Cato V, Part XXVI: The Same Causes, contd.

Shifting the present discussion to an examination of the presidency of Andrew Jackson would naturally entail moving somewhat far afield of the nominal subject thereof. George Clinton penned Cato V in 1788, the proposed constitution whose ratification he was seeking to defeat was adopted in 1789, and the man himself died in 1812. As Jackson did not become President until 1829, one might therefore be forgiven for thinking of the events of his tenure in office as being too far removed from either Clinton’s perceptions or the events of his lifetime to have much at all to do with either. But consider, for a moment, the man himself. Consider Andrew Jackson.

Born in 1767 in a settlement bridging the territories of North Carolina and South Carolina, Jackson served in the Revolutionary War as a courier for the local militia, studied the law and became a backwoods lawyer, and served in the Senate and the House between 1796 and 1798. He next became a war hero in 1815, then governor of the Florida Territory in 1821, then a Senator again in 1823, and finally President of the United States in 1829. It was a full career, to be sure, and one which furnished him with a remarkable breadth of experience. But while his turn in the White House came more than a generation after those of either Washington or Jefferson – with the presidencies of James Madison, James Monroe, and John Quincy Adams intervening – Jackson, by his own admission, was a man of conservative convictions. He did not take his cues from the 1810s or the 1820s, the adoption of Federalist policies by Madison and Monroe or Quincy Adams’ fixation on federally funded infrastructure projects. He was, on the contrary, a diehard Jeffersonian who had come up in the 1790s and believed wholeheartedly in the agrarian, small-government populism that the Sage of Monticello had raised to national prominence. He hated the national bank, like Jefferson, distrusted the federal courts, like Jefferson, and believed, like Jefferson, in a strict adherence to the text of the Constitution. But he was also, like Jefferson, willing to betray his own convictions. The main difference between them was in how they arrived at this outcome.

Thomas Jefferson, as mentioned previously, was not a man to whom the open-ended use of executive power came very naturally. Over the course of the 1790s, as variously Secretary of State, Vice-President, and private citizen, he argued fervently and publicly against the use of coercive federal authority by the Washington and Adams administrations and advocated time and again for the maintenance of an exceedingly limited national government. And while, as President himself in 1803, he did later see his way clear to authorizing the expansion of federal authority for the purpose of purchasing and incorporating the French territory of Louisiana – an outcome he deemed too good to pass up – even then his embrace of the latent power of the presidency was more than slightly halting. Initially, hoping to remain consistent with his own prior declarations, Jefferson thought it necessary to pursue an amendment to the Constitution explicitly authorizing his actions vis-à-vis Louisiana and its inhabitants. It was only after allies like James Madison and Albert Gallatin convinced him that he was worrying over nothing – that the Constitution certainly authorized the purchase of foreign territory, and that even if it didn’t the American people were unlikely to object – that he finally laid his convictions aside. By the end of his second term, of course, he no longer needed convincing. His attempts to enforce the terms of the Embargo Act (1807) speak very much to that. Still, it’s worth noting that it took almost eight years of having the means at his disposal for Jefferson to fully embrace the possibilities of his office. He had to grow into the powers of the presidency, to see for himself why his predecessors had acted in the ways that they did and to come to terms with the idea of acting that way himself.

When Andrew Jackson entered the White House in March of 1829, having defeated the incumbent President John Quincy Adams in the Election of 1828, no such period of adjustment was necessary. Jefferson had had doubts about the value of executive power and worked through those doubts over the course of his presidency. Jackson arrived “fully formed,” as it where, with no doubts, no uncertainties, and no need to be convinced. Not only had he witnessed his ideological idol Jefferson finally arrive at the conclusion that the President could and should be a powerful and effective figure in the political life of the American republic, but he himself had spent the better part of his adult life as an officer in the United States military. These experiences arguably combined to make Jackson the ideal “imperial” President. Why question his own use of authority? The man he most closely sought to emulate in politics had done all the questioning for him. Why second-guess the pursuit of a useful result? A good officer was decisive, took what he wanted, and never looked back. And hadn’t this approach worked out for Jackson before? In 1818, in the midst of a regional conflict between the United States and the Seminole tribes along the Georgia-Florida frontier, Jackson knowingly exceeded his orders to “terminate the conflict” by invading Spanish Florida, attacking Spanish fortifications, and capturing, trying, and executing two British merchants who had been aiding the Seminoles. The immediate result was a domestic and diplomatic uproar.

Jackson was investigated by Congress, his dismissal became a topic of harried discussion among the cabinet of President Monroe, and Spain and Britain lodged formal complaints against the invasion of the territory and the murder of their citizens, respectively. The long-term result, however, was nothing but beneficial. Having first offered a tactical apology for Jackson’s undeniably rash behavior, Secretary of State John Quincy Adams then used the weakness that Jackson had exposed to pressure the Spanish into selling Florida to the United States. Jackson thereafter became the first Governor of the resulting Florida Territory and potential disciplinary action against him was dismissed in light of his soaring popularity with the American people. This same pattern of action and reaction would more or less adhere to the Hero of New Orleans throughout his entire tenure as President. If ever he sighted a useful outcome that was near at hand, he would grasp it firmly with both hands and absolutely refuse to let go. It didn’t seem to matter whether he was strictly authorized to do so, nor the struggle that ensued, nor the criticism he endured in the meantime. In the end, he seemed convinced, history would vindicate his actions. Hadn’t it always? Hadn’t it done so for Jefferson? The so-called “Nullification Crisis” of 1828-1832 stands as an early and very prominent example of exactly this attitude.

Following the War of 1812 – a conflict which itself arose out of British harassment of American trade during the Napoleonic Wars (1803-1815) – American political culture underwent something of an ideological realignment. The stresses that the conflict had exerted on the American people and their government revealed a number of weaknesses in the Democratic-Republican policy program that had been shaping the nation’s political and economic evolution since the Election of 1800. Having nearly gone bankrupt attempting to pay for soldiers and supplies, and having struggled to move troops to where they were needed amidst a dearth of passable roads and canals, the Madison Administration thereafter concluded that the creation of a national bank and federal funding for infrastructure – both of which the Democratic-Republicans had previously opposed – might perhaps be worthy of reconsideration. Combined with the growth of domestic manufacturing spurred by the effects of the Embargo Act and a general feeling of national pride and unity – occasioned in no small part by Jackson’s victory over the British at New Orleans in early 1815 – the second half of the 1810s witnessed a shift in American domestic political priorities away from the free trade and small government policies that had previously defined the Jeffersonian ethos and towards things like economic protectionism and revenue-generating tariffs.

