When we discuss the evolution of presidential power in early American history, it is sometimes alleged that the Louisiana Purchase was a particularly unconstitutional act and an example of presidential malfeasance.

According to this line of reasoning, President Thomas Jefferson expanded the bounds of the presidency and betrayed his republican inclinations by favoring desired outcomes over executive restraint. Those that express this viewpoint often bolster their claim by pointing to Jefferson’s own outlook, which held that the Louisiana Purchase was impermissible short of a constitutional amendment. But was the Louisiana Purchase truly unconstitutional?

It all began in early 1803 when Jefferson sent James Monroe and Robert Livingston – two extremely prominent figures in their own right – to France to negotiate the purchase of New Orleans. Possession of the city was desired because it would allow for easy navigation of the Mississippi River, then seen as a crucial element for western expansion. Perceiving this mission to be of the utmost importance, Jefferson wrote to Monroe: “All eyes, all hopes, are now fixed on you…for on the event of this mission depends the future destinies of this republic.”[1]

The Jefferson administration was understandably shocked when First Consul Napoleon Bonaparte offered the entire Louisiana territory to the United States rather than just New Orleans. Viewing the region as indefensible and relatively meaningless, and with France’s renewed War with Britain, Napoleon believed the territory was an asset that could be disposed of. Through his infamous foreign minister, Charles Maurice de Talleyrand, Napoleon’s counteroffer would give up Louisiana – a huge swath of land – for $15 million.

After quickly agreeing to terms with France’s foreign minister, the diplomats sent word of this incredible bargain to the White House. On the surface, receiving the Louisiana territory for such a ridiculously low price seemed to be one of the greatest gifts the fledgling United States could be offered. However, there was one problem – Jefferson didn’t think it was constitutional.

JEFFERSON’S VIEW

In fact, Jefferson adamantly maintained that the general government lacked the power under the Constitution to acquire foreign territories, despite his own wishes to buy the Louisiana territory. However, he also admitted that there was a clear remedy available to legitimize the purchase – the addition of a constitutional amendment. Jefferson, therefore, sent the following proposed amendment to Congress, believing it to be the only solution:

“Louisiana, as ceded by France to the U S. is made a part of the U S. Its white inhabitants shall be citizens, and stand, as to their rights & obligations, on the same footing with other citizens of the U S. in analogous situations. Save only that as to the portion thereof lying North of an East & West line drawn through the mouth of Arkansa river, no new State shall be established, nor any grants of land made, other than to Indians in exchange for equivalent portions of land occupied by them, until authorised by further subsequent amendment to the Constitution shall be made for these purposes.”

According to Jefferson, the United States lacked the “power of holding foreign territory,” and thus a constitutional amendment “seems necessary” to acquire the region.[2] Those in Jefferson’s cabinet, several of whom wrote letters that justified the treaty on constitutional grounds, vehemently disagreed with the president.

As Jefferson remained reluctant to accept the treaty short of the addition of the proposed constitutional amendment, Secretary of State James Madison made strides to persuade the president to drop his objections and accept the treaty. The chief force working against the administration at this point was time, and after receiving cross-continental warnings, Madison became worried that Napoleon may renege upon the unprecedented offer at any point.

Unfortunately, the process through which an amendment to the constitution was ratified was entirely antithetical to the interests of haste. Even the adoption of the Bill of Rights in 1791 took over two years to receive ratification of the requisite number of states, and the rapid mobilization of the states to accept the amendment could hardly be guaranteed.

Ultimately, Jefferson acquiesced to his cabinet and Madison, hoping that the treaty’s benefits outweighed his own constitutional trepidations.

Just as he did so, some within Congress launched a campaign to sabotage the deal, alleging that the Louisiana territory belonged to Spain rather than France. But these concerns were allayed when records proved a recent transfer between the two countries.

Nevertheless, political opposition remained. Believing that the territory would diminish the relative power of New England and his state of Massachusetts, Senator Timothy Pickering suggested that his state should secede from the union if Louisiana were to be acquired.

“There will be…a separation,” he predicted. Senator James Hillhouse of Connecticut joined this choir, declaring that “the Eastern States must and will dissolve the Union and form a separate government of their own, and the sooner they do it the better.”[3]

Although the Senate produced politically motivated anti-treaty rumblings from New England, most of the Senate thought the treaty was constitutional. The body agreed to ratify it by an overwhelming margin of 24 to 7, and the treaty took legal effect.

Among those in favor was the fiery James Randolph of Roanoke, who would later split with Jefferson over perceived constitutional wrongdoings. Doubling the size of the country for a mere 3 cents per acre, it is impossible to overstate the impact the Louisiana Purchase had on the development of the country. As Livingston said, “this is the noblest work of our whole lives.”

