foundation for human freedom since only a free person can enter into a true partnership.

Extending this basic relationship, therefore, one can deduce that all social or political arrangements derived their legitimacy from this basic covenant between humans and God, or in this case, the settlers and God.  Practically, this sets up the formation of congregations, townships, and more inclusive political/governmental arrangements all the way up to what would become state governments and the national government as well.

Okay, that might have happened in New England, how about in the other colonies farther south?  Elazar reports that roughly half of the churches established in the other colonies followed this congregational model.  In addition, he states that a significant number of townships were so organized. 

One area where this was commonly true was Virginia where Puritans had a clear presence.  Elazar writes, “Even after the eighteenth century secularization of the covenant idea, the camps of southwestern Missouri, central Colorado and the mother lode country of California, or in the agricultural settlements of the upper Midwest.”[4]  He goes on to describe how this prevalence led to an ideal, that of “federalistic individualism” (which this account will call “federal individualism”).

This individualism parts from what Elazar designates as Latin individualism which he describes as anarchic.  Instead, this individualism recognizes agreed to limitations on individual prerogatives so as to abide by covenantal or compact-al provisions.  But even in this, the individual retains his/her integrity.  What ideally results are subtle bonds of partnership. 

This holds that despite the challenges a diverse population presents to such bonds, this writer concludes that through waves of immigration, for example, a centered (to the elements of this partnership) pluralism should hold among the American people.[5]  This is a fairly nuanced ideal, but it is central to federalist thought.

Within this theorized construct one can detect and Elazar provides a functional definition for federalism.  It is:

 

… American pluralism is based upon the tacit recognition of those bonds.  Even though in the twentieth century the term pluralism has replaced all others in describing them, their federal character remains of utmost importance.  At its best, American society becomes a web of individual and communal partnerships in which people link with one another to accomplish common purposes or to create a common environment without falling into collectivism or allowing individualism to degenerate into anarchy.  These links usually manifest themselves in the web of associations which we associate with modern society but which are particularly characteristic of covenanted societies such as that of the United States.[6]

 

And with this last claim, unfortunately, this writer parts company with Elazar. 

Until his death, he claimed that in a dominant position of influence, if somewhat or significantly tacit, the US retained this ideal, which he and others call federalism.  This writer also calls it federalism but does not agree that it has retained its dominant position.  That change occurred in the years following World War II and what is dominant today is the natural rights construct.

But that is not to say all those years in which federalism was dominant did not leave its mark.  For example, much of what is described in this posting might seem necessary for a nation to be sufficiently cohesive.  The next posting will offer other ways to go about establishing and maintaining a polity.  This is deemed as important because what federalism offers seems, especially to Americans, often to be the only option available to a people.

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[1] Daniel J. Elazar, “How Federal Is the Constitution? Thoroughly,” in a booklet of readings, Readings for Classes Taught by Professor Elazar, prepared for a National Endowment for the Humanities Institute (conducted in Steamboat Springs, Colorado, 1994), 1-30, 9.

[2] This aspect is very important in theorizing the attributes of federation theory.  To consider this aspect, the reader is directed to read this blogger’s book, Toward a Federated Nation and its description of regulated equality.  In turn, he counts on the arguments of Philip Selznick.  See Robert Gutierrez, Toward a Federated Nation:  Implementing National Civics Standards (Tallahassee, FL:  Gravitas/Civics Books, 2020) AND Philip Selznick, The Moral Commonwealth:  Social Theory and the Promise of Community (Berkeley, CA:  University of California Press, 1992).

[3] Donald S. Lutz (ed.), Colonial Origins of the American Constitution:  A Documentary History (Indianapolis, IN:  Liberty Fund,1998).

[4] Elazar, “How Federal Is the Constitution? Thoroughly,” 10.

[5] See Robert Gutierrez, “A Case for Centered Pluralism,” Curriculum and Teaching Dialogue 5, 1 (2003), 71-82.

[6] Elazar, “How Federal Is the Constitution? Thoroughly,”, 11 (emphasis added).

A CASE OF INTELLECT OR WILL

 

To continue this blog’s view of colonial America, the story to date has established the prevailing religious basis of the New England settlement.  And that religion was based on Calvinist beliefs.  But despite this prominence of Puritans, there developed a serious split within that community.  That was between Congregationalists, who already put distance between themselves and mainline Puritans back in England, and Separatists who further emphasized their rejection of any Roman influence via the Church of England. 