            Initially, while the economy remained strong, this shift did not occasion much in the way of dissent. Southern agriculturalists may have continued to object, in principle, to import taxes intended to protect domestic industry, but even they had come to understand the practical value of shielding America’s fledgling manufacturing sector from foreign competition. The late war, while ultimately concluding without major American losses, had severely strained the nation’s resources in no small part because of its limited ability to supply its own industrial needs. Supporting the growth of American manufacturing therefore represented a national security objective as well as an economic one. The United States needed to be able to arm, clothe, and supply its own soldiers, and tariffs were one potential way of making this possible. Bearing this in mind, along with the limited impact tariffs would exert on Southern agriculture and the soaring revenues Southern planters were then bringing in thanks to the reopening of American trade, it was really not all that surprising that the Tariff of 1816 enjoyed such widespread support across the entire American republic. Many of the Southerners and Westerners who might otherwise have supported free trade were also ardent nationalists with strong opinions as to the value of American self-sufficiency, after all. And if some of the money generated by these new federal taxes went towards infrastructure projects that made it easier and cheaper for American produce to be brought to market? Well, that was only so much the better.

Unfortunately – and as seems invariably to be the case in American politics – this sense of national unity did not last for very long. The Panic of 1819, brought about by a combination of unsustainably high land prices, the recovery of European agriculture, unregulated lending by state banks, and a sudden credit crunch initiated by the 2^nd Bank of the United States, fairly devastated agricultural earnings and heralded a period of economic depression that would last through most of the 1820s. Southerners, formerly willing to agree to the passage of protective tariffs in the name of economic self-sufficiency, found it harder and harder to afford higher-priced foreign goods as their own incomes steadily declined. Among former free-trade advocates looking for something or someone on which to foist their resentment, tariffs became an obvious and easy target. Only the manufacturers in the North stood to benefit, they said. The South was being asked to pay for the prosperity of a population that thought them backward, simple, and cruel, they said. South Carolina in particular gave rise to some of the most vehement objections to the economic policies of the so-called “New Republicans.” As Great Britain began to flood the American market with cheap Indian cotton following its economic recovery from the Napoleonic Wars, and as planters in the increasingly developed states of the Old Southwest – i.e. Mississippi, Alabama, Arkansas, and Louisiana – began to benefit from better soil conditions than in the increasingly eroded and overplanted Southeast, the Palmetto State began to experience an unusually harsh economic downturn that shattered the runaway prosperity that had persisted since the colonial era. Over the course of the 1820s thousands of people consequently left South Carolina for more promising environs, leaving the state depopulated, demoralized, and desperate. Then came the Tariff of 1828.

Ironically enough, the so-called “Tariff of Abominations,” which the Democratic-Republicans in South Carolina so despised that they nearly provoked a civil war by refusing to adhere to its terms, was originally devised by a Democratic-Republican political operative for the purpose of securing a victory for that party’s presidential candidate. Martin Van Buren (1782-1862), one of the founders of the Democratic Party and perhaps the canniest political organizer in American history, formulated the tariff after essentially surveying the prospects of his patron, Andrew Jackson, and picking out exactly which elements of the American electorate needed appeasing and warranted ignoring. New England, he determined, though generally in favor of tariffs because of its increasing reliance on manufacturing, was going to vote for the incumbent John Quincy Adams – a Massachusetts native – no matter what Jackson said or did. And the South, he further concluded, though increasingly opposed to tariffs since the Panic of 1819 and the consequent collapse of agricultural prices, was going to vote for Jackson out of sheer sectional loyalty. That left the Mid-Atlantic (New York, New Jersey, Pennsylvania, and Delaware) and the West (Ohio, Indiana, Illinois, Missouri, and Kentucky) as really the only groups of states whose favor actively needed to be sought. Bearing this in mind, Van Buren crafted a tariff that increased prices on some of the raw goods that New England needed but which this third group of states could produce; namely hemp, flax, and iron. The resulting bill passed the House of Representatives by a vote of 105 to 94 in May of 1828. The South was overwhelmingly opposed, New England was almost evenly split, and the aforementioned Mid-Atlantic and Western states were overwhelmingly in favor. President Adams thereafter signed it into law – though he knew, reportedly, what it was likely to cost him – and scant months later lost the presidency to Andrew Jackson by a margin of 83 electoral votes to 178.

The South, whose inhabitants had delivered electoral majorities for Jackson in every state but Maryland, naturally expected that the resulting administration would make a point of decrying the tariffs and seeking their repeal. They were unjust, after all, they benefited one section of the union of states at the expense of the others, and they threatened the livelihoods of the planter class to which Jackson himself belonged. In South Carolina, where circumstances, as aforementioned, were particularly strained, such sentiments manifested as early as the summer of 1828. Not long after the passage of the offending tariff by Congress, the Palmetto State’s congressional delegation gathered for a series of meetings by which those present sought to organize a general response among the affected communities in the South so as to better secure the outcome they desired. Former South Carolina Congressman John C. Calhoun (1782-1850), then serving as Vice-President under John Quincy Adams and standing as Jackson’s running mate in the forthcoming election, was chosen by this group to issue a report on the tariff situation summarizing its impact and explaining their opposition. The resulting “Exposition and Protest” was delivered to the South Carolina legislature in December 1828, the members of which authorized the printing and distribution of some five thousand copies. In it, though he intended to exert a moderating influence on some of his state’s more radical elements, Calhoun nevertheless took an uncompromising line on what he characterized as an issue of state sovereignty. “If it be conceded,” he notably declared therein,

As it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction.

The principle upon which Calhoun’s reasoning was founded, though he never said as much, was plainly the same as that which had previously animated the likes of Thomas Jefferson and James Madison during their own confrontations with the Adams Administration in the late 1790s. Then, in 1798, the co-founders of the Democratic-Republican faction declared in response to the passage of the Alien and Sedition Acts that the states maintained the right and privilege to declared a given example of federal legislation to be, “Altogether void, and of no force” if said legislation was found to be in violation of the terms of the Constitution. At the time, though nothing ultimately came of this assertion, the questions which Jefferson and Madison sought to raise were nonetheless exceptionally significant. Notwithstanding the position put forward by Alexander Hamilton in the text of Federalist No. 78 – in which he argued that, “Whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former” – as well as several extant examples in the state courts of laws being struck down for having violated the relevant governing charter, the mechanism by which federal laws might have been examined and struck down remained a matter of theory and debate. In consequence, though Jefferson and Madison did ultimately fail in their attempt to present the states as the rightful arbiter of what was and wasn’t valid under the terms of the US Constitution, they weren’t wrong to make the attempt. The power of reviewing federal legislation – and federal action more broadly – for its adherence to the Constitution was undeniably necessary if the American republic was going to continue to function for more than a handful of years.

In actual fact, of course, the Supreme Court, under the leadership of Chief Justice John Marshall (1755-1835), used the case of Marbury v. Madison (1803) to conclusively affirm the sole responsibility of that selfsame institution to review legislation and determine its legitimacy. Having by that time become the President of the United States, Thomas Jefferson was unsurprisingly displeased with this outcome. Not only had his pet theory being entirely supplanted, but his ideological opposition – in the form of the Federalists, who still largely controlled the judiciary – had successfully claimed a far-reaching power which he could do little to counter. Initially intent on removing the offending Federalist justices, Jefferson accordingly attempted to have them systematically impeached and replaced in cooperation with the Democratic-Republicans who held the majority in both houses of Congress. When this failed on the first attempt, however – Associate Justice Samuel Chase (1741-1811) being acquitted in the Senate in March 1805 – Jefferson quietly accepted Marshall’s sweeping victory and ceased to challenge it thereafter. Subsequent rulings by the Marshal Court (1801-1835) went on to confirm the precedent set by its initial 1803 decision – Martin v. Hunter’s Lessee (1816), for example, or McCulloch v. Maryland (1819) – thus establishing conclusively and by general affirmation that the Supreme Court possessed sole authority to determine the constitutional validity of federal legislation.

