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In the Shadow of Our Founders: Part Three

© Brian Tubbs

Is the Constitution a Compact Between the States?

Article VII of the Constitution required its ratification by nine of the original thirteen states. Once achieved, that number was "sufficient for the establishment of this Constitution between the States so ratifying the same." The obvious fact inferred from this portion of the Constitution is that the states, which ratify the Constitution, are in fact establishing themselves into a mutual compact.

Previous articles have examined this question of compact in greater depth, and the evidence strongly supports Jefferson Davis's contention that the Constitution was indeed seen by the Founders as a compact of the states. Any understanding of the nature of the Constitutional Union must be mindful of this fact.

Is the Constitution Supreme to the States?

Defenders of the Confederate point to the definition of "sovereignty," claiming that the states delegated powers to the federal government in their capacity as sovereign units. As such, they can reclaim those powers at their discretion. They are sovereign. They are supreme.

This is a great example of what can happen when people base their reasoning on isolated terms. Let us not forget that the king of England was considered "sovereign," just as the queen is today. Sovereignty for the throne did not place the monarch above the law, however. This was the whole point of Magna Carta, the foundational cornerstone of the fine English Rule of Law tradition. And this was the very principle that led to the American Revolution itself. Our Founders believed that Parliament, with the support of King George III, was overstepping its lawful bounds. While George III was certainly recognized by our Founders as "sovereign," that designation did not make him superior to the British Constitution.

With that Rule of Law tradition firmly in mind, delegates at the Philadelphia convention put these words into Article VI of the Constitution: "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land..."

Needing to drive that point even further, the Framers continued, with words still in the Constitution today as they were in 1787 and 1860: "...and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding."

In Federalist #44, James Madison freely concedes that Article VI places the federal government in a position superior to the states, with the Constitution and federal laws passed according to its authority superseding even those policies deeply enshrined in state constitutions. In defending the necessity of this "supremacy clause," Madison wrote that in its absence, the world "would have seen the authority of the whole society every where subordinate to the authority of the parts." In short, explained Madison, the world "would have seen a monster, in which the head was under the direction of the members."