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4. The Louisiana Purchase and
the Lewis & Clark Expedition

A Constitutional Moment?

Peter A. Appel

“Scarcely any political question arises in the United States,” noted Alexis de Tocqueville, “that is not resolved, sooner or later, into a judicial question.”^[1] If Tocqueville is correct, then the Lewis and Clark expedition—in some ways, the culmination of the Louisiana Purchase—ought to be a constant reference in the case law of American courts. Instead, the legal researcher combing through Westlaw or Lexis unearths such mundane and irrelevant matters as cases involving Lewis and Clark College in Portland, Oregon, Lewis and Clark County, Montana, a recent decision of the Supreme Court entitled Lewis v. Lewis and Clark Marine, Inc., and a series of cases involving a boat captain named Lewis N. Clark.^[2] Even the important cases, involving Indian tribes that had their first contact with the government of the fledgling United States through the expedition, treat the expedition more in passing reference.^[3] The case most directly involving the expedition itself concerns a dispute over the fate of Clark's diary.^[4] These cases surely are not the resolution of great political matters by the judiciary.

This lack of attention in the reported decisions is unusual, given the sweeping claims made for the impact of the Louisiana Purchase on the legal system. For Henry Adams, the Louisiana Purchase was the absolute beginning of nineteenth-century politics; it was “in historical importance next to the Declaration of Independence and the adoption of the Constitution—events of which it was the logical outcome.”^[5] Everett Sommerville Brown concluded in 1917 that the purchase “serves as the corner stone for all interpretations of the constitutional right of the United States to acquire and govern foreign territory; and such acquisitions have been one of the most significant features in the history of the United States.”^[6] Frederick Jackson Turner agreed with Adams and argued that “[w]hen the whole sweep of American history and the present tendencies of our life are taken

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into view, it would be possible to argue that the doctrines of the Louisiana Purchase were farther-reaching in their effect upon the Constitution than even the measures of Alexander Hamilton or the decisions of John Marshall.”^[7] The great constitutional thinker and judge Thomas Cooley argued that, after the Louisiana Purchase, congressional debate over whether the federal government had limited powers or not died down.^[8] More recently, Merrill Peterson wrote that the ratification of the treaty with France worked “a revolution in the Constitution. A momentous act of Jeffersonian statesmanship unhinged the Jeffersonian dogmas and opened, so far a precedent might control, the boundless field of power so much feared.”^[9] (Not all writers are quite so gushing in describing the constitutional effects of the Louisiana Purchase. For example, one modern critic allows that the Louisiana Purchase “is a good example of early constitutional change,” but only as “constitutional change on a relatively small scale.”)^[10]

But scholarly and historical claims about the constitutional importance of Jefferson's purchase are lacking in three important areas. First, for the most part they do not identify exactly how the Constitution changed as a result of the Louisiana Purchase. To be sure, the reach of the federal government expanded after the Louisiana Purchase, but to what did that reach extend? Did the federal government now possess power over local (sometimes called municipal) issues, or did its expanded power still have well-defined limits? Second, to the extent that writers like Brown do identify how the federal government's power expanded as a result of the Louisiana Purchase, few of these historians attempt to spell out the precise effect that the Louisiana Purchase had on the inner workings of the federal government. Was the expanded power equally divided among the three branches? Or was it largely vested in one or two? Third, and finally, the past argument concerning the Louisiana Purchase ignores the signal event that made the purchase truly part of the United States, namely the Lewis and Clark expedition. The instructions that the explorers received on setting out and the public adulation that they received on their return complete the story of the constitutional effects of the Louisiana Purchase. The instructions directed the explorers not only to go beyond the physical boundaries of the United States but also to investigate matters beyond the powers of the federal government.

One solution to these inquiries, and one that allows us to sidestep the purely judicial question, may reside in the work of the constitutional scholar Bruce Ackerman. Ackerman theorizes that the Constitution can change fundamentally through two means. The first way is obvious to anyone who has had high school civics, namely the formal means of amendment contained in article 5 of the Constitution, where two-thirds of each house of Congress proposes an amendment and three-fourths of the states ratify that change. The other means of achieving change in the fundamental law is

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through what Ackerman has named a “constitutional moment.”^[11] Ackerman's concept of the “constitutional moment” looks for a pattern of interchange between the People and their government, and among the different branches of government, to arrive at an altered understanding of the constitutional structure that courts eventually invest with the force of law.^[12] These states of interchange include signaling, where the People make their representatives aware of the need for constitutional change; proposing, in which the desired change takes concrete form; mobilized deliberating, where the citizenry debates proposals that embody transformative change; and finally codifying by the courts, in reformed legal doctrine.^[13]

Some scholars have criticized Ackerman's theory about the development of constitutional law, arguing that its flexibility makes it verge on the tautological. Any historical event that has the qualities Ackerman defines is a constitutional moment; a historical event that appears to have these qualities but does not result in change—or does not result in change that Ackerman would approve of—is a failed constitutional moment.^[14] Others urge that, as a normative matter, courts should not take it upon themselves to figure out when they are in the midst of a constitutional moment and can start reshaping and codifying new constitutional principles. Rather, argues this school, courts should rely on more traditional sources of legal authority such as text, original intent, constitutional structure, and precedent.^[15]

Regardless of the merits of Ackerman's general theory, his concept of a constitutional moment, at least in a looser form than Ackerman might allow, aptly conjures up a phenomenon in constitutional law, namely the establishment of precedent through means other than a change in the text of the constitution, or even a decision of a court embracing a particular interpretation of the preexisting text. The Supreme Court has recognized that a consistent pattern of accommodation between the legislative and executive branches can eventually develop into constitutional doctrine that the courts will apply in future cases.^[16] This essay uses this expanded notion of a constitutional moment to explain how the Louisiana Purchase and the subsequent Lewis and Clark expedition affected American governance under the Constitution. These two intertwined events altered received understandings about the powers of the federal government generally and the power of the executive branch within that government, especially over the acquisition and management of public lands. One can then trace the effects of these changes through decisions of the courts concerning public lands. Although these decisions might not make up the great political cases of all time, they nevertheless shaped the governance and physical appearance of the nation.

To approach this subject, I first address a basic question: why did Jefferson and his allies in Congress believe that the Louisiana Purchase was constitutionally suspect? An answer to this question requires a background in

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the history of the United States government's acquiring and governing land in the West. I then turn to the debates over the Louisiana Purchase and the outcome of that debate from a constitutional perspective, meaning the immediate effects of the purchase as a precedent. Then, after looking at how the Lewis and Clark expedition cemented that understanding, I identify traces of these two intertwined events in modern jurisprudence concerning federally owned lands. The basic constitutional principles arising out of the Louisiana Purchase and the Lewis and Clark expedition still exist, if one looks for them carefully.

