Reassessing The Presidency

3

Thomas Jefferson: Classical-Liberal Statesman of the Old Republic

H. Arthur Scott Trask

Was Thomas Jefferson a great president? One’s answer to that question depends on how one defines “greatness.” If we define greatness as how far a president leads the United States down its historically determined path toward the centralized interventionist state, then Jefferson fails to qualify. On the other hand, if we define greatness as how well a president defended the true and original principles of the federal Constitution and the economic and civil liberties for which Americans had fought the Revolution, then Jefferson deserves to be ranked among the better presidents. Yet he also deserves to be ranked as one of the most disappointing, since there was so much that he could have done, was expected to do, but did not do.

As we survey his presidency, it will be useful to keep in mind three questions. First, did Jefferson’s election to the presidency and the Republican capture of Congress in 1800 constitute “a revolution in the principles of our government as that of 1776,” as Jefferson himself contended ten years after he had retired to Monticello?1 Second, was Jefferson a true and consistent classical republican statesman whose policies were consistent with his professed political and economic philosophy of small government, strict construction, states’ rights, low taxes, free trade, non-involvement in foreign affairs, and peace? And third, does his presidency constitute a model for future leaders of a classical-liberal and constitutional-federalist persuasion to follow? The short answers to these questions are that Jefferson failed to carry through a revolution which he himself had helped to originate, that he was consistent in many ways but inconsistent in others, and that his presidency constitutes a useful model but also a warning.

The Election of 1800

Although the Federalists had controlled Congress and the presidency for twelve successive years, their policies had not been popular. If the Judiciary Act of 1789, the funding of the national debt, the assumption of the states’ debts, the national bank, the system of internal taxation, Jay’s Treaty with Great Britain (1794), and the creation of a professional standing army and navy had been submitted to a popular referendum, probably none of them would have been approved, nor would the federal Constitution have been ratified in the first place. Early Federalist political success in passing their program and holding on to power can be attributed to three factors: the lack of an organized political opposition until the late 1790s, the success of the new political system in thwarting the popular will, and General Washington’s tremendous popularity and prestige. If the president had been elected directly by the people, Jefferson would have given his first inaugural address in 1797 instead of in 1801. However, the popular memory is short, and the Republicans could not hope to ride to power simply on the basis of the unpopularity of Federalist measures in the early 1790s. They finally triumphed in 1800 because the internal tax system provided a regular reminder that the Federalists believed in an intrusive and energetic government, and the quasi-war with France in 1798 demonstrated beyond any doubt that the Federalists were inveterate Anglophiles—Jefferson called them “Anglomen”—who wanted to build an expensive professional war machine to go to war against Spain and France in alliance with England.

The Republicans were right to believe that the Federalists wanted to turn the American confederation of states into an empire mightier than the British empire and one with a perpetual public debt, high domestic taxes, a large standing army, a navy with ships-of-the-line, large manufacturing establishments subsidized by government, a permanent civil bureaucracy, a strong executive, an irresponsible political judiciary, the consolidation of political power in the federal government, and financial corruption of the federal legislature. Jefferson could speak of his election as a “revolution” because he believed that the people of the states had rejected the Federalist theory and program of government, which were British, neomercantilist, centralizing, and statist, in favor of the agrarian, decentralist, libertarian, and republican principles which had been dominant during the Revolution and were once again ascendant.

As president, Jefferson set out to reverse the Federalist program, to restore the federal government to its constitutional role (that is, protecting the confederacy and its trade from foreign enemies and managing relations between the states), and to ensure that the people of the states were left alone to regulate their own private pursuits in a state of freedom. He hoped to gradually break the alliance between the government and the monied elite which had already been forged by the Federalists. According to Albert Jay Nock, Jefferson “was for control of government by the producing class; that is to say, by the immense majority which in every society actually applies labor and capital to natural resources for the production of wealth,” and that he opposed Federalist efforts to forge a neomercantilistic alliance between the general government and “the exploiting classes,” that is, bankers, bondholders, and officeholders.2

Federal Spending under Jefferson

In a 1799 letter to a Massachusetts Republican, Jefferson summarized what would be the fiscal policies of his administration, if he were elected:

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing, by every device, the public debt, on the principle of its being a public blessing.3

In his first inaugural address Jefferson explained that for him, “the sum of good government” was a “wise and frugal” one “which shall restrain men from injuring one another, [but] shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labour the bread it has earned.”4

Jefferson opposed all but the most minimal taxes because he believed that taxes diminished public happiness by depriving individuals of a portion of their hard-earned money and hence of the means of supporting their families and improving their estates. He warned that “the general tendency” of the government party was “to increase expense[s] to the ultimate term of burden which the citizen can bear” and leave “to labor the smallest portion of its earnings on which it can subsist,” so that “government shall itself consume the residue of what it was instituted to guard.”5

Jefferson also was determined to pay off the national debt. He opposed public borrowing on a number of grounds. First of all, by enabling the government to increase its expenditures without calling on the people for increased taxes, it minimized public opposition to increased spending. Second, public borrowing shifted the burden of payment to posterity. Jefferson believed that imposing financial burden on future generations in order to pay for the profligacy of the present generation was a profoundly unrepublican and immoral act. Third, public borrowing created a class of bondholders who had a vested interest in funding and increasing the debt and opposing its discharge. Last, a public debt created a justification for keeping up taxes to pay the interest.6

Thus Jefferson and his Swiss-born secretary of the Treasury, Albert Gallatin, set out to reduce federal expenditures and federal taxes and pay off a considerable portion of the federal debt. Although the second goal appears to be in conflict with the third, Jefferson and Gallatin hoped that reductions in spending would compensate for the reduction in federal tax revenue.

