Compact and Covenant

The ideas of compact and covenant were first brought to what is now the United States by the Pilgrims, Puritans, other Reformed Protestants, and Jews.

BIBLICAL IDEA OF COVENANT

The seminal idea is covenant, a concept central to the Hebrew and Christian bibles. A covenant is a voluntary, morally informed agreement between essentially equal and independent individuals or communities to establish a new community of limited or comprehensive scope in which the consenting parties pledge mutual respect and protection of each other's integrity. It establishes unity while preserving diversity. A covenant, unlike a compact or contract, has a moral dimension, often religious in nature, requiring the consenting parties to go beyond the letter of the law so as to observe the spirit of the law, often under the watchful eye of God, brought in as a witness to the covenant. As such, a covenant is a morally binding oath or promise. Thomas Hobbes ( 1588–1679 ) regarded this aspect of covenant to be so important that his third law of nature reads: “that men perform their covenants made” ( Leviathan 1651, ch. XV ). Absent such performance, there is no justice, concluded Hobbes.

Covenant is found in Hebrew scripture, as in God's covenant with humanity through Noah and God's covenant with Israel at Mt. Sinai. For Christians, Jesus Christ bears a new covenant between God and humanity. These scriptures also portray covenants between the people and kings and between people themselves.

The biblical covenant idea was revived in the West by Swiss Calvinists or Reformed Protestants, such as Huldrych Zwingli ( 1484–1531 ) and Heinrich Bullinger ( 1504–1575 ). They countered the organically hierarchical conception of society, including the divine right of monarchs, that prevailed in the medieval Catholic world. If no one, whether pope or monarch, has divine authority to interpret the Bible for others or to rule others, then a covenant is a logical alternative for organizing human relationships.

Reformed Protestants redefined marriage as a covenant rather than a sacrament. Individuals and families covenanted to form religious congregations. No ecclesiastical hierarchy existed to impose priests on them; instead, congregations called ministers or pastors to serve them. This congregational structure is not an episcopal polity but a federal polity. The word federal comes from the Latin foedus, meaning covenant or agreement, and the Puritans' theology was called covenant or federal theology.

Reformed Protestants also applied the covenant idea to the formation of civil communities and secular governments. Individuals, families, and congregations covenanted together to form towns, and towns covenanted to form larger confederations or unions. As they developed these arrangements, the colonists adopted and coined a variety of related secular words to describe and distinguish between their instruments of governance, such as compact, contract, combination, agreement, charter, frame, fundamentals, patent, ordinance, and eventually constitu-tion. What is today called the Mayflower Compact ( 1620 ) was known by its contemporaries as the Plymouth Combination, or “agreement among the settlers at New Plymouth.”

COVENANTS, COMPACTS, AND CHARTERS IN COLONIAL AMERICA

For the Puritans, a covenant usually differed from a compact and contract because either God or the Crown was deemed the ultimate guarantor of a covenant. Consequently, the parties to a covenant swore an oath before God or the Crown, either of which rewards those who keep their covenants and punishes those who do not. If the parties to a covenant formed a body politic, they believed themselves bound by God or Crown to keep the promises they made in constituting their community.




The landing of the Pilgrims at Plymouth, Massachusetts, December 22, 1620. Lithograph by Currier and Ives, 1876.





The landing of the Pilgrims at Plymouth, Massachusetts, December 22, 1620. Lithograph by Currier and Ives, 1876.
© LIBRARY OF CONGRESS PRINTS AND PHOTOGRAPHS DIVISION (LC-USZ62-3461)

During the colonial years, the colonists increasingly used compacts rather than covenants to constitute towns and other bodies politic, thus emphasizing popular sovereignty more than divine or royal sovereignty for their own governance. They also used other words, such as combination, frame, ordinance, and constitution, to describe their political agreement-making.

Covenants and compacts differ from contracts. A contract is usually a narrow agreement intended for a specific transaction or purpose, and it is made between two people or a small group of people. The letter of a contract is vitally important, and God is not a witness or guarantor. Covenants and compacts deal with broader matters and larger groups of people, and the spirit of a covenant is more important than its letter, while the spirit of a compact is at least as important as its letter. Unlike covenants and compacts, contracts do not establish a new people, community, or body politic. Hence, the bonds among the parties to a covenant and compact are deeper than those among the parties to a contract. A contract, moreover, can be enforced by law, usually through courts; it does not have the status of law.

