On October 20, 1803, the Senate ratified a treaty with France, promoted by President Thomas Jefferson, that doubled the size of the United States. But was Jefferson empowered to make that $15 million deal under the Constitution?
The Louisiana Purchase was a seminal moment for a new nation. The land involved in the 830,000 square mile treaty would eventually encompass 15 states. In 1800, the vast region came under French control after Napoleon reached a treaty agreement with Spain. Jefferson was very familiar with the French, due to his time in Europe as an American envoy. He also understood the potential military danger a French regime posed as a neighbor that controlled the Mississippi River.
Jefferson sent James Monroe in 1803 to France to join Robert R. Livingston in an attempt to buy some part of the territory from the Napoleon regime, in order to head off a potential armed conflict. Jefferson told his friend Monroe that “all eyes, all hopes, are now fixed on you, …. for on the event of this mission depends the future destinies of this republic.” Monroe had the authority to spend up to $10 million to acquire New Orleans and all or parts of Florida.
But when Monroe arrived in Europe, Napoleon had already made a decision to sell the territory to the United States, in order to protect other French territories in the Caribbean and to finance his military efforts in Europe. Monroe and Livingston found out Napoleon wanted $22 million for the entire territory. After several weeks of negotiations, the Americans made a deal for the $15 million purchase, which also exceeded what they had the authority to spend. It took several months for the official news to reach Jefferson in Washington, D.C., and it was announced on July 4, 1803.
While the deal was instantly popular, there were problems. Negotiations would need to start with Great Britain and Spain about shared boundaries. And there was a debate about how such a large purchase was allowed under the Constitution.
Jefferson took a strict, literal view of constitutional powers, meaning that specific powers reserved for the President and Executive Branch needed to be spelled out in the Constitution. The ability to buy property from foreign governments was not among these powers listed in Article IV of the Constitution – a fact that his political opponents, the Federalists, were eager to point out to the President.
Instead, Jefferson considered a constitutional amendment as the only way to conclude the deal with France. “The General Government has no powers but such as the Constitution gives it,” he wrote to John Dickinson in 1803. “It has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.”
However, Jefferson had no intention of losing the deal with France. “In the meantime we must ratify and pay our money, as we have treated, for a thing beyond the Constitution, and rely on the nation to sanction an act done for its great good, without its previous authority,” he told Dickinson.
Jefferson’s cabinet, including James Madison, disagreed about the need for a constitutional amendment. The President also had been assured earlier in the year by Albert Gallatin, his Treasury Secretary, that any potential deal with France would be permissible and implied under the Constitution’s treaty-making provisions.
Jefferson rationalized his decision for the treaty to be sent to Congress without an amendment to John Breckinridge. “It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good,” he said in August 1803.
By that time, Jefferson and his supporters faced an October 31, 1803 deadline to ratify the treaty or lose the purchase. Ironically, the deal to expand federal powers would need to be sold to the Federalists, who had advocated such a position before the treaty was signed, and supported by the Republicans, Jefferson’s party, which had opposed such a broad extension of presidential powers.
The debate in the Senate only lasted for two days. On October 20, 1803, the Senate voted for ratification 24-7, and the treaty was signed on October 31, 1803. In the treaty’s aftermath, although some Federalists continued to view the Louisiana Purchase as unconstitutional, the purchase was never questioned in court. If it had been, Jefferson may have come in conflict with his own cousin and political rival, Supreme Court Chief Justice John Marshall.
But years later, Marshall made his thoughts clear about the treaty clause in an 1823 decision called American Insurance Co. v. Canter. “The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty,” Marshall said.
Scott Bomboy is the editor in chief of the National Constitution Center.
The Congress shall have Power To …regulate Commerce…with the Indian Tribes…
ARTICLE I, SECTION 8, CLAUSE 3
That’s how it always begins. Very small.
A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death.
Not so fast…
The crime was committed by a member of the Creek Nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the state of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal 9not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do.
Not so fast… was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1966) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago?
And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we’ve known and loved it since 1907, isn’t the state of Oklahoma? what if it’s only half the size it is today?
Absurd, you say? That’s not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma.
It’s Constitution Thursday on The Dave Bowman Show…