Louisiana Purchase

[Emsworth]

There are numerous compelling arguments in favor of the constitutionality of the Louisiana Purchase. One of the more interesting ones involves Article IV, Section 3, Clause 1: "New States may be admitted by the Congress into this Union." Of course, nothing in this clause even remotely implies that new states must be carved out of the existing territory of the union. It would be perfectly legal for Congress to grant statehood to territories in any other part of the world whatsoever.

Once the foregoing principle--that Congress may admit any area of the world whatsoever into the union--is accepted, one moves to the second part of the argument, which relies on the necessary and proper clause. Before a region can become a state, certain preparatory measures must be taken. It is imperative that the region be freed from the control of a foreign power. Obviously, it is utterly impossible for a region to be a state of the United States, while simultaneously being subject to the sovereignty of another country. Thus, in order to admit various parts of the Louisiana Territory into the union (which, as we have already acknowledged, is a perfectly valid exercise of authority), it was necessary to first free Louisiana from the authority of France. Both war and purchase were proper means of accomplishing this particular end. Therefore, it follows irresistibly that the Louisiana Purchase was constitutional.

Now, there is one objection to this line of reasoning: that the territories that made up Louisiana did not become states immediately, but rather remained as territories for quite some time. But when Congress acts pursuant to the necessary and proper clause, there is no requirement that the exercise of the implied power and the exercise of the expressly enumerated power be united in time. Indeed, it is perfectly reasonable, in some cases, for one to precede the other. For instance, Congress may at one time decide exercise its power to issue postal stamps, or its power to establish the office of postmaster general (the implied powers), and only at some future point decide to exercise its power to "establish Post Offices and Post Roads" (the express power). The fact that the implied power is exercised before the express power is irrelevant, because the former was evidently meant to lay the groundwork for the latter.

There may be several perfectly legitimate reasons for which Congress might wish to grant a territory statehood at a later date instead of an earlier one. For instance, the territory's population might be too low. Or, time might be necessary to draft a state constitution. Of course, Congress need not wait until precisely the moment when the territory is prepared for statehood, before freeing it from a foreign country: it is perfectly appropriate to take this preparatory step in advance.

As I said, though, this is only one of several arguments, but I certainly feel that it is quite convincing.

[Emsworth]

Wait a minute. Article 4, Section 3, Clause 1, as you quoted, states that "New States may be admitted by the Congress into this Union," not that Louisiana may be admitted by Congress into the Union.

I see no reason to believe that the area encompassed by the Louisiana Territory is somehow exempt from this clause. Certainly, Congress has the authority to admit any part of the world, whatsoever, into the union--except only a part of a state, if the consent of the state legislature involved is lacking.

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Sure, the two powers are not identical. The power to regulate interstate commerce is not quite identical to the power to provide punishments for those who violate the regulations. But, in order for the power of regulating interstate commerce to be meaningful, the power to punish violators must also exist. Likewise, in order for the power to admit any particular area to the union to be meaningful, the power to free that area from foreign sovereignty must also exist.

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How is the power of purchasing territories from foreign powers, with the object of incorporating them into the union at some later date, "substantively distinct" from the power to grant statehood? I would argue that the former is quite inseparable from the latter.

Of course, if the territory were acquired with no intention of preparing it for statehood, this argument would not apply--one would have to cite other reasons. But as far as Louisiana is concerned, this is not the case, and the present argument is certainly sufficient.

[Emsworth]

I think most would agree that there is a big difference between Congress sending the army marching into Quebec, for example, and forcibly annexing that territory as a U.S. state, and Congress granting Nebraska legal recognition as a U.S. state under the Constitution. In one case the other party is petitioning and being admitted, in the other case the other party is not petitioning, and simply being added.

The Constitution provides no mechanism by which citizens of any particular region can signify their consent to statehood; petitioning for citizenship is a completely unofficial act. Perhaps a few citizens of Louisiana petitioned Congress for statehood, and Congress deemed their wishes representative of the desires of the majority. In any event, even if this was not the case, the desires of the inhabitants are utterly irrelevant: constitutionally, the will of Congress is all that matters.

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Of course. Bringing about conditions necessary to exercise the power to admit is by definition necessary and proper for the exercise of the power to admit.

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If the university administration has granted the committee a fund of money, specifying that the money may be used for all legitimate means that are adapted to the end of admitting students (to paraphrase Chief Justice Marshall's interpretation of the elastic clause in McCulloch v. Maryland), then certainly, it might be argued that scholarships are within the ambit of the committee.

But of course, in any event, granting a particular student a scholarship is never an absolute prerequisite to his admission, whereas freeing a particular area from foreign sovereignty is an absolute imperative.

[Emsworth]

The former power consists of this: Congress could have admitted Louisiana without freeing it from the control of a foreign power.

And Congress could have made a law, without providing any punishment whatsoever for breaking it. But then the law would be effectively meaningless, just as the admission of a state still under foreign jurisdiction would effectively be meaningless.

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And people can follow laws voluntarily, even though there isn't any threat of sanction whatsoever. Does that mean that the power to imprison does not exist?

[Emsworth]

Nowhere does a foreign sovereign contravene Congress's act of admission by choosing to retain control of either the whole or a part of its territory.

But what does the act of admission--that is to say, the act of granting statehood--really entail? Clearly, it does not merely consist of being counted as a part of the union. It also includes being fully subject to the laws of the United States. But if a territory is subject to foreign sovereignty, then it is not fully subject to the laws of the United States, and therefore cannot function as a state.

But I see that this line of argument is not convincing you. There is a different line of reasoning that is quite compelling, but which I did not mention because it is far less interesting than the above argument. Let us remember that the Louisiana Purchase was executed not by act of Congress, but by treaty. Acts of Congress are limited to specific fields, whose broad outlines are marked by the enumerations made by the Constitution. But no such enumeration marks the extent of the treaty power. I am not saying that the treaty power is unlimited--I am only saying that, when determining whether a particular treaty is permissible or not, one does not (indeed, cannot) rely upon any particular enumeration, because there is none. The power to transfer territory is clearly within the scope of treaties; the only question is, may Congress supply money to assist in such a transfer. And I see no reason to believe that it cannot.