As a final refutation of what Abraham Lincoln characterized, circa 1838, as the wholly benevolent and stabilizing influence of the American Founders, consider one of the most famous acts of the presidency of the aforementioned Thomas Jefferson. In 1803, pursuant to negotiations that had been first initiated in 1801, the Jefferson administration completed the purchase by the United States from France of the territory known as Louisiana. Having initially sought only to make an offer for the valuable port city of New Orleans – a settlement which had become increasingly important to the economic livelihood of countless communities in the American West – the acquisition of the entire inland region represented something of a diplomatic coup on the part of Jefferson’s chosen envoys and marked the single largest expansion of American territory in the nation’s short history. There was just one problem. The asking price, some fifteen million dollars, was hardly pocket change, though the Democratic-Republicans in Congress would surely find a way to pay it. And while the prospect of a nation as small and as young as the United States essentially doubling in size overnight presented any number of logistical challenges, Thomas Jefferson would have been among the last people to shy away from such an ambitious and potentially rewarding project. No, the real issue was that it wasn’t entirely clear whether or not the purchase and the annexation themselves were strictly constitutional.
Louisiana, for the record, had been a
source of consternation and concern for the United States of America almost
since that nation’s inception in the middle of the 1770s. Founded as a district
of the France’s North American colonial empire in 1682, it was transferred to
Spain in 1769 in the aftermath of the Seven Years War (1754-1763) and became
one of the American republic’s nearest neighbors upon the latter’s independence
from Great Britain in 1783. Occupying essentially the entire west bank of the
Mississippi River between the Great Lakes and the Gulf of Mexico, Spanish Luisiana
represented the furthest limit of American settlement in the continental
interior for a generation and a persistent barrier against unfettered American
commerce in the West. The Spanish, while eager to establish stable trade
relations with the nascent United States, were nonetheless acutely conscious of
the advantage which their continued possession of Louisiana in general and New
Orleans in particular granted them. Spanish authorities in the 1780s
accordingly set about leveraging these advantages for the purpose of keeping
the American republic in a distinctly subordinate position.
When it came to transporting their produce
to market, American communities located along the east bank of the Mississippi
had virtually no choice but to avail themselves of that selfsame waterway and
to store their good at New Orleans until such time as they could be sold. Bearing
this in mind – and doubtless keenly aware that American commerce on the
Mississippi looked as though it was going to eclipse Spanish commerce by the
beginning of the next century – Spain determined to close New Orleans to
American trade in 1784 in an attempt to secure more favorable terms of trade.
The resulting Jay-Gardoqui Treaty (1786), which sought to exchange twenty-five
years of exclusive Spanish navigation on the Mississippi for American access to
Spanish ports in Europe and the West Indies, was unsurprisingly rejected by
those delegates to the Continental Congress who perceived in its terms a
transparent Spanish attempt to choke off the viability of the various
communities on America’s western frontier. It wasn’t until the later
ratification of the Treaty of San Lorenzo (1795) that American privileges on the
Mississippi were finally restored, and even then, the issue at hand remained
largely unresolved. American settlement in the West was increasing at a fairly
stunning pace over the course of the 1780s and 1790s, and it made little sense
for the region’s only major international port to remain in foreign hands.
The validity of this concern was amply
proven out as the 18th century gave way to the 19th
century. While the Treaty of San Lorenzo restored American rights on the
Mississippi in 1795, the treaty was revoked by Spain in 1798 and then restored
again in 1801. And in the meantime, in 1800, the Spanish agreed to return the
whole of Louisiana to the French in return for a renewal of the Franco-Spanish
alliance and certain territorial concession in Italy. Spain, it seemed, had
grown weary of continually fielding complaints from either American settlers on
its North American borders or the American government in Washington and was
additionally suffering under the negative economic effects of an ongoing British
blockade of its South American sugar and silver trade. And at the same time
France, under the leadership of First Consul Napoleon Bonaparte (1769-1821),
was eager to resurrect its former empire in the Americas. The result was the
Treaty of San Ildefonso (1800), under the terms of which Spain would continue
to administer Louisiana until such time as France could take formal possession.
When this finally occurred in 1802, the United States accordingly found itself
in the exceptionally undesirable position of having traded an obnoxious but
gradually weakening neighbor in Spain for an aggressive and avowedly
expansionist neighbor in France. A concurrent French campaign to retake the
island sugar colony of Sainte-Domingue amidst an ongoing slave revolt only sharpened
American concerns. If France really did intend to maintain a permanent presence
in the West Indies, the Jefferson administration concluded, then the staple
goods produced by the territory of Louisiana would become more important to its
ambitions than ever. The only solution, as far as American authorities were
concerned, was to make a territorial bid of their own.