In the State Department, Jefferson reduced the number of foreign missions to three—London, Paris, and Spain—one for each of the three great world powers. In the Treasury Department, he dismissed all of the collectors and inspectors of the internal revenue. This change alone reduced the number of federal employees by more than one-third. However, Jefferson and Gallatin planned on saving the most money in the War and Navy Departments. By early 1802, Jefferson had reduced the size of the regular army by almost half, from 6,000 men when he took office to 3,312. Federalist expenditures on the War Department averaged $1.9 million from 1793 through 1800. Jefferson reduced them to an average of $1.3 million for 1801 through 1808, which was a reduction of almost $600,000 a year. Federalist expenditures on the Navy Department had averaged $1.3 million a year from 1794 (the first year of the navy) through 1800. Jefferson actually spent a little more, averaging $1.5 million a year for his two terms. However, if one compares his naval expenditures to those of his immediate predecessor, John Adams, who averaged $2 million a year, Jefferson managed to reduce them by an average of almost $500,000 a year. He accomplished this by laying-up seven of the thirteen frigates built by the Federalists. Through such measures of economy, Jefferson managed to reduce government expenditures, minus interest and debt reduction, from $7.5 million for fiscal year 1800 to less than $5 million for 1801 and to an average of $4 million for the years 1802–1804. However, increased military expenditures after 1804 significantly raised overall spending during his second term. All in all, while Federalist expenditures averaged $7.1 million from 1793 through 1800, Republican expenditures actually averaged $8.7 million, an increase under Jefferson of $1.6 million a year.7

Federal Taxation under Jefferson

The federal government had three sources of revenue in 1800: public land sales, customs duties, and internal taxes. Tariffs averaged only 13 percent ad valorem, although specific duties on sugar, tea, coffee, and salt ranged from 50 percent to 100 percent. The Federalists had imposed internal taxes on whiskey stills, domestic liquor sales, auction sales, carriages, and legal documents. These taxes produced $1 million in federal revenue in 1800, four-fifths of which came from the excises on whiskey and distilled spirits. When Jefferson recommended repealing these taxes, the Federalists replied that import duties on such “necessities” as coffee, tea, and sugar should be reduced instead. They argued that reducing the duties on tropical commodities would be of more benefit to the people than reducing the whiskey excise. The Federalists knew what they were about. They wanted to retain the internal revenue system with its host of revenue officers, collectors, and inspectors. They understood that a reduction in import duties could always be reversed by a future congress, but that while it would be much more difficult to re-impose internal taxes and recreate a machinery of domestic tax collection after both had been repealed and abolished. They remembered well that the first attempt in 1794 to impose an excise on whiskey produced a tax revolt in the American backcountry.8 A future Federalist administration might face even greater domestic resistance in trying to bring back the excise than they faced in imposing it. For the same reasons, Jefferson and his Republican allies were determined to repeal altogether, not just reduce, the internal taxes and to abolish the inspectors and collectors of the revenue. They were successful. Jefferson signed the reform bill into law in March 1802. Jefferson next set his sights on repealing the duty on imported salt which brought in over $500,000 in revenue annually. Jefferson began to push for its repeal in 1806. His party abolished the salt duty early the next year.9

In his Second Inaugural Address, Jefferson noted with triumph and satisfaction that federal taxes were “being collected on our seaboards and frontiers only, and incorporated with the transactions of our mercantile citizens.” Thus, “it may be the pleasure and pride of an American to ask, what farmer, what mechanic, what laborer ever sees a tax-gatherer of the United States.”10

If federal expenditures on the whole were not reduced under President Jefferson and if taxes were twice reduced, then why did the Treasury Department run a surplus each year from 1801 to 1808? There are two reasons. First, Jefferson raised taxes. In early 1804, Gallatin and Jefferson proposed increasing the tariff duties by 2.5 percent and by adding an additional duty of 10 percent on all goods imported via foreign vessels. The change would have increased the average tariff rate to 16 percent ad valorem. Because its ostensible purpose was to finance the unexpected expenses arising from the Tripolitan war, it became known as the “Mediterranean Fund.” The Republican majority promptly passed the measure. The additional duties brought in about $1 million of increased revenue a year, thus compensating for the loss of revenue due to the repeal of the internal taxes. Both Gallatin and the Republican congressional leaders promised that the increased tariff would be only a temporary measure. Their bill required that the tariff be brought back to its previous level three months after the close of hostilities with the Barbary powers. However, the Republicans renewed the tax in 1807 despite the cessation of hostilities the previous year. The renewal was due also to the increase in the customs revenue during the 1800s. The increase was created by growing imports, the profitable carrying trade, and the acquisition of the port of New Orleans under the Louisiana treaty. Under the carrying trade, American vessels brought Spanish and French colonial goods to an American port, paid a duty, and then reexported them to Europe. The volume of this trade was enormous in 1801 and 1805–1807.11

