公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy
The Covenant Tradition in Politics, Volume 3, Introduction
Daniel J. Elazar

What we can learn from history is that great transformations rest on the combination of great ideas, great movements, and great actions, and occur when all three come together. Thus at the very beginning of the history of covenant there was the great idea of biblical covenantal monotheism whereby humans were envisaged as entering into morally grounded pacts with God out of which came, inter alia, the covenant with Noah binding all of humanity and that with the people Israel formed through the Exodus from Egypt and the Sinai experience. In the sixteenth century Protestant Reformation, a new theology of covenant gave rise to Reformed Protestantism and the theo-political transformation that followed in countries such as Switzerland, the Netherlands, Scotland, and England.

What the combination of covenant theology, religious reformation, and local or national political transformation did for the sixteenth century, a revolution in political philosophy, a series of more or less radical movements culminating in the British Isles and British North America as Whiggism, which in turn led to the Glorious Revolution of 1688-89, and the formation of the American colonies across the Atlantic on a Reformed Protestant base during that same period, did the same for the seventeenth century. In the eighteenth century the great wave of ideas derived from the Enlightenment brought about the two great revolutions of the modern epoch, the American and the French, and the invention of both Federalist and Jacobin democracy, modern constitutionalism, the United States of America and modern democratic republicanism on both sides of the ocean.

* * *

Here we must remind ourselves of the three forms from which all polities are derived and through which all are organized: hierarchical, organic, or covenantal -- as The Federalist put it in Federalist #1: force, accident, or reflection and choice. Polities in the hierarchical model are generally founded by conquest in some form, either external or internal (palace revolt, coup d'etat), and are organized as power pyramids more or less in the manner of military formations. The ruler or rulers sit at the apex of the pyramid commanding those below, who are organized into "levels" of authority and power, each level subordinate to the one above it. In hierarchies, administration take precedence over politics. Politics takes the form of court politics, i.e., the struggle for the ear and favor of the ruler. All of this is rarely constitutionalized, but if it is in some form, the constitution consists of a charter granted by the ruler to those subordinate to him. An army is the apotheosis of this kind of political organization.

Polities founded and organized on the organic model seemingly grow "naturally," and as they develop, the more powerful or otherwise talented leaders form a political elite at the polity's center that rule over the vast majority in the polity who are relegated to the peripheries. Thus the model of the organic polity is that of two concentric circles, center and periphery, with those at the center ruling those in the periphery, even if the latter have a role in selecting who is in the center. Power, if not both power and authority, is concentrated in the center, and those in the center determine the connections between center and periphery. In the organic model, politics come first but they are the politics of the club. Administration flows from those politics and, indeed, the heads of the administration also have to be members of the club. The constitution, insofar as there is one, is the traditional body of accepted rules regarding the workings of the club and the administration that is dependent on it. The apotheosis of this model is Westminster-style parliamentarism with the parliament sovereign and dominated by those who have been able to enter the club; the administration is also led by club members but subordinate to parliament.

The covenantal model functions on an entirely different basis, characterized schematically by a matrix, a group of equal cells framed by common institutions. Its founding comes about because equal individuals or individual entities join together through a covenant or political compact as equals to unite and establish common governing institutions without sacrificing their respective integrities. For the matrix model, the constitution is preeminent since it embodies the agreement that joins the entities or individuals together and establishes agreed-upon rules of the game which all have to observe. The politics that flows from that constitution is a politics of equals based on negotiation and bargaining and designed to be as open as possible, where all the actors will know what is happening. Administration is dependent upon the constitution for its authority and politics for its powers. This system is not hierarchical, even if hierarchies are sometimes organized within it. Nor does it have a single center. Rather it is based upon multiple centers, each constitutionally protected. Its apotheosis is a federal system in which the constituent units are represented in the framing government and also preserve their own existence, authority, and powers in those areas which are not delegated to the framing institutions.

While hierarchical and organic polities can merge because they are on the same continuum, federal polities are located on an entirely different continuum. Table 1 portrays and contrasts the three models. The struggle between or synthesis of the three has continued throughout history. It took some new turns in the modern epoch.