The resulting negotiations, as
aforementioned, went far better then either the American envoys or the
Jefferson administration could possibly have hoped. The American delegation,
led by James Monroe, had been authorized to offer the French the sum of ten
million dollars in exchange for allowing the American annexation of the city of
New Orleans. With a permanent port at the mouth of the Mississippi, the United
States would no longer be forced to abide by the terms of foreign powers when
it came to the economic prospects of its western territories and would even
have been in the position to collect substantial revenues on foreign commerce.
Whether the French would have permitted such a sale remains largely uncertain,
however. Without New Orleans, the remaining territory in Louisiana might not
have been nearly as useful to France’s North American ambitions. Nor would it
likely have struck Napoleon as particularly advantageous to place himself and
his government in anything like a subordinate position to the United States of
America in terms of navigation and commerce rights on the Mississippi River. As
it happened, of course, none of these potential concerns ever came up. The
French expedition to Sainte-Domingue was more or less doomed to failure by the
beginning of 1803. The commanding general, Charles Leclerc (1772-1802) died of
yellow fever the previous November, as did some thirty thousand of the men
under his command. Locally recruited black troops had begun to desert in droves
during the late summer of 1802, and by that October the French had lost fully
two thirds of their manpower and nearly all of their will to fight. Napoleon’s
New World ambitions thus decisively dashed, Louisiana no longer seemed to offer
him any particular logistical advantage. Against the wishes of his foreign
minister, the aforementioned Talleyrand, he according made it plain to his diplomatic
envoys that he would willingly part with the whole of Louisiana if the
Americans were willing to pay.
They were, naturally, though the price was
higher than they’d originally intended. Still, Monroe and his confederate,
Robert Livingston (1746-1813), were sure that both the President the Senate
would ultimately approve the deal. And more to the point, if they hesitated and
Napoleon withdrew the offer, New Orleans on its own might no longer be on the
table. So the American envoys signed the purchase treaty on April 30th,
1803, the effects of which were publicly announced in the United States,
fittingly, on July 4th. But as the terms of the treaty were not to
take hold until October, there remained several months in the interim during
which the implications thereof could be freely discussed by the American public
as the Senate worked its way towards a formal ratification. As the
Democratic-Republicans possessed an overwhelming majority in the upper house of
Congress, there was virtually no chance that the purchase would not be duly authorized.
This fact did not stop certain figures within the Jefferson administration, in
Congress, and among the opposition Federalists from voicing either their
wholesale objections to the acquisition of Louisiana or their philosophical
concerns with the manner by which it was to be done, however. The criticisms of
the Federalists were typically partisan, avowing as they did that Jefferson’s
stated belief in a strict construction of the Constitution should have
prevented him from so boldly claiming the authority to annex otherwise foreign
territory. Indeed, they charged, had Alexander Hamilton made the exact same
proposal during the Washington administration, Jefferson would surely been among
the most ardent voices to speak against it.
Opposition to the Louisiana Purchase from
within the Democratic-Republican party was naturally of a somewhat more nuanced
character. Some of Jefferson’s fellow Partisans, it was true, were against the
project in any form, feeling as they did that such a vast expansion of American
territory was bound to be accompanied by a similar expansion of the power of
the national government. A territory as large as Louisiana – and as full of
free people of color, Frenchmen, and Spaniards – would surely be unable to
government itself in the immediate, even accepting the fact that certain
portions were likely to be carved off fairly quickly and fashioned into states.
Large swaths of the purchased territory would accordingly need to be
administered directly by the national government. The result would be the
inevitable creation of any number of federal offices – from territorial
governors and secretaries to tax collectors and law officers – any one of which
might conceivably exercise more power within its particular sphere than most
popularly-elected officials. Rampant patronage was bound to be one result;
corruption was likely to be another. The individual who articulated this
position most vociferously, one John Randolph of Roanoke (1773-1833), was
unfortunately also bereft of any means to obstruct the purchase itself. As one
of the Democratic-Republican leaders in the House, he undeniably wielded
significant influence both within his own party and within the lower chamber of
the United States Congress. But as the ratification of treaties fell strictly
to the Senate, Randolph could do little more than complain in the hopes that
someone would heed him.