Federal Debt Reduction under Jefferson

Jefferson and Gallatin inherited a national debt of $83 million. Annual interest payments on the debt averaged about $3.1 million a year under President Adams, thus accounting for about 42 percent of all federal expenditures during those years. Jefferson and Gallatin believed that continuing to discharge these high interest payments just to maintain the debt diminished their flexibility in spending money on legitimate national purposes, such as buying foreign territory, and created upward pressure on federal taxes. They also believed that having a large outstanding debt would be a serious financial handicap should the country go to war in defense of its territory or citizens. Interest payments for the previous debt would still have to be made, the principal would be further augmented by new borrowing, and many sources of loanable capital already would be invested in government stock.

Accordingly, Jefferson and Gallatin proposed creating an annual sinking fund of $7.3 million to be used for the dual purpose of paying interest on the debt and reducing the principal by retiring maturing bonds and buying still outstanding bonds in the market. If this plan were adhered to by Jefferson and his successors, and if no new debt were created, the national debt would be retired in sixteen years. Congress passed this measure in April 1802.

Jefferson’s purchase of Louisiana from France in 1803 for $15 million threatened his debt reduction program. However, federal revenue was so great that he and Gallatin had little difficulty paying for the purchase, all the while maintaining their debt reduction plan. Gallatin proposed to pay for the purchase by selling $11.25 million in new 6 percent federal stock, which 6 percent was added to the long-term federal debt; by borrowing $1.75 million in a temporary loan, to be paid from future Treasury surpluses; and by appropriating $2 million in cash from the current Treasury surplus. In the immediate aftermath of the purchase of Louisiana, the administration decided to increase the sinking fund to $8 million a year. In eight years, Jefferson and Gallatin managed to redeem $37.2 million of the principal of the federal debt and bring the total amount outstanding down from $83 million in 1800 to $57 million at the end of 1808.12

Foreign Policy and Military Spending: The First Term

Jefferson believed that the happiness of his countrymen would be promoted best by a policy of “peace, commerce, and friendship with all nations, entangling alliances with none.” He envisioned his country as a peaceful, agrarian-commercial federal republic of self-sufficient farmers and mechanics slowly spreading across space to fill in the beautiful and bountiful land vouchsafed them by Providence. Possessing “a wide and fruitful land,” “with room enough for our descendants to the thousandth and thousandth generation,” and “kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe.”13 America, Jefferson believed, had the blessed opportunity to keep itself free from the incessant rivalries, jealousies, and conflicts of the Old World. For Jefferson, the wise and patriotic statesman would take advantage of his country’s fortunate geography and situation by defending a policy of national independence, neutrality, and noninvolvement in European affairs.

Jefferson’s defense policy was to maintain a peacetime military establishment composed of a small standing army (about 3,000 men) to defend the frontier against hostile Indians and possible Spanish incursions from the Floridas and a small naval squadron to protect American commerce from the depredations of third-rate powers, such as the Barbary states of North Africa. Jefferson possessed a classical republican aversion to large military and naval establishments both for their expense (which required either taxes or debt to maintain) and their potential threat to the liberties of the people.

Far from being idealistic or utopian, Jefferson’s vision and policies were based on a realistic understanding of America’s geopolitical situation in the Atlantic world. He believed that it would be pure folly and extravagance to build a large oceangoing fleet, composed of hundreds of frigates and ships-of-the-line. He rightly surmised that building such a fleet would alarm the British and encourage a preemptive strike by their navy in the event of hostilities. Thus, building a fleet could actually increase the possibility of war with England. Jefferson did not believe that his country could be seriously threatened by the armies of either England, France, or Spain, the three great world powers. Although both England and Spain possessed territory contiguous to the borders of the young republic, both would have to transport large forces across the Atlantic and would be forced to fight on hostile territory far from their base of supplies. On the other hand, the Americans could mobilize hundreds of thousands of able-bodied militia to fight for their homeland. Not one of the great powers had the resources to send sufficient troops to conquer the American states. Jefferson rejected the Federalist axiom that in order to have peace one must prepare for war—the theory being that the more powerful a country was in armaments the less likely it was to be attacked. Jefferson doubted both the wisdom of this theory and Federalist sincerity in invoking it. He believed that history demonstrated that the more a country prepared for war, the more likely it was to go to war. First, having a powerful military force offered a temptation to rulers to engage in wars for conquest and glory.14 And second, far from deterring aggression, a powerful navy and army often frightened other nations into building up their own forces and forming hostile alliances, tempting them to instigate hostilities for the purpose of gaining a strategic advantage or weakening their rival.