Table 1

Models of Foundings/Regimes


Conquest Organic Covenant


Founding: Force Accident Reflection and Choice
Model: Pyramid Circle Matrix
Structure of Authority: Hierarchy Center-Periphery Frame and cells
Mechanisms of Governance (in rank order): Administration-Top down bureaucracy Politics-club-oligarchy Constitution-written
Politics-court Administration-Center outward Politics-open with factions
Constitution-charter Constitution-tradition Administration-divided
Apotheosis: Army Westminster system Federal system
Excess: Totalitarian dictatorship Jacobin state Anarchy


The New World Experience

In the last third of the fifteenth century, in the period between the failure of the councillor movement in the Catholic Church and the inauguration of the Reformation by Martin Luther in 1517, the Europeans discovered the New World. While Columbus is the official "discoverer," his voyages were part of a larger movement involving scientists and navigators, Spanish, Portuguese, Italian and Jewish; the first inventing the instruments to make it possible and the second conducting the voyages of discovery in the Western Hemisphere, around Africa, and across the Indian Ocean or into the Pacific.

Those explorations launched what Walter Prescott Webb, the Texas historian, described 450 years later as "the great frontier" whereby Europe embarked on an expansion that made Europeans and their descendants the rulers of the world for 500 years. That great frontier was seen by most of those involved in it as a great opportunity for beginning again. It launched a movement of migration and colonization unprecedented in the history of mankind until then. It transformed people of high and low station, empires, societies, economies, and technologies in unprecedented ways, but as both Catholics and Calvinists -- the two main religious groupings among the settlers discovered, the discovery of new worlds did not eliminate "the old Adam."

The human beings who discovered and settled the new worlds brought with them their old habits and standards, good and bad, enlightened and benighted, gentle and cruel, whether by nature or by culture. The Europeans soon proved to be far more aggressive than the natives wherever they settled, even though in many cases the natives could manifest cruelty even beyond what was accepted by the Europeans. Five hundred years later it is very difficult to issue score cards balancing civilization and barbarism for the parties involved. We have long since given up European triumphalism and a monochromatic Euro-centered history of the discovery, conquest, and settlement of those new worlds. The pictures we draw today are drawn in subtler hues. There are swirls, zig-zags, and broken lines making the tapestry more complex. Still, as a general rule, we can draw some conclusions with which to begin our exploration of the covenant tradition in the new worlds.

First, the New World was indeed a beginning again, but the beginning from the first was as flawed as life in the Old World and had to be transformed by human will, that even when it seemed to be, beginning again was not simply a matter of letting nature take its course. Second, for that human will to be thrust in a moral direction, humans had to covenant and compact with one another to specify that the liberty they sought in the New World would be federal liberty -- the freedom to make and keep one's covenants under God and to live according to their terms and not merely natural liberty -- the freedom to do what one pleases limited only by nature or one's neighbor -- and to require that this be the standard for all. Third, the spell, one probably should say the romantic spell, of the New World environment led many -- in the new world and the old alike -- to believe that the return to the natural would enable humans to eliminate the corruptions of civilization a la Europe. Indeed, even realists saw the future design of progress in the implementation of natural law and natural right, stripped of the encumbrances of a corrupt or corrupted civilization and society.

These ideas were no more than romanticism unless concrete ways and means were developed to achieve these dreams. Those ways and means were developed through constitutionalism, a modern reinterpretation of the covenantal tradition that gave it flesh and blood and enabled it to become the instrument of liberty, equality, justice, and democracy that it did. Thus, for all of its flawed beginnings and flawed history, where Europeans were able to implant the covenantal tradition, the New World did indeed offer an opportunity, if not an entirely unambiguous one, for beginning again. Where that tradition was not or could not be implanted, the barbarisms and abominations of the Old World were doomed to be repeated.

