We have been having some most inclement weather here in Columbus. While playing on my computer, I found this article on a certain James Madison (Father of the Constitution). Whenever I see Father of something...the car, the airplane or the garage opener, I'm lead to believe that person may have more knowledge on that particular subject than most. That does seem probable does it not? Here is the article and excerpts from writings of Mr. Madison.
The "Strong Compact" Position
This writer would contend that this position was held by James Madison . It would contend that the nation was formed by compact, but that the nation was formed prior to the Constitution. While the "practical payoff" of this position would appear to be the same as the "nationalist" position, it is conceptually different.
James Madison was a subscriber to a "compact" theory as is seen from his authorship of the Virginia Resolutions, and his membership in the Democratic Republicans (which was populated by Anti-Federalists, among others) and not the Federalists. However, in keeping with his historical denotation as the "Father of the Constitution," Madison sided with those later associated with the Federalist party in endorsing the ratification of the Constitution in the Federalist Papers. For Madison, the function of government balances the carrying into effect the will of the majority while protecting the minority against the tyranny of the majority, the smallest minority, of course, being the individual. The reason for this is that government in all its forms is an agent of the will of the people as sovereign individuals as they join together in the state of nature to form civil society:
"Resuming the subject of the last paper, I proceed to enquire whether the Foederal Government or the State Governments will have the advantage with regard to the predilection and support of the people.... The Foederal and State Governments are in fact but different agents and trustees of the people, constituted with different powers, and designated for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrouled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone...." (Emphasis supplied)
Commenting upon the fundamental right of contract, Madison discovers this right in "the first principles of the social compact" which is prior even to the states since this right is protected "by the declarations prefixed to some of the State Constitutions."
Thus, as is iterated in the Massachusetts Constitution of 1780, the sovereignty of the individual in the exercise of his own natural rights is voluntarily transferred, via the social compact, to civil society. For Madison, equality of rights is then antecedent to the formation of the larger social unit. When Madison states that the Constitution itself is a compact, he is drawing an analogy between the compact formed by the various states to form the Union and the original social compact that, in the Lockean context, was prior to and preceding all government, which was instituted to protect the natural rights of all men and which constituted "written grants of power by the people to their governments."
Because of this, the natural equality of the Declaration is necessary to the formation of the original social compact so that the majority might, in turn, be granted the ability to rule, subject to the limitation of the natural rights of the minority. Madison states:
"On what principle does the voice of the majority bind the minority? It does not result I conceive from the law of nature, but from compact founded on conveniency. A greater proportion might be required by the fundamental constitution of a Society if it were judged eligible. Prior then to the establishment of this principle, unanimity was necessary; and strict Theory at all times presupposes the assent of every member to the establishment of the rule itself." (Emphasis in original)
Madison continues:
"To go to the bottom of the subject, let us consult the Theory which contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights, the safety & the interest of each may be under the safeguard of the whole.
The first supposition is, that each individual being previously independent of the others, the compact which is to make them one society must result from the free consent of every individual.
But as the objects in view could not be attained, if every measure conducive to them required the consent of every member of the society, the theory further supposes, either that it was a part of the original compact, that the will of the majority was to be deemed the will of the whole, or that this was a law of nature, resulting from the nature of political society itself, the offspring of the natural wants of man.
Whatever be the hypothesis of the origin of the lex majoris partis, it is evident that it operates as a plenary substitute of the will of the majority of the society for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, wherever vested or however viewed." (Emphasis in the original)
As may be seen from the foregoing, the only empowerment that the majority has to conduct business is that which is granted by the antecedent unanimity in the social contract. Therefore, slavery is not permitted in the subsequent civil society because the majority is never empowered to do anything to which the individuals forming the social compact would not have agreed (assuming that the minority who were slaves would not have voluntarily agreed to give up the equality of their natural right to the fruit of their own labor). The sovereignty thus granted is not absolute; it is based upon a grant of power by the rights of all which are, as are everyone's natural rights must be, antecedent to the social compact. Thus, the majority may only do anything that could rightfully be done by all individuals acting unanimously.
Equality in natural rights was antecedent to any grant of power. Thus, no majority can deprive a minority of its natural rights because such rights are not a function of governmental grant but have a reality antecedent to government. Therefore, the Tenth Amendment states that the rights not granted to the government are reserved to the states "or to the people." As a result, the Constitution may not be used to deprive the minority of individual natural rights2 because the Declaration, not the Constitution, was the fundamental act of Union of the states.
