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Federalism and Covenant: The Historical Contribution of Covenantal Thinking to American Federalism

by John A. Fielding III
However the debate over the fidelity of the Constitution to a true biblical covenant model turns out, it is a commonplace understanding among the participants that the arrangement in the Constitution is a covenantal arrangement. That this is no accident can be seen by the historical context in which American federalism developed. I carry no brief for those who recite, "America was founded as a Christian nation," as if a continual chanting of that refrain holds some talismanic solution for the troubles of our times. It does behoove us, however, to explore covenantal influences on the founding of America as one gauge of our Christian heritage.

To an extent, it can be claimed that the debate over the founding and structure of the nation took place in a context of political debate fueled by federal notions that were strongly informed by Reformed and covenantal theological thinking.

Again, we must also distinguish between form and content. I think history reveals that, even at its inception, American federalism as seen in the Constitution had a form that was less vitiated by foreign elements than its content. While some have offered explanations along federal lines for the absence of explicit Christian references in the Constitution reflecting a biblical understanding of the source of all law as well as the presence of a ban on religious oaths, I suspect that even those hardy souls would do it differently were it theirs to do again.

In this article I propose to summarize the current historical understanding of the relationship between the historical notion of covenant and the federalism represented by the United States Constitution.

Federalism and the Covenant
Daniel Elazar describes the rise of the covenant concept in the Jewish religion and then describes three separations of the concept of covenant after the rise of Christianity.1 First, there was the separation of the Christian from the Jewish concept of covenant in the beginning. Second, there was "a reconvergence of elements of the Jewish and Christian traditions that led to the separation of Reformed Christianity from the rest of Christendom to develop the covenantal tradition associated with the federal theology and expressed through the Reformed churches."2 Third, the covenant concept was secularized by Hobbes, Locke, and Spinoza, and then from these it entered into the American political tradition.3

The Concept of Covenant
The biblical word for covenant, berith, had its development from the Akkadian term biritu, meaning to clasp or fetter.4 Elmer B. Smick writes as follows:

Apart from blood ties the covenant was the way people of the ancient world formed wider relationships with each other [cite omitted]. The accounts of the relationship between David and Jonathan are the only unequivocal mention of a compact between two individuals in the OT (1 Sam. 18:3; 20:8; 23:18). It is spoken of as "a covenant of the Lord" because the Lord witnessed the transaction and protected the legal order.

In Israel's monarchy the covenant relationship between the people and the king provided a kind of limited constitutional monarchy which was unique in the world in that early age (2 Sam. 3:21; 5:3; 1 Chron. 11:3).5

George Mendenhall was one of the first scholars to link the form of the biblical covenants to the form of the ancient Hittite suzerainty treaties of 1450-1200 B.C., listing six characteristics.6 Meredith Kline has extended Mendenhall's study of the parallels between this treaty form and particular sections of the biblical material, particularly Deuteronomy and Exodus, discovering six elements of the treaty organization of those books.7 Others have seen as few as three aspects of covenant documents, and some as many as twelve.8

While the types of treaties differed according to the relative status of the parties (equals, superiors/inferiors), the formal elements remained the same: parties, stipulations, and sanctions.9 The parties thus bound themselves to carry out certain stipulations and remain within certain parameters upon pain of sanctions.10 Elazar states:

Extending the pervasive covenantal relationship between God and humans, presented as the only proper one, the Bible necessarily holds that the covenantal relationship is the only proper basis for political organization--that is, the structured allocating of authority and power among humans--as well. In a political sense, biblical covenants take the form of constituting acts that establish the parameters of authority and its division without prescribing the constitutional details of regimes. Thus, the Sinai covenant establishes once and for all God's kingship over Israel and the partnership between God and Israel in tikkun olam (the repair of the universe). It does not establish any particular political regime. What it does do is set down the criteria that must be encompassed in a proper regime--a holy commonwealth...the humans who bind themselves through the covenant limit their powers as well. In the most immediately political sense this is particularly true of the leaders of the people whose government powers are limited to serving God by serving the people under the terms of the covenant without gaining anything like absolute power over the people. Thus, the idea of constitutionalism, which by definition must include the idea of limited government makes an early (if not its first) appearance in the biblical era.11

