Crisis and Command: A History of Executive Power from George Washington to George W. Bush (18 page)

Jefferson acted with swiftness during another military confrontation, this time with Great Britain. On June 22, 1807, the British warship HMS
Leopard
stopped the smaller American frigate USS
Chesapeake
as it was leaving Norfolk, Virginia. The
Leopard
was under orders to search for British deserters hiding on American vessels. When the
Chesapeake
's captain refused to allow a search, the
Leopard
fired on the unprepared ship, killing three and wounding 18, and then removed four alleged deserters. The attack provoked outrage throughout the country and prompted demands for war. Without consulting Congress, which was not in session, Jefferson ordered all American waters closed to British warships. He redirected funds for the nation's fortifications devoted to New York, Charleston, and New Orleans and ordered the purchase of significant amounts of military stores and ammunition, including materials to construct 100 gunboats. Jefferson also sent orders to James Monroe in London to demand reparations and punishment of the
Leopard
's commander. When Congress convened in October, Jefferson did not claim that the purchases were legally authorized, but instead sought after-the-fact approval because the "emergencies facing us" justified his actions. Jefferson relied on the power to act in moments of crisis to defend the nation, even in areas like spending, which the Constitution had specifically given to Congress. Congress agreed and voted overwhelmingly to appropriate the funds that Jefferson had already spent.
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THE LOUISIANA PURCHASE

WHILE FULL OF daring exploits, war with the Barbary pirates was not the central concern of American national security policy. America's future depended on relations with Great Britain, France, and Spain, which held the key to neutrality and westward expansion. Spain controlled New Orleans, through which exports using the Mississippi had to pass. Without access to the Mississippi, transporting goods over land from Ohio to the East took longer than sailing from New York to London. The British Empire was America's primary trading partner, receiving about 50 percent of its exports, and the Royal Navy effectively controlled the Atlantic. France was also an important trading partner -- Americans had grown rich selling goods to the antagonists during the latest round of European wars -- and it controlled the Louisiana territory to the West.

Jefferson's purchase of Louisiana defused this hazardous situation. He avoided war with France and Spain and doubled the size of the nation. He made possible the fulfillment of Republican political economy and foreign policy: to conquer the territory to the West without war, open Western settlement by controlling the Mississippi, and maintain America's neutral status. The Louisiana Purchase created the possibility that Jefferson's "empire of liberty" would be continent-wide, but it required Jefferson to put aside his vision of strict constitutional construction and adopt a broader vision of executive power, one that permitted the nation to take advantage of the great opportunities thrown its way.

While it was not the product of luck, the Louisiana Purchase must have seemed like the intervention of Fortune in the fate of the Americans. The retrocession of Louisiana back from Spain to France (France had lost the territory to Spain at the end of the Seven Years' War) gave Napoleon dreams of an American empire. An expedition to restore control in Santo Domingo, which had been taken over by a slave rebellion led by Toussaint L'Ouverture, failed. Another mission to send troops to Louisiana could not leave port due to winter ice, and in late 1802 Spanish officials closed the port of New Orleans to American shipping while they awaited the handover of the territory to France. Jefferson sent envoys to Paris to buy New Orleans and West Florida (which today comprises the portions of Mississippi and Alabama that lie along the Gulf of Mexico, along with parts of Florida and Louisiana), aided by a secret congressional appropriation of $2 million. Federalists proposed negotiating from a position of strength by invading New Orleans and West Florida first,
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but Jefferson privately had been willing to go even further, entertaining a possible alliance with the hated British against France to seize Louisiana.