The general question of expansion of the United States beyond the Mississippi River did not occupy much of the attention of the founders at the constitutional convention. This oversight did not necessarily come from a lack of interest in the West or of expansionist intent. Indeed, the topic of actually acquiring lands beyond the Mississippi occupied the thoughts of some of the founders. But the new nation faced larger hurdles to overcome before tackling westward expansion beyond the Mississippi. For example, the free navigation of the Mississippi greatly interested the South and the West, and the efforts by John Jay to negotiate with the Spanish to limit free navigation of the river by Americans greatly distressed these interests. The controversy over free navigation of the Mississippi—which, in turn, led to the Louisiana Purchase—almost led to a split in the fragile union.^[17] Disputes over land claims make up a surprising number of the debates over the Constitution in the late eighteenth and early nineteenth century.

Perhaps the constitutional convention did not bother itself with the lands west of the Mississippi because the convention had to grapple with the far more immediate question about the western land claims. Seven of the states (Connecticut, Georgia, Massachusetts, New York, Virginia, and the Carolinas) claimed grants of land that extended far beyond their present boundaries, with some states pointing to crown charters granting them lands as far as the South Sea. The states without such claims (Delaware, Maryland, New Hampshire, New Jersey, Pennsylvania, and Rhode Island and Providence Plantations) were understandably envious of their betterendowed neighbors. The controversy over the western lands formed one of the most fractious issues facing the country during the Revolutionary War through the period of the Articles of Confederation. The dispute loomed so large that for two years Maryland refused to adopt the Articles of Confederation.

The nonlanded states objected to the landed states’ claims for a number of reasons, ranging from principles to politics to greed. As a matter of principle, the nonlanded states argued that all of the states had fought to liberate these lands from the British, and all should therefore benefit from their

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disposition by the nation as a whole. States without western land claims saw the western lands as their just, shared reward for services rendered in the revolution. After all, observed New Jersey in its consideration of the proposed articles of confederation, “It was ever the confident expectation of this State, that the benefits derived from a successful contest, were to be general and proportionate; and that the property of the common enemy, falling in consequence of a prosperous issue of the war, would belong to the United States, and be appropriated to their use.”^[18] Although New Jersey believed that the state ceding the territory should retain political jurisdiction over it, all of the states “have fought and bled for” the western territory “in proportion to their respective abilities, and therefore the reward ought not to be predilectionally distributed.”^[19] Rhode Island similarly proposed that the United States should receive ownership of the western lands with the landed states retaining political jurisdiction over them.^[20]

Maryland's objections to the Articles of Confederation went beyond those of New Jersey and Rhode Island, because Maryland urged that the states with western land claims should cede both the ownership of and political jurisdiction over these lands. In Maryland's view, the western lands, “if wrested from the common enemy by the blood and treasure of the thirteen states, should be considered as a common property, subject to be parcelled out by Congress into free, convenient and independent governments, in such manner and at such times as the wisdom of that assembly shall hereafter direct.”^[21] Maryland predicted that if states like Virginia retained their western lands, they could easily pay off their share of the collective war debt through land sales, and, because landless states like Maryland would have only the option of raising ruinous taxes to satisfy their war debts, overtaxed Marylanders would emigrate to Virginia, thus depopulating Maryland. In addition to its stand based on principle and politics, Maryland had another motive in demanding that Virginia and the other states cede their western lands: prominent Marylanders had invested in land speculation companies that had made claims in Virginia's western territory, and resolution of the conflicting claims in Congress held out the best hope for these speculators to succeed in their investments. Virginia and New York eventually ceded their lands to the United States, and Maryland signed on to the Articles of Confederation (although pressure from the French government may have forced Maryland's hand).^[22]

As adopted, the Articles of Confederation did not expressly grant the United States power to acquire or manage any land, or to admit any new colonies to the confederation without the concurrence of nine states (although Canada could join if it agreed to the Articles of Confederation). The articles were therefore poorly adapted for the national government to do the work cut out for it. Virginia and New York had already ceded their land claims and the other states were expected to by the time that Maryland

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acceded to them. The general view held by Maryland that United States should own the ceded lands as a common fund and exercise political jurisdiction over them won the day. Despite the lack of express authority in the articles, Congress enacted three important statutes to govern the western lands before the constitutional convention, one of which was the Northwest Ordinance of 1787. That ordinance framed a system for the establishment of territorial governments and, among other provisions, banned slavery in the Northwest Territory. In urging subsequent adoption of the Constitution, Madison would later point to these acts as a sign of the weakness of the Articles of Confederation. Congress enacted all of this legislation, Madison complained, “without the least color of constitutional authority.”^[23]

The constitutional convention of 1787 met to address the general lack of power in the federal government, including an express lack of power over the western lands. At each turn in the proceedings, the constitutional convention broadened federal authority over these lands and did not foreclose the possibility that the United States might acquire territory beyond the Mississippi. For example, the initial drafts concerning the authority of the federal government over the territories and other property of the United States vested in the federal government only the power to “dispose of the unappropriated lands of the United States.”^[24] But the Constitution, as adopted, vests in Congress the significantly greater power “to dispose of and make needful Rules and Regulations respecting the Territory and other Property belonging to the United States.”^[25] Similarly, the original drafts concerning the authority of Congress to admit new states concerned only those “lawfully arising within the limits of the United States” and expected that Congress would form these new states either by joining two existing states or carving a new state out of an existing state.^[26] The convention considered a motion that would vest Congress with the power “to erect new States within as well as without the territory claimed by the several States,”^[27] but it passed over this proposal to adopt language much like the present language concerning the admission of new states, which is silent as to whether these new states must be within the boundaries that the United States then claimed.^[28]

Thus, the constitutional convention worded the grants of authority to Congress over the territories and new states broadly when it confronted the issues of territorial governance, regulation of federal property, and the admission of new states. In addition to these direct grants of authority to Congress, the Constitution also granted power to the federal government to acquire territory, at least by implication. In article I, the Constitution vested in Congress the power to declare war.^[29] Second, article II of the Constitution vested in the president the power to make treaties with the advice and consent of two-thirds of the senate, and article VI made the Constitution and treaties made under its authority “the supreme Law of the Land.”^[30] The

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common understanding at the time of the ratification of the Constitution was that the United States, as a corporate whole, constituted the nationstate for purposes of international law, and that the individual states (such as New York and Georgia) ceded their role as potential nationstates to the United States. Settled principles of international law at the time recognized that nation-states could transfer territories in several ways, including conquest (war) and voluntary cession (treaty).