This, then, is our story in this volume -- how certain parts of the New World were settled by those who brought the covenant tradition with them, how that tradition was reinforced by the settlers' New World experiences in founding new societies, and, with all of the flaws in that experience, how those settlers pioneered the development of modern democracy or, more appropriately, modern democratic republicanism, or, still more accurately, modern federal democratic republicanism, using "federal" not only in its later governmental sense of federalism but in its original political sense of covenantal. It is the story of the human pacts of modernity, made "under God" rather than with the Supreme Being, to establish ordered liberty under the law involving the combination of self-rule and shared rule that made modern democracy possible.

We begin with the New World experience because it actually preceded the Old World philosophizing about it. While Hobbes, Spinoza, Locke, and their contemporaries were the ones who formulated the modern expressions of covenantalism through their ideas of the political compact and civil society and as such have become generally recognized as the founders of the new or modern science of politics based upon modern ideas of natural right rooted in human psychology rather than moral principle, in fact the people who came to the New World, especially the Puritans among them, had begun building institutions based upon neo-covenantal models a generation earlier and, by the time that the great seventeenth century political philosophers began their work, were already well along toward modifying those institutions in light of both New World and modern conditions, so that what were intended to be Puritan commonwealths in the New World, and indeed were established in that manner, were within two generations transformed into something else, that something else which the political philosophers in the Old World named "civil society," but which, even more than in the Old World, retained its covenantal roots. Indeed, one might say that the apotheosis of the modern experience in the United States was based upon the synthesis of and tension between biblical covenantalism as filtered through Reformed Protestantism and modern ideas of political compact and civil society.

In many respects the modern epoch brought with it a secularization of the covenant tradition as the aspirations to achieve a covenantal commonwealth gave way to the aspiration to achieve a civil society. Indeed, as the modern epoch progresses, the covenantal commonwealth even began to be forgotten in the pursuit of civil society as liberal democracy. This not only suited the modern temper but the modern environment, one that was far more legitimately heterogeneous than earlier environments.

Because of the major, if not dominant, role of Reformed Protestantism in establishing the United States and the other New World polities derived from similar roots, the original covenantalism of the Bible reached the New World primarily through the Reformed Protestant, usually Calvinist, filter. There it was transformed into a set of operational principles, institutions, and practices. What had been primarily an ideological expression of a grand theory became a fundament of culture, a shaper of institutions, and a major influence on political and other behavior. In the process it was modified by modernity, a modification that ultimately was to have consequences far beyond those intended at the beginning of the modern epoch. Nevertheless, the covenantal foundations remain and manifest themselves in those polities even in unexpected ways in every generation.

Covenant, Compact, Contract

A covenant is a morally-informed agreement or pact based upon voluntary consent and mutual oaths or promises, witnessed by the relevant higher authority, between peoples or parties having independent though not necessarily equal status, that provides for joint action or obligation to achieve defined ends (limited or comprehensive) under conditions of mutual respect which protect the individual integrities of all the parties to it. Every covenant involves consenting, promising and agreeing. Most are meant to be of unlimited duration, if not perpetual. Covenants can bind any number of partners for a variety of purposes, but in their essence they are political in that their bonds are used principally to establish bodies political and social.

Covenant is tied in an ambiguous relationship to two related terms, compact and contract. On the one hand, both compacts and contracts are derived from covenant, and sometimes the terms are even used interchangeably. On the other hand, there are very real differences between the three which need clarification.

Both covenants and their derivative, compacts, differ from contracts in that the first two are constitutional or public and the last private in character. As such, covenantal or compactual obligations are broadly reciprocal. Those bound by one or the other are obligated to respond to one another beyond the letter of the law rather than to limit their obligations to the narrowest contractual requirements. Hence, covenants and compacts are inherently designed to be flexible in certain respects as well as firm in others. As expressions of private law, contracts tend to be interpreted as narrowly as possible so as to limit the obligation of the contracting parties to what is explicitly mandated by the contract itself.