Jefferson believed that the Federalists, far from wishing to avoid war, actually welcomed war. In 1798 and 1799, the Federalists were eager to convert an undeclared naval confrontation with France into a full-scale war in order to obtain a formal military alliance with Great Britain. In the end, the only thing that kept the country out of a large war was President Adams’s last-minute decision to reach an agreement with France. Jefferson was convinced that the Federalist leaders favored a war with France or Spain as a means to strengthen the federal government, increase the national debt, raise taxes, and place themselves in power.15

Early in his first term, Jefferson was faced with the question of whether he should use the naval force inherited from the Federalists to protect American trade in the Mediterranean. The pasha of Tripoli, the leader of one of the four Barbary powers on the northern coast of Africa (the others being Morocco, Algiers, and Tunis), demanded additional tribute from the United States as the price for allowing American shipping to trade in the Mediterranean free of piratical raids by his navy. The Barbary powers had been long extorting payments from the European states for the “privilege” of trading with them and for the freedom to navigate the sea without attack. Rather than combining to suppress these piratical powers, the Europeans decided to pay them off, either in cash or in the form of ships, arms, or military supplies. The Washington and Adams administrations had followed the established custom and made treaties with Algeria in 1795, Tripoli in 1796, and Tunis in 1797; in ten years, the Federalists had paid these powers more than $2 million in tribute. When Jefferson assumed the presidency and was faced with the demand for more money from the pasha of Tripoli, he refused.

Jefferson’s moral nature was no doubt offended by the prospect of paying for the privilege of not being robbed, but even more he must have seen this system of sordid bribery and intrigue as an impediment to his hopes for establishing free trade between the American republic and all the world, as well as an affront to the code of republican honor.

The pasha responded by taking down the American flag—a tacit declaration of war—and dispatching his warships to attack and capture American merchant vessels in the Mediterranean. In the spring of 1801, Jefferson dispatched three frigates and an armed schooner to the Mediterranean to protect American commerce and to intimidate Tripoli into honoring the 1796 treaty. Upon reaching Gibraltar in the late summer, the naval squadron found two Tripolitan cruisers on blockade duty awaiting American vessels. The American squadron chased off the two cruisers; the schooner Enterprise engaged one of them in battle and captured it; and the squadron proceeded to Tripoli where it blockaded the harbor. Thus, for the second time in only four years, the United States found itself in an undeclared naval war.

Jefferson sent additional forces to the Mediterranean each year until, by the summer of 1805, almost the entire American navy was deployed off the shores of Tripoli. In addition to escorting American merchant vessels and blockading Tripoli (in 1801 and 1803–1805), the American fleet bombarded Tripoli five times in August and September of 1804. By the early summer of 1805, facing a renewed and even more destructive series of bombardments from the American navy, and hearing of the fall of the town of Derbe to a land force composed of Americans, Greeks, and Tripolitan exiles commanded by William Eaton (the former American consul at Tunis), the pasha sued for peace and signed a treaty ending the war. The June 1805 treaty abolished annual payments from the United States to Tripoli and provided for the payment of a $60,000 ransom for more than two hundred American captives, mostly sailors from the U.S. frigate Philadelphia that had been captured after running aground off Tripoli in 1803.

Was this war for free trade and national honor consistent with Jefferson’s stated policy of strict construction, peace, and economy in the public expenditure? Two things are clear. The pasha of Tripoli was the aggressor in this conflict, and Jefferson was committing armed forces to protect American lives and property from aggression. Yet because he failed to obtain a declaration of war from Congress, Jefferson was soon waging an undeclared war in violation of the Constitution. He thus set a dangerous precedent for future, more militaristic, presidents.

The Tripolitan war naturally resulted in greater naval expenditures and higher annual federal spending than Gallatin had planned. Not only did Jefferson shelve his plans to lay up all the American frigates in dry dock, but he even constructed five new brigs. Jefferson continued to pay tribute to the other Barbary States through the end of his second term. (Madison would continue making payments until 1816.)

When he assumed office Jefferson’s major foreign policy objective was to purchase the city of New Orleans from France and the two provinces of Florida from Spain. The commercial importance of New Orleans was immense, for it was the major port through which Americans who lived west of the Appalachians sold their agricultural products abroad. Because it could at any time close the port to American commerce, the power that controlled New Orleans possessed tremendous leverage against the United States.

West Florida was important for similar reasons. It contained the port of Mobile, and it controlled the outlet for the rivers which drained the fertile Mississippi territory. The Floridas were strategically important, for they provided Spain, one of the three great world powers, with a foothold contiguous to the southern border of the United States. By acquiring them, Jefferson not only hoped to provide more territory for American settlement but to secure the southeastern border against Spain without having to build forts and deploy regiments of regulars in Georgia and Mississippi. It would also lessen the potential of conflict between Spain and the U.S. Such an acquisition, provided it could be accomplished without war, would be fully consistent with his policy of economy, peace, strategic isolation, and a small military establishment. In 1806, after Napoleon’s conquests reduced Spain to the status of a French vassal state, Jefferson had his Secretary of State, James Madison, instruct the American ambassador to France to offer Napoleon $5 million for the Floridas and Texas.