Stopping the story here could give support to the argument that a constitutional moment had occurred. The Constitution, unlike the Articles, granted Congress express authority to manage the territories and other property of the United States. This authority, wrote Madison, was of paramount importance because Congress needed it, and, if it did not have it, it would grab it, just as Congress did when it enacted the Northwest Ordinance “without the least color of constitutional authority.” Not that Madison disagreed with the content of the Northwest Ordinance, but he objected to the process. Forcing the legislature to act when it lacked express authority to do so—vesting in the United States the western land claims but not granting it the power to legislate for them—led inevitably to “dissolution or usurpation.”^[31] Ackerman has argued that the adoption of the Constitution in 1787 was the first of three important constitutional moments.^[32] If he is correct, then this first constitutional moment also happened to involve the ownership and management of the territories and other property of the United States. The Constitution established Maryland's objection to the articles as the principle that would continue to govern the territories and federal lands: these lands were to serve as a common fund to be used by the United States for the good of all the states. This reading, while plausible, would be simplistic because one of the first large constitutional questions that faced the new nation was the acquisition and governance of more territory.

With the determination that the United States would dispose of the western lands and govern it while these new lands developed into political units worthy of statehood, thoughts could turn to the possibility of American dominion over more of the continent. In the earliest discussions of the powers of the federal government, the question of its authority to acquire lands outside of the boundaries of the original states arose in somewhat strange circumstances, namely the creation of the first Bank of the United States. When George Washington considered the first bill to incorporate the Bank of the United States in 1791, he solicited opinions from many members of his cabinet, notably Alexander Hamilton and Thomas Jefferson. Hamilton—Washington's secretary of the treasury and a staunch supporter of a strong national government—submitted his opinion that the federal government had the authority to charter a corporation to further national

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ends. There, Hamilton expressly considered the possibility that the United States would acquire territory through war and concluded that “if the United States should make a conquest of any of the territories of its neighbors, they would possess sovereign jurisdiction over the conquered territory. This would rather be a result from the whole mass of the powers of the Government, and from the nature of political society, than a consequence of either of the powers specially enumerated.”^[33]

Before Hamilton wrote his opinion, Jefferson—Washington's secretary of state and an advocate of limited government—weighed in on the bank and objected to the expansion of federal powers that such an institution would represent. He did not, as Hamilton did, raise the question of acquiring new territory outside United States boundaries as a test of his doctrine; he simply urged that the proposed bank exceeded the powers granted to Congress in the Constitution. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress,” warned Jefferson, “is to take possession of a boundless field of power, no longer susceptible of any definition.”^[34] How this view would play out when Jefferson confronted the actual possibility of acquiring more territory for the United States as president lay several years in the future.

Unlike the plan to acquire the western lands from the states as a common fund, any plans that the United States had toward westward expansion obviously and necessarily involved the claims of other countries, particularly France and Spain. The Louisiana Territory had belonged to the French at the time of the French and Indian War, and France had ceded its interest in it to Spain in the 1762 Treaty of Paris. After the end of the Revolutionary War and the ratification of the Constitution, France reacquired its interest in the Louisiana Territory through the October 1800 Treaty of Ildefonso. This switch in ownership complicated matters for American politics both externally and internally. Externally, the renewed presence of France in Louisiana made things difficult for the expansion of the United States. Although Spain was an easy foe, Bonaparte's France was a major world power. In a war against France, the United States might very well lose. This provided a reason for the United States to acquire territory at the mouth of the Mississippi.

The internal dispute involving free navigation of the Mississippi reached a head as Spain closed the dutyfree cargo deposit that American ships used in New Orleans, a move that arguably violated an earlier treaty that the United States had negotiated with Spain. Whether Spain took this step as a deliberate move to combat American smuggling or whether, as the Jefferson administration portrayed it, the closure of the cargo deposit was simply the unauthorized action of a Spanish local official is immaterial.^[35] Whatever its origin—and modern historians believe that Madrid took this action deliberately—the loss of this important transshipment point raised hackles in

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the South and West and thus created a potential crisis for the administration. Robert Livingston, the representative of the United States in France at the time, did not inspire much confidence in the Jefferson administration. Livingston had been in France for almost a year before Spain closed New Orleans to American goods and had made no progress on acquiring two essential areas, namely New Orleans and a portion of the Floridas. Members of Congress from the West and South were up in arms about losing their transshipment point in 1802, and members of the Federalist Party used the disruption to try to persuade citizens of these states to form a new allegiance with the Federalists. These forces also called for the United States to take steps toward war if negotiations with France did not succeed. Senator James Ross of Pennsylvania was particularly hawkish toward France and Spain. “Why not expel the wrongdoers?” he asked. “Plant yourselves on the river, fortify the banks, invite those who have an interest at stake to defend it; do justice to yourselves when your adversaries deny it; and leave the event to Him who controls the fate of nations.”^[36] To placate the southerners and westerners, Jefferson appointed James Monroe—a Virginian with investments in the West—as minister extraordinary and plenipotentiary to France to negotiate acquisition of New Orleans and the Floridas. By the time he arrived in Paris, Napoleon had already decided to sell Louisiana to the United States. Napoleon concluded that France could not defend Louisiana from invasion, based in part upon a failed attempt to repress a slave revolt at Saint-Domingue in the Caribbean. The saber-rattling of some members of Congress may well have solidified his impression of an American threat.^[37]

At the time that Monroe and Livingston concluded the treaty with France that sold France's interest in Louisiana to the United States for $12 million, the constitutional law on this subject was not entirely clear to some advocates at the time. Hamilton had advocated territorial expansion, but in a different setting. In other words, the purchase of Louisiana might be unconstitutional. National politics also confused the constitutional issue. The Federalists, seeking to embarrass Jefferson in the West and South, had called for the United States to acquire a small part of Louisiana by force. Now the United States had acquired all of Louisiana through treaty. Would Jefferson's opponents reverse their usual doctrinal position and become strict constructionists to oppose this acquisition? In the meantime, Jefferson's envoys had acquired much more from Bonaparte than Jefferson had sent them for, and Jefferson had argued against suchbroad increases infederal power such as the bank (although his opinion on the bank might not have been widely known at the time).^[38] If creating the bank was too broad a use of federal power, surely buying Louisiana was too. Would Jefferson's desire to acquire this territory and to send an expedition through it overcome his strict constructionist principles? Was a constitutional moment about to occur?