And that separation was hinted at in a few postings ago where the point was made that the reliance on biblical writings and any derived lessons as applied to everyday life should rely on logic.  A problem with that, among some Puritans, was that such reliance, in turn, depended on pagan sources, the classical thinkers such as Aristotle and Cicero. 

To modern ears this might sound as much ado about very little.  But to the purists that engaged in these concerns and who also enjoyed significant influence on leadership of that time, this linkage apparently had effects about how they defined legitimate power.  As such, given the linkage these colonial governments placed on spiritual factors, these debates could and did play a role on what constitutional ideals germinated among these early Americans.

Many of these discussions were held within the walls of Harvard, which was established in 1630 just ten years after the Plymouth colony was formed.  There a certain train of thought seemed to have taken hold.  To begin, those arguments accepted the realistic claim that people attained knowledge or beliefs from what they perceived.  Insight was attained in how one structured the information, the data, one viewed, felt, or heard.  The trick to that intake was to logically order that information.  This order, the belief was, reflected what God imposed on reality.

This “orderly” sense of reality and how people relate to it – as sensible as it might sound to some – was critiqued by a set of religious thinkers.  They expressed their concerns in published works, for example, William Ames’ Medulla Theologica.  Collectively, these thinkers offered an alternative way to view this basic mode of knowing.  Allen Guelzo states,

 

… Ames believed that ethics should not stand as an independent study on its own, with its teachings hammered out by logical connections between moral axioms.  Ames believed that ethics should be studied only as a department of theology, which was a shorthand way of saying that there was no moral truth or theory of moral truths worth studying apart from Calvinistic Protestant Christianity.  “The highest kind of life for a human being,” wrote Ames, “is that which approaches most closely the living and life-giving God.”[1]

 

Ergo, why any reliance on Aristotle or Cicero?  He saw no reason to do so.  The Bible is good enough on its own.

          Ames’ rejection was not so much against logic, but on a logic originating with classical thinkers or natural philosophy of which five branches can be derived:  metaphysics, epistemology, ethics, politics, and esthetics.[2]  Of course of key concern here was with ethics.  How does one establish the good from evil or the right from wrong? 

Within the tradition of Thomas Aquinas, a philosopher and saint within Roman Catholicism, one relies on his/her intellect and that relies heavily on logic.  Ames, utilizing responsible philosophic reasoning, argues that one should rely on will and he used the older ideation of Augustine, who is another saint but of a much earlier time.

          In this tradition, Ames claimed that religious thought should be based more on love (a motivated source of the will) than on objectified logic.  Belief, religiosity, and in turn Christian living ultimately depended on turning one’s will toward God.  In effect, this goes beyond understanding and might even circumvent it. 

On the other hand, the intellect, according to the Aquinas approach, can be called upon to reason out why one should remain loyal to a purified version of the Church of England if the ultimate aim was to reinforce that linkage through a reasoned set of beliefs.

          But if the aim was to strive toward a sincere and complete conscious embrace of the Calvinist beliefs concerning God’s grace and all that that entailed, it depended on a true love.  And one was capable of that commitment if one was chosen to receive God’s grace.  This was designated as Voluntarism and by accepting this view one was giving up on any hope or effort to rehabilitate the Church of England.  On a political plain, this initiated and, once started, fed a growing notion of separation from the mother country.

          Guelzo warns his readers, these concerns were mostly held by the first generation of settlers as they made their way across the Atlantic, settled on the American continent, and began organizing themselves into congregations and political arrangements.  While the above arguments had their place and influence, the day-to-day experiences were taken up by the demands of the wilderness. 

Despite that, Harvard was not giving up on the classical based education.  There reason and logic ruled.  In addition, between 1630 and 1660 a new generation was introduced and socialized into another cultural world than what their parents had experienced.  Besides the natural tendency to entertain these younger members’ own set of beliefs, the intellectual world was moving in other directions and while delayed, due to distance and an ocean, would have its effects on how the younger colonists would see these questions. 

But before moving on, one can detect the origins of independence beginning to take hold.  Probably an initial point or area of contention – one described in this posting – would be spiritual in nature.  And beyond the eastern horizon a new mode of thinking and a new way to appraise authority was brewing.  Would the winds of change challenge the basic federal model the settlers had established on the shores of North America?