The Louisiana Purchase

Arguably the greatest accomplishment of Jefferson’s presidency was the acquisition of Louisiana, bought from France for $15 million. The province was enormous at 828,000 square miles, and it contained some of the richest farmland in the world. Louisiana was comprised of New Orleans, a bustling city, St. Louis, a small city; a few isolated French settlements along the Mississippi; and some scattered Indian tribes. Other than that it was virtually uninhabited.

The story of its acquisition is a familiar one to most students of American history. After hearing of the Spanish retrocession of Louisiana to France, Jefferson instructed the American minister to France, Robert R. Livingston, to negotiate for West Florida and New Orleans. If that failed, he was to try to acquire some land on the lower Mississippi for an American port; and if that failed, he was to seek a French guarantee for free navigation of the Mississippi and the right of deposit at New Orleans.

In January 1803, Jefferson named James Monroe as minister plenipotentiary to France and sent him to Paris prepared to offer $10 million for New Orleans and West Florida. Just as Monroe was arriving in Paris, Talleyrand shocked Livingston by offering to sell not only New Orleans but the whole of Louisiana to the United States. Recognizing the advantages of such a purchase, Livingston negotiated a treaty. Both Livingston and Monroe signed the treaty and sent it to Jefferson.

When news of the Louisiana treaty reached Jefferson and Madison, they were exultant. Not only did the cession obtain New Orleans, but it secured the free navigation of the Mississippi River, removed a potentially hostile power from the west bank of the Mississippi, and provided a seemingly inexhaustible reserve of land for American settlement. It was fully in accord with Jefferson’s policy of making the country secure without resorting to war or funding an expensive military and naval establishment. They also believed that it would help preserve the agrarian character of the American confederation for generations to come.

How much credit does Jefferson deserve for acquiring Louisiana? Many Federalists charged that he deserved none at all, that he just happened to be president when Napoleon made his unexpected offer. While that is true, it is also true that Napoleon would never have offered the province to a pro-British Federalist administration. Napoleon regarded the Republicans as anti-British and in basic sympathy with his country. Napoleon hoped to cement ties of friendship with the Americans, to increase their debt of gratitude, and to entice them into joining France in a military alliance against the British Empire. Jefferson’s policy of neutrality and his well-known French sympathies created an environment in which Napoleon could feel safe in parting with Louisiana and could even hope to gain from it.

The Federalists opposed the purchase on two grounds. First, they warned that such a vast enlargement of territory would endanger the cohesion and the existence of the union. Jefferson responded by arguing that the confederal nature of the American republic made expansion safe.

Who can limit the extent to which the federative principle may operate effectively? The larger our association, the less will it be shaken by local passions; and in any view, is it not better that the opposite bank of the Mississippi should be settled by our own brethren and children, than by strangers of another family? With which shall we be most likely to live in harmony and friendly intercourse?16

The “federative principle” was the principle of divided, or decentralized, power between the national and the state governments, under which the former was “charged with the external and mutual relations only of these states” while “the states themselves have principal care of our persons, our property, and our reputation.”17 Jefferson was asking why, given such a decentralized and flexible system, the union could not be doubled or even tripled in size? And in addition, the acquisition actually made it easier for the federal government to fulfill its constitutional responsibility of providing for the common defense.

The Federalists also objected that the treaty was unconstitutional. After all, the Constitution conferred no power on the federal government to acquire foreign territory and incorporate it into the Union. On this point, Jefferson reluctantly concurred. He believed that the Louisiana treaty required not only Senate ratification but additional constitutional authorization through an amendment. In fact, soon after receiving news of the treaty on June 30, he drew up an amendment which stated that “the province of Louisiana is incorporated with the United States and made part thereof,” and he distributed it to his cabinet.18 His cabinet did not seem to think that an amendment was necessary. His attorney general, Levi Lincoln, was indecisive; so was Madison; and Gallatin was emphatic that it was not needed at all. Earlier in the year, the latter had written Jefferson explaining that “the United States as a nation have an inherent right to acquire territory,” and “Congress have the power either of admitting into the Union as a new State, or annexing to a State with the consent of that State.”19

Jefferson, however, remained convinced that an amendment was both necessary and prudent.

There is a difficulty in this acquisition which presents a handle to the malcontents among us, though they have not yet discovered it. Our confederation is certainly confined to the limits established by the revolution. 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 and still less of incorporating it into the Union. An amendment of the constitution seems necessary for this. In the meantime we must ratify and 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.20

This passage from an August letter to John Dickinson represented Jefferson’s settled opinion on the matter, which he had arrived at after conferring with his chief constitutional advisers—Madison, Gallatin, and Lincoln. He expressed the same idea in a letter to his friend John Breckinridge of Kentucky but added that an amendment adopted after the treaty had been ratified and paid for would constitute a popular endorsement of the acquisition and actually “confirm and not weaken the Constitution, by more strongly marking out its lines.”21

Upon receiving a warning from Livingston in Paris that Napoleon might change his mind, Jefferson urged his cabinet and political associates to keep quiet for a time about the constitutional question so as not to give Napoleon a pretext for withdrawing his offer. Jefferson wanted the treaty ratified as soon as possible. However, he still thought it wise and necessary to adopt an amendment sanctioning the treaty. The draft amendment he distributed to members of his cabinet stated that

Louisiana as ceded by France to United States is made a part of the United States. Its white inhabitants shall be citizens, and stand, as to their rights and obligations, on the same footing with other citizens of the United States.22

His draft also authorized the incorporation of Florida into the United States “whenever it may be rightfully obtained.”

