Constitutional Amendment on Louisiana
“I think it will be safer not to permit the enlargement of the Union but by amendment of the constitution,” Jefferson wrote to his secretary of the Treasury in January 1803. The president was responding to Gallatin’s rebuttal of arguments from the attorney general about the desired purchase of New Orleans and the Floridas. Jefferson, Levi Lincoln knew, thought that an amendment to the Constitution would be necessary for the incorporation of the new territory into the United States. Lincoln believed, however, that proposing an amendment would be a “doubtful attempt” that, if it failed, could bring down the whole enterprise of acquiring New Orleans. While Gallatin dismissed questions about amendment, contending that the necessary powers were already in the Constitution, Lincoln tried to find a means, by the incorporation of land into existing states or territories, of satisfying the president’s constitutional concerns without following the dangerous route of seeking approval of an amendment. The president rejected both officers’ advice. There might be “no constitutional difficulty as to the acquisition of territory,” he maintained, but an amendment was required for incorporation of new areas into the federal system—the “enlargement of the Union” (Vol. 39:302–5, 324–6, 328).
In January, as Jefferson was just determining to send James Monroe to France to join Robert R. Livingston in negotiations for the purchase of New Orleans, the constitutional questions were anticipatory and theoretical. The topic became a more immediate concern on the evening of 3 July, when news reached Washington of the French government’s agreement to sell not just New Orleans, but all of Louisiana. Jefferson went right to work: “I have sketched an amendment to the constitution,” he informed Gallatin on the 9th. He hastened the project forward, without knowing the details of the cession, because he wanted to leave soon for Monticello and foresaw that the Louisiana transaction would have high priority when Congress returned from its recess (TJ to Gallatin, [9 July], first letter).
Jefferson saw his amendment as an addition to Article 4, Section 3 of the Constitution, which covered the creation of new states and territories (see his heading to Document II below). He proposed something he and his advisers could not have anticipated during their earlier discussions of the constitutionality of acquiring New Orleans: the maintenance of most of the vast province of Louisiana as Indian country to foster the relocation of Native Americans from east of the Mississippi River (Documents I and II). As he explained in a letter to George W. Erving on 10 July, “if we place the new accession of Louisiana on proper grounds, while it secures our peace, it may be the means of confining & condensing our population on the E. side of the Missisipi, instead of diffusing it; and of removing our Indian population to the other side.” The purchase of Louisiana gave him, he thought, the means to forward a policy he had explained to William Henry Harrison in February, when he wrote that “our settlements will gradually circumscribe & approach the Indians, & they will in time either incorporate with us as citizens of the US. or remove beyond the Missisipi.” A few months before that, he had laid out for the secretary of war a project of making the western edge of the United States—that is, the east bank of the Mississippi River—a “strong front.” At that time, with Spanish officials cutting off trade through New Orleans and the French readying a military colony for the Mississippi Valley, he deemed “securing us” on the west to be a goal “now of great importance.” To that end, he suggested to Henry Dearborn a policy of filling Mississippi Territory and the Illinois country with agricultural settlements and requiring Native Americans to assimilate into that landscape and culture or move across the Mississippi. With the acquisition of Louisiana the immediate threats to the nation’s western flank and to commerce along the Mississippi disappeared. Yet the vision of a rationally managed, neatly consolidated settlement still held Jefferson. As he wrote to John Breckinridge in August, the annexation of Louisiana would provide a way of “filling up” the eastern side of the Mississippi Valley and proceeding with “range after range” of new states, “advancing compactly as we multiply” (Vol. 39:231–4, 590–2; TJ to Breckinridge, 1 Aug.).