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[1] Allen C. Guelzo, The American Mind, Part I – transcript books – (Chantilly, VA:  The Teaching Company/The Great Courses, 2005), 29.  The factual information of this posting is derived from this source.

[2] For quick reference, see “Introduction to the Five Branches of Philosophy,” Objectivism 101:  Tools for Living (n.d.), accessed April 1, 2021.

OTHER RELATED “CONSTITUTIONAL” TERMS

 

By analyzing language one can garner a good deal of what the motivations of people are.  And that goes for the foundational documents early settlers used to organize themselves politically.  Reviewing those documents not only informs one of the structural and procedural elements of those early governments, they also contained the underlying values and beliefs of those settlers and, in their way, give one the initial political biases they brought to the task of their self-governance.

          In turn, they betray what these people anticipated their politics would be like or what possibilities they could, as polities, pursue.  This was no small matter if one considers the social and physical challenges these people faced.  They were embarking on establishing a society in a raw natural environment.  How they fashioned their collective decisions would play no small role in how successful they would be.

          Donald S. Lutz[1] presents and reviews many of these early documents and prefaces the effort with a review of the terms that repeatedly appear in those documents.  The last posting shared and described a set of those terms.  That posting emphasized the variance those documents expressed between the specific provisions contracts contain and the more emotive, descriptive, and value laden content of compacts and covenants. 

That posting ends with the hopeful role that “organic acts” can provide.  They are an “after-the-fact” sort of addition to a compact and a way to tailor general compact-al concerns and resulting language to the demands of everyday life and the need to establish reliable law.  Lutz introduces this concept by writing,

 

An “organic act” is one that codifies and celebrates an agreement [such as an initial compact] or set of agreements made through the years by a community.  In this way, a “common law” comprising legislative and judicial decisions made over a number of years can be codified, simplified, and celebrated in dramatic form, thereby also renewing the consent-based oath upon which obligation to the community rests.  The early state constitutions adopted in 1776 could be viewed as organic acts as well as compacts as they usually summarized and codified what the colonists of each state had [by the time of independence] evolved over the previous 150 years.[2]

 

What this writer takes from this description is that in a democratic-republican modeled arrangement there is always room for change and the actors never feel they are beyond being questioned or amended in their efforts.  Even the best of plans can be improved upon or abandoned if reality indicates they should be.  Yes, when it comes to “constitutional” issues, the change should have more hurdles to overcome, but its possibility is never beyond consideration. 

And in terms of contracts and their shortcomings, organic acts do not have reciprocal provisions – they are not transactional instruments – since they reflect communal commitments in the governance of a people.  They, therefore, can be considered extensions or “improvements” of original efforts.

This above description introduced another term.  That is “agreement.”  Here, the use of this term falls mostly as one understands the term – an arrangement between or among parties.  Covenants and compacts are agreements.  But of importance to the federalist mind is that agreements imply or spell out a sense of coordination, collaboration, and cooperation.  And, of importance, is the connoted or implied element of free-willed consensus or, at least, acceptance.

This last bit of language should be remembered when a prominent religious or otherwise moral authority attempts to impose moral views on a population that does not totally share in its views or beliefs.  Here, the track record of Americans is not so consistent with this requisite.  There have been extended periods in their history when not only religiously based prohibitions have been imposed, but also its legitimacy has not even been questioned.

Religion or other moral systems can inform a federated body, but it cannot legalistically impose its dictums on a federated arrangement like that of the US without providing a secular justification for such imposition.  One readily thinks of attempts to do so when one considers any plans to overturn the Roe v. Wade decision in its overturning of state laws banning abortions. 

And another quality of such accords is that they encompass more than what a contract entails in terms of its generality.  To remind the reader, contracts are specific in their elements or attributes, they denote reciprocal expectations between or among the parties, and they usually have a specified time frame.  Agreements can have such specification, but not as a definitional requisite.

Another highlighted term is “charter.”  This term, to this writer, offers a bit of confusion.  While the thrust of these documents reflect volition on the part of settlers and resulting “citizenry,” charters are issued by high authority – usually a monarch or some business entity which in the mercantile age were, in turn, chartered by the Crown.  Probably the most famous charter was the Magna Carta. 

