Pre War SCOTUS cases and Compact Theory

jgoodguy

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#1
How are you interpreting this case to mean that the compact theory is invalid?

Also, are you defining "compact theory" as an agreement among the states to delegate certain powers to a central government while retaining for themselves power of all else"? Or are you defining it another way?

Thank you
Compact theory in the United States
Regarding the Constitution of the United States, the compact theory holds that the country was formed through a compact agreed upon by all the states, and that the federal government is thus a creation of the states.[1] Consequently, states should be the final arbiters over whether the federal government had overstepped the limits of its authority as set forth in the compact.
SCOTUS ruled it was the final arbiter over whether the federal government had overstepped the limits of its authority, not the States.
 

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#3
When he authored the Kentucky Resolution of 1798, Thomas Jefferson based his arguments for nullification, in part, upon the compact theory of the relationship between the states and the Federal Government. It is imperative we restore this understanding of the Constitution if we are to ever restore the proper, intended balance of power between the states and the federal government.

According to this original understanding of the state-federal relationship, the Constitution was the creation of the people of the several states, and thus the federal government was also the creation of the people through their states. Jefferson argued that when the Federal government violates the Constitution, the people of the states themselves have the power, as antecedent to the compact of the states, to judge these violations on their own cognizance. The Resolution, along with its sister resolution from Virginia authored by James Madison, were intended as a call to action aimed at the legislatures of the other 14 states, urging them to join Virginia and Kentucky in declaring the recently passed Alien and Sedition Acts as null and void.

http://tenthamendmentcenter.com/201...t-theory-vital-to-restoring-the-constitution/

The compact theory was often relied upon by Southern states to justify both nullification and then secession up until the Civil War. After that war, of course, the theory was completely expunged from the American political lexicon by the victors.




 
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#4
Is it your position that since Chisholm held that Article 3 abrogated the sovereignty of the states, that accordingly no compact could exist among the states, since they were not sovereign?
 
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#5
Criticism of the ruling in McCullough vs Maryland...


Though Marshall rejected the 10th amendment's provision of states rights arguing that it did not include the word "expressly" unlike the Articles of Confederation, which was replaced by the Constitution,[7] controversy over the authority of the amendment being violated by the decision has existed. Compact theory also argues that the federal government is a creation of the states where the states maintain superiority. Unlike Marshall, his successor, Roger B. Taney, established Dual federalism, where separate but equal branches of government were believed to be a better option.[8]
 
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#6
Compact theory in the United States
Regarding the Constitution of the United States, the compact theory holds that the country was formed through a compact agreed upon by all the states, and that the federal government is thus a creation of the states.[1] Consequently, states should be the final arbiters over whether the federal government had overstepped the limits of its authority as set forth in the compact.
SCOTUS ruled it was the final arbiter over whether the federal government had overstepped the limits of its authority, not the States.
The Supreme Court gave itself a power it was not granted within the Constitution. Nowhere is it made the final arbiter of what is constitutional and what is not. Thomas Jefferson was right to be concerned, and right about the consequences.

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." —Thomas Jefferson to Abigail Adams, 1804

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." —Thomas Jefferson to William C. Jarvis, 1820
 
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#7
Taney vision...

Dual federalism
, also known as layer-cake federalism or divided sovereignty, is a political arrangement in which power is divided between the federal and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the federal government. Dual federalism is defined in contrast to cooperative federalism ("marble-cake federalism"), in which federal and state governments collaborate on policy
 
#8
Taney vision...

Dual federalism
, also known as layer-cake federalism or divided sovereignty, is a political arrangement in which power is divided between the federal and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the federal government. Dual federalism is defined in contrast to cooperative federalism ("marble-cake federalism"), in which federal and state governments collaborate on policy
So what SCOTUS decision was Taney's concept the majority opinion?
 

jgoodguy

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#10
The Supreme Court gave itself a power it was not granted within the Constitution. Nowhere is it made the final arbiter of what is constitutional and what is not. Thomas Jefferson was right to be concerned, and right about the consequences.

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." —Thomas Jefferson to Abigail Adams, 1804

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." —Thomas Jefferson to William C. Jarvis, 1820
That assume a helpless Congress, helpless States, a helpless Presient and helpless People of the United States for close to 230 years or else your assertion is flawed. Hmmm wonder which.