Medieval Hierarchism
Despite Paul's obvious reliance on the concept of covenant in his teachings concerning koinonia (1 Cor. 1:9; 1 Cor. 11), and the New Testament's reliance on covenant concepts in church discipline and organization (Matt. 18:15-18; 1 Cor. 12-14), 12 as well as its assumption of the continued viability of Old Testament law for political application (1 Tim. 1:8-11; Rom. 13:1-10), medieval society opted instead for a form of organic hierarchism, relying on Greek and Roman concepts of natural development according to natural law.13

Thus, political structures were not entered into voluntarily, but society was viewed as a "comprehensive organism rooted in the apparent structure of nature.... [Therefore,] Most of medieval constitutionalism has to be examined not as a reflection of church doctrine but as a synthesis of tribal tradition and the Roman law of contract."14 Feudalism was an "admixture of hierarchical and contractual relationships."15

There was no effort to return to the Bible as a source of information about political structure, but medieval society grew in reliance on contradictory notions of hierarchy inherited from Plato and Aristotle, on the one hand, and feudal notions of covenant inherited from the Germanic tribes on the other.16

The Protestant Reformation
Luther continued the organic orientation, but simply broke it up into petty hierarchies. But the federal/covenantal theology that descended from John Calvin used covenant as a political device and

...represented a synthesis of theological renewal, reform of church governance, and political reconstitution, which was the cornerstone of modern republicanism and the precursor of modern federalism. As such, it was both a separation and a return--a separation from the organic and hierarchical dimensions of medieval Catholic Christendom and a return to the covenantal thinking of biblical Israel.17

The heart of the new covenantal politics was to be found in the city republics of Zurich and Geneva, where religious reformation and political transformation went hand in hand. They developed the most sophisticated systematic theories of covenant, theological and political, in the history of the idea. Parallel to them was an extensive application of those theories to the organization of public life.18

This stream of Reformation federal/covenant political application included Heinrich Bullinger, A Defence of Liberty Against Tyrants, Johannes Althusius, Samuel Rutherford, and the Scottish Covenanters.

Heinrich Bullinger
It remained for Zwingli's disciple and successor, Heinrich Bullinger, to articulate a theology of covenant and, with it, a political theory of the covenantal commonwealth, becoming the first of the Reformers to do so. Bullinger's work not only preceded that of Calvin, but went farther toward the enunciation of a theo-political federal doctrine. Bullinger gave Protestant covenantalism its first major theological expression.19

In his A Brief Exposition of the One and Eternal Testament or Covenant of God, Bullinger "sets forth the frame of a federal order"20 that includes a role for the civil magistrate to enforce the terms of the covenant in society.21 It also contained checks against the abuses of rulers in terms of the parameters of covenant responsibilities.22 Thus, "[t]he covenant was, therefore, the centerpiece of the Christian religion and the cornerstone of the Christian state. It was the moral foundation of society and of religion."23

A Defence of Liberty Against Tyrants
Mornay's Vindiciae Contra Tyrannos (A Defence of Liberty Against Tyrants), written under his pen-name, Junius Brutus, proposed the superiority of God's law in the covenant as a basis for rebellion against tyrants that had violated both the terms and the law of God's covenant stipulations:

Now, although the form, both of the church and the Jewish kingdom be changed, for that which was before enclosed within the narrow bounds of Judaea is now dilated throughout the whole world; notwithstanding the same things may be said of Christian kings, the gospel having succeeded the law, and Christian princes being in the place of those of Jewry. There is the same covenant, the same conditions, the same punishments, and if they fail in the accomplishing, the same God Almighty, revenger of all perfidious disloyalty; and as the former were bound to keep the law, so the other are obliged to adhere to the doctrine of the Gospel, for the advancement whereof these kings at their anointing and receiving, do promise to employ the utmost of their means.24

As may be seen, Mornay lays the basis for replacing tyrants that exceed the prescriptions of God's law in the statement that the covenant provides continuity in the demands of that law.25 Rushdoony26 and Kelly27 both note John Adams' reference to the importance of the Vindiciae for an understanding of early American federalism.