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Jefferson received news of the Louisiana Purchase on 3 July 1803, and the newspapers for the most part loudly proclaimed it as a victory. Some Federalist newspapers raised questions about the extent of the purchase, but for the most part, even they were supportive (although they argued that the Jefferson administration deserved no credit for the purchase). The Republican newspapers were unstinting in their praise, hailing the coincidental date of the news as the greatest news since the Declaration of Independence itself.^[39]

The treaty called for ratification by 30 October 1803. Thus, Jefferson had to reconvene Congress to ratify the treaty and to appropriate the money necessary to implement it. Over the course of that summer and fall, then, Jefferson had ample time to think about the constitutionality of the purchase. The contemporary written record in Jefferson's letters suggests that Jefferson believed the Louisiana Purchase dubious at the very least and quite possibly unconstitutional. Two issues arose from the purchase, the question of acquisition (buying the land) and the question of incorporation (making it part of the United States). Jefferson apparently believed that acquisition of territory might pass strict constitutional muster, but incorporation of that territory into the United States presented a different problem. As he wrote to his secretary of the treasury, Albert Gallatin, in January 1803, “there is no constitutional difficulty as to the acquisition of territory, and whether, when acquired, it may be taken into the Union by the Constitution as it now stands, will become a question of expediency.” But Jefferson thought that relying on principles of expediency could prove dangerous, and thus he thought it would be “safer not to permit the enlargement of the Union but by amendment of the Constitution.”^[40] After receiving news of the treaty, Jefferson set to work in the summer of 1803 drafting two different possible constitutional amendments that would empower the United States to acquire and incorporate Louisiana. Both recognized the acquisition of Louisiana after the fact and limited the ability of the United States to admit new states from a zone north of the 31st parallel. The second laid out more explicitly the rights and duties of the citizens to be admitted to the United States.^[41]

Jefferson's letters after he learned of the treaty also reveal his constitutional qualms about acquiring and incorporating Louisiana. In a letter to John Dickinson, Jefferson wrote, “The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, & still less of incorporating it into the Union.”^[42] An exchange of letters between Jefferson and Virginia Senator Wilson Cary Nicholas also shows Jefferson's belief that strict construction of the Constitution should prevail over expediency. Nicholas urged Jefferson not to make any opinion of his on the unconstitutionality of the treaty known, for it would either scuttle the treaty or scuttle the party. “I shou’d think it very

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probable,” wrote Nicholas, “if the treaty shou’d be by you declared to exceed the constitutional authority of the treaty making power, that it would be rejected by the Senate, and if that should not happen, that great use wou’d be made with the people, of a wilful breach of the constitution.”^[43] In response to Nicholas, Jefferson wrote a classic defense of strict construction of the Constitution.

When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, when it is found necessary, than to assume by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.^[44]

These words, read alone, would make any strict constructionist proud.

In the end, however, the depth of Jefferson's constitutional objections to the Louisiana Purchase remains uncertain. Some of Jefferson's letters show his wavering. In his letter to John Dickinson, Jefferson stated his belief that a constitutional amendment was necessary. “In the meantime,” Jefferson conceded, “we must ratify & pay our money, as we have treated, for a thing beyond the constitution, and rely on the nation to sanction an act done for its great good, without its previous authority.”^[45] In his letter to Nicholas urging that the Constitution should not be made “blank paper by construction,” Jefferson yielded to expediency. “If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.”^[46] Jefferson also believed that Congress should do whatever it judged best, “with as little debate as possible, and particularly so far as respects the constitutional difficulty.”^[47] Similarly, Jefferson had earlier written to Senator John Breckenridge of Kentucky that although the “Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union,” nevertheless the overall good of the country justified the purchase.

It is the case of a guardian, investing the money of his ward in purchasing an adjacent territory; and saying to him when of age, I did this for your good; I pretend to no right to bind you: you may disavow me, and I must get out of the scrape as I can: I thought it my duty to risk myself for you. But we shall not be disavowed by the nation, and their act of indemnity will confirm and not weaken the Constitution, by more strongly marking out its lines.^[48]

Ackerman's theory of constitutional change echoes this notion: Jefferson advocated that the representatives of the People take a stand that incorporates what lies beyond the accepted bounds of the Constitution, and present it to the People for their ratification.

Furthermore, many of Jefferson's actions stand in stark contrast to his

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written statements expressing concern and doubt over the constitutionality of the purchase. After all, Jefferson instructed Livingston to gain some French territory to bolster American shipping interests on the Mississippi, and he sent Monroe to France to help in this task. What must have surprised Jefferson about Bonaparte's eventual offer was not the thought of the United States annexing land so much as the amount of land that the French ceded to the United States. Although he set about drafting possible constitutional amendments to add Louisiana to the United States, Jefferson never submitted them to Congress. In fact, Jefferson called Congress to convene and deliberate over ratifying the treaty with France on 17 October 1803, when ratification had to occur by 30 October 1803, leaving just less than two weeks for the Senate to ratify the treaty and for both houses to enact a constitutional amendment (should they determine one was necessary). Of course, in the days before fax machines and New York to Washington shuttles, communication and travel time between the farflung states and the capital limited the amount of time that Jefferson could convene Congress. Nevertheless, Jefferson used the time before Congress convened not to prepare an amendment so much as to shore up support for the purchase among his political allies and to quell interest in the constitutional questions it raised.

Moreover, and in some ways more significantly, Jefferson organized the Lewis and Clark expedition before the United States had even acquired the Louisiana Territory from France, and the reasons he gave to justify the expedition changed for each audience. To the Spanish authorities who still claimed the territory, Jefferson said that the planned expedition was scientific and literary in nature. These reasons may have placated those authorities, but strictly read the Constitution does not vest any authority to promote science or literature in the federal government with the narrow exception of the clause that empowers Congress to create copyrights and patents.^[49] In his secret message to Congress of 18 January 1803—still months before the United States had actually acquired the land that Lewis and Clark would explore—Jefferson stressed that the expedition would serve to further commerce through navigation of rivers and promotion of the fur trade. “The interests of commerce place the principal object within the Constitutional powers and care of Congress,” argued Jefferson, “and that it should incidentally advance the geographic knowledge of our continent, cannot but be an additional gratification.”^[50] Again, even with this happy coincidence, strictly read, the Constitution does not empower Congress to promote interstate and foreign commerce but only to “regulate” it. Even so, Dumas Malone recognized that Jefferson may have made this shift in emphasis because “he doubted the constitutional authority of that body [Congress] to make an appropriation for a ‘literary expedition.’”^[51]

Finally, in his instructions to Lewis, issued after the United States had actually

