The Constitution in Congress: Jefferson and the West, 1801-1809.

• Author: Currie, David P.

The original understanding of the Constitution, I wrote not so long ago, was forged not in the courts but in Congress and the executive branch.(1)

That was true of the Federalist period, the first twelve years under the new Constitution--a time of great constitutional controversies involving such matters as the Bank of the United States, the Jay Treaty, and the Alien and Sedition Acts and of quaint and curious squabbles now largely forgotten: what to call the president, whether he must accept a salary, how the vice president signs a bill. Some of these disputes sound petty, but even they helped to define what kind of country the United States would be. All of them were initially, and many of them finally, fought out in the executive and legislative branches.

The same was true of the years that followed, when Thomas Jefferson was president.

Jefferson's inauguration was a significant victory for the new system, a peaceful transfer of power from one political party to another, which at the time was not to be taken for granted.(2) "We are all Republicans," he said in his inaugural address, "we are all Federalists."(3) It was a breath of fresh air.

Jefferson's brave words, of course, did not put an end to controversy. His presidency was another exciting time: the Burr conspiracy, the embargo, the war against the Barbary pirates--in which Jefferson, following Washington's example, took a refreshingly narrow view of the president's powers as commander in chief.(4) The Twelfth Amendment, designed with the simple goal of avoiding the near disaster of the 1800 election, proved to be a surprising can of worms, a monument to the difficulty of constitutional drafting.(5) In the great Court fight of Jefferson's first term, which rivaled that of the 1930s, judicial independence suffered grave setbacks in the repeal of the Judiciary Act and the removal of Judge Pickering, only to emerge more firmly entrenched than ever after the dramatic acquittal of Justice Samuel Chase.(6)

Jefferson's presidency was also a time of significant events in westward expansion: the admission of Ohio, the Louisiana Purchase, and the beginnings of the Cumberland Road. Each of these events raised fundamental constitutional questions. Each was extensively debated in Congress and in the executive branch, not in the courts. And each served as an important precedent when similar issues arose again.

1. OHIO

   The Northwest Ordinance contemplated the creation of three to five new states in the territory ceded by individual states to the Union after the Revolution.(7) As soon as any of the areas defined in the Ordinance had sixty thousand free inhabitants it was to be admitted to statehood, and Congress was directed to admit it earlier if that was "consistent with the general interest of the confederacy."(8)

   Settlement of the Northwest was retarded, however, by hostile Indians; the first western states admitted were Kentucky and Tennessee.(9) Then Mad Anthony Wayne defeated the Indians at Fallen Timbers, Jay's Treaty dispersed their British protectors, and Thomas Pinckney's treaty opened the Mississippi to western goods.(10) The population of the eastern part of the territory grew by leaps and bounds, and it was separated from the remaining portion, which was christened the "Indiana Territory," in 1800.(11) By 1802 a number of its inhabitants were banging on Congress's door in search of admission to the union.(12)

   Although the 1800 census reported that the Eastern Division had a population of only 45,365, a House committee recommended that its inhabitants be authorized "to form for themselves a constitution and State government."(13) Congress obliged,(14) but not without a little bloodletting on the House floor.

   The problem was that not everyone in the division favored immediate statehood. Governor Arthur St. Clair did not; the territorial legislature did not; neither did the territorial delegate in Congress, Paul Fearing. Neither did most Federalists in the House, who perceived that the new state would vote Republican.(15)

   Fearing led off the debate with what he described as a constitutional objection.(16) The resolution proposed that Congress provide for election of delegates to a convention that would decide whether or not to pursue statehood and then, if the convention decided to do so, would take the necessary steps.(17) But Congress, said Fearing, "had nothing to do with the arrangements for calling a Convention."(18) There was nothing in the Ordinance about it, and therefore the matter was left entirely to the territory; Congress could no more prescribe a constitutional convention in a territory than in "any State in the Union."(19)