Johannes Althusius
Johannes Althusius (1557? -1638) was a Reformed elder and political philosopher in Germany and Switzerland, and the first systematic expositor of federal political philosophy.28 Althusius' concern was to "' interpret all political life in terms of pactum, the bond of contractual union,' or covenant."29 Althusius referred to the study of politics as "symbiotics" or "the art of associating men for the purpose of establishing, cultivating, and conserving social life among them."30 The means for conserving social life was through a covenantal relationship based upon biblical foundations. The limits of the covenant also, in Althusius' view, provides limits upon the leaders:

These administrators exceed the limits and boundaries of the power conceded to them, first, when they command something to be done that is prohibited by God in the first table of the Decalogue, or to be omitted that is therein commanded by God.... Finally, the wickedness of administrators cannot abolish or diminish the imperium and might of God, nor release the administrators from the same. For the power and jurisdiction of God are infinite. He created heaven and earth, and is rightly lord and proprietor of them. All who inhabit the earth are truly tenants, vassals, lessees, clients, and beneficiaries of his. "The earth is the Lord's and the fullness thereof," and is so by the right of creation and conservation. God is therefore called "King of kings and Lord of lords..."31

The "common law," or the law written on the hearts of men and made explicit in the Decalogue, forms the general basis for the covenant of the society, while "proper law" is the case law that applies its general principles.32 Thus, the foundation of proper societal relations is biblical law as seen within a covenantal context. Without such a foundation, a society will dissolve:

For no one can doubt that such a compact or covenant constitutes a right and obligation both to God and between the promising debtors, namely, between the people and the king. What is at stake in this obligation is not only the public practice of orthodox religion and the honest worship of God, but also the second table of the Decalogue, of the correct and honest administrations of justice. This is to say, both tables are involved.33

Samuel Rutherford
Charles S. McCoy and J. Wayne Baker comment:

More than any other person, Rutherford provided an exposition of the theological and political principles undergirding and guiding the Reformed components of [the Scottish Reformed] movement. Rutherford did this in Lex, Rex: the Law and the Prince, published in 1644, and in The Covenant of Life Opened, or, A Treatise of the Covenant of Grace, published in 1655. These works provided the most comprehensive account of federalism in Britain up to that time. In them the close relation of religious faith and political action was made clear. Yet Rutherford also distinguished carefully and consistently between the appropriate functions of the church and those of the government. He showed throughout the influence upon him of the federal tradition from Bullinger onward.34

In speaking of the limitation of the power of the king, Rutherford writes that the power of the king is "a power to rule according to God's law."35

The Scottish Covenanters
Kelly identifies three key concepts that John Knox and the post-reformation Scottish Covenanters developed that influenced federalism in America: the covenant, political rights, and the "two kingdoms."36

The Covenant.
In his Appellation to the Nobility and Estates, Knox lays out the covenantal basis of rulership. In that document, Knox uses the fact that Paul speaks of "powers" in Romans 13 to demonstrate that there existed a plurality of powers in each kingdom. All of the powers, superior as well as inferior, were charged with enforcing the demands of God's covenant. Therefore, if the king turned aside from enforcing the covenant with respect to the people, it was the lesser magistrates' job to not only enforce the law with respect to the people, but also with respect to the king.37 While the English could appeal to the ancient constitution of the laws of England, the Scots had, for generations, "a custom of using 'bands' (bonds) or covenants to unify the clans of the nation in self-defense."38 Therefore, an appeal to the biblical covenant as a basis for defining rights and responsibilities was perfectly in keeping with Scottish tradition.39

