Academic journal article William and Mary Law Review

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

Academic journal article William and Mary Law Review

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

Article excerpt

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

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

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

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

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

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


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

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

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

The problem was that not everyone in the division favored immediate statehood. Governor Arthur St. Clair did not; the territorial legislature did not; neither did the territorial delegate in Congress, Paul Fearing. …

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