Mr. President (40 page)

On one key point Jefferson remained absolutely consistent: since governmental authority rested in the people, all officers must be made accountable to them, and that very accountability vested elected officials with a great deal of power, for they acted on behalf of the people. This take on republican theory became increasingly apparent as Jefferson himself executed what he considered the people’s will. The administration of unspecified powers for the good of the nation, done in the name of the people, could be for better or worse, as two defining episodes in Jefferson’s presidency, the Louisiana Purchase and the Embargo, indicate.

In his first inaugural address, Jefferson had called the United States “a rising nation, spread over a wide and fruitful land,” but that nation could neither rise nor spread without access to the port that controlled North America’s great interior waterway, the Mississippi River. “There is on the globe one single spot, the possessor of which is our natural and habitual enemy,” Jefferson wrote to Robert R. Livingston, his minister to France. “It is New Orleans, through which the produce of three-eighths
of our territory must pass to market, and from its fertility it will ere long yield more than half of our whole produce and contain more than half our inhabitants.” New Orleans had just changed from Spanish to French hands, and under Napoleon’s leadership France’s possession of New Orleans presented a serious threat to American interests. Of necessity, the United States would have to ally itself with Britain to oppose France, and no Republican savored that prospect. Consequently, Jefferson instructed Livingston to negotiate a sale of lower Louisiana to the United States and dispatched the special envoy James Monroe to aid him.
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Where, exactly, did the Constitution empower the president to purchase territory from a foreign nation? This question nagged Jefferson, whose predilection for a strict interpretation of the Constitution had anchored his political beliefs before assuming the presidency. In January 1803, before any deal had been made, the president queried his cabinet about the constitutionality of a purchase. Attorney General Levi Lincoln, from Massachusetts, advised that a constitutional amendment would be necessary before adding any territory to the United States and incorporating it into the Union, but Albert Gallatin, the Treasury secretary, held that the United States “as a nation have an inherent right to acquire territory” and that the president’s authority to negotiate treaties gave him ample authority to purchase land. Jefferson agreed with Gallatin’s line of reasoning as “a matter of expediency,” but he remained uncertain “whether, when acquired, it may be taken into the Union by the Constitution.” It would be “safer not to permit the enlargement of the Union but by amendment of the Constitution,” he concluded.
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Passing a constitutional amendment, though, would have to come after the fact. Negotiations were already under way, and by April they were concluded. Preferring to focus on European rather than American expansion, Napoleon offered to sell not only New Orleans but France’s entire claims on the North American mainland. For $15 million Jefferson could double the size of the nation—
if
he accepted the offer. Would those pesky doubts about the Constitution interfere, causing him to reject the deal? Of course not. To do so would betray the interests of the nation, with which he had been entrusted. In the president’s mind acquiring New Orleans was necessary at any price—even stretching the “construction” of the Constitution, itself a cardinal sin.

While Jefferson rejoiced at the news from Paris, he still fretted
over the apparent discrepancy between what he was doing and what he believed the Constitution permitted him to do. The key point here is not whether his actions were or were not constitutional, but that he
believed
them not to be. In several letters written between early July, when the news of the purchase arrived in the United States, and October, when Congress was slated to convene and consider ratification and funding, Jefferson vacillated between principle and expediency, arguing forcefully for each and finally settling on a solution that in retrospect was politically fanciful. To John Dickinson, who had drafted the Articles of Confederation and helped frame the Constitution, he wrote: “There is a difficulty in this acquisition which presents a handle to the malcontents among us, though they have not yet discovered it. 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, & still less of incorporating it into the union.” Jefferson repeated this refrain to John Breckinridge, whom he was counting on to steer ratification of the purchase through the Senate, and then added bluntly, “The executive in seizing the fugitive occurrence which so advances the good of their country, have done an act beyond the Constitution.” Even so, Congress must leave “behind them metaphysical subtleties” and “ratify and pay for it,” then “throw themselves on their country” for acting in an “unauthorized” manner.
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Five days after writing to Breckinridge, Jefferson received two letters from Livingston, still in Paris, that suggested any delay in ratification could kill the deal. The president immediately wrote again to Breckinridge, alerting him to keep the president’s musings about the Constitution confidential. In order not to give Napoleon “a pretext for retracting,” Jefferson needed to rush ratification through the Senate with minimal debate. To this end, he urged Breckinridge to gather “every friend of the treaty on the first day of the session.” Simultaneously, he cautioned Secretary of State Madison, Attorney General Lincoln, and Thomas Paine not to divulge the qualms he had expressed to them: “I infer that the less we say about constitutional difficulties respecting Louisiana the better, and that what is necessary for surmounting them must be done sub silentio,” he wrote to Madison.
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Three weeks later Jefferson covered the gamut in a letter to a fellow Virginian, Senator Wilson Cary Nicholas, who believed that incorporating
the new territory into the Union was perfectly in keeping with the Constitution. Jefferson, of course, thought otherwise. He did not want his views to slow down the ratification process, and Nicholas, like Breckinridge, was in a position to speed it up, but he also did not wish to cede to Nicholas’s loose construction of the Constitution. So back and forth he went:

It was a firm stand against broad construction, but not long maintained. Jefferson concluded, “If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of [broad] construction when it shall produce ill effects.”
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Jefferson never got the amendment he hoped would right the wrong he had done, but he did prepare a draft. It was a curious piece with three components, only the first of which was necessary to bring his actions clearly in line with the Constitution. “Louisiana, as ceded by France to the U.S. is made part of the U.S.,” it commenced, and its “white inhabitants shall be citizens.” In the next part, the amendment
established an east-west line at the mouth of the Arkansas River, north of which no settlement would be permitted. Had the measure ever been seriously considered, this provision, reminiscent of King George III’s Proclamation of 1763, would certainly have doomed it. Finally, it allowed for Florida to become part of the Union, “whenever it may be rightfully obtained.” For reasons Jefferson well understood, and partly by his own doing, the amendment was never presented to Congress; its primary function was to ease its author’s mind. Instead, at the very moment the Louisiana Purchase came before the Senate, that body was working out the details for quite a different refinement of the Constitution. That one, what is now the Twelfth Amendment, did not deal with “metaphysical subtleties” of interpretation. The Constitution simply needed to distinguish between votes for president and votes for vice president to avoid a repetition of the 1800 election.
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In the end, despite his serious misgivings, Jefferson did indeed “make our powers boundless” by ceding to a broad construction of the Constitution. This stalwart Republican had resisted as strongly as anyone could expect, but even he succumbed. What president would have done otherwise, when offered the chance to nearly double the size of the nation? By placing one man at the helm, the framers had invited this response. Nowhere did it appear in the Constitution, nowhere
could
it appear, but the temptation for a president to loosen his grip on constitutional scruples would prove nearly irresistible.

If Jefferson had overreached his constitutional powers by purchasing Louisiana, as he suspected and feared, he paid no price. Few others seemed to care. The ends, enormously positive by most accounts, eclipsed the means. Soon, though, he would embrace a broad construction of presidential powers that led to a more questionable outcome, and in that case his sacrifice of republican principles would become all too evident.

By 1807 the Napoleonic Wars sweeping Europe had altered the tone of the nation’s foreign relations and domestic politics. Britain and France were locked in combat as usual, but the stakes had been raised, and both nations preyed freely on any vessels doing business with the enemy. That meant American ships were not safe anywhere, and commerce suffered accordingly. This changed party-line alignments; no more did Federalists favor Britain across the board, nor Republicans
favor France. The anger against both nations was nearly ubiquitous, and both political parties were equally susceptible to outbreaks of war fever.

On June 22 the British warship HMS
Leopard
, while blockading two French vessels that had pulled in to the Chesapeake Bay, fired on the American frigate
Chesapeake
for fifteen minutes, killing three sailors and injuring eighteen. A boarding party then searched the
Chesapeake
and came up with four alleged deserters from the British navy, three of whom were Americans by birth. The
Chesapeake
Affair, as it was and still is called, raised the ire of the American public to a new level because the frigate had scarcely cleared its harbor before the
Leopard
followed it out to sea, then battered it.

Like his two presidential predecessors, Jefferson was faced with the difficult task of keeping his nation from a destructive and costly fight against a European superpower. War, he reasoned, would undermine Republican policies by increasing taxes and making it more difficult to retire the national debt, but fortunately there was an alternative to military conflict: economic warfare. In the decade before the Revolution, colonials had voluntarily abstained from purchasing British goods, and that had caused the imperial government to back down. Now, if Americans refused to export as well as import goods, they could starve Britain and force it to back down once again. Further, by treating France in the same manner, the United States could persuade that nation too to stop its predation on American ships, and the seas would be safe once again. To achieve this goal, Jefferson proposed an absolute embargo on all American trade; anything short of that would be easily circumvented. True, an embargo would involve some sacrifice, but the president was confident “the conveniences of our citizens shall yield reasonably” in light of the “importance” of “the present experiment” in furthering the national interest without warfare. Further, as in Revolutionary days, an embargo would promote self-reliance, encourage Americans to develop their own manufactures, and lead them away from decadent imports. It was a familiar refrain.
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In truth, Jefferson did more than propose an embargo; he engineered it, hurriedly pushed it through Congress, and enforced it with an iron hand. On December 17 he gathered his cabinet to present the idea, but he did not seem open to a thorough investigation of the potential impacts. The following morning his closest adviser on economic matters,
Secretary of the Treasury Gallatin, weighed in against the “doubtful policy,” as he called it. “I prefer war to a permanent embargo,” he told Jefferson bluntly. “Government prohibitions do always more mischief than had been calculated; and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals as if he could do it better than themselves.” If Jefferson remained fixed on an embargo, Gallatin counseled, it must be only temporary, to buy some time for a diplomatic settlement. That would never work, Jefferson responded. If other nations knew the embargo was temporary, they would simply wait it out until it was repealed.
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At noon that same day, December 18, Jefferson sent an exceptionally brief message to Congress, presenting for “consideration” his plan for “an inhibition of the departure of our vessels from the ports of the United States.” That same afternoon, meeting in secret session, the Senate submitted the idea to a special committee that immediately churned out a terse bill conforming to Jefferson’s wishes. Within hours of receiving the president’s message, the full body then suspended the rule requiring any bill to be read three times “on three different days” and approved the embargo by a vote of 22 to 6. The House took a bit longer. Representatives discussed the bill for three days, added some minor amendments, defeated a call to make the embargo temporary, and passed the measure 82 to 44 on December 21. The following day the Senate approved the House’s amendments, and the president affixed his signature. That was the extent of the nation’s deliberation of Jefferson’s embargo policy, since the whole matter was conducted in secret.
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