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acquired some of the territory to be explored, Jefferson emphasized three missions. The first two—exploring the Missouri to discover whether it provided a transcontinental route for commerce and exploring the potential for commerce with the Indian tribes Lewis and Clark met along the way—arguably were linked to powers granted to the federal government in the Constitution, namely the power to regulate commerce with foreign nations and with Indian tribes. The third purpose of the expedition—collecting data on the soil, vegetation, and animals discovered “especially those not of the U.S.”^[52]—had no direct connection with any express power of the federal government. Arguably, exploring the land that the United States bought from France would be an exercise of the government's power to manage its property. But Jefferson's mission expressly directed the Corps of Discovery to exceed even the bounds of the United States with the Louisiana Purchase. Exploring the territory of another country for its soil, vegetation, and animals has no obvious connection to an express power of the federal government. Indeed, this instruction is mystifying until one recalls Jefferson's wide-ranging interests in science and nature. Jefferson wanted to know about latitudes and longitudes of rivers, the nature of soil, vegetation, and animals, the types of Indians found in the territory, and all of this information unrelated to the regulation of commerce because he wanted to know the country. Jefferson was, after all, the author of the Notes on the State of Virginia, in which he cataloged the different flora and fauna of his state. That analysis of Virginia can be seen as a template for the later survey he envisioned of the western lands. If there was a mastodon living in the West, Jefferson wanted to know everything about it, and not just how it could be used in the regulation of commerce.^[53]

In sum, although Jefferson advocated strict construction and although the politics of the day may have driven Jefferson to stake out an even stricter constitutional view than he might otherwise—after all, Hamilton could not have been right about the bank—Jefferson's keen scientific and literary interests pulled him in the opposite direction. If actions speak louder than words, Jefferson's actions shout down his protests about the constitutionality of the Louisiana Purchase.^[54]

In the context of modern constitutional law, Jefferson's quandary is hard to understand. Jefferson and the advocates of the Louisiana Purchase had all of the tools at their disposal that a modern constitutional lawyer would find necessary to justify the Louisiana Purchase, namely the text of the Constitution and the record of the debates at the constitutional convention. First, the Constitution vested in the national government the power to declare war and the power to conclude treaties. Jefferson himself recognized this power. Although one could argue that the disposal of new territory is domestic and would therefore fall within the power of individual states under this theory, the acquisition of territory from another nation is clearly

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something that common practice would place in the realm of the nation. Indeed, Jefferson's attorney general, Levi Lincoln, suggested to Jefferson a plan along those lines to obviate any constitutional concern, namely that the land obtained through the Louisiana Purchase would be attached to existing states, thereby preventing the need of a constitutional amendment to incorporate the territory into the United States. But Albert Gallatin, Jefferson's secretary of the treasury, argued that such a tortured process was unnecessary. Thus, even at the time, many recognized the constitutionality of the purchase based on the text of the Constitution and the structure of government.

Second, the record of the debates at the constitutional convention showed that the founders expected the United States to have extensive power over its property, and that it had to have the authority to acquire more. After all, Georgia and North Carolina did not cede their western lands until after the ratification of the Constitution. Because the participants to the constitutional convention all expected these cessions eventually, the federal government must have had the authority to acquire and incorporate new territory. To be fair to the strict constructionists of Jefferson's day, though, this expectation may not have uniformly extended to territory outside the agreed boundaries of the United States. Moreover, Gouveneur Morris, who drafted the language in the Constitution granting Congress the power over the territories, later wrote that he believed it did not allow Congress to admit new territory as potential states but only as provinces with “no voice in our councils.”^[55] Placed in context, it is clear that Morris did not believe that his views represented those of the convention as a whole.

Nevertheless, the constitutional lawyer of today would likely dismiss Morris's sentiments because they were not contemporaneous with the drafting of the Constitution. But these are the arguments of today's constitutional lawyer. Even if they were persuasive to the party of broad construction, times had changed, and now the Republicans, who had won their ascendancy in part on the principle of strict construction, controlled Congress. The historian dismisses Morris's argument because it so clearly had its basis in the politics of the moment. When Morris lodged his objection to the incorporation of Louisiana into the United States, Congress debated the steps of the Louisiana Purchase, a debate marked by how times had changed. The expansionist party advocated express constitutional authority and against Jefferson's treaty with France, and the party associated with strict construction advocated, of all things, expedience.

The debate in the Senate over ratification of the treaty itself went quickly, and with few hitches. When the act to carry the treaty into effect and to appropriate the money to pay France hit the House, the Federalists immediately brought up the constitutional question, asking where in the Constitution the president and Senate obtained the authority to expand the

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boundaries of the United States through the treaty-making power. As Jefferson's allies pointed out, however, this argument came from the same people who had advocated going to war to seize territory from the French. Similar issues came up at each step, led by the Federalists. In the end, most of the measures required to acquire Louisiana, incorporate it into the United States, and establish a provisional government for it, passed by partyline votes.^[56]

Lewis and Clark set out on their journey and returned to a great reception. “Never did a similar event excite more joy through the United States,” Jefferson later wrote. “The humblest of its citizens had taken a lively interest in the issue of this journey, and looked forward with impatience for the information it would furnish.”^[57] Congress ratified the expedition by awarding the soldiers double pay and homestead allowances from public lands.

If one looked for the close of a constitutional moment, this ratification of the expedition after loud acclaim by the people might serve as the final step of Ackerman's process. For most recitations of the constitutional history and impact of the Louisiana Purchase, the story ends there, or even a little sooner. Jefferson and his Republican allies swallowed their principles, accepted the expansion of the United States through the vast Louisiana Purchase for the sake of expediency, and thereby established precedent for future expansion. To the eyes of a constitutional scholar, however, this telling of the story is incomplete. The Louisiana Purchase and the subsequent Lewis and Clark expedition were certainly momentous. That does not mean, however, that they necessarily completed a “constitutional moment.” The subsequent treatment of the Louisiana Purchase and the Lewis and Clark expedition by the People and the courts—the signaling and codifying steps of events that become a constitutional moment—lay in the future. Moreover, the steps would take two different directions, one for the extent of federal powers over the territories, and one for the way the government would exercise that power and through what agency.

The first question raised by the Louisiana Purchase was the extent of congressional authority over the territory that the United States acquired from France. It would seem at first that this power was vast and unlimited, for the Constitution vests in Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” A crude use of Ackerman's theory might describe the Louisiana Purchase as a constitutional moment in this sense: before the Louisiana Purchase, the Constitution was seen by many in Congress as depriving the federal government of needed authority to acquire and manage new territory outside of the bounds of the original states and their chartered limits. With the restrictions that Spain placed on the Mississippi

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at New Orleans, Ackerman's People rose up and demanded action from their government. Their government responded and went beyond the strict needs of the People, rewarding them not only with new lands, but with a scientific and heroic exploration. The Supreme Court subsequently codified this new expansive view of the power of the federal government through decisions that found the power of the federal government over the territories to be almost without limit. Thus, within a generation after the Louisiana Purchase, the Supreme Court codified the principles behind the Louisiana Purchase in several cases that stand for the rule that the federal government has broad power over the territories.^[58]