When American ministers arrived in Paris, they received a gift. Napoleon decided to sell not just New Orleans, but the entire Louisiana territory. The first ambassador on the scene, Robert Livingston, did not believe the offer was genuine, but when the second envoy, James Monroe, arrived, they quickly decided to exceed their instructions and buy all of Louisiana for about $15 million. The Louisiana Purchase doubled the size of the United States, gave it permanent control of the Mississippi and New Orleans, and dislodged France and Spain as serious threats to American national security in the West. "This removes from us the greatest source of danger to our peace," Jefferson wrote to his son-in-law.
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Played differently, the United States could have been drawn into the Napoleonic wars, which would have proven disastrous, and found itself hemmed into the Eastern seaboard. Jefferson's reputation as one of America's greatest Presidents was sealed on the day that the Louisiana treaty was signed.

But in order to buy Louisiana, Jefferson had to change his vision of the Constitution. Jefferson had believed that the Constitution did not permit the acquisition of new territory or its incorporation into the Union as new states. The Constitution has no express provision providing for the addition of territory, though Article IV, Section 3 gives Congress the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Some later argued that this clause assumes that new property could be added in the future, but as Gary Lawson and Guy Seidman have pointed out, this interpretation runs counter to the text of the clause and its placement in the Constitution.
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The clause describes the power to make rules and dispose of property, but it does not empower the government to add new territory in the first place -- it could be read to apply only to the territory of the United States as it existed in 1789, such as the Northwest Territory. Even before he sent Monroe to negotiate for New Orleans, Jefferson had raised doubts before his cabinet.

Jefferson also doubted whether new territory could become states. The Constitution provides for the addition of new states, upon the approval of Congress, and it prohibits the formation of new states out of the borders of existing states without their consent. Jefferson apparently worried that this prohibition also applied to the creation of new states from the territory of existing states. His Attorney General, Levi Lincoln, agreed and advised that the boundaries of existing states be enlarged to include the Louisiana Purchase.

Jefferson and his cabinet sought refuge in a position that was "virtually indistinguishable" from Hamilton's arguments in the debates over the Neutrality Proclamation and the Jay Treaty. Gallatin argued:

1. The United States as a nation should have an inherent right to acquire territory.
   

2. Whenever that acquisition is by treaty, the same constituted authorities in whom the treaty-making power is vested have a constitutional right to sanction the acquisition.
   

3. Whenever the territory has been acquired, Congress should have the power either of admitting into the Union as a new state, or of annexing to a State with the consent of that State, or of making regulations for the government of such territory.
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In other words, the federal government has powers that extend beyond those explicitly set out in the Constitution, including the sovereign powers held by all other nations. Gallatin claimed that the treaty power vested the federal government with the ability to exercise these inherent national powers. This broad reading of the executive power allows the President and Senate together to exercise power that is nowhere set out in the Constitution but must be deduced by examining the rights of other nations in their international affairs. As the primary force in treaty-making, this power would redound to the President's benefit. Gallatin's opinion concluded that the people had implicitly delegated the authority to acquire territory to the national government by vesting it with the powers to make war and treaties, and govern the territories.

This was strong drink for a man who believed that the Constitution did not allow a national bank. Jefferson accepted Gallatin's reasoning, though he predicted that new territory would enter the Union as a matter of "expediency" rather than constitutional principle. Perhaps he felt he was making only a small compromise when all that could be hoped for was New Orleans. When Jefferson learned that Livingston and Monroe had succeeded beyond his wildest dreams, the constitutional doubts resurfaced. To John Dickinson, he admitted in August 1803 that "our confederation is certainly confined to the limits established by the revolution. The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, and still less of incorporating it into the Union." He confessed that "an amendment to the Constitution seems necessary for this."
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Jefferson did not limit himself to private letters to friends, but expressed his views to his close ally in the Senate, John Breckinridge of Kentucky. "The Executive in seizing the fugitive occurrence which so much advances the good of the country, have done an act beyond the Constitution," Jefferson wrote in August.
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It was now up to Congress to support the unconstitutional act. "The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it." Jefferson believed it was best to admit openly the violation of the Constitution and seek popular support, which he believed was healthier for the constitutional system. "We shall not be disavowed by the nation," he predicted, "and their act of indemnity will confirm and not weaken the Constitution, by more strongly marking out its lines."