A covenant differs from a compact in that its morally binding dimension takes precedence over its legal dimension. In its heart of hearts, a covenant is an agreement in which a transcendent moral force, traditionally God, is a party, usually a direct party, to or guarantor of a particular relationship; whereas, when the term compact is used, a moral force is only indirectly involved. A compact, based as it is on mutual pledges rather than the guarantees of a higher authority, rests more heavily on a legal though still ethical grounding for its politics. In other words, compact is a secular phenomenon. This is historically verifiable by examining the shift in terminology that took place in the seventeenth and eighteenth centuries. While those who saw the hand of God in political affairs in the United States continued to use the term covenant, those who sought a secular grounding for politics turned to the term compact. While the distinction is not always used with strict clarity, it does appear consistently. The issue was further complicated by Rousseau and his followers who talked about the social contract, a highly secularized concept which, even when applied for public purposes, never develops the same level of moral obligation as either covenant or compact.

Covenant is also related to constitutionalism. Normally, a covenant precedes a constitution and establishes the people or polity which then proceeds to adopt a constitution of government for itself. Thus, a constitution involves the implementation of a prior covenant -- an effectuation or translation of a prior covenant into an actual frame or structure of government. The constitution may include a restatement or reaffirmation of the original covenant, as does the Massachusetts Constitution of 1780, but that is optional.

Although perhaps more difficult than tracing covenantal ideas expressed in political thought, covenant as ideology is more easily identifiable since ideology is a very public form of theory. Covenant-as-culture persists even when it is not necessarily recognized as such, while covenantal ideology had its ups and downs in the modern epoch. It was strong in the mid-seventeenth century in the British Isles, the Low Countries and in the American colonies; again at the time of the American Revolution; and periodically thereafter in covenant-based civil societies, but never again during the modern epoch did it achieve the same status.

One of the tests of the presence of the covenantal dimension is to be found in the institutions that developed within the covenantal matrix, particularly in matters of their institutional governance and culture. These, indeed, can be identified throughout the epoch. Even if the larger environment is less covenantal, institutions remain carriers, at least until some massive change comes to transform them. Thus the behavior of people functioning within those institutions, particularly their political behavior, is a clear manifestation of covenant where it exists. Less easy to identify than institutions, nevertheless political behavior can be studied sufficiently well in most cases.

Covenant entered the modern epoch as a manifestation of Reformed Protestantism and in every respect it was tied to the rise and fall of Puritanism and the residues Puritanism left in certain parts of the world. Reformed Protestant had two principal sources: one was in Huldreich Zwingli, Heinrich Bullinger and their colleagues and disciples in Zurich and the Rhineland, principally in the German-speaking territories of Switzerland and western Germany. The other was the product of John Calvin and his associates and students in Geneva. Calvin came on the scene after Zwingli had been killed and Calvin's doctrines rapidly became the most influential in the Reformed Protestant world.

These influences affected the Huguenots in France, the Netherlanders, the Scots, and the English Puritans as well as the Puritans in British North America. In matters theological, Calvinism was the stronger influence, but in matters political the influence of Zwingli and Bullinger was the greater. While every nation influenced by Reformed Protestantism developed its own synthesis of the two, the most influential synthesis in the world was that formed by the English Puritans. In no small measure, this was because of the power of first England and then its successor, Britain, as the greatest power in the world from the beginning of the eighteenth century until nearly the end of the modern epoch, with influence that stretched far beyond its tight little island. That influence was further increased by the fact that the Puritans fought, and in the short term won, a civil war in England itself which not only brought them to power in their own country, but enabled them to conquer Scotland and Ireland. Even prior to that, they settled a good part of British North America and the deep Southern Hemisphere as well.

Religious-based covenantal thinking undoubtedly reached its most sophisticated level of development under Reformed Protestantism and most particularly Puritanism, finding major expression on the European continent, in the British Isles, and in New England where it had lasting impact on subsequent generations, even after the Puritan commonwealths had passed from history, to be replaced by modern, secularized civil societies. Only at major historical intervals has a movement had as much impact as Reformed Protestantism has had on the history of the world.

