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.
[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.
No comments:
Post a Comment