This telling of the story would be only half right. The key dispute of the country before the Civil War was slavery, and at the federal level the fight over slavery often took the form of disputes over how Congress would or could legislate for the territories. Here, the story returns to the Lewis and Clark expedition and specifically to the actions of William Clark. After the expedition, Lewis was appointed governor of the Louisiana Territory, but his tenure ended with his early (and mysterious) death. Clark lived much longer. He was appointed to deal with the Indians in the area and was eventually appointed to be the territorial governor of what would become the state of Missouri. And, unlike any other member of the expedition, Clark brought along with him a slave, a man named York. York had been a slave of Clark's family, and the evidence suggests that York was roughly Clark's age and was a companion from Clark's youth. The only thing that may have separated Clark and York was York's race and thus legal status.^[59] Despite his legal status within the United States, York contributed to the expedition in many ways. The Journals report many surprising stories about York, which indicate that he was considered a full member of the expedition. For example, York is reported shooting animals, even though slaves could not legally carry firearms. He voted in the deliberations of the expedition, thus becoming perhaps the first African American to have a legal voice in government. The most noteworthy aspect of York's race, it appeared, was the fascination he held for the Native Americans that the expedition encountered. These tribes had never seen a black person before, and York apparently played it to the hilt.^[60] One could even argue that York's racial difference made the difference between success and failure for the expedition, because the Shoshone Indians from whom the expedition needed horses were willing to keep stalling Lewis until Clark showed up with York.^[61]

Yet, unlike any other member of the expedition, York did not receive double pay—indeed, he did not and could not receive any pay, because he was a slave. Instead, York asked for his freedom from Clark. Clark was, to say the least, not forthcoming with the request. Instead, he hired York out as a wage-earning slave. We think of slavery as the most objectionable position a person could be in, yet being a wage-earning slave was one of the lowest positions

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that a slave could find himself or herself—in some ways, the lowest of the low. York toiled for a few years in this capacity and died in Tennessee, unable to enjoy the freedom that Clark bestowed upon him eventually.^[62]

The federal government should have granted York land in the West. Instead, York's reward for his toil lay in Clark. Unfortunately, Clark's refusal to grant York his freedom and the sad story it tells embodies the larger price that the United States would pay for the Louisiana Purchase. In the Northwest Ordinance, the first effort that the federal government made for managing territory wholesale—and one, incidentally, drafted by Jefferson, himself a slave owner—the United States banned slavery. By contrast, the United States dithered over the status of slavery in the newly acquired Louisiana Purchase. The most noteworthy act that Congress took about slavery in the period following acquisition was the Missouri Compromise, in which Congress admitted Missouri to the union as a state that had slaves but banned slavery in the rest of the Louisiana Purchase. Slavery flourished in Missouri, and apparently St. Louis, where Clark had taken York, was a particularly inhospitable place for slaves. “Though slavery is thought, by some, to be mild in Missouri, when compared with the cotton, sugar and rice growing states,” wrote William Wells Brown in a slave narrative, “yet no part of our slaveholding country is more noted for the barbarity of its inhabitants than St. Louis.”^[63]

Over the course of the 1840s and 1850s the question of Congress's power over the territories festered. It took several forms. For example, in 1846, Congress debated and ultimately rejected the Wilmot Proviso, which would have banned slavery in any territory acquired from Mexico in the Mexican-American War. Although the proviso failed, the fight spilled out into other arenas, such as the organization of the territorial governments for Kansas and Nebraska, which led in turn to civil war breaking out in Kansas.

During this period, opinion about congressional power over the territories divided into roughly four schools of thought. Some, like John Calhoun of South Carolina, argued that Congress could not constitutionally ban slavery in the territories, but instead that Congress was obligated to protect slave owners in their property. Others, like Stephen Douglas of Illinois, argued for popular sovereignty in the territories, namely that Congress could not ban slavery but territorial governments could. A third school argued for the practical determination that Congress should simply extend the line of the Missouri Compromise across the country or make individual decisions for individual territories. Obviously, this school appealed to practical compromise, not constitutional principle. Finally, some argued that Congress could ban slavery in the territories if it wished, and that it should. The Republican Party platform for 1856 embodied this view and declared, “the Constitution confers upon Congress sovereign power over the Territories of the United States for their government; and that in the exercise of this

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power, it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism—Polygamy, and Slavery.”^[64] The first and last schools based their claims most expressly on the Constitution, the second and third on compromise.

This political question became, as Tocqueville would have predicted, a judicial one. And, just as inevitably, a question about territory became a question about slavery. The Supreme Court answered the question in its deservedly infamous Dred Scott decision. The facts of the case fit a common fact pattern then but seem bizarre and arcane now. The basic question was what events would render a slave free. Courts had struggled with this question against a variety of fact patterns, such as where the slave escaped into free territory, where the master had taken the slave voluntarily into free territory for a short period but returned to slave territory, or where the master had lent the slave to another who took the slave into free territory. In Dred Scott's case, Scott claimed to be free because John Emerson, one of Scott's previous masters and an officer in the United States Army, had taken Scott from Missouri (a slave state) to what was the territory of the United States and is now Minnesota (free soil by virtue of the Missouri Compromise), and also to Illinois (a free state). Scott argued that his presence on free soil freed him. Scott originally sued the wife of his master in the Missouri courts, where the court decided against him. The Missouri Supreme Court had case law that supported Scott's claim, but it could have distinguished that body of precedent on the ground that Emerson never established residency in free territory since the army had ordered him to move each time. Instead the Missouri Supreme Court overruled its own prior authority and held that Scott was still a slave.^[65]

Undaunted by this loss, Scott sued John Sanford (whose name is misspelled in the official reports as “Sandford”), who was Mrs. Emerson's brother, and either had acquired the Scotts or acted as the executor of Dr. Emerson's estate.^[66] Sanford was a citizen of New York, so Scott sued in federal court asserting that the court had jurisdiction because of the diverse citizenship of the parties. Thus to determine whether it had jurisdiction, the federal court had to decide whether Scott, a putative slave, was a “citizen” of Missouri in the way that Sanford was a citizen of New York. Scott lost in the trial court, and the case wound its way to the Supreme Court.

The opinions of the Supreme Court run over two hundred pages, and, because each justice wrote separately, it is difficult to determine whether the Court held anything. But it is generally accepted that Chief Justice Taney's opinion for the Court probably gives a sense of the majority, and in his opinion, Taney reaches two basic conclusions. First, Taney held that Scott was not a citizen of Missouri because of his race. The practice of the founders was not to treat blacks as citizens since before the founding of the United States, in Taney's words, they were “regarded as beings of an inferior order,

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and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”^[67] If Scott was not a citizen of Missouri, then he could not sue Sanford in federal court claiming that the parties were “citizens” of different states.

