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•The Center for American Civics•Season 1•Episode 155
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We trace how a bid for New Orleans became a continental purchase while we test Jefferson’s strict constitutional views against Madison’s steadier reading of treaty and territorial powers. Europe’s wars, Haiti’s revolt, Federalist fears, and the limits of necessity drive the story.
• European conflict and the return of Louisiana to France • Jefferson’s alarm over New Orleans and river trade • Haiti’s revolt wrecking Napoleon’s North American plans • The surprise offer of the entire Louisiana territory • Federalist worries about power dilution and culture • Financing the deal and Gallatin’s role • Jefferson’s strict view versus treaty power tradition • Madison and Gallatin arguing the Constitution permits acquisition • The danger of necessity trumping constitutional limits • Lasting lessons for constitutionalism and statecraft
Welcome back to Civics in the year. Today we're talking about the Louisiana Purchase. Dr. Beinberg. Dr. Beyenberg. The Louisiana Purchase has always confused me, made me giggle, because it feels like Jefferson was so, you know, if it's not in the Constitution, we can't do it. But then this happened, and it was kind of just like I mean, sure, we can get this. So before we start diving into that.
SPEAKER_01
And that's why I signed up for this podcast is I have very strong views on Jefferson's constitutional theories on Louisiana Purchase. But yes, please go on.
SPEAKER_00
So what is the Louisiana Purchase? And let's just start there. What is it?
political issues they're dealing with are sort of extensions of the Napoleonic Wars happening over uh in Europe, where the French revolutionaries have basically declared war on all of the monarchies because they're trying to spread their vision of politics. The Brits build coalitions to stop them. Even after Napoleon has basically become emperor, he still is sort of viewing himself as like an avatar of the French Revolution. So the point is, there's a whole bunch of scary stuff happening over in Europe, which eventually will suck the Americans into it in the War of 1812. But Napoleon dominates Spain. He gets Spain to hand Louisiana back to France. And this unsettles Americans. Jefferson,
who hates the British, obviously, and has been pro-French. That was what the whole 1790s politics was about. Even he's so rattled. He signals to his ambassador, Robert Livingston, that Americans need to get their paws on New Orleans. And if not, they might need to team up with Britain because France having control of New Orleans would be so dangerous. So Monroe, so Jefferson sends sort of word to Livingston, and he sends his protege, James Monroe, with instructions to negotiate to try to get New Orleans. Napoleon has committed one of the dumbest things he does while he's Napoleon's generally pretty smart about like logistics and whatnot. His grand strategy sometimes leaves things to be desired. And one of the things he wants to do is reclaim the North American Empire. So he's excited about this, but he figures they should start by retaking Haiti.
And they send tens of thousands of troops over there, and they basically all die of disease. His gigantic army that would have been much more useful over in Europe, just pretty much completely wiped out. And so Napoleon, I'm being a little glib here, but basically, screw me. We're not like we're done. We're just giving up on North America. We need money, and I don't have troops. You guys want to buy New Orleans? What if you want to buy the whole bloody thing and just give me even more money? And so Monroe and Livington, like, that's not really what our instructions were, but sure, why not? We'll give it a shot. And so they they negotiate uh a treaty, handing over the entirety of handing over basically the entirety of the continental stuff that the Prince, that the French still have for a very, very small amount of money. It's still a relatively large amount of money. So Jefferson's Treasury Secretary, Gallatin, has to figure out how to work the books to make this work. But he's very excited about this. And previewing what we'll say in a second, he's also pretty pissed at Jefferson for trying to scuttle this on const on spurious constitutional grounds. So the a little bit of a politics before we get into the constitutional issues, which I know is what we're both just dancing
around and excited to talk about. The Federalists dislike this, not on constitutional grounds. They're too invested in sort of a Hamiltonian, more expansive understanding of power. But they're concerned, not quite unreasonably, about getting their power diluted. They're concentrated in New England. If we suddenly add a whole bunch of new states, this isn't gonna help. Turns out they're wrong about that later on, because most of the Midwest gets settled by New Englanders, but they're concerned they're gonna get boxed out. And the Federalists also have a fear of assimilating a very different political culture from people in France and Spain who are monarchists, don't understand live Republican liberty, et cetera. Uh, it's worth noting Jefferson actually agrees with that. Uh, Jefferson wants to slow walk the process to statehood for any of these territories. So they all agree on that, but the federalists are basically willing to scuttle the acquisition on those grounds. Jefferson says, no, like we just need to keep the training wheels to learn Republican government. Political cultures are different. Napoleonic France and monarchical Spain are not American republicanism. So yeah, so some of the Federalists get really bent out of shape. Adams's old Secretary of State, Timothy Pickering, uh, who's a Hamilton guy, is running his mouth about secession again. And this is where we get into the constitution. Or is that the backstory before we get into the constitutional issues, or what what uh off to those? I think that's that's great.