Be that as it may – and for whatever reason – John C. Calhoun seemed not to have cottoned to this well-established outcome when he set himself to crafting his aforementioned Exposition and Protest in 1828. Having claimed, as cited above, that the states maintained the right to determine when their liberties had been abridged as well as the means by which they might seek remediation, he thereafter went on to assert that the denial of a given state’s freedom of judgement was tantamount to denying the basic fact of its sovereignty. “To divide power,” he wrote,

And to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government […] is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights.

Again, the parallels to the position advanced decades prior by the likes of Jefferson and Madison are exceptionally clear. Indeed, it seems likely that this formed an essential part of Calhoun’s purpose. The Supreme Court had already invalidated most of what Calhoun was trying to say. And the Democratic-Republican party had largely moved on from the small-government populism of its founding to the centralization and economic nationalism of the Madison, Monroe, and Quincy Adams administrations. But there most assuredly remained an element of the increasingly fragmented Democratic-Republican flock who continued to attach more importance to their state governments than to the federal government, and for whom 1790s radical Jeffersonianism possessed a certain romantic attraction amidst unceasing talk of protective tariffs and internal improvements. Coupled with those whose belief in the latter-day Democratic-Republican program had been severely shaken by the ongoing effects of the Panic of 1819, and there would seem to have existed a significant audience in 1828 for the kind of rhetoric that Calhoun was dispensing. It may not have been strictly politic to argue at that time that the states in fact maintained the right to invalidate federal laws. As time would shortly tell, in fact, it was a very foolish thing to do. But it was also a very Jeffersonian approach – in the original sense of the term – and one which the Vice-President perhaps hoped would appeal to a similarly avowed Jeffersonian like the President-Elect.

Cato V, Part XXV: The Same Causes, contd.

Substantial though Thomas Jefferson’s assumption of executive authority may have been in 1803 when he purchased the French territory of Louisiana in spite of a seeming lack of authorization in the text of the Constitution, this act of political expediency was fairly dwarfed in scope and scale by his final major pursuit as President. Dogged, still, by the outlying effects of the ongoing war between Great Britain and Napoleonic France – a conflict which had been substantially impacting American foreign and domestic politics since the early 1790s – Jefferson sought relief from continued European molestation of American “contraband” shipping by implementing what turned out to be one of the most disastrous policies ever put forward by an American president. Passed with substantial majorities in both the House and the Senate in December, 1807 and signed into law by Jefferson shortly thereafter, the Embargo Act expanded on an existing ban on a multitude of foreign imports – intended to force cooperation with American priorities by attacking European manufacturing – by essentially prohibiting any non-military vessels under American jurisdiction from making voyages to foreign ports for any reason whatsoever. The goal, as with the aforementioned Non-Importation Act (1806), was to exact concessions from the governments of Britain and France by depriving them of access to American markets. So essential had American customers and American produce become to European economies, Jefferson reasoned, that the sudden loss of the same was bound to induce greater respect for American commercial neutrality. But while this might have been a sound enough argument on paper, the result as it played out fell somewhat short of the mark. And in the meantime, stubbornly convinced that the Embargo Act would work if it was allowed to remain active for just a little longer, the Jefferson Administration oversaw a massive expansion of executive power in the name of enforcing and policing the complete shutdown of American overseas trade.

To the credit of Jefferson and his supporters among the Democratic-Republicans, it could not be said that the Embargo Act in itself represented an exercise of federal power not authorized by the Constitution. Article I, Section 8 states quite clearly that Congress possesses the authority, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes [.]” As the terms of the aforementioned Necessary and Proper clause – also located in Article I, Section 8 – furthermore grants the federal legislature the power to pass whatever laws a majority therein deems necessary to make use of the cited regulatory authority, no one could have claimed in 1807 that the terms and implications of the Embargo Act fell beyond the remit of the Democratic-Republicans in Congress or their erstwhile ally in the White House. But while the resulting shutdown of American overseas trade may indeed have been entirely legal and constitutional, it still came at a significant cost. Not only did Jefferson and his fellow partisans end up doing significant damage to the American economy, but the President’s obstinate belief in the efficacy of the embargo ended up empowering the Executive Branch in exactly the sort of way that the Democratic-Republicans had vehemently opposed when they first coalesced as a political force in the 1790s. If Jefferson understood this to be the case, however, he showed no sign of it. Perhaps, as in 1803, he felt himself to be so near an important goal – i.e. the use of trade and diplomacy as a means of avoiding war – that he decided to forgive himself what he doubtless believed would be only a temporary break with his convictions so that he might see said goal accomplished. And then again, maybe his actions in 1803 had taught him to stop worrying about such things altogether. So long as what he was doing was truly to the benefit of the nation as a whole – and Jefferson naturally thought of this of his every word and action while in office – then it made little sense at all to be constantly wringing one’s hands about the powers at the disposal of the American presidency. If it was one’s authority to accomplish something useful, then why not just get on with it?

Doubtless this kind of question did not occur to Jefferson until fairly late in his attempted enforcement of the terms of the aforementioned legislation. At the outset, in December of 1807, the Embargo Act was almost certainly viewed by the Democratic-Republicans in Congress and the President alike as a temporary measure likely to bring a swift end to the ongoing harassment of American shipping. The British economy, after all, was deeply dependent on access to American produce – particularly such staple crops as helped feed the slave populations of British-controlled sugar plantations in the West Indies – and equally reliant on access to American consumers for British manufactured goods. And while Britain’s wartime trade policies certainly did little to strengthen the Anglo-American commercial relationship, the sitting British government surely neither intended nor desired the termination of any and all commercial intercourse between themselves and the American republic. Napoleonic France was in a similar position, though they traded less with the United States than Britain did, and had pursued a course of commercial restrictions for much the same reasons. Having been in conflict with each other in some form for over a decade by 1807, British and French authorities alike were exceptionally keen to find some way of choking their enemy into submission without exposing what each had come to understand as their mutual – and potentially fatal – weaknesses.

