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The Covenant-Inspired Principle of Federalism in the U. S. Constitution

April 23, 2020

Diagram of the Federal Government and American Union by N. Mendal Shafer, c1862.  Published by J. T. Pompilly, Cincinnati, OH, at Library of Congress.

When the United States became an independent nation following the American Revolution, the American colonies formed a confederation of states under the Articles of Confederation of 1781.  The Articles joined together the new states and created a weak central government with little authority in which the states held most of the power.  However, by 1787, the Articles no longer sufficed for the states’ and nation’s needs because it allowed the states to impede interstate commerce, left the nation open to internal rebellion and external invasion, and did not secure civil and religious freedoms.  Consequently, delegates from each state convened at the Constitutional Convention at Independence Hall in Philadelphia to revise the Articles.  Instead of revising the Articles, however, they drafted the United States Constitution of 1787 and created a new, stronger central government.

After the constitutional delegates drafted and approved the Constitution, they sent it to the U.  S. Congress for review.  Congress sent it to the states to have it reviewed in the states’ ratification conventions.  The state conventions consisted of elected representatives who informed the public about, debated over, and voted on the new proposed government.  While many supported ratification of the Constitution, some opposed it.  Those who favored ratification were known as “Federalists,” and those who opposed ratification were called “Anti-Federalists.”  Federalists including James Madison, Alexander Hamilton, and John Jay defended and explained the Constitution and its new government to the American people through a series of newspaper articles which became known as the “Federalist Papers.”  For Madison and Hamilton described the new American system as “federal” in character.  One of the main objections of the Anti-Federalists was that the Constitution did not include a Bill of Rights to ensure the protection of citizens’ rights.  They sought reassurance and reinforcement of such protections.  Federalists countered that an explicit list of rights might be incomplete and that the Constitution already protected individual rights because it granted only certain limited powers to the central government.  Yet they agreed to add a Bill of Rights.  With the Federalists’ assurance that a Bill of Rights would be added, the Constitution ultimately won the people’s approval and was finally ratified by the first nine states after ten months.  The U. S. Bill of Rights was added in 1791.

In drafting the U. S. Constitution, the Founders developed an important governing principle and system called “federalism.”  “Federalism” and “confederalism” both generally refer to an inter-governmental association of states.  Federalism is a system of government in which political power is divided between the national and state governments.  In confederalism, the states hold most of the power.  Federalist systems differ from unitary systems in which the central government holds most or all governing power.  Hamilton in Federalist Paper 9 generally describes a federalist system (using the terms federal and confederal interchangeably) in this way: …

The essence of federalism, affirms Donald S. Lutz in his 1988 The Origins of American Constitutionalism, is “the preservation of local control, diversity, and the individual character of each component [as in each state], and the provision for unity on matters where unity is required [brackets mine].”[2]  American federalism in the Constitution was more specifically characterized by 1) a consensual, binding agreement or compact among the states and people to associate or join together in unity for a common purpose, and 2) the division or sharing of power between the national and state governments—with further diffusion of central power through participation of representatives in the national government.  In addition to some possible secular historical influences, the Founders’ federalist system was influenced to a degree by the early American Puritans and their Bible-inspired practice of covenants in their colonial constitutions.  Building on these early influences, the Founders created a new, successful model of federalism to order and govern a large nation of many states.  This unprecedented system created a strong, accountable union among the states and people, and preserved the states’ and people’s sovereignty and rights.

Moses Descends from Mount Sinai with the Ten Commandments by Ferdinand Bol, 1662.

Interestingly, the concept of federalism has an historical, philosophical root that stems back to the principle and practice of covenants as found in the Bible and Western reformed thought.  As pointed out by Lutz in his Origins and by Gary Amos and Richard Gardiner in their 1998 Never Before in History:  America’s Inspired Birth, the English word “federal” comes from the Latin word foedus which means “covenant or pact.”[3]  The Latin Vulgate Bible of 405 notably uses foedus as a translation for the Hebrew word “berith” used to describe covenants in the Bible.  The English word “covenant,” in turn, comes from the French word “convenir” which means “to agree on.”  A covenant is a consensual, binding promise or agreement between two or more parties, often made in the presence of a higher authority like God or king who acts as a party, witness, or guarantor of the agreement to hold the parties accountable.  This agreement centers on the relationship and responsibilities of those involved, and it creates a very strong bond or union between the parties.

