Compact Theory
Here is the puzzle (courtesy of Crosshare): Compact Theory
Recent news cycles have focused to a great extent on immigration and border security. In the Trump era, these issues highlighted the divide between the Republican and Democratic parties. We see it in the effort by Republicans in Congress to limit or end that military aid to Ukraine and Israel unless Democrats agree to accept the most extreme border security measures that House Republicans desire. Democrats prefer instead to delink issues of funding for Ukraine and Israel from questions surrounding immigration and the border. They also reject the harshest Trump-era measures (many of which were struck down by the courts) while simultaneously working through the complexities of border security, asylum seeking, and immigration generally.
The partisan divide has solidified in the last couple of years as Republican governors such as Greg Abbott of Texas and Ron DeSantis of Florida have dramatized the issue by routinely sending busloads or planeloads of migrants to so-called sanctuary cities in other states. In the face of increased demands for housing, jobs, and medical care, political and humanitarian leaders in New York, Chicago, and elsewhere are now joining the call for more effective control of the southern border. The Biden administration and a bipartisan groups of senators have been negotiating the terms of a bill that would strengthen border security and limit asylum opportunities, effectively moving congressional Democrats toward more conservative positions. In response, however, House Republicans and former president Trump have refused to support any efforts to solve a problem that they deem to be a crisis, so long as Democrats and the Biden administration may be able to claim some credit. Better “no bill” than a “bad bill” is their motto, because they would rather have an issue they can use throughout the 2024 elections than embark on a sincere effort to seek solutions through the legislative process.
Meanwhile, Gov. Abbott continues to escalate the situation further. Not only has he directed the Texas National Guard and Texas state troopers to install buoys and razor wire in the Rio Grande—an injurious and sometimes deadly barrier to undocumented crossings—but he also had the Guard refuse to allow Border Patrol agents access to the riverside at Eagle Pass. In other words, Abbott has declared that Texas has effective authority over the border—even to the exclusion of federal authorities. After the Supreme Court recently supported the right of the Border Patrol to remove the razor wire, Abbott went even further in his defiance of the federal government.
On January 24th, Abbott issued a statement proclaiming that Texas has a “constitutional right to self-defense.” He cited the obligation of the federal government to protect each of the states from invasion (Article IV, Section 4 of the Constitution). Alleging that President Biden has not performed his constitutional duties, Abbott additionally points to Article I, Section 10 as granting states a right of self-defense. In his view, this constitutional provision gives Texas the “authority to protect and defend itself”—an authority that “is the supreme law of the land and supersedes any federal statutes to the contrary.”
As if his attitudes and policies toward migrants were not problematic enough, Abbott mangles not only the English language but also the Constitution. He makes a great deal out of calling the large numbers of border crossings an “invasion,” using that metaphor to claim a constitutional authority that Texas does not have. Amazingly for a governor whose fellow partisans and supporters make nitpicking arguments to claim that the January 6th assault on the Capitol was not an insurrection, he seeks to employ an expansive interpretation of the term “invasion” for the purposes of upending the constitutional order. What the Constitution means by an invasion is straightforward. It is what Russia did to Ukraine, and it would be what the United States would be doing if it sent troops into Mexico to “go after” drug cartels. Quite simply, there is no invasion of any sort happening on the southern border.
Abbott mangles the Constitution in three ways. First, he misstates the Article I, Section 10, which asserts that no state shall “engage in War, unless actually invaded“—a provision that enabled states to defend themselves against armed forces from another country in a time when U.S. forces would need time to come to their aid. Second, he ignores the Supreme Court decision in Arizona v. United States (2012) which reaffirmed a broad federal authority to regulate immigration. Third, and most importantly, Abbott omits any acknowledgment of Article VI, Section 2, the “national supremacy” clause, which explicitly proclaims that the U.S. Constitution and federal law override state constitutions and state laws.
This mangling of constitutional law is noteworthy because it reflects the reactionary tendencies of today’s Republican Party, particularly its embrace of “Lost Cause” and neo-confederate perspectives. Consider the controversy sparked by Nikki Haley’s remark that the cause of the Civil War was a dispute over rights and freedoms (not the institution of slavery). Such a position reaffirms a “states’ rights” view of political authority, a perspective rooted in the “compact theory” of American government. Compact theory regards the Constitution not as the product of popular will but as an agreement among sovereign and independent states.
Compact theory is also associated with the arguments made by John C. Calhoun in support of state nullification of federal law. Those same arguments, along with the example of the American Revolution, were later used to justify secession over the issue of slavery. Quite notably, any number of right-wing political figures have also been pushing this secessionist standpoint—something Nikki Haley endorsed, that is, if the people of Texas want it—amid their calls for “Second Amendment solutions” and for a new civil war.
While the description of a federal government as a compact does indeed fit the Articles of Confederation and the constitution of the Confederate States of America, or even the Charter of the United Nations, it does not apply to the Constitution of 1787. The latter rooted its power in “the people of the United States” and produced a hybrid form of government that blends the establishment of a national government with allowance for some exercise of regional power.
Abbott’s constitutional claims are little more than partisan posturing that stands opposed to the explicit terms of the Constitution as well as the history of the United States since the defeat of the Confederacy. As such, his words and actions pose a threat to the very constitutional framework they ostensibly uphold.