In his proposed amendment Jefferson gave little attention to the southern part of Louisiana lying on both sides of the lower Mississippi River, where the majority of the province’s inhabitants of French, African, Caribbean, and Spanish origins lived. Congress would simply institute territorial government for that region “whenever they deem expedient” (Documents I and II). Jefferson’s focus was on the remainder of the sprawling acquisition, the limits of which were only vaguely understood. Native Americans living there would retain “rights of occupancy in the soil,” but all areas deemed abandoned or not “rightfully occupied” by the native inhabitants “shall belong to the US.” There would be no land office and no land sales, effectively barring new settlement by non-Indians. Congress, however, would have the power to exchange lands held by Indians east of the Mississippi for rights of occupancy on the west side of the river and to trade land owned by whites in upper Louisiana for land east of the Mississippi. The United States could establish military posts, trading stores, and roads, and could develop sources of minerals and salt, but the native peoples would govern themselves and another constitutional amendment would be required to open the way for the creation of any territorial government.
For his draft, Jefferson used 31 degrees north latitude as the division between the upper and lower parts of Louisiana—the line between the anticipated land preserve to the north and the more densely inhabited areas to the south (Document I). East of the Mississippi River, the 31st parallel was the southern boundary of the United States, separating Spanish and U.S. territory as specified by Article 2 of the Pinckney Treaty (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:319–20). Jefferson kept the division of Louisiana at the 31st parallel as he made a fair copy of the amendment, but at some point he or one of his advisers may have raised some doubt about whether that line was far enough north to serve the intended purpose west of the river. He amended the fair copy, changing the line of latitude from 31 to 32 degrees. Another copy in his hand, which has survived only in the form of a pressed copy, and a copy by Lewis Harvie both specified the 32d parallel (see notes to Document II). Robert Smith placed the line there also in a substitute version of the amendment he proposed, but whether the idea of using that latitude originated with him is not known (Smith to TJ, 9 July). Jefferson apparently had doubts about even the 32d parallel, for he and Harvie enclosed the number in brackets. When Jefferson revised the amendment in August, he put the line even farther north, at the latitude of the mouth of the Arkansas River. Several months later, the March 1804 act of Congress that split Louisiana into a southern territory of Orleans and a northern district of Louisiana set the boundary between them at 33 degrees north latitude (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States…1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 2:283; TJ to Gallatin, 23 Aug.).
Jefferson showed the amendment to at least some members of the cabinet on 9 July. Gallatin and Smith responded on that day, and Madison, Dearborn, and Lincoln surely saw it at about the same time, although the subject does not appear in Jefferson’s surviving correspondence with them around that day. Although Gallatin replied only that he did not understand the matter to be one “for immediate decision,” Smith made a detailed response. He advised that it was unnecessary for the amendment to list the powers Congress would have in upper Louisiana, and he cautioned against what would amount to a constitutional guarantee of right of occupancy to Native Americans. Smith drafted a leaner amendment that avoided the pitfalls he saw in the president’s more detailed version (Gallatin to TJ, 9 July; Smith to TJ, 9 July, and enclosure).
A penciled addition by Madison at the foot of Jefferson’s fair copy of the amendment allowed in general terms for the annexation of any part of the Floridas (see Document II). Whether Jefferson let Madison add that part before the president’s other advisers saw the amendment is not known. When Jefferson circulated a revised version of an amendment in August, the new text included a paragraph about Florida similar to Madison’s addendum on the earlier version, although differently worded. Jefferson also heeded Smith’s advice and omitted the enumeration of the powers of Congress in upper Louisiana. Madison wrote his own version of an amendment, perhaps during the renewed consideration of the question in August, although the president likely did not see it (Madison, Papers, Sec. of State Ser. description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962- , 35 vols., Sec. of State Ser., 1986- , 9 vols., Pres. Ser., 1984- , 7 vols., Ret. Ser., 2009- , 2 vols. description ends , 5:156; TJ to Gallatin, 23 Aug.; to Madison, 24 Aug.; to Lincoln, 30 Aug.).