According to the Bible, covenants originated with God, and they were practiced by God and His people in both the Old and New Testaments.  They were the means by which God related with His people, and how His people related with one another.  In the Old Testament, as described in Exodus 19:5-6, the tribes of ancient Israel entered into a covenant with God to be His people and follow His laws and so became a nation.[4]  The nation of Israel, as it were, also entered into civil covenants with their civil rulers as found in 2 Samuel 5, 2 Kings 11, and 2 Chronicles 22-23.[5]  In this civil covenant, the king agreed to rule justly and follow God, and the people agreed to submit to him based on those terms.  If the king did not fulfill his duties or abused his power, the people could remove him from power.

Embarkation of the Pilgrims by Robert W. Weir, 1843.  The painting depicts the Pilgrims’ migration to America and the Bible’s important role in their lives and move.

The Protestant Reformation in Europe in the 1500s led to the extensive study of covenants in the Bible.  Religious and political reformers articulated it in religious and, ultimately, political terms.  Reformation-era Protestants, for example, developed a Covenant Theology, asserting the belief that all creation, humans, and society—including government and politics—exist in covenant with God and are subject to God’s moral laws.  Swiss reformer Heinrich Bullinger presented this theology in his 1534 Brief Exposition of the One and Eternal Testament or Covenant of God, and John Calvin taught it in his well-known 1536 Institutes of the Christian Religion.  Subsequently, Calvinist political reformers such as Theodore Beza in his 1574 On the Rights of Magistrates and Stephen Junius Brutus in his 1579 Defense of Liberty Against Tyrants developed a modern civil covenant between rulers and ruled based on the practice of the ancient Israelites.[6]  Others like Johannes Althusius in his 1603 Politics Methodically Set Forth developed a covenant-based political theory in which covenantal or contractual agreements are the basis of society and civil state.[7]  The increased examination of covenants in the Bible during this period enabled the principle of covenants to advance in modern European religious and political thought prior to the Puritans’ migration to America in the 1600s.

In the 1600s and early 1700s, the Pilgrims and Puritans in America, as Calvinists, embraced and applied the Bible-inspired principle of covenants in both their church and civil bodies in their early American colonies.  In a religious context, the Puritans practiced covenants in their Congregational churches and doctrines, and they included the concept in their Reformed confession of faith, the Westminster Confession of 1646.  In a civil context, the Pilgrims who migrated to Plymouth in 1620 created the first civil covenant in America with their Mayflower Compact in which they joined together to form a civil body.  In 1630, Puritan leader John Winthrop gave his well-known “city on a hill” sermon, A Model of Christian Charity, that spoke of the Puritans’ covenantal promise to love God and others, follow God’s moral law, and uphold justice and mercy.  Ultimately, the Puritans created the first covenantal constitutions of law in their colonies of Connecticut and Massachusetts—with the Fundamental Orders of Connecticut of 1639 and the Massachusetts Body of Liberties of 1641.

The Puritans’ Fundamental Orders of Connecticut of 1639, the first written constitution.  Connecticut State Library, 1934.

The Founders’ modern model of federalism was influenced, at least in part, by the early American Puritans’ practice of covenantal constitutions as found in the colony of Connecticut.  Indeed, the Puritans’ Connecticut constitution, the Fundamental Orders of 1639, was the first constitution ever created, and, as Lutz asserts, the first expression of federalism in the American colonies.[8]  Connecticut’s colonial government was federal in being based on a covenant among the colonists to join together to form a central governing body and to abide by a common set of laws.  The Orders were adopted by the free men of the towns of Hartford, Wethersfield, and Windsor–binding the towns together by covenant.  The colonists formed a central governing body, the Connecticut General Court, to govern the colony.  The Orders thus state that the colonists “do therefore associate and conjoin ourselves to be as one Public State or Commonwealth; and do…enter into Combination and Confederation together.”[9]  Connecticut’s colonial government was also federal in its sharing of political power between the central governing authority and the member towns.  Under the Orders, for example, the free men of each town elected deputies and magistrates as local representatives to the General Court.  They also elected a governor.  The Orders gave each colonist one equal vote and so expressed the people’s will, says Lutz, through majority or plurality rule.  As a result, it preserved the members’ local political power.[10]  The Connecticut constitution was thus “the first of many federal designs made by Americans and their English colonial predecessors,” observes Lutz.  It was “a covenant-derived compact written by a deeply religious people who knew a great deal about the political and religious covenants in the Bible.”[11]  The New England Puritans and their covenantal constitutions thus became important initiators in the development of American federalism.