Another common term, charter, is a legal document or deed that confirms or ratifies grants, contracts, and other transactions. The term charter also applies to a written grant of privileges or rights awarded by the sovereign or a legislature to an individual, a group of people, a private corporation, or a government entity. The British Crown granted many such charters for the establishment of colonies. For example, King Charles II ( r. 1660–1685 ) gave William Penn ( 1644–1718 ) a charter in 1681 to establish Pennsylvania. Penn was granted proprietary authority over the colony, but not absolute power. The charter required Penn's laws to be consistent with England's laws and to be promulgated “with the advice, assent, and approbation of the freemen … or of their delegates or deputies.”

COVENANT'S SECULARIZATION AND THE US FOUNDING

As noted above, the Puritans' descendants increasingly turned to compacts and other secular instruments to describe their political foundings and developments. The covenant idea also was secularized by Hobbes, who used covenant in his Leviathan ( 1651 ) to describe the creation of a body politic; John Locke ( 1632–1704 ), who used compact for this purpose in his Two Treatises of Government ( 1689 ); and other English political philosophers, such as John Milton ( 1608–1674 ), Algernon Sidney ( 1623–1683 ), and David Hume ( 1711–1776 ). Later, in 1762, Jean-Jacques Rousseau ( 1712–1778 ) used the term social contract.

Consequently, the leading political founders of the United States, who revered these English thinkers, rarely used covenant. The word does not appear in The Federalist, for instance, although compact is used eighteen times and compacts seven times. By contrast, the word constitution appears 464 times and constitutions seventy-six times. By the 1780s, constitution rather than covenant dominated political discourse, although compact was still used, especially in reference to state constitutions. However, the preamble to the Massachusetts Constitution of 1780, which is the oldest written constitution still in effect, harks back to covenanting:

The body politic is formed by a voluntary association of individuals: It is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them; that every man may, at all times, find his security in them.

This preamble summarizes the covenant idea as secularized over approximately 160 years into constitution making. Consistent with the preamble, the Massachusetts Constitution was written by a convention elected to do so and then ratified by the people in a referendum.

Modern written constitutions were invented by the states based on their colonial charter and indigenous covenantal experiences. Eighteen state constitutions preceded the ratification of the US Constitution in 1788. The states were seedbeds of constitutional debate during the 1776–1789 period, and produced constitutional designs that were both models and warnings for the framers of the US Constitution. Eight of the early state constitutions either referred to themselves as compacts or used the compact form. Others invoked the term constitution, especially those that had a declaration of rights that was treated separately from the section labeled constitution or frame of government. Only in the nineteenth century did constitution come to encompass the declaration of rights together with the frame of government. The US Constitution derives most of its form from the precedents of colonial charters, but has many elements of a compact, especially with the Bill of Rights added in 1791.

COMPACT AND COVENANT SINCE THE FOUNDING

The term compact endures in Article I, Section 10, of the US Constitution, which reads: “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State, or with a foreign Power.” Today, there are more than two hundred interstate compacts. Some involve only two states (e.g., the Port Authority of New York and New Jersey), some involve states of a region (e.g., the New England Higher Education Compact), and twenty-two involve all fifty states (e.g., the Emergency Management Assistance Compact). Additionally, the Compact of Free Association defines the manner in which the sovereign states of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau are associated states with the United States.

The covenant idea remains important for Jews and Protestants of the reformed tradition, such as Baptists and Congregationalists, and is a common American conception of marriage. Arizona, Arkansas, Kansas, and Louisiana have a legal marriage category called covenant marriage, whereby the couple agrees to participate in premarital counseling and acknowledge limited grounds for divorce.

The word covenant has not been prominent in American political discourse, although it is invoked frequently during crises by critics and political leaders, who allude to both the Declaration of Independence and the federal Constitution as covenants. The Declaration of Independence has the form of a covenant, but the Constitution does not. President Benjamin Harrison ( 1889–1893 ) termed the federal Constitution “the Ark of the Covenant” because it was intended to fulfill the Declaration's promises. Thomas Jefferson ( 1743–1826 Jefferson 1999, 215 ). In 1984, Lloyd Cutler ( 1917–2005 ), former counsel to President Jimmy Carter, termed the federal Constitution America's civic “Ark of the Covenant” but formed a blue-ribbon committee to advocate amendments.

