Louisiana Purchase

[© tweed]

Mainly just to prod discussion in a board that's dying a painful death due to Emsworth and Philip basically being inactive.

[Sam Spade]

Jefferson labored about whether it was Constitutional or not, since making such a purchase was not within the "enumerated powers" of the Constitution as he saw it.

Nonetheless, he relented and followed.  Sometimes, Jefferson was too doctrainnaire for his own good, but this time he wised up a bit.

[minionofmidas]

North America might be a much more Southamerican place without it, so I'm going to say "unconstitutional".

[Ban my account ffs!]

If it is unconstitutional, then we should also be including Alaska in this discussion.

[The Dowager Mod]

If it is unconstitutional, then we should also be including Alaska in this discussion.

And the Gadsden purchase.

[True Federalist (진정한 연방 주의자)]

Constitutional.

While not an enumerated power, I can see two avenues for supporting the conclusion that it is constitutional.  One is a vague argument for inclusion under the Article I Section 8 Clause 1 power to "provide for the common Defence and general Welfare of the United States".  The power to adjust by treaty the borders of the United States falls within that scope.

A second argument for supporting the Federal possession of such a power is that such a power is a natural power of a sovereign government and therefore the sole question to be resolved is whether under the Constitution's system of co-sovereign Federal and State governments whether it is a State power, a Federal power, or a jointly held power.  Article I Section 10 Clause 1's ban on States entering into treaties clearly leaves only the Federal government as capable of holding this power and hence by default it must possess it unless the United States be not a sovereign nation.

[minionofmidas]

Article I Section 10 Clause 1's ban on States entering into treaties clearly leaves only the Federal government as capable of holding this power and hence by default it must possess it unless the United States be not a sovereign nation.

Indeed, that clause's wording makes no sense whatsoever if the Feds don't have that power either.

The question that remains though could be - is Congress allowed to spend States' tax dollars on foreign countries in exchange for boundary changes?

[jokerman]

North America might be a much more Southamerican place without it, so I'm going to say "unconstitutional".

How is that a good thing?

[MaC]

Although it was unconstitutional, it was probably the best thing to result from an unconstitutional action.

[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.

[Beet]

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.

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. While Louisiana was certainly under the control of a foreign power at that time, it does not follow that any new state would necessarily be under the control of a foreign power. Indeed, the vast majority of states admitted by Congress throughout history were not, and one, Texas, was even an independent petitioning country. Given then, that the use of public expenditure to pay a foreign power in order to free it from foreign control and open the territory to American statehood, is not quite the same as admission of American statehood itself, and is in fact a substantively different and more expansive power (not necessary to carry out the Constitutional power) it does not follow that one power derives inherently from the other.

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But if the "implied" power is substantively distinct, and hence not necessarily implied, (except with the intervention of extra-constitutional interpretation) then whether the fact that they are not united in time is relevant, is itself irrelevant. It is not constitutional in either case. 

[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.

[Beet]

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.

But you're missing the point. 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.

This is why Congress's action in the Louisiana purchase case represented a substantive departure from the mere right to admission (the right to punish violators of interstate commercial regulation on the other hand, cannot substantively be separated from the power to regulate interstate commerce). Your point implicitly grants Congress not only the power to admit, but the power to bring about conditions under which it could exercise its power to admit.

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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.[/quote]

See above. The Quebec conquest is a dramatic one, perhaps a more precise analogy to this case would be like members of a university admissions committee offering a scholarship to a student who otherwise would prefer not to attend. The university administration may have granted the committee power to admit students, but not necessarily granted it the power to offer scholarships, even though "it could not exercise its power to admit", without having the scholarship money available.

[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.

[minionofmidas]

North America might be a much more Southamerican place without it, so I'm going to say "unconstitutional".

How is that a good thing?

For North America, it most obviously isn't.

For the World... probably not as well all things considered (us Europeans might take your evil place. Which wouldn't be any better. Not at all.), although current events frequently make most people think it would be.

I've often wondered at what point America's rise became inevitable, and (apart from a successful Southern secession, which is in itself hilariously unlikely but just about possible) the Louisiana Purchase is the latest reasonable point to put the finger on.

The whole post was not meant to be taken very seriously.

[True Federalist (진정한 연방 주의자)]

I've often wondered at what point America's rise became inevitable, and (apart from a successful Southern secession, which is in itself hilariously unlikely but just about possible) the Louisiana Purchase is the latest reasonable point to put the finger on.

If Mexico had been able to keep from falling into anarchy after independence it would have been able to be a strong counterweight to America.  Instead it collapsed from in-fighting to the point that it was unable to resist the Americanos.

[Beet]

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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.[/quote][/quote]

The will of Congress is what matters only in so far as exercising the powers it has, but not in exercising the powers it does not have. The power of admission it has. The power of appendage it does not have. The former power consists of this: Congress could have admitted Louisiana without freeing it from the control of a foreign power. In doing so, Congress gives the foreign power formal permission to give away the Louisiana territory to the U.S. as a state or series of states, with a guarantee that the U.S. will accept.

However in practice, the will of the sovereign territory or foreign power is highly relevant, for in order for a state to actually be added to the union, it must consent in addition to being admitted. These are separate events and separate powers. Once again historical patterns bear out the notion that in order to actually join the U.S. as a state there must first be within the territory a sovereign territorial government and some popular support for joining the union. The government exceeds its authority under this clause if by some dint of force or bribery from the public coffer, it brings about a change of heart on the part of the other party.

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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.[/quote]

Marshall's logic and the necessary and proper clause apply only to those actions that support the exercise of the power itself. For example, if someone attempted to deny a state a seat in the Congress or the student a seat in the classroom, there would then be the power to act forcibly against that person, and to levy taxes for the purpose of enforcing admission. To levy taxes to bribe students or territories to actually accept the offer of admission however, is a totally different matter.

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[/quote]

Foreign powers can give away territories.

[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?

[Beet]

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.

But the law in question is that a state is admitted to the Union,
1. to allow to enter; grant or afford entrance to: to admit a student to college. 
2. to give right or means of entrance to: This ticket admits two people. 
3. to permit to exercise a certain function or privilege: admitted to the bar. 
4. to permit; allow. 
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.

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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?
[/quote]

The laws of which you are thinking are mostly not laws of admission but laws of imperative. As I said, Congress would have the power to enforce its act of admission through the necessary and proper clause.

[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.

[Beet]

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.

No, it consists of having the chance to be fully subject to the laws of the United States.

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That's because you have never addressed my original point.

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This has little to do with the discussion we have been having up to now, but I find it more convincing than the earlier argument.

[True Democrat]

If it is unconstitutional, then we should also be including Alaska in this discussion.

And the Gadsden purchase.

And the Mexican Cession, officially.