The Constitution and the annexation of Texas.

• Author: Maltz, Earl M.

1. INTRODUCTION

   The annexation of Texas was by any standard a pivotal moment in the political history of the United States. The decision to add Texas to the Union was either directly or indirectly responsible for the acquisition of all of the territory of the United States south and west of the Louisiana Purchase. Annexation was also a critical issue in the presidential election of 1844 and the more general political struggle between Whigs and Democrats. Moreover, the dispute over Texas was a flashpoint in the evolving sectional conflict between the representatives of the free states and slave states. (1)

   The discussions of the issue in Congress had a dual aspect. Many of the arguments both for and against annexation were overtly phrased in terms of expediency. In addition, however, the debate over Texas had an important constitutional dimension, raising fundamental questions about the structure of the nation. These constitutional issues have never been adequately addressed by the commentators.

   This article will provide a compact but complete analysis of the constitutional aspects of the struggle over Texas. The article will begin by briefly describing the political background of the dispute over annexation. It will then discuss the place of the constitutional arguments in the efforts to annex Texas by treaty. The article will then describe and evaluate the constitutional objections to admitting Texas directly as a state by statute, without the benefit of a treaty. Finally, the article will assess the significance of the constitutional debates more generally.

2. HISTORICAL BACKGROUND

   The sequence of events that led to the annexation and admission of Texas can be traced to the Adams-Onis Treaty of 1819, in which the United States renounced its claims to Texas and the Spanish government agreed to sell Florida to the United States. Subsequently, the administrations of both John Quincy Adams and Andrew Jackson made efforts to purchase Texas. However, the Mexican government rebuffed these overtures. The situation became more complex after Texas declared its independence from Mexico in 1836. Even before its official recognition of the Republic of Texas by the Jackson administration, the government of Texas evinced a desire to join the United States. The reaction to these overtures was divided largely along sectional lines, with many Southern Democrats pressing hard for annexation and antislavery Northerners equally vehement in their opposition. Against this background, for a variety of reasons, neither Jackson nor Martin Van Buren made any effort to effectuate annexation. (2)

   The presidential election of 1840 set in motion a series of events that brought the issue of Texas to center stage in national politics. The Whig party nominated William Henry Harrison as the party standard bearer in the election. Seeking to strengthen Harrison's appeal in the South, convention delegates then selected John Tyler of Virginia to be his running mate. The Whig ticket was elected, and when Harrison died soon after his inauguration, Tyler succeeded to the presidency in 1841. Dubbed "His Accidency" by contemporaries, Tyler soon quarreled with his Whig compatriots and was excommunicated from the party, effectively becoming a President with no constituency in either national political party. Tyler pursued annexation with an enthusiasm that stemmed in part from a desire to use the issue to create an independent power base for his administration. His representatives successfully negotiated a treaty which provided that Texas would be annexed to the United States and, at least initially, would be treated as one of its territories. The treaty of annexation was submitted to the Senate for ratification on April 22, 1844. (3)

   The submission of the treaty set off an intense political struggle over ratification. In America, such struggles are often cast not only as debates over expediency, but also in constitutional terms. The debate over Texas was no exception. The constitutional issues raised by the discussions posed fundamental questions about the nature of the Union and the circumstances under which it could be legitimately expanded.

3. THE DEBATE OVER THE RATIFICATION OF THE TREATY

   The contours of the debate over the ratification of the treaty to annex Texas had been largely foreshadowed by the political controversy that had been generated by the Louisiana Purchase in 1803. During the debate over Louisiana, some Federalists argued that the addition of such an immense territory would strain the bonds that held the Union together. For example, Senator William White of Delaware complained that:

   [O]ur citizens will be removed to the immense distance of two or three thousand miles from the capital of the Union, where they will scarcely ever feel the rays of the General Government; their affections will become alienated; they will gradually begin to view us as strangers; they will form other commercial connexions [sic], and our interests will become distinct. (4) New England Federalists were particularly alarmed because they believed that the eventual admission of states carved from Louisiana would enhance the political strength of the agrarian forces of the South and West, to the detriment of the mercantile interests that predominated in New England. The distress of New Englanders was exacerbated by the impact that the three-fifths clause would have on the potential representation of any slave states that might be created in the newly-acquired territory. (5)

   Animated by concerns such as these, Federalists such as Senator Timothy Pickering of Massachusetts and Senator Uriah Tracy of Connecticut argued that Jefferson had exceeded his constitutional authority by entering into the treaty that conveyed Louisiana to the United States. (6) Lacking explicit textual authority to acquire territory, Jefferson himself had expressed doubts about the constitutionality of adding such a vast territory by treaty. Supporters of the treaty, however, adopted the position that was elaborated by Senator John Taylor of Virginia:

   Before a confederation, each State in the Union possessed a right, as attached to sovereignty, of acquiring territory, by war, purchase, or treaty. This right must be either still possessed, or forbidden both to each State and to the General Government, or transferred to the General government. It is not possessed by the States separately, because war and compacts with foreign Powers and with each other are prohibited to a separate State; and no other means of acquiring territory exist.... Neither the means nor the right of acquiring territory are forbidden to the United States; on the contrary, in the fourth article of the Constitution, Congress is empowered "to dispose of and regulate the territory belonging to the United States." This recognises [sic] the right of the United States to hold territory. The means of acquiring territory consist of war and compact.... [B]eing both given to the United States, and prohibited to each State, it follows that these attributes of sovereignty once held by each State are thus transferred to the United States, and that, if the means of acquiring and the right of holding, are equivalent to the right of acquiring territory, then this right merged from the separate States to the United States, as indispensably annexed to the treaty-making power, and the power of making war; or, indeed, is literally given to the General Government by the Constitution. (7) Pickering and Tracy attacked the constitutionality of the treaty on narrower grounds. They conceded that the federal government had the power to acquire Louisiana and to rule it as a "dependent province." (8) Their objection was based on the clause of the treaty that provided that "[t]he inhabitants of [Louisiana] shall be incorporated into 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." (9) They contended that this provision required the federal government to eventually admit new states from the newly-acquired territory, and that such a commitment was not within the purview of the treaty-making power. (10) Indeed, they claimed that the federal government had no constitutional authority to admit such states. (11) While Article IV, Section 3 explicitly grants Congress the power to admit new states, Tracy asserted that it "refers to domestic States only, and not at all to foreign States." (12) Pickering went even further, contending that even an ordinary constitutional amendment would not suffice and that "the assent of each individual State [is] necessary for the admission of a foreign country as an associate in the Union: in like manner as in a commercial house, the consent of each member would be necessary to admit a new partner into the company." (13) Supporters of the treaty did not respond directly to this analysis of the constitutional authority to admit new states; instead, they insisted that the treaty required only that the inhabitants of Louisiana be recognized as citizens under a territorial government. (14)

   Whatever the merits of the constitutional arguments in the abstract, the outcome of the debate over the ratification of the Louisiana treaty was foreordained by the political context in which the debate took place. Despite their general preference for a narrow interpretation of the powers of the federal government, the dominant Jeffersonians were solidly behind the treaty. Even among the Federalists, opposition to the treaty came primarily from New Englanders. Thus, when the vote was taken, the acquisition of Louisiana was overwhelmingly approved by the Senate. (15)

   The political cross currents surrounding the proposed annexation of Texas were far more complex. Many Senate Democrats rallied around the treaty. They argued that annexation was necessary to protect...