The most significant threat to the
ratification of the Louisiana Purchase, as it happened, actually came from
within the Jefferson administration itself. Indeed, it came from its leader and
namesake. Jefferson, to be sure, had no particular objections to the principle
of expanding American territory, specifically as such an expansion would serve
to facilitate the proliferation of the small-scale, property-owing farmer – the
so-called “yeoman” – whom he identified as his ideal constituency. But as his
Federalist critics did accurately point out, he was a strict constructionist,
and one who had previously and very publicly abhorred attempts by the Adams
administration to exercise such powers as Jefferson believed to be beyond their
constitutional remit. Strictly speaking – and regardless of what Jefferson and
his supporters may have desired – the Constitution did not grant any organ of
the federal government the power to annex otherwise foreign territory. Article
II, Section 2 did grant the President the authority, “By and with the Advice
and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur [,]” and the instrument by which Louisiana was to
become an American territory was most definitely a treaty. But was that
sufficient under the circumstances? Had the passage in question been devised
with the specific intention of allowing Presidents and Senate majorities to take
possession of foreign territory on behalf of the United States? Jefferson, for
his part, wasn’t all that sure, to the point that he believed it might have
been necessary to secure a constitutional amendment. It went against his stated
philosophy, after all, for the national government to assert a power not
expressly granted by the text of the Constitution. And it would have been next
to impossible to argue that the Constitution expressly authorized anything like
the Louisiana Purchase. Granted, amending the Constitution would have
introduced a significant delay to the process, but wasn’t it preferable to keep
everything above board? Wasn’t it better to pay respect to the law as it stood?
Jefferson’s answer to these questions,
ultimately, was no. As discussed in a previous entry in this series, his Secretary of State, James Madison, was
ultimately able to convince him that the only real authority to which the
national government ought to feel beholden was the American people themselves.
It may have been true, Madison notably admitted around this same time to
Massachusetts Senator John Quincy Adams (1767-1848), that the Constitution did
not specifically authorize the national government to facilitate the expansion
of the United States by way of the annexation of foreign territory. But when
one considered, “The magnitude of the object [,]” it seemed best to leave it up
to, “The candor of the country” whether or not this was really a problem.
Explaining his final position on the matter in a letter to Kentucky Senator
John Breckinridge (1760-1806) in August of 1803, Jefferson seemed to have
largely internalized this exact line of reasoning. “It is the case of a
guardian,” he explained, “Investing the money of his ward in purchasing an
important adjacent territory; & saying to him when of age, I did this for
your good.” The constitutionality of the Louisiana Purchase had evidently ceased
to matter. So long as the thing itself was being undertaken on behalf of the
American people – and so long as the effects thereof were likely to be
beneficial – then Jefferson felt comfortable pushing for a simple ratification.
But while he was ultimately granted it – and while the Louisiana Purchase did
ultimately set the pattern for every territorial acquisition to come – the
rationale which ended up being deployed in its favor was rather at odds with
both the ideal that Jefferson had previously avowed and that which has
subsequently become one of the lodestars of American republicanism.
Jefferson, recall, had not but five years
before he signed the Louisiana Purchase into law in 1803 argued vehemently
against a similar assumption of power on the part of the Adams administration
during the so-called “Quasi-War” with France (1798-1800). Specifically,
speaking to the passage of the aforementioned Alien and Sedition Acts, he
declared in a set of remonstrances which came to be known as the Kentucky
Resolutions (1798) that the governing Federalists were guilty of violating the
spirit and intention of the United States Constitution in their efforts to tamp
down on domestic opposition and shore up their own power. It may have been
true, he wrote, that Congress indeed possessed the authority, “To make all laws
which shall be necessary and proper for carrying into execution the powers
vested by the Constitution in the government of the United States, or any
department thereof [,]” but this should not have been interpreted as carte
blanche to do whatever they wished. “Words meant by the instrument to be
subsidiary only to the execution of the limited powers,” Jefferson avowed, “Ought
not to be so construed as themselves to give unlimited powers, nor a part to be
taken as to destroy the whole residue of the instrument [.]” The “Necessary and
Proper Clause” – Article I, Section 8 – may indeed have been intended to cover
a wide range of functions and duties, but it was Jefferson’s considered opinion
– in 1798, at least – that it should only have applied to such responsibilities
as had been expressly granted by the text of the Constitution to the government
of the United States.