One of the changes Jefferson had to make in the new version of the amendment in August pertained to citizenship. Monroe’s and Livingston’s instructions for the negotiation contained the framework of a proposed treaty for the acquisition of New Orleans and Florida, one article of which read: “To incorporate the inhabitants of the hereby ceded territory with the citizens of the United States on an equal footing, being a provision, which cannot now be made, it is to be expected, from the character and policy of the United States, that such incorporation will take place without unnecessary delay. In the mean time, they shall be secure in their persons and property, and in the free enjoyment of their religion.” In the instructions Madison acknowledged “the respect due to the rights of the people inhabiting the ceded territory” but also noted “the delay which may be found in constituting them a regular and integral portion of the union.” Jefferson had a similar understanding as he drafted his amendment, which predicated citizenship on the creation of a territorial government, in the southern part of the province only, and at the discretion of Congress. At the time, he had not yet seen the text of the treaty for the Louisiana cession and did not know that his proposed amendment was at odds with the language of the agreement. “The inhabitants of the ceded territory,” the treaty’s third article stated, “shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all the rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.” In his August revision of the amendment Jefferson accommodated that provision of the treaty, with some adjustment. Only “white inhabitants” would be citizens, he specified, and their rights would be those of other U.S. citizens “in analogous situations.” He used the same language in the clause relating to the potential incorporation of Florida into the union (Madison, Papers description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962- , 35 vols., Sec. of State Ser., 1986- , 9 vols., Pres. Ser., 1984- , 7 vols., Ret. Ser., 2009- , 2 vols. description ends , Sec. of State Ser., 4:371, 376; Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:501; Malone, Jefferson description begins Dumas Malone, Jefferson and His Time, Boston, 1948–81, 6 vols. description ends , 4:314; TJ to Gallatin, 23 Aug.).
Although the amendment Jefferson proposed to the cabinet in August was very different from the July draft, Paul Leicester Ford printed them side-by-side in his edition of Jefferson’s Writings. Dumas Malone later identified Ford’s source texts as Document I, below, for the July draft and Jefferson’s 30 Aug. letter to Levi Lincoln for the later one (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, Letterpress Edition, New York, 1892–99, 10 vols. description ends 8:241–9; Malone, Jefferson description begins Dumas Malone, Jefferson and His Time, Boston, 1948–81, 6 vols. description ends , 4:314n; the two texts, reprinted from Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, Letterpress Edition, New York, 1892–99, 10 vols. description ends are also in John P. Foley, The Jeffersonian Cyclopedia [New York, 1900], 510–11). For the evolution of the amendment in August, see also Jefferson’s letters to Gallatin on 23 Aug., to Madison on the 25th, and the draft Jefferson made around or shortly after 30 Aug. For Jefferson’s consideration of constitutional issues relating to the acquisition of Louisiana, see Malone, Jefferson description begins Dumas Malone, Jefferson and His Time, Boston, 1948–81, 6 vols. description ends , 4:311–25; Robert W. Tucker and David C. Hendrickson, Empire of Liberty: The Statecraft of Thomas Jefferson (New York, 1990), 163–71, 234–6; Jeremy D. Bailey, Thomas Jefferson and Executive Power (Cambridge, 2007), 171–94; Ralph Ketcham, James Madison: A Biography (New York, 1971), 420–2; Irving Brant, James Madison: Secretary of State, 1800–1809 (Indianapolis, 1953), 141–5; Everett Somerville Brown, The Constitutional History of the Louisiana Purchase, 1803–1812 (Berkeley, Calif., 1920), 17–48; and Stephanie P. Newbold, “Statesmanship and Ethics: The Case of Thomas Jefferson’s Dirty Hands,” Public Administration Review, 65 (2005), 669–77. The relationship between Jefferson’s amendment proposals and his Indian policy receives particular attention in Merrill D. Peterson, Thomas Jefferson and the New Nation: A Biography (New York, 1970), 771–5, 842–3; Anthony F. C. Wallace, Jefferson and the Indians: The Tragic Fate of the First Americans (Cambridge, Mass., 1999), 224–6, 254–6; Bernard W. Sheehan, Seeds of Extinction: Jeffersonian Philanthropy and the American Indian (Chapel Hill, 1973), 245–6; Christian B. Keller, “Philanthropy Betrayed: Thomas Jefferson, the Louisiana Purchase, and the Origins of Federal Indian Removal Policy,” APS description begins American Philosophical Society description ends , Proceedings, 144 (2000), 58–9; and Jack N. Rakove, “Thinking Like a Constitution,” Journal of the Early Republic, 24 (2004), 25n.