Of Charters and Compacts: Comments on Fallone

Professor Fallone identifies two competing theories of the Constitution—that it is a “charter of delegated power” and “a compact.”[1]  As he presents it, the charter (or delegation) view holds that “the Constitution grants no absolute sovereign powers to the federal government; those powers continue to be retained by ‘the people.’”  Therefore, the only legitimate authority that the federal government possesses is the authority to exercise the powers expressly delegated to it in the Constitution’s text.”[2]  The compact view, as he describes it, is that “the Constitution is a concrete compact between the federal government and the state governments, with the people of the United States as beneficiaries.”[3]  Fallone’s distinction is apparently intended to correspond to the traditional distinction between the “nationalist” view of constitutional interpretation (historically, the Hamilton-Marshall-Story line), and the “states rights” view (historically, the Jefferson-Calhoun line).[4]  I shall argue that Professor Fallone misunderstands the traditional distinction and, in consequence, misapplies it in three contexts:  executive power, constitutional protection for aliens and other outsiders, and the possibility of extraconstitutional changes to the Constitution.

Part I below deals with the historical distinction; Part II with Professor Fallone’s interpretation of it; and Part III with the application of the distinction to the three contexts mentioned above.

I.  Charter vs. Compact:  The Historical Traditions

Justice Story articulated the nationalist view of constitutional interpretation, saying:

The [C]onstitution of the United States was ordained and established not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’ . . . The Constitution was for a new Government, organized with new substantive powers, and not a mere supplementary charter to a Government already existing.  The Confederation was a compact between States, and its structure and powers were wholly unlike those of the National Government.  The Constitution was an act of the people of the United States to supersede the Confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment.[5]

The core of the states rights view of constitutional interpretation, as explained by the leading Virginian constitutional theorist, John Taylor of Caroline, is that the Constitution is “a compact by which each state delegated for itself only limited powers to the federal government; attended by a supremacy not of any political sphere, but of the constitution, limited and confined to the powers delegated, and not extending to the portion of primitive state supremacy, never delegated.”[6]  Judge Spencer Roane of the Virginia Court of Appeals, a fierce critic of Chief Justice John Marshall’s opinion in McCulloch v. Maryland,[7] maintained that

[t]he Constitution of the United States was not adopted by the people of the United States, as one people.  It was adopted by the several states, in their highest sovereign character, that is, by the people of the said states, respectively; such people being competent, and they only competent, to alter the pre-existing governments operating in the said states. . . . ‘We the people of the United States’ . . . does not necessarily import the people of America, in exclusion of those of the several states.[8]

And in the first of his draft Kentucky Resolutions of 1798, Thomas Jefferson argued that the compact theory positioned the states to be judges of the constitutionality of the federal government’s actions:

Resolved that the several States composing, the US. of America are not united on the principle of unlimited submission to their general government; but that, by a compact under the style & title of a Constitution for the US. and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.  that to this compact each State acceded as a State, and is an integral part, its co-states forming, as to itself, the other party.  that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, & not the constitution the measure of its powers: but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode & measure of redress.[9]

For much of the nation’s history, constitutional debate was framed in terms of these two competing theories.  Thus, in his Second Reply to South Carolina’s Robert Hayne in the famous Senate debate of 1830, Daniel Webster argued forcefully in defense of the charter view and against the compact-based doctrine of the states’ right of “nullification.”  Speaking to the sources of the federal government’s power, Webster said:

Whose agent is it?  Is it the creature of the State legislatures, or the creature of the people?  If the government of the United States be the agent of the State governments, then they may control it, provided they can agree in the manner of controlling it; if it be the agent of the people, then the people alone can control it, restrain it, modify it, or reform it. . . . It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people. . . . The States are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law.  But the State legislatures, as political bodies, however sovereign, are yet not sovereign over the people.  So far as the people have given power to the general government, so far the grant is unquestionably good, and the government holds of the people, not of the State governments.[10]

Both the charter and compact theories remain vital, at least to some degree.[11]

II.  Fallone’s Applications of the Two Theories

Fallone argues that the two theories yield strikingly different entailments with respect to the federal government’s relations with, respectively, the states, the members of the American political community, and “outsiders” to that community, as well as between one branch of the federal government and another.[12]  Fallone focuses primarily on the different entailments that, in his view, follow from these competing theories with respect to the constitutional position of “outsiders,” particularly noncitizens.  He writes:

The fundamental characteristic of the compact view is that it limits the possession of [constitutional] rights to those persons who are members of the social contract.  Only members of the community who are parties to the contract are allowed to claim the individual rights that the Constitution guarantees.  As a result, the legitimacy of government action under the Constitution depends entirely on whether a member of the political community is aggrieved.  Contracts do not create any rights for nonparties, and under a compact view of the Constitution the guarantee of individual rights contained in the text do not apply to “outsiders” to the community. . . . This . . . view . . . relies on membership models that incorporate certain assumptions.  All such models reveal a hesitancy to define membership in ways that allow aliens to impose their membership status on the United States without the consent of our government. . . . [T]he compact view assumes that the consent of the government is necessary before membership can be asserted, and that there are no gradations of rights among the members of the social contract.[13]