Despite the lack of jurisdiction, Taney went on to a second conclusion. Did Scott's presence on free soil make him free? To answer that question, Taney decided to rule on whether Congress could mandate that the territory of the United States be free. Taney held that it could not, and that the Missouri Compromise was unconstitutional. Taney's reasoning on this point is hopeless. Turning to the text of the Constitution, Taney found that the clause of the Constitution that grants Congress power over the “Territory and other Property belonging to the United States” applied only to the territory that Virginia and the other states had ceded to the United States before the ratification of the Constitution. The term “territory” must have had a definite and fixed meaning, not an expansive one, and it must have been fixed at the time of the founding. Of course, the problem with Taney's interpretation of the territorial power was that Congress had made legislation for the territories, and lots of it, and the Supreme Court itself had approved of these arrangements. Even justices who agreed with Taney had trouble with his reasoning. Justice Catron disagreed for personal reasons. “It is due to myself to say,” he wrote, “that it is asking much of a judge, who has for nearly twenty years has been exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as a usurper.”^[68] But Catron, a southerner, did not dissent from the overall decision.

To drag himself out of the logical quagmire he created, Taney argued the federal government could pass laws for the territories under the inherent power that a sovereign has over its territory. This power did not, however, include the power to act in excess of constitutional authority. Therefore Congress could not ban slavery in the territories, Taney argued, because it amounted to a deprivation of private property without due process of law—an act in excess of constitutional authority. Because slaves were property, banning slavery in the territories was like telling a person that he could not take his clothing or other personal property with him when moving to the territories.

Earlier, I stated that Taney decided to rule on the constitutionality of the Missouri Compromise. Taney's decision had to be deliberate and resultdriven, because it was unnecessary. There was no reason that Taney had to discuss the Missouri Compromise, given how he decided the rest of the case.

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Recall that Scott had traveled with his then master Emerson not only to a territory made free by the Missouri Compromise but also to the free state of Illinois. Did the voluntary action of a master taking a slave to a free state and establishing permanent residency there make the slave free? The Court had earlier suggested this possibility in a case involving slaves living in Kentucky who, with their master's permission, went occasionally into Ohio. On one trip, the slaves kept going from Kentucky to Ohio and then to Canada, and the owner of the slaves sued the master of the boat that had enabled the slaves to go to Ohio claiming the value of the escaped slaves. In that case, Strader v. Graham, the Court held, “Every state has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory.”^[69] Since the escaped slaves were domiciled—permanently residing—in Kentucky, their escape to the free state of Ohio did not affect their status because Kentucky law determined their status. But in Dred Scott's case, he had moved and permanently resided in Illinois because his master took him there on purpose. Would not his permanent residence, his domicile, in Illinois change his status from slave to free man since Illinois had the “undoubted to determine the status … of the persons domiciled within its territory”? Taney answered no, because Scott's status was not to be determined by the law of Illinois, but by the law of Missouri, where Scott was most recently domiciled. And Missouri law held that Scott's presence in Illinois did not affect his status in Missouri—indeed, the Missouri Supreme Court created that rule especially for Scott, overturning earlier Missouri case law. Assuming that Missouri law governed Scott's status, then the Court did not need to decide whether Congress could ban slavery in the territories under the Missouri Compromise, for, even if it could, Scott's return to Missouri rendered him slave regardless. The only reason that Taney needed to decide whether the Missouri Compromise was constitutional, then, was to settle once and for all the question of congressional power over slavery in the territories.

Although it is frequently overlooked in much of the modern discussion of Dred Scott, the part of the decision invalidating the Missouri Compromise provoked the most heated debate at the time of the decision. At least two reasons explain this focus. First, although the Supreme Court held that Scott was not and could not be a citizen of Missouri—the aspect of the decision considered most odious today, especially because of its language—relatively few people at the time of the decision in Dred Scott argued that African-Americans were citizens. There was no state (except, perhaps, Maine) in which they could freely vote, serve on juries, hold public office, serve in the militia, or undertake other tasks that citizens performed. Indeed, an editorial in Harper's Weekly at the time stated that the uproar over the case was overblown. After all, the editors coolly reasoned, the decision had no practical effect on daily life in the United States. Since whites did not

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treat blacks as fellow citizens, what harm could come from the Supreme Court declaring that blacks could not be citizens for purposes of invoking the special jurisdiction of the federal courts?^[70] (Similarly, continued the editors, the holding that Congress could not ban slavery in the territories would have had importance earlier during the debate over the Kansas-Nebraskabill, but it was of no practical effect in 1857 since the Democrats—“certain to be in power in two branches of the Government at least for the next four years—have announced it as their fixed and unalterable determination to leave the question of slavery to the Territories themselves. When then, or how is the case to arise, which shall give this branch of the decision any practical force?”)^[71] Proslavery southerners would also use this line of reasoning to quiet criticism of the Dred Scott opinion on this ground, as antislavery northerners were not necessarily for racial equality—in fact, they generally opposed it.^[72]

The second reason that the territorial aspect of Court's decision caused great consternation was how it fundamentally changed the terms of debate over slavery in the territories. Democrats like Stephen Douglas could argue before Dred Scott for popular sovereignty in the territories—let the territories decide whether they would be free or slave. With the decision in Dred Scott, however, the possibility of popular sovereignty was undermined at the very least and probably shattered entirely. If territorial governments were creatures of Congress, how could they ban slavery when Congress itself lacked the power to do so? Douglas attempted to explain this problem away in an lengthy article in Harper's Monthly, for which he was rewarded with nasty rejoinders in pamphlet form written by leaders of his own party.^[73] Southerners, meanwhile, latched onto Taney's reasoning that a ban on slavery was an unlawful deprivation of property to argue that Congress had a positive duty to protect slavery in the territories. Given that many state constitutions had provisions similar to the due process clause in the United States Constitution, some proslavery advocates even argued that no state could ban slavery. The Democratic Party began to collapse in on itself as the internal struggle over slavery consumed its time and energy. Meanwhile, the Republicans—with their strident but clear platform and arguments by Abraham Lincoln to ignore the territorial aspect of the Dred Scott decision—won the presidential election of 1860.

Once the Civil War began, Congress acted in direct defiance of the Supreme Court. In 1862, Congress made good on the Republican Party platform and banned both slavery and polygamy in the territories.^[74] The Court's response to these new laws reveals either its own weakness or the weakness of Dred Scott as a precedent. If the Court had adhered to its position in Dred Scott, it could have found many of these regulations unconstitutional. Obviously, the Thirteenth Amendment settled the constitutionality of the congressional ban on slavery in the territories. On the broader

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question of congressional power over the territories—such as whether Congress could ban polygamy—the Court caved in. It upheld the statute banning polygamy in the territories, holding even that the United States could dismantle institutions of the Mormon Church. It upheld the power of Congress to override decisions of a territorial legislature, acknowledging in amazing understatement that “[t]here have been some difference of opinion as to the particular clause of the Constitution from which the power is derived, but that it exists has always been conceded.”^[75] Through their representatives, the People had acted to deny what the Supreme Court had said in Dred Scott, and the Court codified their beliefs.