Nevertheless, the kind of integral society that was required to maintain Reformed Protestantism came under great assault in the seventeenth century. It ultimately was brought down in favor of a far more heterogeneous world view, in part because the demands of Puritanism, and Reformed Protestantism in general, on individuals were too high. For better or for worse, most people did not want to live Puritan lives, seeing Puritanism as far too serious, demanding, and unsatisfying. Moreover, those who saw Puritanism as an appropriate way of life often could not personally sustain its demands and hence were perceived by others to be hypocrites.

Thus we had a paradox. On one hand, Reformed Protestantism developed very important and compelling theories, ideologies, and cultures supporting liberty and equality, two of the principal political aspirations of the modern epoch, but the Reformed way to achieve them required institutions insufficiently broad or free and behavior of an impossibly high standard to be realized by the vast majority of people. It remained for the new science of politics and its developers and exponents, who began with a very secular, if equally pessimistic, approach to human nature (the development of which Reformed Protestantism actually facilitated) to provide not only a bridge but a more satisfying framework for political theory and practice, both of which drew on covenant ideas in new ways.

The climax of the modern drive for civil society actually came when the two principles of commonwealth and civil society came together and were intertwined in the birth of the United States of America, both as an independent polity and as a constitutional regime. The generation that achieved the Declaration of Independence, fought the Revolutionary War, and established the United States under its new constitution was led by two groups: one coming out of the older religious tradition, primarily the covenantal tradition of Reformed Protestantism who saw the imperatives of their tradition leading in the direction of a federal democratic republic under God, and the second group who came out of the Enlightenment, influenced primarily by the Scottish Enlightenment which was part of the covenantal tradition one step removed, who sought a federal democratic republic in North America as the way to actualize civil society. The great achievement of the Americans in their revolutionary era was that the moderates from both camps found a common language and a common program upon which to agree, while the extremists in both camps were pushed aside, thereby enabling the United States to be born as a synthesis of the two conceptions of humanity, society, and polity, thereby enhancing the strengths and moderating the weaknesses of each.

Covenantal and Hierarchical Models

The modern epoch witnessed a major conflict between covenantal and hierarchical models of polity. Indeed, modern European statism was based upon the hierarchical model or, as it was democratized, its transformation into a center-periphery model. Thus, as parliaments acquired power from kings, they modified the monarchic pyramids in such a way as to establish parliamentary centers of power while the rest of the polity remained on the periphery, at most selecting who would be in the parliamentary "club." Moreover, as kings become weaker those committees of parliament originally chosen to advise the monarch became cabinets or governments. Either way, the models resembled military formations or exclusive clubs rather than open societies.

The hierarchical models were generally founded in conquest, either internal or external, and organized as power pyramids with the ruler or rulers at the apex of the pyramid and commanding those below who were organized into levels of authority and power, each level subordinate to the one above it. Administration took precedence over politics and the latter existed primarily in the form of court politics, i.e., the struggle for the ear of the ruler. If these hierarchies had to be constitutionalized, they were constitutionalized by the ruler granting a charter to the subjects. Indeed, this had been the formal pattern of medieval constitutionalism and medieval regimes generally. It was made even more draconian in the early modern epoch as the hierarchies more fully took military form.

Where modified by a center-periphery model, the political elite was able to take control of the country's center, essentially by forming a club. Indeed, their politics, which precede both administration and the constitution, was and is the politics of a club. Their administration is tied to that politics and its heads also had to be members of the club. A constitution, for them, tends to be a traditional body of rules. Westminster-style parliamentarism is the apotheosis of this model, with the politically sovereign parliament as the club of clubs.

In contrast to both of these models, associated with modern statism is the covenantal model associated with modern federalism. Although developed in concept and theory even earlier, its complete modern theoretical development and successful practical application came in the United States at the end of the eighteenth century. The covenantal model consists of a matrix of equal cells framed by common institutions. The matrix is founded by individuals or individual entities who join together as equals through a covenant or political compact establishing their common governing institutions without sacrificing their respective integrities and retaining a fair measure of their independence. Because of the very nature of the model, the constitution is preeminent since it embodies the agreement that specifies the linkages and establishes agreed-upon rules of the game for all.