As such, the general principle of federalism was familiar to founding-era Americans when the Founders drafted the U. S. Constitution.  Indeed, the Founder’s modern Constitution, though secularized, demonstrated similar qualities of federalism that were found in the Puritans’ covenantal colonial constitutions and governments.  Drawing from this history and experience, the Founders developed a uniquely modern American governing system for the United States that would come to define American federalism.

The Looking Glass for 1787, A house divided against itself cannot stand, Mat. chap 13th verse 26, by Amos Doolittle, New Haven, CT, 1787. This Connecticut political cartoon depicts the ratification of the Constitution. The wagon represents Connecticut, and the two groups are the Federalists and Anti-Federalists. The title references Matthew 12:25 where Jesus says to the Pharisees, “‘Every kingdom divided against itself is brought to desolation, and every city or house divided against itself will not stand.'” The author clearly sided with the Federalists.

The U. S. Constitution demonstrates federalism, firstly, in that it created an association of states joined together by a consensual, binding agreement—by a compact or contract—to form and abide by a national law and government.  In this arrangement, the states and people affirm mutual responsibility and make a strong commitment to the union.  The written Constitution itself acts as the embodiment and proof of this agreement as well as defines the specific terms and responsibilities of the compact.  The contractual nature of this arrangement required the states’ and peoples’ approval and ratification—the consent of the governed—to be legitimately enacted and recognized as civil law.  Indeed, the Founders’ difficult task and feat included negotiating an agreement among all the diverse states and winning the support of the American people.  The Constitution’s preamble thus begins, “WE THE PEOPLE of the United States…do ordain and establish this Constitution for the United States of America.”[12]

Though the Constitution was expressed in secularized terms, its contractual nature reflected in spirit, form, and purpose the Puritans’ application of covenants in their colonial constitutions.  For both applications involved a binding agreement—an essentially unbreakable bond—among constituents to the larger civil body or community.  As Rozann Rothman explains in her 1980 essay, The Impact of Covenant and Contract Theories on Conceptions of the U. S. Constitutions, “The rhetoric of the Constitution was the rhetoric of contract and compact, for this language summed up the practical concerns as well as the hopes and fears of a revolutionary generation.  But the constitution was permeated with the substance of covenant which anchored and perpetuated the commitment to the Union.”[13]  She elaborates, …

The requirement and act of ratification of the Constitution distinctly demonstrated the consensual agreement made by the people and highlighted the Constitution’s form and function as a compact.  Ratification, says Rothman, “sealed the bargain” and “reflected a mixture of concepts derived from covenant theology and contract theories.”[15]  She expounds, “Just as the Puritans anchored their theology and state in voluntary consent to the covenant, so was the Constitution anchored in the voluntary commitment of a people to the Union.  This commitment was the source of obligation and proved strong enough to withstand the vicissitudes of American history.”[16]  Clearly, the Founders’ Constitution was based on a consensual compact that resembled the Puritans’ covenant, and this compact engendered the states’ and people’s strong commitment to the union.

The Federal Pillars, a series of illustrations published in The Massachusetts Centinel in 1788, depicts the states that ratified the Constitution and the order (from left to right) in which they ratified. This edition shows the first nine states that ratified, August 2, 1788.  The Constitution had to be ratified by nine out of thirteen states in order to go into effect.

The U. S. Constitution demonstrates federalism, secondly, in that it is characterized by a structural division or sharing of power and authority between the national and state governments, with each government holding exclusive and concurrent powers.  The Constitution divided power by granting only necessary, enumerated powers to the national government and reserving all other powers to the states and people.  Amendments 9 and 10 of the U. S. Bill of Rights, for instance, state respectively that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[17]  This division of power spoke to the colonial and revolutionary American mistrust of absolute or overbearing centralized power and the valuing and protection of the people’s rule and rights through limited government.  The Founders greater goal was to effectively order, secure, and govern the new nation while also protecting the sovereignty, rights, and powers of the states and people.  The union aimed to serve the national good while preserving state and individual rights and freedoms.