Generally, charters were issued to grant permission to commit some act(s) if the actor(s) meet certain provisions – earlier in this review of these documents and history, the Puritans acquired a charter to establish the Plymouth settlement claiming it to be a proposed commercial enterprise.  This was by all accounts stretching the truth, but it worked not only for the Pilgrims of 1620, but for subsequent Puritan groups that made the trip over the Atlantic.

To give the reader a range of purposes for these charters, Lutz offers the following listing of goals for which they were issued:  grant pardon, incorporate boroughs, universities, companies, and other corporations.  They could also convey property from one entity to another.  In general, charters took on a more contractual form by highlighting fairly specific anticipated results from their issuances.

The last term this review will describe is “constitution.”  Derived from the term, “constituent,” the concern here relates to what elements or characteristics need to be present to make something what it is.  For example, a constituent element of a novel is words.  They, therefore, communicate the act or acts establishing, making, decreeing, or ordaining something by those legitimately considered in authority to do so.

So, constitutions have two attributes considered essential in their meaning – they are legitimately issued by appropriate authority and they denote the resulting structure with implied or denoted related processes of some created entity.  Technically, the US Constitution contains more than its “constitutional” elements.  For example, the Preamble is not part of its constitution (with small case “c”), but the document describing the Presidency is.

For the purposes here, that will suffice in terms of the terms this writer feels are important for the reader to consider when reflecting on the compact-al qualities the US Constitution has.  Other terms that Lutz reviews include “combination,” “frame,” “fundamentals,” “ordinance,” and “patent.”  The interested reader can acquire a copy of Lutz’s edited book for the respective definitional notes he shares.

This blog with the next posting will pick up with the ongoing story line of how the US Constitution came about.  What one needs to keep in mind, the emphasis of this review is focused on espoused values of these early Americans with references to events as they relate to those values. 

It will become necessary to look beyond those values to actual behaviors, but the reader should keep in mind that this writer does not believe such values equate to actual behavior patterns.  So, for example, while one can ascribe lofty beliefs about freedom and equality and justice to the founding generation, one can read of very self-centered behaviors being exhibited by those very people.[3]

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[1] Donald S. Lutz, “Introductory Essay,” Colonial Origins of the American Constitution:  A Documentary History, edited by Donald S. Lutz (Indianapolis, IN:  Liberty Fund, 1998).

[2] Ibid., xxxi.

[3] For example, see Ray Raphael, A People’s History of the American Revolution:  How Common People Shaped the Fight for Independence (New York, NY:  Perennial, 2002).

LANGUAGE, BOUNDARIES, AND LASTING TAKEAWAYS

 

Continuing from the last posting with Donald Lutz’s review of key terms found in the foundational documents that led to the US Constitution, he offers this somewhat summary statement regarding one of those terms:  “An agreement between God and his chosen people, then, was a covenant.”[1]  Since all covenants are compacts, if one does not include God in formulating the agreement, then one has just a compact. 

Reviewing the two foundational documents most people know and cite, the Declaration of Independence and the US Constitution, the first is a covenant – it calls on God to witness the agreement – and the second is just (not to minimize it) a compact.  Of course, both are compacts.  But there is more to consider before settling on these two documents.

Reference to them plays a role in this explanation.  The Jewish tradition, opted from Biblical accounts, describes covenants as establishing the Jewish people.  Hence, this tool in accomplishing such a basic function as establishing a people seemed applicable to what the early English people wanted to secure in North America. 

A key term in the above definition is “witnessing.”  The claim that the colonists initially made was not that God had ordained their establishment – they were not so presumptuous – but, through their prayer, He was believed to have witnessed their handiwork.  Of course, this was meant to add legitimacy to their efforts by adding a godly stamp of authority to the resulting polity.

In addition, one should keep in mind the belief in the claim that they were “elected” by God as the chosen, a basic Puritanical tenet.  And the chosen’s handiwork, setting up a polity with its central role in determining their collective efforts – better termed communal efforts – was assisted if a religious quality could be applied.  And here Lutz provides an excellent characterization of this binding:

 

God transmits his sovereignty to the rulers on the basis of the specific covenant creating the civil community.  The people’s consent is the instrument for linking God with those holding temporal authority, whose authority then is viewed as sanctioned by God.  Because this temporal authority comes through the people, however, the rulers are beholden to God through the people and thus are responsible to them.[2]

 

And its this last attribute that prevents, among these settlements, the establishment of a theocracy, although religion had a strong presence, but yet permitted the development of an American democracy in New England and the other colonies.