By contrast, the delegation view is, according to Fallone, far more hospitable to the rights of “outsiders.”  The delegation approach:

posits that the United States government simply does not possess the power to act in certain situations. . . . As an artificially created entity, the federal government is incapable of possessing any power or authority that is not granted to it. . . . Neither a citizen nor a noncitizen can be subjected to any exercise of government power that is an ultra vires act.[14]  “Outsiders” therefore possess the same ability as citizens to claim constitutional protections “defensively by asserting the existence of structural boundaries that circumscribe governmental power. . . . [T]he power of the federal government must be subject to the check of judicial review without regard either to where that power is exercised or to the identity of the target of the power.  Membership status is rendered irrelevant under the delegation view.”[15]

Fallone seeks to draw further entailments from the two theories.  In particular, he argues that the compact theory implies, or at least invites, the conclusion that the federal government, and in particular the executive branch, possesses extraconstitutional, nontextual, unenumerated powers.[16]  Thus, he argues that the compact theory leads to the doctrine of the unitary executive, and specifically to claims that the executive may make war unilaterally and has “almost unbridled power when it act[s] in the realm of national security.”[17]  By contrast, he suggests, the delegation doctrine bars such conclusions.[18]

III.  Criticisms of Fallone’s Account

A.            Executive Power

Fallone’s account is clearly wrong.  Certainly, the delegation theory rules out the view, notoriously advanced by Justice Sutherland in United States v. Curtiss-Wright Export Corp.,[19] that the federal government possesses inherent, extraconstitutional powers, commensurate with those of other national sovereigns, to act in foreign affairs.  But so too does the compact theory.[20]  Fallone takes the doctrine of inherent but extraconstitutional federal powers (especially in foreign affairs) to be a corollary of the compact theory.[21]  This is unhistorical and mistaken.  The inherent powers doctrine is essentially an untraditional, late-nineteenth century anomaly that “sharply . . . diverged from accepted American political doctrines,” including compact theory.[22]  Although one can glimpse anticipations of the “inherent power” theory throughout our constitutional history, it is best seen as a product of the Gilded Age, rather than of the early Republic, and as antagonistic to both the delegation and compact views of constitutional interpretation.[23]

Further, one can consistently hold the delegation theory and yet affirm a robust view of executive authority as to war-making, foreign affairs, and national security.  If any figure after the Founding belongs in the “delegation” tradition of constitutional interpretation, Abraham Lincoln surely does;[24] by contrast, Lincoln’s great adversary, Roger B. Taney, is usually viewed as a “compact” theorist.[25]  Yet at the outbreak of the Civil War Lincoln affirmed that he had the unilateral power to suspend the writ of habeas corpus with respect to a class of “outsiders” (the rebels),[26] whereas Taney, in Ex parte Merryman, emphatically rejected that claim.[27]  Lincoln asserted that he had the constitutional authority, as President, to adopt measures such as the blockade of the Confederacy under the law of war, even without a declaration of war by Congress; Taney joined the dissenters in The Prize Cases in denying this authority.[28]

The truth is that the delegation tradition, in itself, is consistent with both a broad and a narrow view of executive authority.  Delegation theorists can reasonably take the view that the powers of the President are modeled on those of the English King, subject to the Constitution’s express reassignment of such authorities from the “executive power” to Congress.[29]  On this version of the delegation theory, the original, public meaning of the term “executive power,” as used in Article II, is defined chiefly by reference to the English legal tradition described in Sir William Blackstone’s Commentaries.[30]  Conversely, a delegation theorist can ascribe a broad original meaning to the “Declare War” Clause, thus severely limiting the President’s authority to wage war without Congress’ prior, specific authorization.[31]

B.            Aliens and Other “Outsiders”

Further, just as the delegation tradition does not necessitate either a broad or a narrow view of executive authority, so the compact tradition does not necessarily lead to the conclusion that “outsiders” to the political community possess no constitutional protections.[32]  Contrary to his theory, Fallone’s own account of the debate over the Alien Act of 1798 shows as much.  As Fallone acknowledges, the Jeffersonian opponents of that Act made compact-based, states-rights arguments against its constitutionality.[33]  Thus, he quotes James Madison’s view that the power to decide whether an alien might remain in the country was “a right originally, possessed, and never surrendered, by the respective States.”[34]  No less emphatic is the fourth of Jefferson’s draft Kentucky Resolutions, which argues directly from the compact theory that the Alien Act is unconstitutional (or, equivalently, that friendly aliens have what Fallone calls “defensive” constitutional protections against such federal action):

Resolved That ALIEN-friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the US. nor prohibited to the individual States, distinct from their power over citizens: and it being true as a general principle, and one of the amendments to the constitution having also declared, that “the powers not delegated to the US. by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the—day of July, 1798. intituled ‘An Act concerning aliens’ which assumes powers over Alien-friends, not delegated by the constitution is not law, but is altogether void & of no force.[35]