The politics that flows from that constitution is a politics designed for people of equal status based upon negotiation and bargaining among them which is designed to be as open as possible. Administration is dependent upon the constitution for its authority and the politics of equals for its powers. The system is not hierarchical even if small hierarchies may form within it for reasons of efficiency. Also, it is multi-centered. No single center can come into existence because the multiplicity of centers is constitutionally protected. In its most complete form it is a federal system with a separation of powers, in which the common institutions have only those powers delegated to it by the constituent entities.

The Federalist, the finest modern theoretical formulation for this model, describes these three forms of polity as, respectively, produced by force, accident, or reflection and choice. Indeed, the first Federalist paper makes the point that all regimes prior to the United States had to rely upon force and accident and that it has been given to the Americans to be able to construct a regime based on reflection and choice, showing that the American founders were very much aware of the fundamental difference between federal polities and others.

The Europeans who came to the New World did not see themselves as directly influenced by its indigenous inhabitants whom they came to know as "Indians," and who are now referred to as "Native Americans." Those Native Americans, however, contributed more to successful European settlement in North America than the Europeans perceived at the time, not only in new products -- potatoes, corn, chocolate, tobacco, and many others -- but also in new techniques of confronting what for Europeans was a new world. Without making too much of it, in many cases they also were organized on a federal basis with tribal confederacies and leagues from coast to coast. The most prominent of those leagues was the League of the Iroquois, the precursor to the Iroquois Confederacy. It had as its proximate founder an Onondaga named Hiawatha, and an expatriate Huron (the Iroquois' principal enemies) known as "Peacemaker." The sacred story of how they did so is one of the three great elements of Iroquois cosmology (the others are the creation myth and the Code of Handsome Lake which founded a new religion for the Iroquois at the end of the eighteenth century based upon a synthesis of traditional Iroquois beliefs and attempts to harmonize the new realities of the times). The Constitution of the Five Nations includes both mythic and historical elements. The League was held together by the condolence ceremony that reasserted and then disposed of the collective grief of the members when a death occurred. The entirely native-originated League of the Iroquois was replaced in the seventeenth century by the Iroquois Confederacy which already was influenced by contact with the Europeans.1

The Creek Confederacy in the south central part of North America was another example. North of it was the Illinois Confederacy between the Great Lakes and the Mississippi. Other leagues and confederacies linked tribes in various other parts of the country. With the exception of the Iroquois Confederacy which had a certain influence on Benjamin Franklin and those of his compatriots who sought broader union for the British colonies in North America, these indigenous American arrangements essentially stand as testimony to the federal qualities of the country rather than as examples for the white men.

To describe certain peoples or civil societies or cultures as covenantal is only to suggest that their dominant ideologies and modal personalities are covenantal. These may encompass a majority of the population or a key minority in key positions that shape the cultures, peoples, or civil societies. We know that most historical movements are generated and achieve whatever they achieve through such key minorities. In that sense it can be said that most people at all times and in all places are the same, desiring only to achieve pleasure and avoid pain in small, conventional ways, but they do not set the tone. It is the key minorities that do, and if they are covenantal, then the societies become covenantal.

On the other hand, this does not mean that covenantal attributes are not to penetrate deeply into the culture where they exist, and are not found among people who would not have the slightest awareness that they had them. If all peoples have hierarchical, organic and covenantal leanings, in covenantal cultures and polities, those are the elements that the key minorities have featured and fostered in one way or another.


1. Dean R. Snow, Hiawatha: Constitution-Maker, New York Notes; A.C. Parker, "The Constitution of the Five Nations," in Parker, On the Iroquois, edited by W.A. Fenton (Syracuse: Syracuse University Press, 1968), and E. Tooker, "The League of the Iroquois: Its History, Politics, and Ritual," in Handbook of North American Indians, vol. 15, edited by B.G. Trigger (Washington, D.C.: Smithsonian Institution, 1978), pp. 418-441.