Chisholm v. Georgia is a good example of what happens when SCOTUS is felt to have overreached. The People of the US, through their elected representives in Congress and the States passed and ratified the 11th amendment which limited the Courts reach. The soverignity of the SCOTUS in other cases was left untouhed.
 
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#12
Sovereign immunity... The people can not sue their state or any state for rewards or damages. .... Sovereignty from being held accountable is what the 11th amendment is about...
 
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#13
These cases fall under Duel Federalism is not the Compact theory really just Duel federalism...
  • McCulloch v. Maryland. ...
  • Gibbons v. Ogden. ...
  • Barron v. Baltimore (1833),
  • Cooley v. Board of Wardens. ...
  • Dred Scott v. Sanford (1857) ...
Dual federalism appears consistent with a narrow reading of the U.S. Constitution. Such a reading must narrowly interpret the Commerce Clause, Necessary and Proper Clause, Supremacy Clause, and Tenth Amendment. Dual federalism was the predominant theory for interpreting the Constitution from 1789 to 1901.

The theory of dual federalism survived the Civil War but was seriously challenged by the Industrial Revolution. Dual federalism faced a fatal challenge with the Industrial Revolution.

http://encyclopedia.federalism.org/index.php?title=Dual_Federalism
 
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#14
Barron v. Baltimore (1833), This is the ruling that freed the states from the constraints of the Bill of Rights in our Constitution and later leads to the 14th amendment.

The Supreme Court argued on February 11 and decided on February 16, 1833,[2] that the Bill of Rights, such as the Fifth Amendment guarantee of just compensation for takings of private property for public use, are restrictions on the federal government alone. Writing for a unanimous court, Chief Justice John Marshall held that the first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."

To demonstrate that Constitutional limits did not apply to states unless expressly stated, Marshall used the example of Article I, Sections 9 and 10:

The third clause (of Section 9), for example, declares that "no bill of attainder or ex post facto law shall be passed." No language can be more general; yet the demonstration is complete that it applies solely to the government of the United States.... the succeeding section, the avowed purpose of which is to restrain state legislation... declares that "no state shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation.
 

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#15
Is it your position that since Chisholm held that Article 3 abrogated the sovereignty of the states, that accordingly no compact could exist among the states, since they were not sovereign?
Hi David. Welcome to the Forum. As you'll see, I've read some of your other posts as well.

Actually, no one abrogated state sovereignty.

"SOVEREIGNTY. The supreme, absolute, and uncontrollable power by which any independent state is governed; . . . The power to do everything in a state without accountability,—to make laws, to execute and to apply them,..." — Black's Law Dictionary, 4th Edition

Being supreme and uncontrollable, no one can legally abrogate someone else's sovereignty (they can illegally do so, like the colonists did to Parliament's sovereignty). The states themselves voluntarily surrendered a portion of their sovereignty, thereby allowing the people of US, using that sovereignty, to establish the Constitution, and with it the Fed and a more perfect Union.

"It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest." - Official Letter of the Federal Convention, September 17, 1787

The Confederation, and in fact the confederation model in general (a union in which "each" member state retains "all rights of independent sovereignty") had proven "obviously impracticable." At the time, the only alternative form of government, as far as sovereignty was concerned, was a consolidated state (today, a unitary state; one sovereignty controls all matters throughout the country). That was unacceptable. The Framers decided that something entirely new was needed, so they invented an entirely new form of government.

"...it is in a manner unprecedented; we cannot find one express example in the experience of the world." - James Madison, June 6, 1788

The principle was called federalism, and while there was no word for it at the time (though there was a phrase, "a more perfect Union"), today its called a federation. One national sovereignty controls national matters throughout the country, multiple state sovereignties control local matters within each state, national sovereignty is controlling (hence the national constitution and laws are supreme to the state constitutions and laws), and state sovereignty is limited/residual. The only way to go from a confederation to a federation is if each individual state (or in this case, at least 9 of them) "give up a share" of their sovereignty (the portion associated with the powers of government delegated to the Fed via the Constitution). In addition, "Individuals entering into society" is a reference to Lock's social compact. Establishing a constitution is a sovereign act. When the colonies declared independence, they were claiming sovereignty, via which the people of each state established a state constitution. In 1787-1790 the people of each individual state surrendered a portion of their sovereignty so the people of the US could do the same.