The Founders further diffused central power by having representatives participate in the national government itself.  In this system, local and national representatives are elected by the states and people to the national legislative and executive branches.  Local representatives in the U. S. Congress, for example, participate by overseeing, drafting, or reviewing national legislation and/or by debating and voting in the national legislative process.  The elected U. S. President, as the national head of state and commander-in-chief, executes and makes decisions about the manner in which to carry out national policy and defense.  This representative system ensures that the states and people have a voice and representation in the national government, thereby making it accountable, directly or indirectly, to the electorate.  In the process, as Rothman points out, it also strengthens the commitment of the states and people to the union.  Rothman explains, …

Opening to the U. S. Constitution.

In conclusion, the American Founders developed a modern federalist system for the United States to effectively order and govern a large nation of many states while preserving the people’s sovereignty and natural rights.  The United States Constitution expresses federalism in creating an association of states and people joined together by a compact and in dividing power between the nation and states, with further diffusion of central power through local and national representatives.  Its character is federal, says Russell Kirk in his 1991 The Roots of American Order, in “reconciling national needs and self-government in its member states.”[19]  Though secularized, the Constitution was notably influenced by and reflected in spirit, form, and purpose the early American Puritans’ Bible-inspired practice of covenants in their colonial constitutions.  In fact, the Latin word foedus for “federal” was originally used to describe a covenant in the Bible.  As Lutz affirms, “American federalism originated at least in part in the dissenting Protestants’ familiarity with the Bible,” and “its roots are in covenants.”[20]  Rothman concurs, “Notions of covenant, albeit secularized and at times implicit, shaped the Framers’ conception of the form, purpose and function of a constitution.”[21]

With their Federal Constitution, the Founders created a new, modern, uniquely American system never before implemented in history, and it would come to define American federalism as we know it today.  Daniel J. Elazar says in his 1969 The Politics of American Federalism that “for all intents and purposes, federalism as modern men know it is an American invention.”[22]  This application of federalism, affirms Lutz, is a “central political symbol in the American constitutional tradition.”[23]  Americans thus refer to the “federal constitution” and the “federal government.”  This principle is further conveyed in the nation’s motto, E Pluribus Unum or “Out of Many, One.”

[1] Alexander Hamilton, Federalist Paper 9, 1787, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin Books, 1961), 76.

[2] Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 43.

[3] Lutz, Origins, 43; Gary Amos and Richard Gardiner, Never Before in History:  America’s Inspired Birth, ed. William Dembski (Dallas, TX:  Haughton, 1998), 141-145.

[4] “[God said to Moses and the Israelites] Now therefore, if you will indeed obey My voice and keep My covenant, then you shall be a special treasure to Me above all people; for all the earth is Mine.  And you shall be to Me a kingdom of priests and a holy nation.’”

[5] 2 Samuel 5:1-4, 2 Kings 11:4 & 17, and 2 Chronicles 22-23.  2 Samuel 5:3:  “All the elders of Israel came to the king at Hebron, and King David made a covenant with them at Hebron before the Lord. And they anointed David king over Israel.”  2 Kings 11:4, 17:  “Jehoiada [the prophet who represented God] sent and brought the captains of hundreds…into the house of the Lord to him.  And he made a covenant with them and took an oath from them in the house of the Lord, and showed them the king’s son. …  Then Jehoiada made a covenant between the Lord, the king, and the people, that they should be the Lord’s people, and also between the king and the people.”  2 Chronicles 23:3, 16, 20:  “Then all the assembly made a covenant with the king [Joash] in the house of God. … Then Jehoiada [the prophet who represented God] made a covenant between himself, the people, and the king, that they should be the Lord’s people. … Then he took the captains of hundreds, the nobles, the governors of the people, and all the people of the land, and brought the king down from the house of the Lord; and they went through the Upper Gate to the king’s house, and set the king on the throne of the kingdom.”

[6] The pseudonymed author Stephen Junius Brutus was possibly Theodore Beza, Philippe de Mornay, or Hubert Languet.

[7] Althusius drew from the Bible, the Reformers, and Covenant Theology to develop his covenant-based political theory.

[8] Lutz, Origins, 44.

