University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1997 The Constitution in Congress: Jefferson and the West, 1801-1809 David P. Currie Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David P. Currie, "The Constitution in Congress: Jefferson and the West, 1801-1809," 39 William and Mary Law Review 1441 (1997). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. William and Mary Law Review VOLUME 39 MAY 1998 NUMBER 5 THE CONSTITUTION IN CONGRESS: JEFFERSON AND THE WEST, 1801-1809 DAVID P. CURRIE" The original understanding of the Constitution, I wrote not so long ago, was forged not in the courts but in Congress and the executive branch.' That was true of the Federalist period, the first twelve years under the new Constitution-a time of great constitutional con- troversies involving such matters as the Bank of the United States, the Jay Treaty, and the Alien and Sedition Acts and of quaint and curious squabbles now largely forgotten: what to call the president, whether he must accept a salary, how the vice president signs a bill. Some of these disputes sound petty, but even they helped to define what kind of country the United States would be. All of them were initially, and many of them * Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. I should like to thank the William and Mary School of Law, where portions of this Article were delivered as the Cutler Lecture in September 1997; the Ray- mond and Nancy Goodman Feldman Fund and the Sonnenschein Faculty Research Fund for additional financial support; C. Kevin Marshall for a research paper that stimulated my thinking on several of the issues here discussed; and Barbara Flynn Currie for invaluable advice and encouragement. 1. See DAVID P. CURRiE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PE- RIOD, 1789-1801, at 296 (1997). 1441 HeinOnline -- 39 Wm. & Mary L. Rev. 1441 1997-1998 1442 WILLIAM AND MARY LAW REVIEW [Vol. 39:1441 finally, fought out in the executive and legislative branches. The same was true of the years that followed, when Thomas Jefferson was president. Jefferson's inauguration was a significant victory for the new system, a peaceful transfer of power from one political party to another, which at the time was not to be taken for granted.2 "We are all Republicans," he said in his inaugural address, "we are all Federalists."3 It was a breath of fresh air. Jefferson's brave words, of course, did not put an end to con- troversy. His presidency was another exciting time: the Burr conspiracy, the embargo, the war against the Barbary pi- rates-in which Jefferson, following Washington's example, took a refreshingly narrow view of the president's powers as com- mander in chief.4 The Twelfth Amendment, designed with the simple goal of avoiding the near disaster of the 1800 election, proved to be a surprising can of worms, a monument to the diffi- culty of constitutional drafting.5 In the great Court fight of Jefferson's first term, which rivaled that of the 1930s, judicial independence suffered grave setbacks in the repeal of the Judi- ciary Act and the removal of Judge Pickering, only to emerge more firmly entrenched than ever after the dramatic acquittal of Justice Samuel Chase.6 Jefferson's presidency was also a time of significant events in westward expansion: the admission of Ohio, the Louisiana Pur- chase, and the beginnings of the Cumberland Road. Each of these events raised fundamental constitutional questions. Each was extensively debated in Congress and in the executive branch, not in the courts. And each served as an important pre- cedent when similar issues arose again. 2. See id. at 288-94. 3. Thomas Jefferson, First Inaugural Address (Mar. 11, 1801), in 1 MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 321, 322 (James D. Richardson ed., 1897). 4. See MONTGOMERY N. KOSMA, CONSTITUTIONAL ISSUES IN THE TRIPOLITAN WAR (forthcoming 1998). 5. See David P. Currie, The Twelfth Amendment, in UNINTENDED CONSE- QUENCES OF CONSTITUTIONAL AMENDMENTS (David Kyvig ed., forthcoming 1998). 