          With this ultimate source of power, Americans among both Protestants and separately Catholics worked out what would be called popular sovereignty.[3]  Or more commonly referred to by the term, democracy.  A good early example is the Pilgrim Code of Law document.  It is a compact, a covenant, and, one can argue, a constitution (the establishment of a structural arrangement to function as a government).

          Here, to give the reader a taste, is the first paragraph of that document:

 

Whereas, at his Majesty’s court held the fourth and fifth of October in the twelfth year of the reign of our sovereign lord Charles, by the grace of God, King of England, Scotland, France, and Ireland, Defender of the Faith, etc., it was ordered that Major William Brewster, Major Ralph Smith, Major John Done, and Jon Jenny for the town of Plymouth, Jonathan Brewster and Christopher Wadsworth for Duxborough, and James Cudworth and Anthony Annable for Scittuate should be added to the government and assistants as committees for the whole body of this commonweal, should meet together the 15^th of November at Plymouth, above-mentioned, and there to persuse all the laws, orders, and constitutions of the plantations within this government that so those that are still fitting might be established, those that time has made unnecessary might be rejected, and others that were wanting might be prepared that so the next court they might be established.[4]

 

The document goes on to attach this effort to higher authority, but the governor was to be appointed and assistant officials were to be elected through the following provision,

That at the day and time appointed a governor and seven assistants be chosen to rule and govern the said plantations within the said limits for one whole year and no more; and this election to be made only by the freeman according to the former custom.  And that then also constables for each part and other inferior officers be also chosen.[5]

 

The rest of the document is taken up with describing the resulting structure of the ensuing government.  And here one sees a step taken beyond a compact.  Due to its detail, one approaches what one can call a contract. 

What would develop to be the more contractual view of compacts and covenants seems to be initiated or furthered by this language.  One can almost foresee the eventual judicial procedures that present day observers know as courts interpreting what exactly constitutions and laws really mean.  But federal theory does not give up on the covenantal/compact-al origins of this tradition. 

And in that, one retains this view of constitutions (as the term is used today) as the conceptual meeting place between political culture with all of its traditions and spirit and, on the other hand, legalistic dictums that set the rules for who wins and who loses when interests come into legal and other sorts of conflict. 

Lutz shares his concern, which is also shared by this blogger, that emphasizing the latter legalistic bent tends to diminish or even kill the former.  To spell it out, this blogger sees adopting the natural rights view does emphasize the legalistic and federal theory emphasizes the spirit of the compact-al/covenantal tradition.  And, as a last point, this posting offers a sort of compromise on which the next posting will elaborate.  That is the idea of an “organic act.”

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[1] Donald S. Lutz, “Introductory Essay,” Colonial Origins of the American Constitution:  A Documentary History, edited by Donald S. Lutz (Indianapolis, IN:  Liberty Fund, 1998), xxviii.

[2] Ibid., xxix, emphasis added.

[3] The term was originally used by the presidential candidate, Lewis Cass, in the 1848 presidential campaign and alluded to the idea that territorial residents should decide whether or not to permit slavery as the nation expanded westward.  See “30b. Popular Sovereignty,” U.S. History:  Pre-Columbian to the New Millennium (n.d.), accessed March 25, 2021, https://www.ushistory.org/us/30b.asp#:~:text=The%20Democratic%20standard%20bearer%2C%20Lewis,The%20solution%20seemed%20perfect.

[4] “Pilgrim Code of Law,” in Colonial Origins of the American Constitution:  A Documentary History, edited by Donald S. Lutz (Indianapolis, IN:  Liberty Fund, 1998), 61-67, 61-62.

[5] Ibid., 62.

A LIST OF FOUNDATIONAL TERMS

 

This blog has played a bit loose with the definition of key terms it utilizes.  The two terms this most affects are “covenant” and “compact.”  One can also add “contract.”  These are important terms in dealing with the constructs, federalism or natural rights.  The use of the first two terms has set up a derived relationship that, as has been explained in this blog, but upon closer inspection, should be reversed – this posting hopefully clears that up. 

