If you’ve been reading this occasional series on “Taking Tentherism Seriously,” you’ve picked up a few themes. Tentherism is one important strand of a more than two-century-old argument about the proper role of the national government.
The argument has at least four components that come up with each new assertion of federal power. There’s a practical component: Is the new idea or federal program a good idea? There’s a philosophical component: Even if I like the idea, must I oppose the idea out of devotion to the principle of states’ rights or small government? The Tenth Amendment to the Constitution is a convenient way to change the argument into a third strand, a legal — more explicitly a constitutional — component: No matter how tempting the idea is, if it violates the Constitution, we can’t do it, at least not unless we amend the Constitution first to enumerate a new federal power. Fourth is a historical component, which relies on selective use of historical facts and statements by heroes of the early republic to suggest that they would be horrified by what their successors have done with their plan for a strictly limited federal government.
Quite often, U.S. leaders have found themselves pulled in different directions by the different strands, but perhaps never as dramatically as President Thomas Jefferson was in 1803 when he had the opportunity to purchase the Louisiana Territory from France, but was faced with his own belief that there was no power enumerated in the Constitution to make such a purchase.
Jefferson, you may recall from the installment on the Alien and Sedition Acts, was a strict constructionist and a strong tenther who went so far (as small-government hard-liners have done periodically over our history) to flirt with both state-based “nullificationism” (as Republican guv nominee Tom Emmer has done with a couple of his bills in the Minnesota Legislature), and even with secessionism (as one small-government candidate did in this year’s race for governor of Tennessee).
Ill-motivated expansion of federal power
In that episode, all tentherist impulses were pulling in the same direction for Jefferson. The Alien and Sedition Acts were enacted by the Federalists and signed by his political rival John Adams and were used to intimidate members of Jefferson’s party, even prosecuting those who criticized the Adams government. The acts struck Jefferson as a bad idea, a gross ill-motivated expansion of federal power and a clear violation of such constitutional guarantees as freedom of speech and press.
Then Jefferson won the election of 1800 — partly on the promise of restoring a proper respect for the limits on federal power. In 1803, as president, Jefferson found himself with a golden opportunity to buy the Louisiana Territory from Napoleonic France for the ridiculously low price of $15 million. (That’s about $217 million in today’s dollars for territory that encompassed all or part of 14 future states. Most importantly to Jefferson’s thinking, the purchase would give the United States control of the mouth of the Mississippi River in New Orleans.)
Small problem. Jefferson believed he lacked the constitutional authority to close the deal. No enumerated power for a president to double the size of U.S. territory nor for Congress to appropriate funds for such a purpose. Again, I cite from Gordon Wood’s description of Jefferson’s problem in “Empire of Liberty:”
“Despite Jefferson’s great enthusiasm for the purchase, he hesitated to send the treaty to the Senate for ratification. Being a firm believer in limited government and strict construction of the Constitution, Jefferson doubted that the federal government had the constitutional right either to acquire foreign territory or, more important, to incorporate it into the Union. For seven weeks he worried about the issue and tinkered with the idea of amending Constitution. Only when Livingston and Monroe [who had negotiated the deal with Napoleon] informed him in August 1803 that Napoleon was having second thoughts about the deal did he reluctantly agree to send the treaty to the Senate without mentioning his constitutional misgivings. Better to pass over them in silence, he said, than to attempt to justify the purchase by invoking a broad Construction.”
Tenther Tom Jefferson. Meet pragmatist Tom Jefferson. The pattern of a president placing pragmatic considerations ahead of strict constructionism has been followed many times, but this is one of the most poignant because Jefferson’s attraction to strict constructionism seems unusually powerful and the pragmatic opportunity represented by Napoleon’s offer seems so huge. (P.S.: The key vote to appropriate the funds for the purchase squeaked by 59-57 in the House.)
Today’s tenthers worry very publicly that, for example, Obamacare is unconstitutional. As U.S. Rep Michele Bachmann has said:
“A lot of members of Congress may have forgotten what the Constitution says. But, again, it is not within our power as members of Congress, not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care.”
Bachman has adopted the term “Constitutional conservative” to describe herself and others whom she believes respect the strict construction of the Constitution. Is she prepared to denounce Jefferson’s decision to tiptoe quietly away from his constitutional scruples and purchase Louisiana despite the lack of an enumerated power? (Most of what would become Minnesota became U.S. territory in the Louisiana Purchase.)