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.