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I personally find the description of compact theory as "rejected" to be quite nebulous as the source for such an assertion is a news article in which the author (Nick Robertson) sources the Center for the Study of Federalism, which says "Justice Clarence Thomas’s dissent in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) may signal a revival of compact theory. When claiming state power to impose term limits on members of Congress, he asserted, “The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.” Neither Thomas nor any other Supreme Court justice has expanded on this assertion, but if the Supreme Court becomes increasingly committed to federalism, some version of compact theory might enjoy a renaissance."
To make the blanket assertion that a centuries-old constitutional interpretation is "rejected" based on a single Hill article does not seem like the appropiate course of action. At the very least, a scholarly source should be used. Mithras Invictus (talk) 00:38, 23 June 2024 (UTC)[reply]
I don't see it's a "centuries-old constitutional interpretation," but rather a concept that was considered and rejected by the Founders, and raised but rejected again by the Confederates in the Civil War, and this consistent rejection maintained the supremacy of federal law in the constitutional order, regardless of some neo-Confederates who now seek to resurrect it to nullify the federal supremacy over border control that they don't like. From what we know, only Clarence Thomas appears on board with this on SCOTUS. A few minutes of googling reveals other sources to confirm this. [1][2]soibangla (talk) 01:21, 23 June 2024 (UTC)[reply]
Your very mention of Justice Thomas subscribing to the theory in some form makes my point. This indicates that the theory remains a viable, if fringe, interpretation of the constitution. Referring back to Roberton's Compact Theory of the U.S. Constitution article, the author states, "Like many northerners of his time, Alexander Hamilton also held a compact view of the Constitution." Thus, we have two founding fathers, Thomas Jefferson and Alexander Hamilton, who subscribe to the theory. We can also include James Madison, who opposed nullification but never disavowed the compact theory.
Your first link is an opinion piece, and the second is a reply to Professors Bellia and Clark's 2009 Columbia Law Review article "The Federal Common Law of Nations," which appears to make the case for the compact theory. I must confess that neither of these sources convinces me that the compact theory is "rejected," which I must stress originates from a staff writer at The Hill who has zero prior background with constitutional law. Mithras Invictus (talk) 01:51, 23 June 2024 (UTC)[reply]
There are always discussions of "well, Jefferson wrote this in 1773" and "Madison wrote that in 1775," but lots of people wrote lots of things back then. The key question is: was it included in the Constitution? no? well, it was rejected then, right? and again after the Civil War, and ever since. and one of nine justices doesn't count for much now. to this point it remains rejected.
Professor Daniel A. Farber, reviewing noted historian and scholar Forrest McDonald's book States' Rights and the Union: Imperium in Imperio, 1776–1876 in 2001, stated, "More recently, however, in Alden v. Maine, Justice Kennedy joined the four Term Limits dissenters in proclaiming that the states retain "a residuary and inviolable sovereignty" or at least, as he quickly added, "the dignity, though not the full authority of sovereignty. "Thus, the state sovereignty theory is close to having majority support on the Court." McDonald's book also endorses a version of the compact theory, rejecting the nationalist conception espoused by Marshall, Webster, Lincoln, etc.
As to your point about the Founders, a 2019 article in the William & Mary Bill of Rights Journal states "the Founding generation viewed states as independent sovereigns," which is half of what compact theorists are arguing.
I don't necessarily have an issue with calling the theory rejected, which McCulloch v. Maryland appears to have done, but the source for this being a staff writer at the Hill with a bachelor's degree just doesn't seem right. As I've already done, it is possible to find news articles that do not explicitly state that the theory has been rejected, which appears to muddle the claim further. Mithras Invictus (talk) 03:37, 23 June 2024 (UTC)[reply]
The 2019 article appears to be in the context of the Articles of Confederation, which conferred on the states certain sovereignty that the Constitution subsequently retracted. So again, it did not end up in the final document.
And on quick perusal the Alden v. Maine sovereignty issue does not seem germane to the compact theory. It relates to sovereign immunity from suits, not the ability to nullify federal authority. Alden v. Maine does not mention compact theory. SCOTUS routinely strikes down state laws, but can you name when a state has struck down a federal law? Supremacy Clause.