As an alliance of sovereign states, a confederation is formed via a compact among sovereign states (aka a treaty). People who promote compact theory are trying to reduce the Constitution to a mere treaty.

Madison seems to combine the surrender of sovereignty and the social contract/establishment of the Constitution into one act, hence the people of the states go in as 13 separate sovereign states, and come out as one sovereign people ("the people at large," at large meaning as a whole). Jay seems to treat it as two separate acts (though in one, of course), after sovereignty was surrendered, the people of the US executed the sovereign act of establishing the Constitution. I prefer Jay, because it because it's simpler, and explicitly addresses sovereignty.

Also refer to Wikipedia on Confederations, and Federations; Madison's Notes on the Federal Convention of 1787, including May 29, where Randolph "proceded to enumerate the defects" of the Confederation, and May 30, Gouveneur Morris's three propositions (first item of the day), and where he "explained the distinction between...", and the vote on his third proposal ("On the question as moved by Mr. Butler..."); Madison's The Federalist No. 39; Madison in the VA ratifying convention, June 6 & 7; Martin v. Hunter's Lessee, McCullough v. Maryland, and Cohens v. Virginia.

I also like this, from the North Carolina ratifying convention:

The Constitution must be the supreme law of the land, otherwise it will be in the power of any one state to counteract the other states, and withdraw itself from the union.” Governor Samuel Johnston, July 29, 1788
 

CW Buff

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#16
The Supreme Court gave itself a power it was not granted within the Constitution. Nowhere is it made the final arbiter of what is constitutional and what is not. Thomas Jefferson was right to be concerned, and right about the consequences.
Article III ("judicial Power of the United States") + Article VI, Clause 2 (Supremacy Clause) = supreme judicial power.

Thomas Jefferson apparently sought to be the final arbiter on the US Constitution, but he is not in Article III.
 

jgoodguy

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#17
Sovereign immunity... The people can not sue their state or any state for rewards or damages. .... Sovereignty from being held accountable is what the 11th amendment is about...
More than that. Soverign Immunity is a fundlemental part of soverignity. The 11th granted that to the States, it was not inherently part of existing State soverignity meaning that the compact theory does not apply because the States were not fully soverign after becoming part of the Consitutional Union.
 

jgoodguy

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#18
Hi David. Welcome to the Forum. As you'll see, I've read some of your other posts as well.

Actually, no one abrogated state sovereignty.

"SOVEREIGNTY. The supreme, absolute, and uncontrollable power by which any independent state is governed; . . . The power to do everything in a state without accountability,—to make laws, to execute and to apply them,..." — Black's Law Dictionary, 4th Edition

Being supreme and uncontrollable, no one can legally abrogate someone else's sovereignty (they can illegally do so, like the colonists did to Parliament's sovereignty). The states themselves voluntarily surrendered a portion of their sovereignty, thereby allowing the people of US, using that sovereignty, to establish the Constitution, and with it the Fed and a more perfect Union.

"It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest." - Official Letter of the Federal Convention, September 17, 1787

The Confederation, and in fact the confederation model in general (a union in which "each" member state retains "all rights of independent sovereignty") had proven "obviously impracticable." At the time, the only alternative form of government, as far as sovereignty was concerned, was a consolidated state (today, a unitary state; one sovereignty controls all matters throughout the country). That was unacceptable. The Framers decided that something entirely new was needed, so they invented an entirely new form of government.

"...it is in a manner unprecedented; we cannot find one express example in the experience of the world." - James Madison, June 6, 1788

The principle was called federalism, and while there was no word for it at the time (though there was a phrase, "a more perfect Union"), today its called a federation. One national sovereignty controls national matters throughout the country, multiple state sovereignties control local matters within each state, national sovereignty is controlling (hence the national constitution and laws are supreme to the state constitutions and laws), and state sovereignty is limited/residual. The only way to go from a confederation to a federation is if each individual state (or in this case, at least 9 of them) "give up a share" of their sovereignty (the portion associated with the powers of government delegated to the Fed via the Constitution). In addition, "Individuals entering into society" is a reference to Lock's social compact. Establishing a constitution is a sovereign act. When the colonies declared independence, they were claiming sovereignty, via which the people of each state established a state constitution. In 1787-1790 the people of each individual state surrendered a portion of their sovereignty so the people of the US could do the same.