While it can hardly be characterized as
surprising that Jefferson’s opinion on the nature of federal power changed once
he and his fellow Democratic-Republicans came into possession of the same, it
is nonetheless worth noting just how completely he was willing to invert his
stated principles when the prize in question was his to be gained. As aforementioned,
nothing in the Constitution explicitly authorized the purchase and/or
annexation of foreign territory by the national government on behalf of the
American republic. The only clause that came particularly close was located in
Article IV, Section 8. “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,” it read. But while this made it clear enough
that Congress indeed possessed the authority to govern, organize, or generally decide
the fate of whatever property it could claim to own directly – intended almost
certainly to refer to the existing Northwest Territory – it made no mention of
how additional territory might come into federal ownership. Indeed, it gave no
indication as to whether or not such an acquisition was even legally possible. The
Northwest Territory had been formed out of lands previously claimed by a number
of states whose specific ownership was as still unresolved at the time that the
United States gained its independence. These lands had not needed to be
purchased, had never really been “foreign,” and had become federal property by
way of voluntary grants. While there could accordingly be said to exist some
degree of precedent for the procurement of land by the federal government – and
while the Constitution granted Congress the power to administer said land – neither
law nor tradition could be fairly claimed as justification for a land
acquisition in the manner of the Louisiana Purchase.
But whereas Jefferson had asserted in 1798
that the Necessary and Proper Clause was a set of, “Words meant by the
instrument to be subsidiary only to the execution of the limited powers [and] ought
not to be so construed as themselves to give unlimited powers [,]” he seemed to
change his opinion entirely in 1803. Now in a position to wield those same powers
whose abuse he had previously decried, he allowed himself to be convinced – by
none other, it bears noting, than one of the authors of the Constitution – that
what mattered more than strictly adhering to the “limited powers” granted by
the governing charter of the United States was knowingly acting in the best
interests of the American people. The people, after all, had ratified the
Constitution, and it was from their sovereignty that it derived whatever power
it possessed. Why, then, if the people wanted something done, should the
Constitution have been allowed to stand in their way? And Jefferson was sure
that the people wanted the Louisiana Purchase to take place. Or at the very
least he was sure that it would have been to their benefit if it did. As he
explained it to Senator Breckinridge, after all, sometimes a wise guardian must
act on behalf of their ward in ways that the latter might not understand at the
time. What mattered, in such cases, was less the desire of the one than the
good intentions of the other. The child would come to understand in time and
would be grateful. This, it seemed, is how Jefferson thought of his fellow
citizens circa 1803: as children in need of someone to make decisions on their
behalf. Were some of those decisions at odds with the law of the land? The very
law, indeed, that the people had approved? Perhaps so. But as long as the
people approved of it in the long run – if by doing no more than failing to
raise any substantial objection – then what did it matter?
This mindset would seem to be fundamentally
at odds with that which Abraham Lincoln gave voice to in his speech to the
Springfield Lyceum at the beginning of 1838. To his thinking, the Founders were
liberty personified, and their influence upon their fellow citizens – while
they still lived, at any rate – was one of moral stabilization. Their very
presence had inspired their countrymen to reject ambition and greed in service
of the collective good of the American community, and their gradual
diminishment called for some manner of response. Lincoln believed that strict
and scrupulous adherence to the law might conceivably make up for the “crumbling
away” of these erstwhile “pillars of liberty,” but an examination of the rationale
knowingly deployed by the same would seem to call the whole project into
question. Presumably, Lincoln sought to promote rigorous obedience to the law
because he felt that such a course of behavior aligned with the influence which
he perceived that the Founders had previously exerted. He had identified a problem
– the mounting disregard which the American people evinced for the law of the
land – pinpointed a cause – the loss of the Founders as a source of moral inspiration
– and was now prescribing a remedy. But if the behavior of Thomas Jefferson
during the events of the aforementioned Louisiana Purchase were any indication
of how the Founders tended to regard the law, the people whose vigilante behavior
Lincoln was actively decrying in 1838 would in fact seem to have arrived much
nearer to the example of their illustrious forbears than would have been the
case if they simply did as Lincoln was suggesting.
What was it that had Jefferson done when he
opted to pursue the ratification of the Louisiana Purchase treaty without an
accompanying constitutional amendment, after all, but take the law into his own
hands? He was not unaware of the fact that the Constitution had nothing to say
on the matter of annexing foreign territory. Nor was he personally uncertain as
to the proper application of the otherwise open-ended Necessary and Proper Clause.
He initially believed, in fact, that a constitutional amendment would necessary
before the terms of the Louisiana Purchase could enjoy the force of law. But
then, at the prompting of certain of his colleagues and supporters, he changed
his mind. Maybe it was true that the Constitution couldn’t be said to
explicitly authorize the annexation of foreign territory, but so what?