Jefferson found himself almost alone in insisting that the Constitution did not sanction the acquisition of new territory, whether through conquest, purchase, or treaty. Not only was his cabinet not behind him, neither were his chief congressional supporters. The stalwart John Randolph, the Republican majority leader in the House, saw no constitutional difficulty in the purchase. Neither did Senator Breckinridge of Kentucky, nor Representatives Joseph Nicholson of Maryland or Caesar Rodney of Delaware.23 Jefferson’s friend and political supporter Senator Wilson Cary Nicholas even wrote the president, urging him to drop his constitutional scruples. He warned that if Jefferson’s opinion were made public, it could produce mischief by creating a precedent for future infractions and giving the Federalists an issue with which to assail the administration. But creating a precedent was exactly Jefferson’s fear, and he did not think it a proper solution to pretend that they were not subjecting the Constitution to a very liberal reading when that was exactly what they would be doing. Nicholas argued that the Constitution already authorized incorporating new territory outside the territorial limits of the U.S. in 1783. Jefferson’s reply is one of the most cogent and eloquent expressions of the doctrine of strict construction ever penned.

I do not believe it was meant that they might receive England, Ireland, Holland, etc. into it, which would be the case on your construction. 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, where it is found necessary, than to assume it 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. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. . . . Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time and trial show are still wanting. . . . I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people.24

However, Jefferson conceded that he would not insist on his view but would acquiesce in the prevailing opinion of the Republican Party, for he trusted “that the good sense of our country will correct the evil of construction when it shall produce ill effects.”25 Jefferson’s concession would prove to be a fatal one, for the evils of broad construction would begin to work their mischief under Jefferson’s successor, James Madison, and “the good sense of the country” on this question would fall silent.

Henry Adams argued that “the Louisiana treaty gave a fatal wound to ‘strict construction,’ and the Jeffersonian theories never again received general support.”26 This is simply not true. The “Jeffersonian theories” continued for sixty years to be the heart and soul of American political culture, and strict construction was by no means dead. Yet even if the wound were not fatal, it was serious; for the idea was planted that legislation for the good of the country should not be obstructed by an overly scrupulous adherence to the terms of the compact. Although he fails to note that the Federalists were the first to commit a serious breach of the Constitution when they chartered the first National Bank, the historian Henry Cabot Lodge understood the damage that the Jeffersonians had done.

Thus the first example was given of both the will and desire to violate the Constitution, if the popular feeling would sustain the executive and legislature in so doing; and in this fact lies the pernicious and crying evil of the Louisiana Purchase. It was the first lesson that taught Americans that numerical majority was superior to the Constitution and was a safe protection against it when violated, and that when policy approved the necessity of change, it was easier to break than to legally and regularly amend the provisions of our charter.27

It is also true that the easy ratification of the treaty without even a discussion of an amendment made the Republicans seem inconsistent and hypocritical and provided ammunition for those consolidationists who saw the Constitution as an impediment to their dreams of national greatness. John Quincy Adams declared that the purchase of Louisiana represented

an assumption of implied power greater in itself and more comprehensive in its consequences, than all the assumptions of implied power in the twelve years of the Washington and Adams administrations put together. . . . After this, to nibble at a bank, a road, a canal, the mere mint and cumin of the law was but glorious inconsistency.28

Jefferson acquiesced when he should have stood firm. While party leaders were not supportive, he still could have appealed directly to the people by penning a special message imploring them to ratify a new amendment specifying which territories could be incorporated in the Union and spelling out the exact procedure for admitting them as new states. Jefferson failed to understand that the Constitution was written to protect the people from themselves and that to rely on those very people to correct defects in the Constitution, only when those defects had been already exploited for ulterior purposes, was foolish indeed.

Constitutional Philosophy, Judicial Reform, and the Supreme Court

When Jefferson ran for president in 1800, he made it clear that he supported strict construction, original intent jurisprudence, federalism, and states’ rights.

