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.