Jefferson even personally drafted at least two constitutional amendments adding Louisiana, but events forced him from the luxury of his strict-constructionist beliefs. Shortly after he wrote to Dickinson and Breckinridge, Jefferson received a dispatch from Livingston in Paris that Napoleon was having seller's remorse. Livingston reported that Napoleon would seize any delay or request for changes as an opportunity to renounce the agreement. Jefferson worried that the delay of a constitutional amendment would give France the opening it needed, though both Madison and Gallatin thought France would not back out, and no one in the cabinet thought a constitutional amendment was necessary. Jefferson sent letters to Congress asking that constitutional objections to the treaty be dropped, and that "nothing must be said on that subject which may give a pretext for retracting; but that we should do sub silentio what shall be found necessary."
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Jefferson's most remarkable exchange came with Senator Wilson Cary Nicholas. Nicholas warned that any public statement by Jefferson against the constitutionality of the Purchase might sink the treaty in the Senate. Jefferson agreed that "whatever Congress shall think it necessary to do, should be done with as little debate as possible, & particularly so far as respects the constitutional difficulty." Still, he could not resist the opportunity to restate his belief that the Constitution did not envision the addition of new states from territory not already part of the nation in 1789. The opposite construction, advanced by his cabinet and by Nicholas, too, would allow the United States to add "England, Ireland, Holland, [etc.] into it." Broad rules of interpretation, Jefferson warned, would "make our powers boundless" and would render the Constitution "a blank paper by construction." Jefferson claimed that when faced with a choice between two readings of the Constitution, "the one safe, the other dangerous, the one precise, the other indefinite," he would choose the "safe & precise" and instead "ask an enlargement of power from the nation where it is found necessary."
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Jefferson had claimed authority for the President to act outside the Constitution itself when circumstances demanded it. If he had interpreted the powers of the executive narrowly, he would have put the Louisiana Purchase in danger. But it was Jefferson's strict constructionist views that created this dilemma in the first place. His reading of the Constitution seems mistaken and has never been the view of any of the three branches of government since. Article IV, Section 3 gives Congress the authority to admit new states and then adds the qualifier that when new states are formed from existing states, those states must consent. The broader power, without that qualification, must apply to something (otherwise, why not just make all admissions subject to state consent), and that something must be the creation of states out of new territory. As Lawson and Seidman argue, the Admissions Clause, as it is known, merely declares that "new states may be admitted by the Congress into this Union." Second, Article II's vesting of the executive power in the President contains a power to address national emergencies and crises. Jefferson could have read the executive power to include the authority to acquire the Louisiana Territory because of the threat to the national security if it had remained in the hands of other nations.

Instead, Jefferson chose to keep both Louisiana and his constitutional faith by turning to the prerogative. Jefferson's political dexterity made him flexible enough to take advantage of this great national opportunity, even to the point of adopting a vision of presidential powers potentially broader, in some ways, than that of Hamilton. Washington had established the legitimacy of the national government by keeping his energetic executive within its constitutional bounds. Hamilton had given theoretical punch to Washington's actions by arguing that the Constitution had to include the power to address every national emergency, and that this power would naturally reside in the executive. Jefferson, however, approached the Presidency more in keeping with Locke's theory of the prerogative. In his letter to Breckinridge, Jefferson had bypassed constitutional objections to the Louisiana Purchase by comparing his position to that of a guardian who acts beyond his authority but in the best interests of his ward. He had to seize the opportunity "which so much advances the good of the country." In response to the firing on the
Chesapeake
, Jefferson again acted beyond his constitutional powers. In both cases, Jefferson claimed that unforeseen circumstances, produced either by necessity or by opportunity, required him to exceed his legal powers to protect the greater good. Following Locke, Jefferson looked for ratification for his
ultra vires
decisions -- "an indemnity," as he wrote to Breckinridge -- from the people through their representatives in Congress.
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