Jefferson believed that it was the right thing to do, that it would benefit the
country in the long run, and that the American people would eventually come to
approve. Granting a fundamental difference of scales, in what way was this thought
process unlike that of the murderers of Francis McIntosh and Elijah Lovejoy? Those
people – whomever they were, in fact –most assuredly understood that the
killing of an individual outside of a duly-authorized judicial proceeding was
against the law. Nor could they have been unaware of the fact that any and all mainstream
religious authorities held the taking of a life to be a paramount sin. But they
also doubtless believed that they were nevertheless in the right. McIntosh was
a murderer himself, as he not? And Lovejoy was an unrepentant agitator. Surely
the disposal of these individuals would benefit the American people as a whole.
Surely their fellow Americans would come to accept this necessity of such
actions in time.
The same parallels might very easily be
drawn between the aforementioned individuals and the Adams and Jefferson administrations
in 1798 and 1804, respectively. As with the Louisiana Purchase, Jefferson’s
attempt to have a Supreme Court Justice removed from office for expressing
political opinions contrary to his own represented, not only a knowing violation
of established norms and practices but also a departure from his own avowed
principles. The jurist in question, Samuel Chase, may indeed have behaved inappropriately
on more than one occasion during his Supreme Court tenure, but Jefferson and
his allies in the Democratic-Republican party could not have but known that
none of what Chase had said or done fell outside the long-established bounds of
judicial good behavior. That they proceeded regardless – and notwithstanding
the fact that removing federal judges for speaking their minds was bound to severely
erode the principle of judicial independence – would seem to speak to a kind of
destructive single-mindedness not at all unlike that of Lincoln’s cited
offenders. President Adams and his fellow Federalists, circa 1798, were
arguably no different. The text of the Constitution was plain: Congress was
prohibited from abrogating the American people’s freedom of speech, freedom of
expression, freedom of the press, or their right to seek a redress of grievances.
No one could possibly have claimed ignorance on this count without exposing
their unfitness to hold an office of public trust. But as it happened in fact,
the Federalists who then controlled Congress thought they knew better.
Notwithstanding whatever the Constitution did or did not say, it was their
concerted opinion that the internal stability of the American republic demanded
the passage of such legislation as would serve to discourage the publication of
such materials as promoted disdain for government or opposition to certain policies
or laws. The American people might have recoiled in the immediate at the
passage of such a law and called attention to the contradictory passages from within
the text of the Constitution, but that was neither here nor there. As far as
the Federalists were concerned – and as far as President Adams, at length, was
willing to grant – the needs of the moment outweighed a scrupulous observance
of the law.
Bearing all of these examples in mind,
Lincoln’s aforementioned lionization of the Founders within the context of decrying
the growth of vigilante behavior in mid-19th century America would
seem, upon reflection, to be more than a little misplaced. Granted, his mistake
was hardly an uncommon one. He believed, as most of his fellow countrymen have
since the United States first declared its independence in 1776, that the Founders
represented a kind of paramount moral exemplar whose deeds and beliefs were
almost wholly unimpeachable. While they lived, they served to guide the actions
and intentions of the American people as a whole. To follow the example of the
Founders was accordingly to aspire to a kind of perfection. And as they were
selfless, and disinterested, and disclaimed all forms of personal ambition,
what better way to make up for their absence in American life than to surrender
one’s individual desires and pursue a rigorous obedience to the laws of the
land? What better way to shore up the crumbling away of the pillars of the
temple of liberty than by adhering with utmost strictness to the institutions
and the frameworks that the Founders had first helped to erect?
The problem with this kind of thinking, of
course, is that it dramatically oversimplifies the nature of the relationship
that existed between the Founders and their various institutional creations.
Men like John Adams, and James Madison, and Thomas Jefferson may indeed have
been responsible for many of the laws, and norms, and institutions, and concepts
which collectively constitute the modern American form of republican
government. But these same individuals were also both far from morally
unimpeachable and also far from scrupulous in their attitudes towards the
things that they created. They could be selfish sometimes, and petty, and interested
more in the mere possession of power than the larger moral dimensions of how it
was gained and held. And they also tended to be rather alarmingly cavalier when
it came to the exact letter of the law. Far from infrequently, they held their own
personal convictions to be superior to the dictates of the Constitution itself,
and all in the belief that what they felt needed to be done was for the good of
the nation as a whole. They accomplished some amazing things, as a group,
during their tenure on this earth, and their achievements should absolutely be
recognized as such. But as an example of proper behavior during a time of
increasing disregard for the law – as Abraham Lincoln believed he was witnessing
in 1838 – they leave rather much to be desired. Far from being paragons of
enlightened selflessness, their personal ambitions often deeply colored their
most memorable deeds.
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