Therefore, unlike the "Nationalists" who saw the nation as coming into being through the will of the people as a whole ratifying the Constitution through state conventions and the Southerners ("Weak Compact") who saw the nation as coming into being through the will of the sovereign states forming a league or compact by ratifying the Constitution, the "Strong Compact" advocates saw the nation coming into being by virtue of a common adherence to the principles contained in the Declaration of Independence, principles that were to be enforced over time by a Constitution gradually brought into line with those principles. While the Constitution was ratified by the people acting through state conventions, the new nation could not simply be interpreted in terms of the old categories of "national" or "federal," but was partly both and, therefore, a new, third category.
The weakness in the Southerners' view was that the South Carolinians had admitted that the states had formed a government. Even if the government was a mere agent of the states, it was an agent of all of them. Thus, in an analogy to the formation of civil society in the state of nature, all must consent to its formation, but once consent is given, agency passes to the majority (once again, bound by the word "rightfully," defined as those actions that could, according to natural rights, be taken by all acting in concert). In the Constitution, that agency was three-fourths of the states acting for all in either convention or amendment. If sovereignty was indivisible and could not be ceded to the national government, it could not be given up to three-fourths of the states. If it had, on the other hand, it had been given up to the whole people of the United States, acting through the three-fourths.
If Madison had been on the side of the interpretation put forward by the South Carolinians, he would have agreed with them on nullification. Indeed, as long as the states retain a separate existence, a certain amount of sovereignty necessarily is retained by them (as stated in the Tenth Amendment). However, Madison was horrified by the suggestion that that sovereignty implied the powers of nullification, interposition, or secession:
"The conduct of S. Carolina has called forth not only the question of nullification; but the more formidable one of secession. It is asked whether a State by resuming the sovereign form in which it entered the Union, may not of right withdraw from it at will. As this is a simple question whether a State, more that an individual, has a right to violate its engagements, it would seem that it might be safely left to answer itself. But the countenance given to the claim shows that it cannot be so lightly dismissed. The natural feelings which laudably attach the people composing a State, to its authority and importance, are at present too much excited by the unnatural feelings, with which they have been inspired against their brethren of other States, not to expose them, to the danger of being misled into erroneous views of the nature of the Union and the interest they have in it. One thing at least seems to be too clear to be questioned; that whilst a State remains within the Union it cannot withdraw its citizens from the operation of the Constitution laws of the Union. In the event of an actual secession without the Consent of the Co-States, the course to be pursued by these involves questions painful in the discussion of them. God grant that the menacing appearances, which obtruded it may not be followed by positive occurrences requiring the more painful task of deciding them!" (Emphasis in original).
Madison also states:
"An inference from the doctrine that a single State has the right to secede at will from the rest is that the rest would have an equal right to secede from it; in other words, to turn it, against its will, out of its union with them. Such a doctrine would not, till of late been palatable anywhere, and nowhere less so than where it is now most contended for."
As mentioned above, Calhoun did not believe that individual sovereign natural rights were antecedent to the to the sovereignty of the states. To Calhoun, sovereignty was not a characteristic of individuals, but of a collective body, such as a state. Calhoun's theory along these lines comes into full revelation when one considers that most of Calhoun's vehemence was directed to defending the Southern sectional minority rights, even to the point of proposing the theory of "concurrent majorities."
We see the true divide: neither the "Nationalists" or the "Weak Compact" proponents see any place for individual rights apart from those that individuals possess by being participants in a state or in the national governments. On the other hand, Madison saw individual rights as being guaranteed in the social compact since the majority in the social compact could only perform actions that were not in derogation of the minority's inalienable rights, i.e. actions that would have had unanimous approbation in the state of nature. If the position of the "Nationalists" is granted, the citizens of the states have no protection from the predations of the national government. If the position of "Weak Compact" adherents is granted, the citizens of the United States have no protection from the predations of the individual states.
The "Strong Compact" view held by Madison in principle, provided the necessary balance to ensure that neither the states nor the national government would have the power to deprive individuals of their inalienable rights because their view of the Union saw the rights and sovereignty of Americans possessed by them individually and apart from participation in a governmental body.