Britain’s Royal Navy was unchallenged on the seas, as indeed it had been for quite some time. Meanwhile, thanks to the baptism of fire that was the French Revolution and Napoleon’s subsequent rise to power, France’s army was dominant on land. The only way for either power to gain some measure of advantage, therefore, was to extend the relevant conflict into a new theatre of operations. Trade was the answer, with Britain and France each resolving to cut off the other’s access to enough markets so that their opponent’s economy would eventually begin to starve. First, by way of an Order in Council in May of 1806, the British government declared a blockade on all French ports along the length of the English Channel to be enforced by the full might of Britain’s Royal Navy. When the French responded to this attempt at commercial strangulation with the Berlin Decree in November of that same year, the terms of which purported to place Great Britain under blockade in turn, British authorities released a second Order in Council the following November extending their blockade to the whole of France and any and all of its allies. All vessels bound for Europe were required to dock in Britain first so that their cargoes could be inspected for military supplies. Those which refused were to be deemed fit for seizure. Napoleon’s Milan Decree of the following month more or less completed this exchange of blows by declaring that all vessels which used British ports or paid British tariffs were to be considered by France to be British, and thus hostile.

             

These policies didn’t just impact the British and the French, of course. American shipping had come to dominate a significant percentage of the Atlantic market thanks in large part to the ongoing conflicts in Europe. French and Spanish in particular merchants had come to prefer risking American vessels on the increasingly dangerous Atlantic “carrying trade” rather than place their own ships at risk of capture, and the dueling commercial restrictions implemented by Great Britain and France significantly impacted American profits and American pride. Revenues being diminished and insurance rates increased, but the callous treatment of American trade also arguably cut to the heart of contemporary American insecurities as to the status and dignity of the United States vis-à-vis the great powers of Europe. The American republic was not a great power itself, of course. Despite its economic dynamism and abundance of natural resources, the comparatively small population of the United States and its people’s lingering dislike of large military establishments more or less guaranteed that older, more populous, and traditionally martial European nations would continue to dominate global geo-politics. At the same time, however, the moral and philosophical principles at the heart of the American Revolution prized equality above few other virtues, and the realization thereof consequently became an essential conviction of American national identity. The United States may not have been a military powerhouse like France, or a naval superpower like Britain, but none of that really mattered as far as Americans in the early 19^th century were concerned. The American republic was a sovereign nation, they declared, and on that basis alone deserved to be treated with the same dignity and respect enjoyed by even its most powerful counterparts in Europe or elsewhere. As the manhandling of American shipping by Britain and France violated this principle, it was natural for the American people and their leaders to take some degree of offense.

  

            A resort to arms would have been the most obvious means of redress. Jefferson could have threatened war against Britain, or France, of both unless they lifted their restrictions against American trade. Granted, the Democratic-Republicans had shown themselves to be vehemently opposed to war with France as recently as the late 1790s despite repeated naval engagements between French and American vessels at sea, but Jefferson surely could have argued his way around this point. Only a few years earlier, after all, these same Democratic-Republicans had been vigorously agitating for war between the United States and Great Britain regardless of the potential cost in blood and treasure. It wasn’t war itself that he and his colleagues opposed, he might well have asserted, but rather war waged upon an unjust and illiberal basis. Jefferson nearly had cause to deploy such rationalizations when a British vessel fired on an American warship off the coast of Virginia in June 1807. Immediately assuming unilateral authority to call out the state militias, banish British vessels from American ports, and make such arms purchases as would put the country on a footing for war, the President seemed entirely prepared to take up the same kind of martial attitude which he and his fellow partisans had decried when previously exhibited by the administrations of Washington and Adams. Before the formal commencement of hostilities could be declared, however, Jefferson seemed to experience something of a change of heart.

 

By this point in his career – and for whatever reason – the Sage of Monticello had evidently concluded that armed conflict was perhaps not something nations should pursue at the first sign of disagreement. Despite his evident willingness to assume a warlike aspect in response to what might well have been a simple overreaction on the part of a handful of British naval officers, he accordingly appeared amenable to some manner of alternative resolution. Thus, in answer to the aforementioned incident at sea, he called a special session of Congress in October of 1807 for the purpose of either considering a declaration of war or expanding upon the aforementioned Non-Importation Act of 1806. The assembled Congressmen and Senators, perhaps taking their cues from the President, chose the latter course, the result of which was the passage of the Embargo Act that very same December. Its terms were simple enough, if also somewhat open-ended. All ships under United States jurisdiction were to be prevented from undertaking voyages of any kind to foreign ports. All merchant ships travelling between American ports were required to purchase a bond against the possibility that they might seek to evade the embargo. All warships were exempt from any restrictions on their movement within and outside of American territory. And, perhaps most importantly, the President was given sole authority to issue exemptions to any merchant vessel he chose and to enforce the terms of the embargo through instructions to the Navy and the Revenue-Marine. While these latter provisions entailed a potentially substantial enlargement of the prerogatives at the disposal of the office of President – even granting the Executive Branch significant influence over the state of the American economy – the aforementioned belief held by Jefferson and his supporters that Britain in particular was absolutely dependent on access to the American market doubtless assuaged any doubts they might have held as to the consistency of their actions. Perhaps the terms of the Embargo Act did contain the seeds of of a more expansive reading of presidential authority than the Democratic-Republicans tended to endorse, but surely they weren’t going to be in force long enough for this to become a problem.

One can only hope that Thomas Jefferson appreciated the irony of the situation when the ingenuity which he so often praised as a quality peculiar to the American character was swiftly turned to the task of evading the terms of his pet legislation. With New England’s shipping industry, mercantile Middle Atlantic states like New York and Pennsylvania, and the agricultural South all suffering for the sudden lack of markets for their goods and services, the need to find loopholes in the text of the Embargo Act on the part of an economically strained population became a matter of some urgency. As was the case during the Anglo-American crisis of the 1760s and 1770s when British commercial restrictions met with disapproval in the American colonies – another stroke of irony one hopes Jefferson saw clearly enough to appreciate –smugglers accordingly rose to occasion by taking advantage of the freedoms still afforded to certain specific types of seagoing vessels. Ships travelling down the Atlantic coast from British Canada, for instance, were still permitted to make port in the United States, thus providing for some degree of continued British access to at least the American consumer market. And at the same time, American whaling and fishing vessels were able to turn their own liberty to account – being free, still, to navigate as they saw fit without even the need to post bond or submit to inspection – by diverting to British ports in the North Atlantic and the West Indies before returning home and offloading their contraband cargo. Notwithstanding these individual efforts, of course, the American economy still suffered in the meantime. Merchant ships sat idle in deserted wharves while farmers struggled to find buyers for their produce. Britain and France remained unmoved.

Jefferson’s response to this initial failure, as it happened, was not to conclude that the whole idea of an embargo was somewhat misplaced, or that there might have been a better means of seeking redress. On the contrary, he and his supporters in Congress concluded that what was called for was the application of even greater force to the problem at hand. An act of Congress supplementing the terms of the embargo was accordingly passed in January 1808, the terms of the which sought to close the aforementioned loopholes and apply harsh punishments to alleged smugglers. Previously unmolested fishing and whaling vessels were now required to post bond on the same terms as merchant vessels trading between American ports, fines were permitted to be levied upon foreign ships found to be loading cargo for export, with seizure of said cargo permitted as necessary, and violation of either the Embargo Act itself or the supplementary act were declared to be a criminal offense. The relevant punishments ranged from the seizure of ship and cargo, to fines ranging up to double the value of the same, to the forfeiture by offending captains of the ability to swear an oath before a customs officer. The results, at a stroke, were substantial. American access to global markets was diminished even further, more shipowners were forced to purchase bonds for their vessels, and potentially thousands of Americans whose only offense was seeking to sustain their chosen livelihood were transformed by legislative fiat into criminals liable to have their personal property confiscated by the federal government.