[9] Connecticut Secretary of State, The Fundamental Orders of Connecticut, 1639, in State of Connecticut Register and Manual, 1922 (Hartford, CT:  State of Connecticut, 1922), 39-43.  See also Angela E. Kamrath, The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief (Houston, TX:  American Heritage Education Fdn, 2013, 2015, 2020), 92.

[10] Lutz, Origins 45.

[11] Lutz, Origins, 44.

[12] Preamble, United States Constitution, 1787.  See also Kamrath, Miracle of America, 289.

[13] Rozann Rothman, The Impact of Covenant and Contract Theories on Conceptions of the U. S. Constitutions in Covenant, Polity, and Constitutionalism, Publius:  The Journal of Federalism, v10, n4, eds. Daniel J. Elazar and John Kincaid (Lanham, MD:  U Press of America, 1980), 163.

[14] Rothman, Impact, 156-7.

[15] Rothman, Impact, 155.

[16] Rothman, Impact, 162.

[17] United States Bill of Rights, 1791.  See also Kamrath, Miracle of America, 290.

[18] Rothman, Impact, 158-159.

[19] Kirk, Roots, 415.

[20] Lutz, Origins, 43, 44.  For primary sources, see Stephen J. Brutus’s 1579 Vindiciae Contra Tyrannos or Defense of Liberty Against Tyrants; Johannes Althusius’s 1603 Politics Methodically Set Forth; Samuel Pufendorf’s 1673 Whole Duty of Man According to the Law of Nature, and John Locke’s 1690 Second Treatise of Civil Government.

[21] Rothman, Impact, 150.

[22] Daniel J. Elazar, The Politics of American Federalism (Lexington, MA:  D. C. Health & Co., 1969), vii.

[23] Lutz, Origins, 44.

Contributed by AHEF and Angela E. Kamrath.

This essay (with endnotes) is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America essays.

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Source for more information:
Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is now available!

Related articles/videos:
1.  The Principle of Popular Sovereignty
2.  The Igniting of the Protestant Reformation – Martin Luther’s 95 Theses
3.  Three P’s That Led to Freedom in the West:  Printing Press, Protestant Reformation, and Pilgrims
4.  The Reformation led to the Translation and Printing of the Bible into People’s Common Languages
5.  The Mayflower Compact:  The Pilgrims’ First Self-Governing Act in America.
6.  The Pilgrims’ Mayflower Compact as Covenant
7.  How the American Puritans Were Like the Bible’s Israelites
8.  A City on a Hill:  Why John Winthrop and the Puritans Came to America
9.  The Puritans in America Created the First Written Constitutions of Law
10.  Early American Puritan Thomas Hooker as the “Father of American Democracy”
11.  Why the Puritans Elected Representatives to Govern in their American Colonies
12.  Why the Puritans Favored Limited Government
13.  American Revolution Debate:  The Principle of Civil Covenants
14.  The American Social Contract in the Declaration and Constitution
15.  The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights

Poster:  Declaration of Independence

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Lesson:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 3:  Principles of the United States Constitution, p. 270.  MS-HS.

Principles of the United States Constitution….  

Purpose/Objective:  Students learn key principles of the U. S. Constitution including constitutional republic, rule of law, separation of powers, elected representatives, and federalism; and how influential thinkers and early Americans connected these concepts in the Bible.

Suggested Readings:
1)  Chapters 1, Chapter 2 (2.4-2.6), Chapter 3 (3.3-3.5, 3.9-3.11) and Chapter 8 (8.3-8.7) of Miracle of America reference/text.
2)  Principles of the U. S. Constitution and Principles of the U. S. Bill of Rights handouts by Angela E. Kamrath.

Activity:  Reading and Questions
Have students read the “Principles of the United States Constitution” handout and, as desired, relevant sections in Miracle of America text as indicated.  Have student read specific sections and then analyze and discuss the reading together as a class.  You may wish to project some text or visuals on-screen.  Answer questions, clarify vocabulary, and fill in other information as needed to help students grasp the terms and concepts.  After the reading, students write answers to the questions that follow on the handout.  Discuss.  See “Principles of the United States Constitution” reading and questions in the “Supporting Resources” section of this course guide, pp. 393-397.  (These and other review questions are also found in chapter 8 of the Miracle of America text, p. 297).

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

Copyright © American Heritage Education Foundation.  All rights reserved.

Published by: The Founding

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