WAS IT CONSTITUTIONAL?

Even so, was the treaty constitutional? After all, the federal government often engaged in duplicitous behavior – even during the First Congresses – that contravened the original intent of the Constitution. To assess all angles of this question, one must take historical context regarding treaty power into account.

Under the United States Constitution (Article II, Section 2), the president has the power “to make treaties” with “the Advice and Consent of the Senate.” Exercising this power requires a threshold of two-thirds of the Senators to put any treaty into legal effect.

When the Constitution was ratified in the 18th century, four types of treaties were prevalent – treaties of alliance, treaties of peace, treaties of commerce, and treaties of land purchase. During the ratification campaign in the states, the treaty-making power was often described in broad terms that encompassed all types of treaties, but several Federalists implied that the same power – held in England by the king – would be divided in the United States between the president and Senate.[4] Of course, treaties to obtain territory from foreign countries were within the scope of this authority.

Although rare today, treaties to acquire land were commonplace when the Constitution was ratified. For instance, the United States acquired its territory from Britain in the 1783 Treaty of Paris. In 1795, the Treaties of Basel saw the transfer of many regions of land between European kingdoms, a result of the French Revolutionary Wars. Just years prior to the Louisiana Purchase, Spain sold Louisiana to France in 1800. Each of these territorial exchanges were right and proper under an understanding of the treaty power as it related to the law of nations – a set of legal norms that were widely accepted at the time. As Treasury Secretary Albert Gallatin wrote, “the existence of the United States as a nation presupposes the power enjoyed by every nation of extending their territory by treaties…and the general power given to the President and Senate of making treaties designates the organ through which the acquisition may be made.”[5]

One may also ask why an arrangement to purchase the city of New Orleans would have been deemed a constitutional deed by Jefferson – but the purchase of all of Louisiana would not be. After all, acquiring New Orleans was the original aim of the administration, and the president did not express any constitutional misgivings about doing so. If the territory of the United States could be enlarged to a small degree through a treaty, one would also expect that it could be expanded to a large degree as well. Did the relative area of the landmass involved play some role in his opinion? The answer to this is not immediately apparent, and Jefferson did not appear to clarify the difference.

Because land purchase treaties were permitted by the Constitution, and because the Louisiana Purchase was a land treaty that received the consent of the Senate, it seems evident that the Louisiana acquisition was wholly constitutional.

Even despite my opinion that Jefferson was incorrect on this matter, I also strongly believe that he should also be commended for being reluctant to embrace power that he deemed impermissible. Can one even imagine a U.S. president doing the same today? In an age where political outcomes always seem to supersede constitutional permissibility, the proclivity Jefferson embraced in the Louisiana incident is almost unimaginable. In every way, it was classic Jefferson.

NOTES

[1] Thomas Jefferson to James Monroe, January 13, 1803, Founders Online, National Archives, last modified June 13, 2018, http://founders.archives.gov/documents/Jefferson/01-39-02-0283

[2] Thomas Jefferson to John Dickinson, August 9, 1803, Founders Online, National Archives, last modified June 13, 2018, http://founders.archives.gov/documents/Jefferson/01-41-02-0127

[3] Timothy Pickering to Richard Peters, in Henry Adams, Documents Relating to New-England Federalism, 1800-1815 (Boston: Little Brown, 1877), 338; Cited in Claude Bowers, Jefferson in Power: The Death Struggle of the Federalists (Boston: Riverside Press, 1936), 235.

[4] For example, see The Federalist #64, The Federalist, Edited by Jacob Cooke (Middletown: Wesleyan University Press, 1961), 432-438;The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Edited by Jonathan Elliot (Washington: Jonathan Elliot, 1836), Volume II, 469. John Jay described the treaty-making power under the new Constitution as a device that was more safely lodged in “an assembly of select electors” than in a unitary monarch. In Pennsylvania, ratification advocate James Wilson argued that England’s king lacked the prudence, caution, moderation, and a system of checks and balances that would characterize a treaty-making power of the United States. At no point were land purchase treaties isolated by the Constitution’s backers as a prohibited class of treaties.

[5] Albert Gallatin to Thomas Jefferson, January 13, 1803, Founders Online, National Archives, last modified June 13, 2018, http://founders.archives.gov/documents/Jefferson/01-39-02-0281

Dave Benner [website] speaks and writes on topics related to the United States Constitution, founding principles, and the early republic. Dave is also the author of Compact of the Republic: The League of States and the Constitution. See his blog archive here and his article archive here.

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Small things grow great by concord...

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