Political Rights.
From the above, it is easy to see that in Knox's understanding, the rights of the people under God's law were not to be abridged by the king. Hence, it is said that while "Englishmen appealed to law; Scotsmen appealed to the instrument which determined the law [scil. the covenant]."40 Therefore, when the American colonies published the Declaration of Independence, they made a covenant argument: "King George III [had] violated the laws by which he was bound to the colonies in covenant agreement: ....the argument was simple: the king was alleged to be the rebel against English constitutional law, not the colonists."41

The "Two Kingdoms."
Finally, Knox laid the groundwork for what was to become a pivotal question in Scotland for the next one hundred years: the relationship between church and state.42 Andrew Melville is said to have pulled the sleeve of James VI (later James I of England) and stated:

...[T]here are two kings and two kingdoms in Scotland. There is King James, the lord of this commonwealth, and there is Christ Jesus the King of the Church, whose subject King James the Sixth is, and of whose Kingdom not a king, nor a lord, nor a head, but a member.43

The persistence of Scottish covenantal ideas in England, even though on the wane after 1680, gave rise to the Whigs44 whose ideas were "reshaped into secular form by the public influenced by John Locke. Whig ideas became the bridge between Reformation covenantalism and modern constitutional republicanism."45

Conclusion: The Secularization of the Covenant
Elazar points out that political historians such as Leo Strauss view Hobbes as the great betrayer of classical political philosophy in that Hobbes, based upon Machiavelli, formulated a new theory of rights that overturned the old classical natural law rights theory and attempted to place rights on an empirical, "scientific" basis. 46 Jaffa remarks that the "great political philosophers after Machiavelli...attempted in their doctrines to guarantee the actualization of a certain kind of just or legitimate regime by taking their bearings, not by that regime which is everywhere best, but by what all men actually everywhere are. They tried to assure the fulfillment of the goal of political life by lowering that goal."47 This includes Hobbes and John Locke, upon which so much American political philosophy is based.48 Jaffa states that Locke presented the modern theory of rights in its soberest dress, even though Strauss' work had exposed its underlying insobriety.49 I have dealt with Locke's substantive shortcomings elsewhere.50

Elazar does point out, however, that, even though Hobbes did seek to undermine the old classical political philosophy and replace it with a modern rights theory based upon empiricism and pragmatism, Hobbes also had "to directly confront Scripture and so reestablished the possibility of covenantal thought."51 Locke and Hobbes posited a "social contract" that ensured that men would be saved from the chaos inherent in the state of nature (Hobbes)52 or would be able to achieve their greatest happiness (Locke).53

What became the most significant feature of the system was that the emphasis passed from a prior standard dictating the form of the covenant to the consent of men. Thus, Locke moves directly from speaking of the source of the authority of the social contract (the consent of the governed) to the structure of that society, wherein he delineates the legislative power first.54 Thus, we see the beginnings of a bifurcation between the concept of covenant, in which a "morally binding dimension takes precedence over its legal dimension.... [it] is an agreement in which a higher moral force, traditionally God, is either a direct party to, or guarantor of the particular relationship" and compact, in which "moral force is only indirectly involved...[but is based] on mutual pledges rather than guarantees by or before a higher authority, rests more heavily on a legal though still ethical grounding for its politics. In other words, compact is a secular phenomenon."55 Elazar concludes:

In the United States, the terms covenant and compact were used almost interchangeably until after 1791. In British North American colonies the accepted term in the seventeenth century was covenant. Compact was introduced in the mid-eighteenth century as part of the spread of Enlightenment secular thought during the Revolutionary era. Those who saw the hand of God in political affairs in the United States continued to use the term covenant, while those who sought a secular grounding for politics turned to the term compact.56

John Fielding holds the M.Div. degree from Reformed Episcopal Seminary, and the M.A. and J.D. degrees from Temple University. He is a member of the National Reform Association Board of Directors, and is currently practicing law in Berks County, Pennsylvania.

