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 15th 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.”
[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.
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