To date, a covenant has been defined here as solemn pledge or promise that solicits God to witness the resulting agreement.  A compact is the same thing without the solicitation of God.  In the future, this blogger will still refer to these terms in this way, but with an understanding that a more technical set of definitions pertains in a more nuanced way.  For the record, this posting will inform the reader of the more technical definitions according to leading federalist scholar, Donald S. Lutz.[1]

In Lutz’s description of these and other terms, he begins by pointing out that seventeenth- and eighteenth-century English-speaking thinkers, writers, and even citizens put a good deal of stock in the various forms of political arrangements.  While their vocabularies for related terms might have lacked consistent meanings, words were used to denote or connote from slight to expansive differences among different constitutional set ups. 

Closer looks and analysis are needed of those uses to truly attain what their purposes were.  So, it turns out, an often-used term, “covenant,” in a particular usage, could mean various levels of general or specific meaning.  Lutz, therefore, makes the effort to assist the reader by sharing a commonly accepted set of definitions of the following terms:  covenant, compact, contract, and organic act.  Other terms that will be addressed are constitution, charter, agreement, patent, frame, ordinance, combination, and fundamentals.

A good term to begin with, probably the most often used of the above listing, is contract.  Contracts have two attributes that are most pertinent to what the concern here is.  That is, they are agreements over specific set of elements – points of agreements – and involves a small number of parties – usually two.  They usually denote respective or mutual responsibilities the parties are assigned under the parameters of the agreement.  This blogger also sees it useful to point out they have a limited time dimension.

A compact differs from a contract in various ways.  It does refer to an agreement, but the range of points of agreement is far more encompassing.  The parties can be the members of a community – which can be as large as a nation – or an agreement between or among communities (including states and/or nations).  While these agreements might not have the status of law – though they often do – they are considered as such. 

A general aim for writing and accepting a compact is to form some community arrangement – of various formalities and number of parties involved.  Such agreements outline not specific requirements, but mutual assent to some form of rule.  A good example would be the choice in calling the agreement among the Puritans of 1620 the Mayflower Compact and not the Mayflower Contract.

The next term, covenant, turns out to be central to the Puritan settlers of the 1600s.  Here the terms take a more formal and, therefore, a heightened legalistic status.  They designate an agreement, but unlike a contract, they are formal documents that establishes their validity by securing – and in some cases, sanctioning – a higher authority, such as the Crown’s approval or sanction.  In other words, it is an agreement of heightened importance demanding the sanction of the highest authority – such as the king (in the case of 1620, James I) or ruling queen, if available.  But in terms of the Mayflower Compact, no “crown” was available.

There is a religious version of a covenant in which the signees “secure” an attainment or a “guarantee” by God.  This format, for example, is used to establish or formally organize a congregation in which the resulting assembly, each member individually, takes an oath to form (where applicable) and/or join that congregation. 

The assembly calls on God to witness that agreement.  That formational idea was adopted by those who wished to establish political entities in North America.  This did not preclude also calling on the highest secular power, the Crown to likewise witness and sanction the agreement.  When the two are elicited, the resulting covenant creates a legal/sectarian entity and that is what the initial colonial set ups became.  But what of John Locke and his designations of such unions?  Did he not use the term “contract”?

According to Lutz, the use of the term contract is a misnomer.  Lutz’s description of this account is informative on how Locke should be considered.

 

[Locke] was more properly a “compact theorist,” and in fact we find that his Second Treatise always uses the word “compact” and not “contract.”  Second, the relationship between a covenant and a compact was a direct one.  Both were based on the consent of those taking part.  Both created a new community.  Both implied a relationship that was stronger, deeper, and comprehensive than that established by a contract.  A compact, however required simply the consent of those taking part, while a covenant required sanction by the highest relevant authority as well.  In this regard, compact is the more modern of the two concepts, while covenant was the more natural term to use in a religious or medieval context where the hierarchy was well defined and had a clear apex.[2]

 

This language also denotes a development from compacts to covenants.  That is, some compacts became covenants, but not all covenants are compacts. 

Or stated another way, some compacts become covenants by this solicitation of the highest authority, be it the Crown and/or God.  Despite this logical arrangement, a compact is the more modern idea, while covenants can be found in ancient Biblical text.  Further, a compact could evolve into a covenant if the signees or their inheritors wish to call on God to witness the initial or some version of the agreement. 

Of course, by doing so, religious believers augment the “sacredness” of the agreement, at least, in their eyes.  As an aside, this blogger believes that the “sacredness” of an agreement can be established or sustained by a secularly based commitment or oath.  If this blogger promises to provide some service to someone else, his word is sacred to him and that can be established, to some degree, by the reputation he brings to the agreement.