 

Shockingly enough, this effort likewise met with failure. The coming of the spring thaw expanded the number of shipowners and industries directly impacted by the loss of market access to such a degree that the beginnings of an economic downturn quickly blossomed into a full-blown depression. As more and more people were thrown out of work, protests became increasingly common in the commercial areas of the Atlantic seaboard, and soon enough many of the affected merchants began to ignore the offending laws entirely. Upstate New York and parts of Maine in particular became hotbeds of illicit trade, made possible by the land borders these regions shared with British-controlled Quebec and New Brunswick. Yet still convinced that their initiative had merit, however, Jefferson and his allies proceeded with a second raft of supplementary regulations. This new act of Congress, approved on March 12, 1808 and somewhat verbosely referred to as, “An Act in addition to the act, intituled "An act supplementary to the act, intituled an act laying an embargo on all ships and vessels in the ports and harbors of the United States [,]” went so far as to prohibit any and all exports by land or sea from the American republic. The relevant, “Vessel, boat, raft, cart, wagon, sleigh, or other carriage, in which the same shall have been exported […] together with the tackle, apparel, horses, mules, and oxen” were to be subject to immediate forfeiture on evidence of violation, and all persons, “Knowingly concerned in such prohibited exportation” were to pay a sum not exceeding ten thousand dollars by way of penalty. The terms thereof also provided for the more rigid enforcement of the aforementioned surety bond requirements of the Embargo Act, placed stiffer penalties on fishermen proven to have sold some part of their catch or supplies to foreign buyers, and further widened the latitude enjoyed by the President to grant or deny exemptions to such vessels as he chose.

By now, the astute reader should be able to recognize a pattern when they see one. As when Congress approved the original Embargo Act and its first supplementary act, the implementation of a second supplementary act had rather the opposite effect to what President Jefferson intended. Broad swaths of the economy continued to suffer for their lack of access to foreign markets, smuggling continued to flourish in regions well-placed to take advantage of their proximity to foreign territory, and neither Britain nor France seemed in the slightest bit affected. On the contrary, British merchants benefited massively from the sudden disappearance of American competitors in the aforementioned carrying trade and British manufacturers were able to compensate for the loss of American consumers by seeking new markets in South America. Notwithstanding the manifest ineffectiveness of what he had doubtless come to think of as his enlightened alternative to war, however, Jefferson proceeded with yet another supplement to the terms of the Embargo Act. This latest piece of legislation, approved by Congress on April 25^th, 1808, was by far the most draconian of any passed thus far. On the domestic side, federal customs collectors were authorized to detain any vessels present in American ports which, “In their opinions [,]” seemed likely to violate the terms of the embargo and to seize such “unusual” provisions – “Lumber, or other articles of domestic growth or manufacture” – as were deposited at American port facilities, “adjacent to the territories, colonies, or provinces of a foreign nation [.]” More broadly, the commanders of American naval vessels and revenue cutters were also empowered to,

Stop and examine any vessel, flat, or boat, belonging to any citizen of the United States, either on the high seas, or within the jurisdiction of the United States, or any foreign vessel within the jurisdiction of the United States, which there may be reason to suspect to be engaged in any traffic or commerce [...] contrary to the provisions of this act [.]

That these provisions collectively represented a fairly alarming development would seem to have more than anything else to do with their relationship to the terms of the Fourth Amendment.

            Approved by Congress in 1789, ratified by the states in 1791, and certified as an integral part of the United States Constitution in 1792, the Fourth Amendment states, in full, that,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the exact circumstances in which a given search or seizure qualifies as reasonable or unreasonable has been the subject of much debate and litigation in the two centuries that have since elapsed, the broad significance of the text in question has remained more or less unchanged. Arbitrary searches and seizures are forbidden except in cases of exceptional government interest and warrants are only to be granted upon presentation of probable cause to the proper judicial authorities. Bearing these principles in mind, it would accordingly seem a matter of some concern that none of the legislation cited above claiming to authorize the search or confiscation of private property made any mention of either the need for warrants or such conditions as would have obviated the same. In some cases, in must be said, this may have simply been a matter of convenience. Rather than spell out the procedure by which the appropriate agents might seek and produce a search warrant for the purpose of accomplishing their assigned tasks, the authors of the relevant supplemental legislation may instead have just assumed that the terms of the Fourth Amendment would apply regardless. Granted, “I think that ship might engage in foreign trade at some point” would seem something of a stretch in terms of probable cause, as would, “That pile of lumber there looks rather suspicious.” All the same, it would at least have been possible for the federal officials so deputized by the terms of the various acts of Congress here discussed to seek and receive the appropriate search warrants before beginning to seize and examine allegedly suspicious ships and cargoes.

            That being said, the authority granted by the third supplementary act to the commanders of naval vessels and revenue cutters would seem another thing entirely. Recall, for a moment, the relevant terms of the cited legislation. The officers in question were to possess the right to, “Stop and examine any vessel, flat, or boat, belonging to any citizen of the United States, either on the high seas, or within the jurisdiction of the United States [.]” A federal customs collector, being suspicious of a vessel in their district, could reasonably secure the warrant necessary to conduct a lawful search before said vessel set sail and departed. But the commander of an American naval vessel or revenue cutter already under sail, having spotted a civilian ship which they believed might be engaged in illicit commerce, possessed no such means at their disposal. Upon sighting the suspect ship, they must either act or let them be. They could not “stock up” on blanket warrants before leaving port, such things being wholly illegal. And there certainly wouldn’t be much point in attempting to dash to port to secure a warrant in hopes that the ship in question remained where last seen. One can only sensibly conclude, therefore, that the officers in question were expected to proceed without warrants of any kind. The Jefferson Administration might well have claimed that the circumstances of the moment rendered such warrantless searches and seizures entirely reasonable. In point of fact, however, no legal consensus then existed which would have validated such an assertion.

            This would more or less seem to sum up the Jeffersonian approach to executive power in a nutshell. As a means of resolving international disputes and avoiding armed conflict, the idea of an embargo on American trade with the world at large was far from unreasonable in concept. That Jefferson stopped short of declaring war on Britain in 1807 following the aforementioned incident off the Virginia coast rather does the man credit, and there was certainly nothing in the terms of the original Embargo Act which fell outside the powers possessed by either Congress or the President. But then, when the policy failed to bear fruit – indeed, when it was met by a fairly severe backlash – he and his supporters arguably lost their heads. Having been, for over a decade, the foremost advocate for limited government and the most vehement critic of arbitrary executive power, Jefferson became increasingly convinced that the only way to enable the embargo to achieve its desired effect was to make the prospect of violation as onerous as possible and to throw as many federal resources as Congress would allow into enforcement and prosecution. Fines were levied, searches and seizures were authorized, military personnel were re-directed, and the economic liberty previously enjoyed by the American people was rapidly and decisively curtailed. Farmers and merchant were no longer permitted to dispose of their property as they pleased, while shipbuilders weren’t permitted to do much of anything. The economy suffered. The people became discontented.