I do then, with sincere zeal, wish an inviolable preservation of our present federal Constitution, according to the true sense in which it was adopted by the States. . . . I am for preserving to the States the powers not yielded by them to the Union, and to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the General Government, and all those of that government to the executive branch.29

He confessed to his friend and political ally from Connecticut, Gideon Granger, that he was sincerely

attached to the preservation of the federal Constitution according to its obvious principles, and those on which it was known to be received; attached equally to the preservation to the States of those rights unquestionably remaining with them.30

He warned his friend that

“[o]ur country is too large to have all its affairs directed by a single government” and if ever the powers of the state governments should become concentrated in the general government “it would become the most corrupt government on the earth.”31

In his first annual message to Congress, Jefferson charged that

this government is charged with the external and mutual relations only of these states; [and] that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns.32

He promised that his consistent objective as president would be “to preserve the general and State governments in their constitutional form and equilibrium.”33

When the Federalists began to develop their theory of federal judicial review in the aftermath of their crushing political defeat in 1800, Jefferson quickly denounced it as unrepublican and contrary to the intent of the framers and the state ratifying conventions. Jefferson argued that such a power would violate the separation of powers and make the least republican of the three branches of government the most powerful, thus striking a blow against “the vital principle of republics,” which was “absolute acquiescence in the decisions of the majority” on all matters entrusted to them by the Constitution.34 Chief Justice Marshall asserted in his Marbury decision that the federal courts had the final right to decide questions of disputed constitutionality and the authority to set aside federal laws which they thought contrary to the Constitution. Jefferson argued that an alternative doctrine, concurrent review, was closer to the intentions of the framers and the ratifying conventions. According to Jefferson, each branch of the federal government, plus the state governments, had the right to interpret the Constitution for itself, and none had the right to bind the others by its decision. Jefferson explained this doctrine in a private letter written while he was president.

The judges, believing the law [the Sedition Act] constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive [Jefferson], believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion [Marshall’s] which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.35

Dumas Malone, Jefferson’s biographer, concedes that “jurists of our day” may find Jefferson’s doctrine of constitutional interpretation “vague and remote.” However, he points out that in Jefferson’s

own day . . . and for some decades thereafter it approximated the actualities of the government situation. . . . [T]he legislature and the executive continued to determine for themselves whether or not they were acting within the bounds of the Constitution.36

It must be kept in mind that Marshall and his allies did not formulate their novel doctrine of judicial review to restrain the power of government or to protect the rights of the people, but to protect governmental measures and institutions already enacted by the Federalists and believed to be threatened by the Republicans, such as the Judiciary Acts of 1789 and 1801, the national bank, the navy, and the internal tax system. In other words, for the Federalists, judicial review was a pro-government measure designed to prevent democratic majorities from shrinking the size or reducing the powers of government. The Federalists, after all, were the party of active government and liberal construction of the Constitution. Two modern constitutional historians have made the case that concurrent review “favors limited government” by making it more difficult for the federal government to embark on a new area of legislation or regulation.37 While this is true, Jefferson’s primary concern was to prevent the will of the majority from being subverted or thwarted by the federal courts. Under concurrent review, the courts could pronounce a law unconstitutional, but they could not bind the other two branches; they could render an opinion, but they could not enforce it. The president would be free to block the execution of a law whose constitutionality he disputed, or to continue to execute a law even though it had been declared unconstitutional by the courts.

Concurrent review also applied to the several states. Jefferson did not believe that the states were bound to submit in all cases to the Supreme Court, to presidential decree, or even to federal law. As he put it in his draft of the 1798 Kentucky Resolutions,

the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of mode and measure of redress.38

Jefferson understood that the true meaning of the supremacy clause was to render the Constitution itself the supreme law of the land; federal law was to be considered supreme and binding on all only when it was consistent with the Constitution. The clause reads: “The Constitution, and the laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land.”39

Although he was himself a nationalist, Henry Adams understood perfectly the issue that was at stake when Jefferson and his party assumed power in 1801: namely, whether the Republican “revolution” would be truly revolutionary. In other words, would they make the kind of fundamental reforms that would last beyond their time in power? Adams wrote:

The essence of Virginia republicanism lay in a single maxim: THE GOVERNMENT SHALL NOT BE THE FINAL JUDGE OF ITS OWN POWERS. The liberties of America, as the Republican party believed, rested in this nutshell; for if the Government, either in its legislative, executive, or judicial departments, or in any combination of them, could define its own powers in the last resort, then its will, and not the letter of the Constitution, was law. To this axiom of republicanism the Federalist Judiciary opposed what amounted to a flat negative. Chief-Justice Marshall and his colleagues meant to interpret the Constitution as seemed to them right, and they admitted no appeal from their decision. . . . The question how to deal with the Judiciary was, therefore, the only revolutionary issue before the people to be met or abandoned; and if abandoned then, it must be forever. No party could claim the right to ignore its principles at will, or imagine that theories once dropped could be resumed with equal chance of success. If the revolution of 1800 was to endure, it must control the Supreme Court. The object might be reached by constitutional amendment, by impeachment, or by increasing the number of judges.40

Just days before Jefferson was to be sworn in as the third president, the lingering Federalist majority passed, and President Adams signed into law, the Judiciary Act of 1801. It reduced the number of Supreme Court justices from six to five (to deprive Jefferson of an early appointment when the next justice retired), abolished the existing federal circuit courts, created six new circuit courts, and divided the latter into twenty-three districts presided over by sixteen new federal circuit judges. These became known as “the midnight judges,” since President Adams appointed Federalists to all the new positions.