          Another practical consideration was that the Crown was not readily available in America.  “Sacred” agreements were deemed essential, but the Crown’s sanction was far away.  Calling on God to witness any such agreement was considered a legitimate, binding substitute for that Crown’s “blessing.” 

And, perhaps, due to the geographic separation, a view evolved in which royal sanctioning lost some of its importance and the people started to think they themselves – perhaps in line with the thinking this blogger indicates above – were a legitimate enough authority to granting legal status to covenantal type agreements.  Hence, the utilization of the compact model.  They only relied on the agreement of those signing the binding document or the people those signers represented.

And with that turn, this posting ends and will leave to the next posting, Lutz’s further descriptions and explanations of covenants, compacts, and some of the other terms identified above.  A last word though, by reviewing these distinctions one can appreciate the wholistic nature of covenants and compacts as opposed to contracts.  Part of the concern the founding fathers – those who produced the basic US compact, the US Constitution – included the natural proclivities of people, how they could be identified, and how to account for them.

And this is an appropriate point to refer to something this blogger listened to not so long ago.  That was a broadcast on the podcast, Why Is This Happening? with Chris Hayes.  In that presentation, Chris Hayes opines that the founders, who were so concerned with morals and righteousness, established a government that replete with episodes of corruption.[3] 

What Mr. Hayes seems to not appreciate is that the compact that was designed called for structural and procedural elements that have led to identifying those episodes.  It is the difference between having a government that experiences corruption and a corrupt government.  This blogger believes the US government falls under the former not the latter classification.  And the relationship between the compact-al form and covenantal form that characterized the Constitution’s development played a significant role in being able to assign such a designation.

This blog will pick up with Lutz definitional distinctions in the next posting.

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[1] Donald S. Lutz, “Introductory Essay,” Colonial Origins of the American Constitution:  A Documentary History, edited by Donald S. Lutz (Indianapolis, IN:  Liberty Fund, 1998).

[2] Ibid., xxvii.

[3] “Why Trump’s Corruption Matters with Zephyr Teachout,” Why Is this Happening? With Chris Hayes, NBC News (August 21, 2018), accessed March 22, 2021.

A THIRTEEN YEAR DEVELOPMENT

The reliance on key dates helps one organize historical knowledge.  The last couple of postings rely on 1787 – the year the founders wrote and issued the US Constitution – to serve as such a date.  This posting incorporates the more popular year, 1776, to conceptualize a range of years, the years in which, according to Daniel Elazar,[1] America’s form of federalism was invented. 

That construct, according to Elazar, informs one about how this nation sees its governance and politics in every aspect.  In this, this writer disagrees with Elazar.  That conceptual role shifted from federalism to natural rights in the years since World War II.  This blog has dedicated a lot of space to make that point and is in the midst of providing the historical evidence that it claims backs that argument.

          But in terms of the aims this blog is pursuing currently, willingness to see federalism through Elazar’s characterization is helpful, at least as far as understanding what those thirteen years – 1776 to 1787 – generated.  In effect, the main development in those years refers to how Americans waned in their view from a confederated union to a federal one; from allegiance to a Continental Congress – a league of sovereign states – to the United States Congress – a federated union with a non-central sovereign arrangement.

This latter set up – the non-central one – occurs when states have areas of sovereign powers (their police powers) and the central or general government has its sovereign powers (its delegated powers such as issuing the nation’s currency).  It is a complex ideation of government and of how it is best suited for Americans – federalism is not easy.  And part (only part) of the story by which this complexity came about is to look at and understand what happened at the state levels when independence was claimed in 1776. 

It turns out that upon “independence,” four colonies set about to draw up their constitutions before the Declaration was even issued.  They were New Hampshire, South Carolina, Virginia, and New Jersey.  Four more, then states, did so before the year ended:  Pennsylvania, Maryland, Delaware, and North Carolina.  All of the rest wrote a constitution in short order and all, but one ratified their basic laws within sixteen months – Massachusetts took several years to complete the process.

These developments were followed by the drafting of the Articles of Confederation which served to set up the structure of a general government to carry out the Revolutionary War effort from a national perch.  That instrument, though, was not ratified until 1781.  While this timing was used to upgrade the sovereign statuses of states in the states’ rights arguments in years to come, today the consensus is that all of this – the establishment of the states’, and central government’s sovereignty – was formulated at the same time.