            More important to the present discussion than the effects of the embargo, or course, are the means by which the thing was accomplished. Congress, as aforementioned, unquestionably possesses the authority to regulate foreign commerce. And there should likewise be no uncertainty as to the ability of the President to command the American Navy, or the Revenue-Marine, or federal customs officials to seek to accomplish this or that objective. But could the President authorize warrantless searches at sea? Did suspicion of wrongdoing alone constitute probable cause for the seizure of private property? The various pieces of supplementary legislation intended to support the effectiveness of the Embargo Act very much begged these questions. But while Jefferson may have been the one asking them if the Federalists had still been in power, in reality his actions followed exactly the Federalist course. As he had himself in 1803, and as Washington and Adams had during their own terms in office, the Sage of Monticello chose the path of least resistance. Within striking distance – or so he thought – of a desirable objective, Jefferson brushed aside his doubts and seized what it was he wanted. Did the ongoing harassment of American commerce really constitute the kind of emergency which would have made warrantless search and the seizure of private property reasonable? As a private citizen, given his ideological bona fides, Jefferson likely would have argued that it didn’t. But as President? Well, it rather depended on what the people were willing to accept. Madison had said exactly that in 1803. Given the, “magnitude of the object,” he’d said, in that case referring to the Louisiana Purchase, it should have been left to, “The candor of the country,” to decide what was or wasn’t acceptable. For better or worse, Jefferson seemed to have internalized this sentiment in the intervening years. If the American people believed it was within the President’s power to proceed as he saw fit – as Washington had, as Adams had, and as Jefferson himself had – that was as good as if his actions were legal and constitutional.

            For the record – though it matters little to the discussion at hand – Jefferson’s embargo did ultimately fail to achieve the results he desired. By the end of his presidency in the spring of 1809, Congress had passed legislation preparing for the swift re-opening of American trade as soon as the conflicts in Europe abated. In 1810, trade was resumed anyway in spite the war still raging on the Continent. In June of 1812, the British government finally repealed the Orders-in-Council that had led to the harassment of American shipping to begin with. And later that same month, since news of this conciliatory gesture had yet to reach Washington, the United States of America declared war on Great Britain. After five years and untold damage to the American economy, the thing that Jefferson and his allies had been hoping to avoid happened anyway. Indeed, it happened in large part at the behest of other members of his party who were far less interested in avoiding armed conflict. But while the war that followed ultimately proved to be something of a turning point in the history of American political culture – leading as it did to the destruction of the Federalists and the fracturing of the Democratic-Republicans – the most significant implication of the embargo itself lay in Jefferson’s wholehearted embrace of the very concept of executive power.

Regardless of what Jefferson had maintained throughout the first half of his professional career as a critic and opponent of successive Federalist governments – his distrust of centralized authority, his belief in strict constructionism, etc. – the events of the Washington and Adams presidencies undeniably taught him an invaluable lesson. In the end, whether or not a given action taken by the Executive Branch was precisely authorized by the Constitution mattered somewhat less than whether or not the American people were willing to tolerate it being done. If enough of them approved of a thing – or at least with the end results – then it didn’t really matter that certain laws had been broken or that a significant portion of them were wholly opposed. Jefferson may have denied his faith in the efficacy of this maxim if confronted, but his actions while in office spoke very much to the contrary. Just as Caesar paved the way for Caligula, who made things that much easier for Nero, so Washington had made possible the actions of his successor Adams, who in turn made way for the opportunities seized upon by Jefferson. No one man, in either context, wholly transformed the state they led, or seized every power that would at length devolve upon their office. But each of them, seeking after an objective they deemed desirable, did something to expand both the practical authority immediately at their disposal as well as the popular understanding of the limits of the same. George Clinton, author of Cato V – the subject, one hastens to recall, of the present discussion – saw this clear enough in 1788 when he cautioned his countrymen against believing tyranny an impossible outcome in the United States of America. He could not have known how right he would prove to be, of course, between the presidencies of George Washington and Thomas Jefferson. But right, indeed, he was. The American republic may not have become a rigidly centralized autocracy in the span of twenty years, but successive presidents did steadily accrue more and more practical power. Washington – though far less egotistical and far less ambitious – was indeed like Caesar for the way he set this trend in motion. And Jefferson – though far more principled – was like Caligula and Nero for the way he built upon the legacy of his predecessors while pursuing an agenda of his own. Did someone arrive thereafter to complete the cycle envisioned by Clinton? Was there, at length, an American Domitian? Yes, in short, there very much was. His name was Andrew Jackson.

Cato V, Part XXIV: The Same Causes, contd.

The other major complicating factor which the Jefferson Administration was forced to confront while pursuing the purchase and annexation of Louisiana in 1803 was very much related to the constitutional queries discussed in the previous entry in this series. At the same time that the text of the United States Constitution was more or less mute as to the ability of Congress and/or the President to create a jurisdiction within the American republic in which the basic legal assumptions underlying said document did not apply, it was also conspicuously silent as to the manner by which wholly new territory was to be added to the union of states. There was no question as to how such land might be governed – the creation of the aforementioned Northwest Territory in 1787 served as a durable precedent. And the Framers of the Constitution most definitely envisioned that more than the original thirteen states would eventually become a part of the American republic. Indeed, they devoted an entire section of Article IV to codifying exactly this assumption. “New States may be admitted by the Congress into this Union,” it read,

But no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Needful though such a clarification may have been, however, nowhere was it stated explicitly how the territory from which these new states were to be formed would find its way into the possession of the United States of America.

Certain possibilities definitely presented themselves at the time that the Constitution was being drafted. Vermont, for example, though an independent republic in and of itself, was always intended by its founders to be the fourteenth state in the American republic. Indeed, it would almost certainly have acceded during the 1780s had it not been for a lingering territorial dispute between Vermont and the state of New York. The District of Maine, then governed by Massachusetts, and the District of Kentucky, then governed by Virginia, were also held to be likely candidates for separate statehood, provided – as the cited text explains – that the relevant state government granted their consent. And then there was the Northwest Territory, formed from lands previously claimed by a number of states and ceded to the authority of Congress over the course of the 1780s. The authorizing legislation, the Northwest Ordinance, made explicit provision for the creation of new states out of the ceded land claims – not less than three or more than five, each to be admitted upon reaching sixty-thousand inhabitants – the first of which was Ohio in 1803. Common to all of these prospects, of course – save for Vermont – is that they each fell within the boundaries of the American republic as it existed at the time that the Constitution was written and adopted. One might even extent this claim to Vermont if the government of New York was to be believed. Four states acceded to the Union between 1789 and 1803 – being, in order, Vermont, Kentucky, Tennessee, and Ohio – but none of them were formed out of territory that had previously been foreign to the American republic and its people. The Framers, it seemed, never envisioned such a thing – or if they did, they failed to include any language in the text of the Constitution that might have clarified their intentions. More to the point, however, such an outcome had never occurred.