Further, Jefferson argued in the sixth of the Kentucky Resolutions that friendly aliens (despite being “outsiders” to the national community) enjoy constitutional protections under both the Bill of Rights and separation of powers principles:

Resolved that the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the US. as is undertaken by said act intituled ‘an Act concerning aliens’ is contrary to the Constitution, one amendment to which has provided that ‘no person shall be deprived of liberty without due progress of law.’ and that another having provided that ‘in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature & cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, & to have the assistance of counsel for his defence’ the same act, undertaking to authorize the President to remove a person out of the US. who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defence, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, & of no force.  that transferring the power of judging any person, who is under the protection of the law, from the courts to the President of the US. as is undertaken by the same act concerning aliens, is against the article of the constitution which provides that ‘the judicial power of the US. shall be vested in courts, the judges of which shall hold their offices during good behavior;’ & that the sd act is void for that reason also.  and it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.[36]

Later compact theorists also found “defensive” constitutional protections for “outsider” aliens against the States, as well as against the federal government.  Thus, in his plurality opinion in Holmes v. Jennison,[37] Chief Justice Taney concluded that a State had no power to extradite an alien fugitive at the request of his country of nationality, since extradition could only be a federal function.[38]  There is simply no basis to believe, therefore, that a compact theorist must deny that “outsiders” enjoy constitutional rights.

In sum, if Fallone intends his contrast between delegation and compact conceptions to mirror the two traditions as they have actually developed through our constitutional history, he is badly wide of the mark.  It is wrong to say, either historically or logically, that the compact theory leads to a sweeping view of executive (or other federal) power, while the delegation theory leads to a narrow one.  And both compact and delegation theories have found constitutional reasons to protect “outsiders.”

C.            Extraconstitutional Changes

Fallone appears to contend that the delegation theory embeds the view that “later generations of Americans might approve of a stronger national government than was originally envisioned if they were persuaded that the extra authority was merited, without the need to resort to a constitutional amendment.”[39]  And elsewhere he affirms that delegation theory holds that the sovereign people retain the power “to choose a new structure for the federal government that differs significantly from the original structure embodied in the text.”[40]  By contrast, he maintains that the compact theory “does not preserve any meaningful residual power in the hands of the people.”[41]  I see no reason to believe that the two theories are supposed to carry these different entailments.

First, a delegation theorist would doubtless allow that revolutionary events can fundamentally upset the existing constitutional order and install a new one.  But a compact theorist would surely allow that as well.  Indeed, some compact theorists believed that such revolutionary, extraconstitutional changes are desirable.  In a well-known passage, Thomas Jefferson wrote to James Madison:

[N]o society can make a perpetual constitution, or even a perpetual law.  The earth belongs to the living generation.  They may manage it then, and what proceeds from it, as they please, during their usufruct.  They are masters too of their own persons, and consequently may govern them as they please.  But persons and property make the sum of the objects of government.  The constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being.  This could preserve that being till it ceased to be itself, and no longer.  Every constitution, then, and every law, naturally expires at the end of 19. years.  If it be enforced longer, it is an act of force and not of right.[42]

Further, compact theory unquestionably holds that the sovereign people may amend the Constitution through the Article V process.  Consider Thomas Jefferson’s letter of June 12, 1823, to Judge William Johnson, in which Jefferson—the compact theorist par excellence—criticizes the opinion of his great adversary, Chief Justice John Marshall, in Cohens v. Virginia.[43]  The basic question at issue is: Who is to draw the constitutional line between state and federal authority?  Jefferson writes:

But the Chief Justice says, “there must be an ultimate arbiter somewhere.”  True, there must; but does that prove it is either party?  The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States.  Let them decide to which they mean to give an authority claimed by two of their organs.  And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.[44]

Here Jefferson plainly considers “the people” to be sovereign over the Constitution, in contrast to what he takes to be Marshall’s view, which makes the federal government the final judge of its own powers.

Finally, Fallone might be saying that a delegation theorist is committed to holding that the powers of the federal government can be lawfully enlarged (or contracted) outside of the Article V process.  Thus, Fallone might mean that it is consistent with, or even a corollary of, the delegation theory that the Constitution itself provides that “the People” may amend it validly but without reference to Article V.[45]  That may (or may not) be a facet of delegation theory.  But why is compact theory unable to accept the possibility that the Constitution might be amended lawfully, but through processes other than Article V?  Suppose one interprets the Ninth Amendment[46] to reserve to “the people” collectively the right to change their constitutional order lawfully, but by procedures other than those laid out in Article V.[47]  A delegation theorist could take that position, arguing that the Ninth Amendment refers to the rights of the undifferentiated American people, taken as a whole.  A compact theorist would construe the Ninth Amendment’s reference to “the people” differently, understanding it to mean “the people of the several states, organized into different political communities.”  This difference over the meaning of the Ninth Amendment’s reference to “the people” would replicate the traditional divergence between delegation and compact theory over the meaning of “We the People” in the Constitution’s preamble.  But both kinds of theory could accommodate the possibility of a Ninth Amendment-based right, lodged in “the people” collectively, to reorder the constitutional system in fundamental ways, even through non-Article V procedures.