As an alliance of sovereign states, a confederation is formed via a compact among sovereign states (aka a treaty). People who promote compact theory are trying to reduce the Constitution to a mere treaty.

Madison seems to combine the surrender of sovereignty and the social contract/establishment of the Constitution into one act, hence the people of the states go in as 13 separate sovereign states, and come out as one sovereign people ("the people at large," at large meaning as a whole). Jay seems to treat it as two separate acts (though in one, of course), after sovereignty was surrendered, the people of the US executed the sovereign act of establishing the Constitution. I prefer Jay, because it because it's simpler, and explicitly addresses sovereignty.

Also refer to Wikipedia on Confederations, and Federations; Madison's Notes on the Federal Convention of 1787, including May 29, where Randolph "proceded to enumerate the defects" of the Confederation, and May 30, Gouveneur Morris's three propositions (first item of the day), and where he "explained the distinction between...", and the vote on his third proposal ("On the question as moved by Mr. Butler..."); Madison's The Federalist No. 39; Madison in the VA ratifying convention, June 6 & 7; Martin v. Hunter's Lessee, McCullough v. Maryland, and Cohens v. Virginia.

I also like this, from the North Carolina ratifying convention:

The Constitution must be the supreme law of the land, otherwise it will be in the power of any one state to counteract the other states, and withdraw itself from the union.” Governor Samuel Johnston, July 29, 1788
Very well reasoned and presented!
 

O' Be Joyful

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#19
The Constitution must be the supreme law of the land, otherwise it will be in the power of any one state to counteract the other states, and withdraw itself from the union.” Governor Samuel Johnston, July 29, 1788
A proto-scalawag and betrayer of the South in its cradle! We'll find some dirt on him.
 
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#20
More than that. Soverign Immunity is a fundlemental part of soverignity. The 11th granted that to the States, it was not inherently part of existing State soverignity meaning that the compact theory does not apply because the States were not fully soverign after becoming part of the Consitutional Union.
Hi jgoodguy,

Well, you are misunderstanding this a bit as it isn't really an issue pertaining to "compact theory," as much it is one which simply revolved around enumerated powers. The jurisdiction of the Federal judiciary is defined in Article III of the U.S. Constitution and that jurisdiction was written to include suits "between a State and citizens of another State." What happened is that the Supreme Court interpreted this to mean that it had jurisdiction in all cases in which a State and citizens of another State were parties and thusly ruled in the case of Chisholm vs. Georgia, which was brought by a citizen of a State against the government of another State. This quickly provoked a sharp reaction as the intention of the provision was only intended to extend to cases brought by a State against citizens of another State, i.e. when the State is plaintiff, resulting in the passage of the Eleventh Amendment which clarified that the Federal judiciary does not have jurisdiction over suits brought against a State by non-citizens who are citizens of another jurisdiction. That is all the Eleventh Amendment did. It did not grant any power to the States, it simply clarified that this was an area outside of Federal enumerated powers and consequently that power is retained to the States. This why the Eleventh Amendment begins with "The Judicial power of the United States shall not be construed to extend...," as it was only intended to clarify the extent of Federal jurisdiction in Article III.

The Federal government which was established under the Constitution can be understood as one which was created by the people of the United States, who created a government of enumerated power and declared that in the areas in which that government possessed power, it was supreme in relation to the States in which the people resided. Beyond those powers, authority was retained, through the simple fact that it was not given, by the people of each State to the States themselves, meaning those States to which each person belongs. The Federal government and the States can be understood much like separate entities, where the people of all of the States created the Federal government, enumerated its powers and specified that the Federal government is supreme in its areas of authority. Beyond this, naturally, authority is retained to the States, or to the people residing therein. So, the basis of the United States under the Constitution is that of the people, who are co-sovereigns, not the States. Beyond those powers provided for in the Constitution, or prohibited by it to the States, authority is retained to the States by the fact that it has not been granted to the Federal government.
 
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