By seeking, therefore, to buy foreign territory for the purpose of creating new states, the Jefferson Administration was by necessity striking out into a constitutional unknown. The President, for his part, was acutely aware of this fact, and worried over the potential consequences of exceeding the authority of his office. Perhaps the Chief Executive and the Senate couldn’t increase the size of the United States by buying land from foreigners. The text of the Constitution did not say that they could, and Jefferson had built the Democratic-Republican on the principle of adhering only to what was written therein rather than interpreting freely based on what the situation called for. Certainly, he was in favor of annexing Louisiana to the American republic. Not only would such an outcome have eliminated a potential threat to the peace and security of the United States by finally dislodging the French from North America, but it would also have opened a vast swath of land to American settlement, thus paving the way for the establishment of a community of property-owning yeoman farmers better suited – in Jefferson’s opinion – to the responsibilities of republican government than the urban merchants and artisans that dominated the Northeast. But was it right to pursue such a thing if it meant violating the terms of the Constitution? Were the benefits to be accrued worth the damage that might be done? Jefferson was unsure, and even contemplated seeking an amendment to the Constitution clarifying the means by which treaties could be used to add to the territory of the United States of America. The ostensibly time-sensitive nature of the venture spurred him to hasty action, however, and he ultimately decided to proceed in the hope that the no one drew attention to the fact that the whole enterprise rested on shaky constitutional ground.

In the end, Jefferson got most of what he wanted. The Senate rapidly complied with the President’s wishes, ratifying the purchase treaty and thus enshrining its terms into law. But while this satisfied the outstanding legal requirement which Jefferson was obliged to fulfill, there was yet one more procedural hurdle the venture would have to find a way of surmounting. The House of Representatives, being the sole body responsible for allocating funds from the Treasury, would need to approve of the purchase price for Louisiana before the agreed-upon sum could be paid. In theory, this should not have presented much of a problem. Not only had the behavior of the Washington Administration during the Jay Treaty debate set a precedent for the supremacy of the treaty-making powers of the President and the Senate, but the Democratic-Republicans held a two-thirds majority in the House following the midterm elections of 1802. In practice, however, enough bipartisan support existed in that selfsame body for the relevant funding measure to come surprisingly near to formal rejection. The Federalists, of course, were opposed on all counts. Paying such a large sum of money to France would only serve to antagonize Great Britain, they said; the price was too high, they said; the Democratic-Republicans would have screamed bloody murder if the Washington Administration had tried the same thing, they said. But while these kinds of objections carried little water with the Democratic-Republican majority, certain members thereof did find it difficult to justify the expansion of executive authority on which the purchase of Louisiana appeared to depend.

The invocation by Jefferson’s supporters in the House of the “Necessary and Proper” clause likely did much to perpetuate this cleavage. That same line of text – found in Article I, Section 8: “The Congress shall have Power [...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States” – had been deployed by the Washington Administration and the Adams Administration to justify a whole host of policies to which the Democratic-Republicans vehemently objected. The fact that some of the same people who had labeled the Federalists as tyrants when they used the Necessary and Proper clause to defend the establishment of a national bank in the early 1790s were now employing it in the same manner to push through a policy outcome that they desired was accordingly a very understandable source of internal dissension. Symbolic of the evident shift in opinion which inspired this dispute were the arguments put forward by people like James Madison (1751-1836) and Albert Gallatin (1761-1849) in favor of the purchase.

Madison, despite having strongly advocated for the creation of an empowered, centralized national government in the 1780s, had become a strict-constructionist in the 1790s and served as one of the primary founders of Democratic-Republicanism and a strenuous supporter of the rights of the states. As a Congressman, he oversaw the drafting and passage of the Bill of Rights, the substance of which placed significant limits on the power of the federal government. And as a private citizen, he had argued that the states had the right – indeed, the responsibility – to monitor the behavior of federal authorities and disclaim any laws or actions which they held to be unconstitutional. But when asked, as Jefferson’s Secretary of State, whether the President intended to pursue an amendment to the Constitution in order to clear up the legal vagaries surrounding the Louisiana Purchase by Massachusetts Senator John Quincy Adams (1767-1848), his response was comparatively equivocal. It may in fact have been the case, he admitted, that the authority conferred by Constitution on the President and the Senate did not include the ability to purchase and incorporate foreign territory. That being said, he continued, it was important to consider, “The magnitude of the object,” and have faith in, “The candor of the country,” to authorize such a venture if that is what the majority desired. Power, it seemed, had somewhat softened Madison’s resolve. In opposition he had been ardently convinced of the need to interpret the Constitution as conservatively as possible as a shield against tyranny – a belief which just so happened to clash with the policy program of his Federalist adversaries. But as the second-in-command of the Executive Branch he appeared suddenly amenable to the notion that sometimes the “greater good” – as he defined it, of course – outweighed even the most deeply-held principles.

If James Madison was the Jefferson Administration’s second-in-command, Albert Gallatin was most definitely its able and tireless quartermaster. Born in Geneva in the early 1760s, Gallatin emigrated to the United States in the 1780s and developed a reputation over the course of the 1790s as a rising star in the Democratic-Republican movement. He was scrupulous, hardworking, and keenly intelligent, and the positions he adopted during his time as a Congressmen from Pennsylvania did much to demonstrate his dependability to the likes of Jefferson and Madison. During the Whiskey Rebellion, for instance, he expressed his sympathy for the rebels and criticized the Washington Administration for being overly aggressive in its response. Later, during the so-called “Quasi-War” between the United States and Revolutionary France – during which French and American naval vessels frequently clashed and fears of a French invasion seemed to grip the American people – he likewise criticized President Adams for his military spending efforts and came out strongly against the passage of the aforementioned Alien and Sedition Acts. Finally, having been rewarded for his enthusiasm and his service by being named to the post of Secretary of the Treasury in the Jefferson Administration – a position to which he was perfectly suited, being an unparalleled expect in all matters financial – he set about putting into action his previous critiques of excessive centralization by drastically lowering federal taxation, eliminating the national debt, and cutting back on military expenditures. In spite of the ideological consistency that this kind of behavior would seem to indicate, however, Gallatin’s response to the President Jefferson’s concerns surrounding the Louisiana Purchase demonstrated a willingness on the part of the former to deviate from established principles when the situation seemed to call for it. Speaking to the supposed need for a constitutional amendment to explicitly grant the President the power to purchase territory to be added to the union of states, Gallatin purportedly assured the leader of his party that such a course of action wasn’t in the least bit necessary. If the power to buy land by treaty wasn’t intended by the Founders to be included in the prerogatives granted to the President by the text of Article II, he reasoned, then the text in question would have said so. Since it didn’t, and since the aforementioned Supremacy Clause gave treaties negotiated by the President and approved by the Senate the full force of law, there should have been no question of the right of President Jefferson to purchase the territory of Louisiana and to dispose of it as he saw fit.