Thus, returning to Ackerman's concept of a constitutional moment, the story of the constitutional effects of the Louisiana Purchase does not end until after the Civil War. It is not until then that the principle of congressional authority over the territories is unquestionably settled. The pattern of signaling, proposing, mobilized deliberating, and codifying—the back and forth between the People, their representatives, and the judiciary—had all taken place. The People demanded unfettered access to the Mississippi River and trading in New Orleans. Jefferson and his political allies responded and gave the People what they wanted and more, even though the constitutional authority was, in their own view, slim at best. The representatives of the People then presented this action to them as a guardian would say to a ward “when he came of age, I did this for your good; you may disavow me, and I must get out of the scrape as I can.” Along with the purchase, the government presented the People with a successful exploration of the territory, a wildly popular move. The discussion over congressional power to acquire territory may have ended there, but the debate over congressional power did not, for buried within the Louisiana Purchase were the seeds of its potential destruction. Slavery existed in the territory that the United States acquired from France, and Congress did not deal with the problem adequately or comprehensively. As the general fight over slavery took on growing importance in the 1840s and 1850s, the debate at the federal level took the form of regulating slavery in the territories. This culminated in the Dred Scott decision, which held that the federal government lacked such regulatory power. When the Civil War began, Congress enacted a law that contradicted this holding outright and continued to assert municipal authority over the territories. In response to this action and the lessons learned in the Civil War—and not in response to an express constitutional amendment, unlike the post-Civil War amendments freeing the slaves and establishing their rights—the Supreme Court accepted the repudiation of its holding and buried Dred Scott. Not until a generation later did the Supreme Court tangle with the legal decision in Dred Scott and declare it essentially irrelevant.

Thus, the development of congressional power over the territories and

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other property belonging to the United States forms the first “constitutional moment” that the Louisiana Purchase starts. The second constitutional change that occurs from the purchase and the subsequent Lewis and Clark expedition concerns how the federal government would manage these lands. Jefferson drafted the instructions to Lewis without assistance from Congress, and, as described above, one of Jefferson's primary missions for the explorers, exploring and cataloging the soil, flora, and fauna of foreign territory, had nothing to do with an express power of the federal government. The exploration was a success in every measure. Lewis and Clark lost only one man, and the reaction to the things they found was exciting to the general population. Had the exploration not succeeded—had, for example, the party died while navigating the upper reaches of the Missouri or at the hands of a hostile tribe of Native Americans—the reactions would undoubtedly have soured some Americans on the notion of a bold exploration of the West. Counterfactual history is always a questionable enterprise, but had the Lewis and Clark expedition failed, or had it not succeeded so well, the People may have questioned the wisdom of exploration of the West or have expected their representatives to place more checks on it. But the expedition succeeded, and with that success came increased power of the president.

The development of Indian law provides a useful trace of this increase in power in the executive branch. Originally, the United States dealt with Indian tribes as if they were foreign nations, and the logical and expected agreement between the two sovereigns would be a treaty. Nevertheless, the United States accepted that Indian tribes were domestic sovereigns and that the Indian tribes could not have, for example, their own foreign policy; perhaps this recognition led to placing responsibility for Indians within the Department of the Interior. Later, the United States abandoned the policy of treaties and dealt with tribes largely through executive agreement and general legislation. Congress apparently acquiesced in this transformation. To the extent that Indian policy represents public land policy, the shift in power may have been complete.

This is not to say that the Lewis and Clark expedition alone accounts for expanded presidential power over the territories and public lands. To be fair, expedience explains this growth of power as well. After all, at the time of the Lewis and Clark expedition, no other branch of the government could carry out such an expedition. Moreover, the United States Army, under the ultimate control of the president as commander-in-chief, presented itself as the logical unit of the United States to explore the West, especially foreign territory. Until the establishment of the Department of the Interior in 1849, the army had the primary responsibility for negotiating with Indian tribes because no other federal agency logically had that role. Even after that time, the army had the principal role in dealing with hostile Indian

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tribes. Moreover, Congress may not have had the resources effectively to address the myriad questions of Indian policy that the United States faced in its aggressive expansion.

Nevertheless, the success of the Lewis and Clark expedition marked the first step in a move toward recognizing presidential power over public lands that the Constitution itself does not confer. The Constitution grants to Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States.” It says nothing about presidential authority in this area. The president's power to explore the West became the president's power to protect these public lands. As early as 1868, the Supreme Court recognized that the president had the power to withhold public lands from disposition under otherwise applicable federal laws because the practice dates “from an early period in the history of the government.”^[76] By 1915, the principle was firmly established. Executive orders had reserved millions of acres of land for Indian tribes, military reservations, and bird sanctuaries, even though no statute authorized the president to reserve these lands.^[77] Moreover, Congress has vested broad discretion in the president to reserve federal lands for certain purposes.

The power of the president to withdraw public lands from disposal from allocation under public land law sounds boring and inconsequential. It is not. Presidential orders spared thousands of acres of national forests from the ax.^[78] For good or for ill, presidential orders placed Native Americans on reservations that survive to this day. More recently, the Supreme Court has recognized that Alaska cannot drill for oil in the tidelands of the National Petroleum Reserve in Alaska because President Warren Harding reserved these lands and prevented them from passing to Alaska upon its admission to the union.^[79] Thus, the entire look of this country, especially the West, has its roots in presidential proclamation, some of which rests on pure assertion of executive authority. In addition, the Supreme Court has upheld broad congressional delegations of authority to the president. For example, the Court upheld grazing regulations that the Forest Service issued, even though the relevant legislation gave the Forest Service no express authority over grazing.^[80] These Supreme Court decisions came at a time when the Court viewed presidential authority narrowly.

To return again to Ackerman's theory of the constitutional moment, one can see again the steps of signaling through codifying. After the Louisiana Purchase, Congress created a territorial government for Louisiana and vested much of the authority over that government in the president. Jefferson directed Lewis and Clark to undertake an exploration of the West, and, with their successful return, directed others to do the same. The Supreme Court gradually recognized a broad area for executive authority in this area, in part from expedience and in part from the accommodation that the political

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branches had reached. Thus, a greater scope of power for the president arose from the Louisiana Purchase and the Lewis and Clark expedition, one that the People apparently wanted and the courts eventually codified.

NOTES

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