that you might need an enumerated power to add territory. And there's a little bit of a nuance about acquiring the land versus potentially admitting it as a state under Article 4. But Jefferson basically is musing, like, I don't know if I can do this constitutionally. Now, Gallatin, and particularly Madison again, Madison is very states' rights oriented. He vetoes the bonus bill in a few years later, right? He cares about this stuff. Madison thinks that Jefferson is out of his mind, and Gallatin thinks he's out of his mind, and many Jeffersonians think he's out of his mind because literally one of the classic uses of treaties in world history is trading territory, buying it, selling it, trading it, seeding it, land swapping. And there is very clearly an explicit treaty-making power and protocols for it in the Constitution. Article 4 has protocols on admitting new states
from federal territory. Like, even if you're a very, very strict constructionist, states' rights oriented, this seems like one of the actual powers that is in the Constitution. As David Curry, a constitutional historian, I was rereading his section on this this morning, and I find his this his assessment of this pretty much accurate. He says, it's very hard today, even for one who shares Jefferson's general approach to federal authority, to find merit in the remarkably cramped reading that Jefferson offered, basically, on this section. Like he's not only just reading powers strictly, he's seemingly writing powers out of the Constitution. Now, so you might say, okay, so Jefferson's response, he's a constitutional purist, is to say, well, I guess I can't do that. Instead, Jefferson says, but maybe this is so important, we can fuck the Constitution anyway, which is an absolutely heinous bit of constitutional reasoning. And again, why later commentators are again, even states' rights people uh are utterly aghast. So Thomas Cooley, who's uh writes basically the definitive sort of legal treatise in the 19th century, as he says that you know, Jefferson's wrong on the merits. Even states' rights means you can do this. Um, but he says, Curry says, it's unforgivable for Jefferson to take the position that he could do what the Constitution forbade. And then he quotes Cooley and says, the poison is in the doctrine, Jefferson's doctrine, which took from the Constitution sacredness and made it subject to the will and caprice
of the hour. After that time, the proposal to exercise unwarranted powers on a plea of necessity might be advanced without exciting the detestation it deserved. So, yeah, I find I find Jefferson's actions on this, like just frankly utterly appalling. And some people will use this as a justification to say, see, we need to have loose interpretation. Like Jefferson was right. This is why we shouldn't be too concerned about the Constitution. And I find that, as does Curry and Cooley, a very uh unsettling argument, instead of like, no, the Constitution actually has pretty robust sets of powers that deal with lots of problems. And we can read those powers fairly, not insanely strictly, not removing powers that are there, but so again, as I we were laughing before, Madison generally gets these things right. And Madison's take is you can't do nullification, you can't add new powers to the constitution without an amendment, you shouldn't like use powers as pretext for other things you want, but you can read it sort of fairly and naturally. And a section that says you can make treaties, which is always understood as adding land, and that you can add new states from territories, seemingly suggests that the Louisiana Purchase is constitutionally just fine. And so therefore, we should not not not look too favorably on Jefferson's sort of private musings, which in some sense antithetical to things that he'd been saying before, which I tend to be more sympathetic to, which is like, we actually want this constitution as a meaningful constraint on federal federal power. Not until it's inconvenient for me, which is basically what he he sort of flirts with there. So Constitution good, Louisiana Purchase good, Jefferson's weird take on the Constitution and Louisiana Purchase bad, I guess is the short version.
SPEAKER_00
So why does the Louise does the Louisiana Purchase still matter in when we're looking at, you know, today in history, I guess?
SPEAKER_01
Uh well, for folks that are from the large chunk of the country that was acquired in the Louisiana Purchase, unless you'd like to be a part of France, I would say that that probably probably does matter. I don't think that the Louisiana Purchase, beyond that sort of glib response, I don't think that the Louisiana Purchase debate matters today unless you take that weird Jeffersonian position, in which case it is a damning indictment of the Constitution. As again, I've hopefully tried to beat over the head. I don't think that position is correct. And so I
think that the Louisiana Purchase instead illustrates that the balance of powers in the Constitution are pretty good. And even faithfully read can take care of most things that you need to do without, and if not, Jefferson's proposal to then say, hey, if I don't have power to do this, we have to amend the Constitution, that's a healthy impulse. But the but never mind, we're not even going to bother with that, even though I think it's unconstitutional. That's a really dangerous position. So I guess to the extent the Louisiana Purchase is just about land trait acquisitions, it's important for making the United States such a powerful country in some ways. Depending on which lessons we draw, it's either, I think, a very solid defense of constitutionalism as understood by Madison, or if you think Jefferson is right, it's a pretty damning critique of constitutionalism. But hopefully, listeners to this podcast did not knock walk away thinking, yeah, Jefferson's really on the ball on this one. We should just blow up by the Constitution when it's convenient, because that way lies madness.
SPEAKER_00
Well, I think you just illustrated that the founders, you know, some people think that they're demigods, but they're just men who who make errors sometimes. And sometimes those errors are great. Sometimes not so much.
SPEAKER_01
But the constitution is better than the people who were basically operating it. And I think that that's kind of defense of constitutionalism in a position that Madison and some of the other architects would agree with.
SPEAKER_00
I mean, that's why Madison was always right though, right? Because he he wrote the darn thing.
SPEAKER_01
More Roger Sherman when we get to the found forgotten founders one, but that's my other hot take for the day.