What is remarkable about the arguments put forward by James Madison and Albert Gallatin in favor of the purchase of Louisiana is the degree to which they plainly contradicted the sentiments which these same men had been expressing for a number of years prior. Gallatin, as discussed above, had been an ardent and conscientious believer in the manifold dangers supposedly inherent in large, active, centralized governments. He had railed against administrative overreach as a Congressmen from Pennsylvania, marshaled what resources he could to oppose the excessive use of police powers as the leader of the Democratic-Republicans in the House, and did everything in his authority as Secretary of the Treasury to shrink the scope and the sway of federal institutions. But when presented with the opportunity to score an unparalleled victory for the version of his nation’s future which he and his cohorts most dearly sought to promote, Gallatin’s scruples fairly inverted themselves. Though it would entail a tremendous assumption of executive power and entail the direct federal administration of a territory as large again as the entire union of states, Gallatin was resolutely in favor of the Louisiana Purchase.

Just so, while Madison had previously declared in the Virginia Resolutions (1798) that one of the reasons his home state could not consent to enforce the terms of the Alien Act was because it claimed to exercise, “A power no where delegated to the federal government,” a thing objectionable to Virginians because of their, “Scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness [,]” by 1803 he seemed very much to have changed his tune. The ability to purchase and incorporate foreign territory into the United States of America was “a power no where delegated to the federal government,” of course, as anything like a “scrupulous fidelity” to the constitution would have shown. But unlike in 1798, at which time Madison and his fellow Democratic-Republicans were forced to attack the reigning Federalists on principle from a position of practical weakness, he now had power as a substitute for conviction. Yes, it was true that the Constitution didn’t grant the President the explicit power to buy land by treaty. And yes, the Democratic-Republicans had nearly torn their hair out when the Federalist claimed the right to deport certain individuals by arguing that the Necessary and Proper clause justified their actions. But the Louisiana Purchase was a different situation entirely. The Federalists had been ravening warmongers in the 1790s who wanted nothing more than to stoke an unnecessary war with France. True, a majority of the elected representatives of the American people as seated in Congress had voted in favor of the Alien Act, but that by no means indicated the existence of popular support for the same. How could the people have honestly supported something so inimical to their own liberty? It was quite frankly inconceivable. The purchase and incorporation of Louisiana, on the other hand, was plainly to the benefit of the American republic as a whole. There were no ulterior motives behind it, no advantage to be derived by the Democratic-Republicans alone. It was, to put it simply, an unambiguous good. And though the plain text of the Constitution may not have authorized such a course of action on the part of the President and the Senate, this should by no means have been taken as a denial of its rightness. The American people were in favor – or if not yet, they would be – and the entire purpose of government was to serve the needs of the people. Aspects of government which threatened to stymie this objective were accordingly of no consequence.

Jefferson, as aforementioned, was duly convinced by these claims – a further indication of how far the Democratic-Republicans had come since gaining power – and so, in time, were his fellow partisans in Congress. As discussed above, though the House of Representatives seemed generally less inclined than the Senate had been to approve the terms of the Louisiana purchase treaty – or rather to agree to fund the negotiated purchase price – the end result was not in doubt for very long. On the first procedural vote, with a quorum of one hundred and sixteen Congressmen, the measure was approved by a margin of fifty-nine to fifty-seven. This was not a promising result, to be sure, given that the Democratic-Republicans held well over sixty percent of the seats in the House. It was clear that there were a number of legislators in Jefferson’s own faction who were unsure enough of the President’s actions to vote against them at the first opportunity. Fortunately for Jefferson, this first vote was as near as the Louisiana Purchase ever came to formal rejection. The two subsequent House votes returned far more comfortable margins in favor, and by December of 1803 the Stars and Stripes was flying over the city of New Orleans. The following October, the region was officially divided into the Orleans Territory and the Louisiana Territory, the former of which acceded as the state of Louisiana in 1812. The Louisiana Territory was renamed the Missouri Territory in June of that same year – so as to avoid confusion, no doubt – after which time ten states were formed out of its land area between the years 1821 (Missouri) and 1868 (Wyoming).

Impressive though such an outcome may well be, the men immediately responsible for the purchase of Louisiana from Napoleonic France cannot fairly claim sole and exclusive credit for the service they had seeming rendered to the whole of the American republic. Jefferson and his cohorts, though undeniably a canny bunch, had really only been following the example set forth by the preceding Washington and Adams administrations. When faced with situations in which it was unclear exactly what powers the executive branch did or didn’t possess, the ruling Federalists in both instances came to the same basic conclusion. Namely, when a desirable outcome was in sight, they assumed that the power they needed was there for the taking and acted accordingly and with confidence. Washington followed this course exactly when confronted with an apparent insurrection on the nation’s western frontier, and again when he and his supporters sought to enforce the terms of a widely unpopular treaty. And the Adams Administration did much the same when war with France seemed inevitable and the nation’s French-born residents became suddenly a source of potential subversion. Jefferson and his allies had naturally decried these actions at the time, believing them to contain the seeds of the destruction of American liberty. But when they finally found themselves sitting where Washington and Adams had sat, possessed of manifold opportunities to see accomplished the dreams that they had nurtured through years in opposition, the Democratic-Republicans and their stalwart leader arguably fell prey to the same temptation that had so effectively swayed their predecessors.

This was a natural enough thing, of course. When victory seems so near at hand, and when all that is required to achieve it is the merest compromise of one’s convictions, who among us hasn’t given in at least once in our lives? And it wasn’t as though Jefferson and his allies didn’t have the strength of precedent on their side. They may not have agreed, on principle, with the expansion of executive power wrought by the Washington and Adams administrations during their time in office, but it was plain enough by 1803 that the American people had made their peace with a more powerful version of the presidency than had originally been sold to them in the 1780s. Granted, the Federalists had been voted out of power in 1800, due at least in part to their handling of the Quasi-War and the passage of the Alien and Sedition Acts. But that was all that happened. People didn’t storm Philadelphia in 1794 when Washington federalized the state militias, or mob John Adams’ home in Massachusetts when he signed into law the aforementioned legislation. In part this came down to tactics, the Democratic-Republicans having resolved to pursue political remediation rather than the kind of extra-legal solutions popular mobilization might have wrought. But whatever their rationale, the result was undeniably precedential. Not only had the actions taken by the Washington and Adams administrations shown the American people just how powerful the office of President could be in practice, but the American people had in turn shown the Democratic-Republicans the extent to which they were willing to accept this power as part and parcel of how government under the Constitution functioned. Jefferson himself might not have been particularly comfortable with what this implied – a fact evidenced by his initial pursuit of a constitutional amendment in 1803 – but even he was eventually convinced to give way to what his allies assured him was the most prudent course of action. The American people, they explained, would absolutely tolerate an expansive reading of executive authority. They had in the past, after all. And they would again many times more in the future.