What should be taken into account is that the ambiguities of federal rule, its diverse origins – for example, the number of parties coming together to form this union – were very much in evidence at the beginning.  Of little note today, for example, was the role local towns and counties played in the Constitutions’ development and ratification.  They just felt they had the right to get involved and express their considered opinions even though they did not really have a legal status to do so.  And so, they contributed their unsolicited input.

Here, Elazar offers a very telling summary descriptive statement of how Americans have seen and treated its constitution,

 

          In order to understand the over 200 years of the American federalist experience, we must examine American federalism in the broadest sense of the term – not as inter-governmental relations, as federalism has come to be interpreted from the managerial perspective of the twentieth century; not as a matter of the constitutional distribution of powers between the general and state governments, as the constitutional lawyers are wont to see it; not even as the grand political struggle between the Union and the states which covered the canvas of nineteenth century historians; but as something close to what the French term “integral federalism,” that is to say, as the animating and informing principle of the American political system flowing from a covenantal approach to human relationships.[2]

 

And in this last aspect – the covenantal approach – the colonial influence, the Biblical-Reformed-Puritan tradition referred to in the preceding postings, provides that foundation as “crucial” in its form and how the various documents – including the US Constitution – were developed, interpreted, and judged.

And to organize these judgements, one is served by looking at these developments through four roots:  the political, economic, social, and religious roots.  This blog has already reviewed the first root, the political root, by describing the covenantal tradition stemming back to the Mayflower Compact. 

The interested reader can trace this development by going through the various foundational documents written between the early 1600s and the late 1700s by the colonists.  Repeatedly, in each of the various colonies, this covenantal model is repeated in the drawing up of the constitutional or theoretical frameworks the colonists utilized through the colonial years.[3] In one volume, Donald Lutz presents 80 such documents arranged by each of the colonies.  That is, this model transcends the New England area and can be considered simply as how Americans went about establishing their polities.

The road to the Articles of Confederation and then the Constitution can be easily detected – if one can get by the older English language – by reviewing these documents.  Of note, the initial documents trace all the way back to the Mayflower Compact of 1620 and one can identify a clear lineage of covenants, compacts, constitutions organizing not only local and state governments but, in one case, an inter-colonial confederation.

 These documents not only depended on federal beliefs and values, but also furthered the developments of those beliefs and values.  They encouraged a federated populous to form and behave within the entailed moral standards these beliefs and values set forth – of course, not at a hundred percent levels (the colonies were not populated by saints) but to a significant degree.  It should be remembered, the demanding frontier environment set as necessary that sort of discipline to be able to survive and even prosper in hostile surroundings.

This blog will proceed in upcoming postings to look at the economic, social, and religious roots from which these founding documents were written.  But this might be a good point to make a distinction this blog has pointed out before – it is alluded to earlier in this posting.  That is, what is being described in these postings primarily refers to espoused theories of governance – what was held in the ideal realm.  While the demands on the colonists were severe, one always needs to allow for a gap between ideals and what is considered “real” or as some might say, “theories-in-use.”[4]

That is to say, more self-centered behaviors – as opposed to the ultraistic ones upon which federation depends – can always be found among any population.  The concern of this blogger is that currently, self-centeredness has become the ideal by using the language of the natural rights construct.  That language casts self-centeredness as almost patriotic expressions of liberty or freedom.  Hence, the need to be reminded that the nation’s basic law was written under the influence of another perspective, i.e., federal theory.

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[1] Daniel J. Elazar, “How Federal Is the Constitution?  Thoroughly!” In a booklet of readings, Readings for Classes Taught by Professor Elazar (1994), prepared for a National Endowment for the Humanities Institute. Conducted in Steamboat Springs, Colorado, 1-30.  The factual information in this posting is drawn from this source.

[2] Ibid., 8.

[3] Donald S. Lutz (editor), Colonial Origins of the American Constitution:  A Documentary History (Indianapolis, IN:  Liberty Fund, 1998).

[4] For example, see Kenneth D. Benne, “The Current State of Planned Changing in Persons, Groups, Communities, and Societies” in Planning of Change, eds. Warren G. Bennis, Kenneth D. Benne, and Robert Chin (New York, NY:  Holt, Rinehart and Winston, 1985), 68-82.