   The comparison with a state was silly. "Was there ever a more absurd doctrine," asked Joseph Nicholson of Maryland, than "that States, acknowledged to be sovereign and independent, should be compared to a Territory dependent upon the General Government?"(20) Congress, he did not have to add, had express authority to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States";(21) it had no such authority over the states.(22)

   Nor should there have been any doubt of congressional authority to provide for a convention to determine whether or not to apply for statehood. As Massachusetts Representative John Bacon said, Article IV, Section 3 empowered Congress to admit new states; prescribing a means of ascertaining whether the people wanted statehood was necessary and proper to admission.(23) Roger Griswold of Connecticut went so far as to deny that the Constitution could alter the Ordinance without territorial consent,(24) but there was little to say for that. The Constitution was an avowedly revolutionary document, based on ultimate popular sovereignty and expressly designed to do away with existing law without conforming to its requirements for change.(25) If it could sweep away the Articles of Confederation, as everyone agreed it had done,(26) then it could sweep away the Ordinance too.

   Whether the Constitution had done so was another matter. Article VI, to be sure, made the Constitution, and not the Ordinance, the "supreme Law of the Land."(27) That the same Article preserved the validity of the Ordinance as a preexisting "engagement" did not give it constitutional rank; that this clause meant constitutional provisions should be construed to respect the Ordinance in cases of doubt was a better argument that Griswold did not make.(28) In any event there was important precedent for the view that, as Bacon implied, the Constitution did not leave the Ordinance wholly unaltered. The new Congress, in one of its first acts, passed a statute that brought the Ordinance into conformity with the Constitution.(29)

   Fearing buttressed his argument against congressional authority to prescribe a convention by insisting that the Ordinance did not require that the territory adopt a constitution in order to become a state.(30) The territory was thus "at liberty to form, or not to form, a constitution,"(31) and thus there was no basis for requiring a convention to adopt one.

   Nicholson denied that the resolution would require the territory to adopt a constitution,(32) and he was right. The resolution did seem to say, however, that the territory could not become a state without doing so; Fearing's argument raised the important question whether Congress could make adoption of a constitution a condition of statehood.(33)

   This was not the only condition the resolution imposed. Authority to form a constitution and state government was subject to the proviso that "the same" be republican and consistent with both the Ordinance and the Constitution.(34)

   No one questioned this proviso, except to the extent it required adoption of a written constitution. It would have been hard to do so, because the proviso required nothing the territory was not already required to do. The Ordinance itself specified that new states be republican and conform to its principles.(35) The Supremacy Clause made clear that the state government had to comport with the Constitution, and Article IV reinforced the requirement that it be republican.(36) It could hardly be unconstitutional for Congress to insist that the new state satisfy the requirements laid down by preexisting law. To ensure that the new state really did adopt a republican form of government, it was surely necessary and proper to make it an additional condition of admission that the form of government be put into writing and made binding as a matter of state law.

   The committee also urged that Congress make certain "propositions" that the new state was at liberty to accept or refuse, "without any condition or restraint whatever."(37) If the state would agree to exempt land sold by the United States from taxes for ten years, Congress would grant the state three things: certain salt springs "for the use of the people"; one section of each township "for the use of schools"; and one tenth of the net proceeds of local land sales to build roads "leading from the navigable waters emptying into the Atlantic, to the Ohio," and through the state itself.(38)

   Adopted with minor modifications,(39) this was a provision of transcendent importance. It was the beginning of federal support for internal improvements and schools.(40)

   Federal authority to construct roads and canals would soon become a major issue of states' rights. Presidents Madison and Monroe would both veto internal improvement bills on constitutional grounds(41)--the latter, indeed, in the context of the very highway to Ohio contemplated by the 1802 provision.(42) One of the few changes made when the self-styled Confederate States of America adopted their own version of the Constitution was to forbid the central government to support internal improvements.(43)

   The House committee that advocated this momentous step in 1802 did not even advert to the constitutional question. It did note that a...