In 1854, the abolitionist William Lloyd Garrison ( 1805–1879 ), drawing from Isaiah 28:15, famously called the US Constitution “a covenant with death, and an agreement with hell.” President Abraham Lincoln ( 1809–1865 ) reportedly told his cabinet that he had made a covenant with God to issue the Emancipation Proclamation ( January 1, 1863 ) if the Union won the Battle of Antietam ( September 17, 1862 ). Lincoln's famous Gettysburg Address ( 1863 ) has the characteristics of a biblical covenant renewal, such as that of Joshua at Shechem ( Josh. 24:1–28 ). The first paragraph of the Gettysburg Address evokes the principles and commitments made by the American Founders. The second paragraph assesses the crisis of those principles, while the third paragraph calls for a renewed public dedication to “the unfinished work” of the Founders and those who died on the battlefield for the Founders' principles.

During the Civil Rights Movement of the 1950s and 1960s, Martin Luther King Jr. ( 1929–1968 ) emphasized the need to bring positive law into alignment with the moral precepts of the American covenantal tradition, principally the Declaration of Independence. King was a Baptist, and the idea of covenant is central to the Baptist tradition. King also saw the breaking of unjust laws through nonviolent civil disobedience as being a covenantal obligation of citizens. Through such disobedience King sought to appeal to the consciences of Americans to remedy injustice by living up to their covenant promises.

The first major section of the inaugural address delivered by President Lyndon B. Johnson ( 1908–1973 ) in 1965 reads:

They came here—the exile and the stranger, brave but frightened—to find a place where a man could be his own man. They made a covenant with this land. Conceived in justice, written in liberty, bound in union, it was meant one day to inspire the hopes of all mankind. And it binds us still. If we keep its terms we shall flourish.

Johnson tapped a theme common in American political rhetoric, namely, that fidelity to the first principles associated with the Declaration is necessary to perpetuate the American republic and its liberty.

In the second paragraph of his opening remarks on taking the presidential oath after President Richard M. Nixon ( 1913–1994 ) resigned in 1974, Gerald R. Ford ( 1913–2006 ) said, “I feel it is my first duty to make an unprecedented compact with my countrymen.” Bill Clinton's acceptance speech at the 1992 Democratic National Convention was titled “A Vision for America: A New Covenant.” Political commentator David Gergen, in covering Clinton's speech, observed that America needs another new covenant whereby the parties and the press stop savaging candidates. In 2005, thirty-nine mayors from cities across the country launched a Covenant of Partnership to alleviate homelessness.

The covenant idea endures culturally in the ease with which Americans form associations, from garden clubs to national organizations, to achieve public and private purposes. Most Americans understand the process of establishing an association constitution, often called bylaws, electing officers, and arranging financing.

SEE ALSO Calvinism ; Community ; Compact Theory ; Consent ; Constitution ; Contract ; Locke, John ; Popular Sovereignty ; Puritanism ; Social Contract .

BIBLIOGRAPHY

Allen, Barbara. “Martin Luther King's Civil Disobedience and the American Covenant Tradition.” Publius: The Journal of Federalism 30, no. 4 (2000): 71–113.

Bellah, Robert N. The Broken Covenant: American Civil Religion in Time of Trial. 2nd ed. Chicago: University of Chicago, 1992.

Charter for the Province of Pennsylvania. 1681. http://avalon.law.yale.edu/17th_century/pa01.asp .

Constitution of the Commonwealth of Massachusetts. 1780. https://malegislature.gov/Laws/Constitution .

Elazar, Daniel J., and John Kincaid, eds. Covenant, Polity, and Constitutionalism. Lanham, MD: University Press of America, 1983.

Elazar, Daniel J., and John Kincaid, eds. The Covenant Connection: From Federal Theology to Modern Federalism. Lanham, MD: Lexington, 2000.

Ford, Gerald R. Gerald R. Ford's Remarks upon Taking the Oath of Office as President. 1974. http://www.fordlibrarymuseum.gov/library/speeches/740001.asp .

Jefferson, Thomas. “To Samuel Kercheval, July 12, 1816.” In Jefferson: Political Writings, edited by Joyce Appleby and Terrence Ball. Cambridge: Cambridge University Press, 1999.

Johnson, Lyndon Baines. Inaugural Address. 1965. http://www.lbjlib.utexas.edu/johnson/inauguration/PDF/PresidentInaugural.pdf .

Lincoln, Abraham. Gettysburg Address. November 19, 1863. http://www.ourdocuments.gov/doc.php?doc=36&page=transcript.

Lutz, Donald S. “From Covenant to Constitution in American Political Thought.” Publius: The Journal of Federalism 10, no. 4 (1980): 101–33.

Roelofs, H. Mark. “The Gettysburg Address: An Exercise in Presidential Legitimation.” Presidential Studies Quarterly 8, no. 3 (1978): 226–36.

John Kincaid
Lafayette College