6. See David P. Currie, The Most Endangered Branch, 33 WAKE FOREST L. REV. (forthcoming 1998). HeinOnline -- 39 Wm. & Mary L. Rev. 1442 1997-1998 1998] JEFFERSON AND THE WEST 1443 I. OHIO The Northwest Ordinance contemplated the creation of three to five new states in the territory ceded by individual states to the Union after the Revolution.! As soon as any of the areas de- fined in the Ordinance had sixty thousand free inhabitants it was to be admitted to statehood, and Congress was directed to admit it earlier if that was "consistent with the general interest of the confederacy."8 Settlement of the Northwest was retarded, however, by hostile Indians; the first western states admitted were Kentucky and Tennessee.9 Then Mad Anthony Wayne defeated the Indians at Fallen Timbers, Jay's Treaty dispersed their British protectors, and Thomas Pinckney's treaty opened the Mississippi to western goods."0 The population of the eastern part of the territory grew by leaps and bounds, and it was separated from the remaining portion, which was christened the "Indiana Territory," in 1800." By 1802 a number of its inhabitants were banging on Congress's door in search of admission to the union."2 Although the 1800 census reported that the Eastern Division had a population of only 45,365, a House committee recommend- ed that its inhabitants be authorized "to form for themselves a constitution and State government."" Congress obliged, 4 but not without a little bloodletting on the House floor. The problem was that not everyone in the division favored im- mediate statehood. Governor Arthur St. Clair did not; the territo- rial legislature did not; neither did the territorial delegate in Con- gress, Paul Fearing. Neither did most Federalists in the House, who perceived that the new state would vote Republican. 5 7. Northwest Ordinance of 1787, art. V, 1 Stat. 51, 53 n.(a) (amended 1789). 8. Id.; see CURRIE, supra note 1, at 103-07. 9. See CURRIE, supra note 1, at 100, 217-22. Vermont was also admitted to the union, in 1791. See id. at 100-02. 10. See 1 BEVERLY W. BOND, JR., HISTORY OF THE STATE OF OHIO: THE FOUNDA- TIONS OF OHIO 275-436 (1941); CURRIE, supra note 1, at 215; STANLEY ELKINs & ERIC McKITRICK, THE AGE OF FEDERALISM 436-40 (1993). 11. See Act of May 7, 1800, ch. 41, 2 Stat. 58 (amended 1804). 12. For petitions seeking statehood see 11 ANNALS OF CONG. 471, 814, 1017 (1802). 13. Id. at 1098. 14. See Act of Apr. 30, 1802, ch. 40, sec. 1, 2 Stat. 173. 15. See 1 BOND, supra note 10, at 449, 467-76. The territorial legislature had HeinOnline -- 39 Wm. & Mary L. Rev. 1443 1997-1998 1444 WILLIAM AND MARY LAW REVIEW [Vol. 39:1441 Fearing led off the debate with what he described as a consti- tutional objection.'6 The resolution proposed that Congress pro- vide for election of delegates to a convention that would decide whether or not to pursue statehood and then, if the convention decided to do so, would take the necessary steps.' v But Con- gress, said Fearing, "had nothing to do with the arrangements for calling a Convention."" There was nothing in the Ordinance about it, and therefore the matter was left entirely to the territo- ry; Congress could no more prescribe a constitutional convention in a territory than in "any State in the Union."9 The comparison with a state was silly. "Was there ever a more absurd doctrine," asked Joseph Nicholson of Maryland, than "that States, acknowledged to be sovereign and independent, should be compared to a Territory dependent upon the General Government?"" Congress, he did not have to add, had express gone so far as to pass a law inviting Congress to redivide the original Northwest Territory into three rather than two parts, with the evident intention of preventing the existence of any single area with a population large enough to qualify for state- hood. See Act of Dec. 21, 1801, ch. 160, 1 STATUTES OF OHIO AND NORTHWESTERN TERRITORY 341-42 (Chase 1833). The House voted 81-5 to disapprove this proposal. See 11 ANNALS OF CONG. 466 (1802); 1 BOND, supra note 10, at 467-70. The form of the House resolution in this matter is puzzling: "Resolved, . .that the act passed by the Legislature for the Territory .. ought not to be assented to by Congress." 11 ANNALS OF CONG. 466 (1802). Though acts of the Governor and judges in the first stage of territorial government were subject to congressional veto under the Northwest Ordinance, acts of the second-stage legislature, which first met in 1799, did not appear to be. See Northwest Ordinance of 1787, 1 Stat. 51, 51-52 n.(a) (amended 1789). Nor was there any report of Senate disapproval, or of presentation of a disapproval order to the president, which Article I, Section 7 of the Constitution would presumably require. Moreover, by November 1801, when the territorial legisla- ture met, it had no further authority over matters affecting the Indiana Territory, which would have had to be divided under its proposal. See Act of May 7, 1800, ch. 41, § 5, 2 Stat. 58, 59. The only plausible explanation is that the House was merely declining to initiate legislation of its own to reconfigure the territory, the peculiar phrasing of the resolution may have been prompted by the fact that the territorial statute had purported to redefine the boundaries "as soon as the congress of the United States shall declare their assent thereto." Ch.