Endnotes:
1. Daniel J. Elazar, Covenant and Commonwealth: From Christian Separation through the Protestant Reformation (Vol. 2, The Covenant Tradition in Politics; New Brunswick, NJ: Transaction, 1996), 10-11.

2. Ibid.

3. Ibid., 11.

4. M. Weinfield, "berith," in Theological Dictionary of the Old Testament, eds. G. Johannes Botterweck and Helmer Ringgren, John T. Willis, trans. (Grand Rapids: Eerdmans, 1975), 2:255.

5. Elmer B. Smick, "brh," in Theological Wordbook of the Old Testament, eds. R. Laird Harris, Gleason L. Archer, Jr., and Bruce K. Waltke (Chicago: Moody Press, 1980), 1:129.

6. George E. Mendenhall, "Covenant Forms in Israelite Tradition," in The Biblical Archaeologist Reader 3, eds. Edward F. Campbell and David Noel Freedman, (Garden City, NY: Doubleday, 1970), 29-36.

7. Meredith G. Kline, The Structure of Biblical Authority, rev. ed. (Grand Rapids: Eerdmans, 1972), 135-43.

8. James B. Jordan, Covenant Sequence in Leviticus and Deuteronomy (Tyler, TX: Institute for Christian Economics, 1989), 3-6.

9. Dennis J. McCarthy, Old Testament Covenant: A Survey of Current Opinions (American ed., Atlanta: John Knox, 1972), 11, n.2.

10. Timothy J. Hegg, The Abrahamic Covenant and The Covenant of Grant in the Ancient Near East (Th.M. thesis, Northwest Baptist Seminary, 1980), 186-89.

11. Daniel J. Elazar, Covenant and Polity in Biblical Israel: Biblical Foundations & Jewish Expressions (Vol. 1. The Covenant Tradition in Politics; New Brunswick, NJ: Transaction, 1995), 68.

12. Developed in John A. Fielding III and R. Fowler White, "Confessing Our Faith: Covenant and Consensus in the Local Church" (Unpublished paper; presented in two parts before the Evangelical Theological Society).

13. Elazar, Commonwealth, 39-40.

14. Ibid., 40, 48-49.

15. Ibid., 55.

16. Ibid., 35, 59.

17. Ibid., 44.

18. Ibid., 150.

19. Ibid., 165.

20. Charles S. McCoy and J. Wayne Baker, Fountainhead of Federalism: Heinrich Bullinger and the Covenantal Tradition (Louisville, KY: Westminster/John Knox, 1991), 27.

21. Ibid., 26.

22. Ibid., 27.

23. Ibid., 26-27.

24. Junius Brutus, A Defence of Liberty Against Tyrants (1689; Edmonton, Alberta, Canada: Still Waters Revival Books, 1989), 11.

25. Ibid., 1-51.

26. Rousas John Rushdoony states: "Important in this context of legality of revolution was the influence of Vindiciae Contra Tyrannos (1579), held by John Adams to be one of the most influential books in America on the eve of the Revolution. Vindiciae Contra Tyrranos held, among other things, to these doctrines: First, any ruler who commands anything contrary to the law of God thereby forfeits his realm. Second, rebellion is refusal to obey God, for we ought to obey God rather than man. To obey the ruler when he commands what is against God's law is thus truly rebellion. Third, since God's law is the fundamental law and the only true source of law, and neither king nor subject is exempt from it, war is sometimes required in order to defend God's law against the ruler. A fourth tenet also characterized this position: legal rebellion required the leadership of lesser magistrates to oppose, in the name of the law, the royal dissolution or contempt of law. All these doctrines were basic to the colonial cause." This Independent Republic: Studies in the Nature and Meaning of American History (Fairfax, VA: Thoburn, 1978), 24-25. See also McCoy and Baker, 47-49.

27. Douglas F. Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th through 18th Centuries (Phillipsburg, NJ: Presbyterian and Reformed, 1992), 47, 132-33,

28. McCoy and Baker, 50.

29. McCoy and Baker, 55 (quoting Carl J. Friedrich, Preface, ix, in Frederick Carney, ed. and trans., The Politics of Jobannes Althusius. An abridged translation of the 3rd. ed. of Politica Methodice Disgesta, atque exemplis sacris et profanis illustrate, and including the Prefaces to the lst and 3rd eds.; Boston: Beacon, 1964).

30. Johannes Althusius, Politics (Abridged ed., Frederick Carney, ed. and trans.; Indianapolis: Liberty Fund, 1995), 17.

31. Ibid., 98-99.

32. Ibid., 145-48.

33. Ibid., 165.

34. McCoy and Baker, 43.

35. Samuel Rutherford, Lex, Rex, or The Law and The Prince (1644; Harrisonburg, VA: Sprinkle, 1982), 72. (I'm posting the text of Lex, Rex on this web site.)

36. Kelly, 51-75.

37. John Knox, "The Appellation to the Nobility and Estates," in On Rebellion, ed., Roger A. Mason (New York: Cambridge, 1994), 82-102.

38. Samuel E. Boyle, The Christian Nation (Pittsburgh, PA: The Christian Government Movement, 1971), 2.

39. Elazar, Commonwealth, 271.

40. Kelly, 55 (quoting Arthur H. Williamson, Scottish National Consciousness in the Age of James VI. The Apocalypse, the Union and the Shaping of Scotland's Public Culture [Edinburgh: John Donald, 1979], 19,20,146).

41. Ibid., 133 (citing Alice Baldwin, The New England Clergy and the American Revolution [New York: Ungar, 1958]).

42. Ibid., 66.

43. John Macleod, Scottish Theology: In Relation to Church History Since the Reformation (2nd ed., Carlisle, PA: Banner of Truth, 1946), 46.

44. From the derisive term "Whiggamore." ("applied to Scot. Covenanters who marched on Edinburgh in 1648" Webster's New World Dictionary of the American Language [Second College edition; New York: Collins+World, 1976], 1619).

45. Elazar, Commonwealth, 286.

46. Elazar, Covenant & Polity, 27.

47. Harry V. Jaffa, "Leo Strauss: 1899-1973" in The Conditions of Freedom: Essays in Political Philosophy (Baltimore: Johns Hopkins, 1975), 3.

48. Harry V. Jaffa, "Inventing the Past: Garry Wills's Inventing America and the Pathology of Ideological Scholarship" (American Conservatism and the American Founding; Durham, NC: Carolina Academic Press, 1984), 76-109

49. Ibid. 7. See also Leo Strauss, Natural Right and History (Phoenix Books; Chicago: University of Chicago, 1965) and Leo Strauss.

50. John A. Fielding III, "The Emperor's New Clothes: The Failure of Retreatist Strategies," chapter in forthcoming book written by board members of and published by the National Reform Association; John A. Fielding III, "Utopia: The Secularization of the Kingdom" (unpublished paper; presented at the Symposium on Biblical Law and Socio-Political Reform); John A. Fielding III, "Biblical Law and the Search for Social Unity: Towards a More Permanent Social Glue" (unpublished paper, presented at the Symposium on Biblical Law and Socio-Political Reform).

51. Elazar, Covenant & Polity, 31.

52. Thomas Hobbes, Leviathan (Everyman's Library, Ernest Rhys, ed.; New York: E.P. Dutton & Co., 1914), Pt.2, Ch. 17, 89-90.

53. John Locke, Two Treatises of Government (Cambridge Texts in the History of Political Thought, Peter Laslett, ed.; New York: Cambridge, 1988), Bk. 2, Ch. 8, Sect. 95-99, 330-33; Bk. 2, Ch. 9, Sect. 123-31, 350-53.

54. Ibid., Bk. 2, Ch. 10-13, Sect. 132-58, 354-74.

55. Elazar, Covenant & Polity, 31.

56. Ibid. (emphasis added)


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