The act also added to the number of federal marshals, district attorneys, and law clerks. Most ominously for the Republicans, it vested jurisdiction of all “federal questions” in the circuit courts. A federal question referred to those areas of law over which the Constitution had vested jurisdiction in the Supreme Court and in such inferior courts as Congress might establish. The Constitution defined federal questions as “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made.”41 The Judiciary Act of 1789, which had established the federal court system, had wisely left the question of federal jurisdiction to the state courts, but it had allowed appeals of state supreme court decisions to be heard before a federal circuit court. Clearly, the Judiciary Act of 1801 was a last-minute effort by the Federalists to erect some kind of judicial barrier against the feared revolutionary measures of the incoming administration.

The creation of patronage positions for Federalist lawyers was an incidental benefit. Jefferson described the new judicial establishment as “a parasitical plant engrafted at the last session on the judiciary body.”42 The Federalists, he wrote, “have retired into the Judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the Treasury; and from that battery all the works of republicanism are to be beaten down and erased.”43 He regarded the act as a moral nullity, since it was passed by a party that had already been repudiated by the majority and was on the verge of surrendering power. For these reasons, he and his party were determined to repeal it at the earliest opportunity. After taking care of more pressing matters having to do with federal taxation, spending, and debt, the Jeffersonians, in December 1801, turned their attention to repeal. After a long and bitter debate, the Republicans passed the Repeal Act on March 8, 1802. It restored the old judicial system and abolished the new judgeships and federal district attorneys. Henry Adams estimated that the repeal saved $30,000 a year.44 A month later, the Republicans passed the Judiciary Act of 1802, which restored to six the number of Supreme Court justices, created six circuit courts, and fixed one term annually for the high court.

The question now was what would Jefferson do about the Judiciary Act of 1789, which had created a three-tiered federal judicial structure. The top of the structure was a six-member Supreme Court staffed by a chief justice and five associate justices. The middle tier was made up of three circuit courts to be staffed only twice a year by a district judge and two itinerant Supreme Court justices. On the bottom were district courts presided over by a district judge; each state had one district court, except Virginia and Massachusetts, each of which had two. Henry Adams described this act as “a triumph of Federalist centralization,” for it “had conferred on the Supreme Court jurisdiction over the final judgment of State courts in cases where the powers of the general government had been ‘drawn in question’ [that is, federal questions] and the decision was unfavorable to them.”45 As Adams pointed out, defenders of states’ rights feared that this act eventually would “make the state judiciaries inferior courts of the central government,” for “the powers of the general government might be ‘drawn in question’ in many ways and on many occasions . . . until the national courts should draw to themselves all litigation of importance, leaving the State courts without character or credit.”46

At the time, Senator Richard Henry Lee of Virginia had proposed creating a single appellate federal supreme court with no other federal courts at all, except for a few admiralty courts. All cases arising under federal jurisdiction would be tried before state courts and only on appeal would they be brought before the supreme court. Other Republicans proposed a larger supreme court that would travel about the country to hear all federal cases. The Federalist-controlled Congress rejected both options and chose the more centralist and elaborate judicial system proposed by Senator Oliver Ellsworth of Connecticut.47

Jefferson and the Republicans had two available models with which they could have replaced the Judiciary Act of 1789. Yet they made no effort to repeal it. What is more, with the important exception of trying the remedy of judicial impeachments, they made no effort to enact any other kind of judicial or constitutional reform.

According to Henry Adams, Jefferson’s biggest failure (next to the embargo) was his unwillingness to take advantage of the momentum and prestige of victory and his overwhelming Republican majority in Congress to enact fundamental judicial and constitutional reform. As he correctly points out, “loopholes for the admission of European sovereignty into the citadel of American liberty were seen in 1800 as clearly as [in 1860].”48 While Adams is in no way sympathetic to Old Republican political and constitutional theories, he is undoubtedly right to point to the significance of Jefferson’s failure to institutionalize his revolution. With the single exception of impeachments, Jefferson did not even try to enact constitutional safeguards against the dangers posed by national centralism and neomercantilism. Why he did not do so remains something of a mystery. Jefferson was certainly aware of Federalist plans for a more “energetic” government. And he was not ignorant of possible reforms, for a prominent Virginia Republican had proposed a set of them in October 1801. Judge Edmund Pendleton, head of the Virginia Court of Appeals, published an influential article in the Richmond Enquirer entitled “The Danger Not Over.” The article was soon reprinted in the administration newspaper, the Washington National Intelligencer.49 Pendleton’s article was a classical-republican manifesto full of negative references to the dangers posed to American liberty by standing armies, undeclared war, executive influence, government debt, excessive civil offices, legislative corruption, judicial irresponsibility, and consolidated central power. Pendleton warned that Americans should not be complacent simply because faithful Republicans were now holding the reigns of power, for men were “fallible,” new men of uncertain principles inevitably would succeed them, and experience had already shown that “much mischief may be done under an unwise administration, and that even the most valuable parts of the Constitution, may be evaded or violated.”50 As a result, he urged them to take advantage of the opportunity provided by the temporary overthrow of Federalist men and principles “to erect new barriers against folly, fraud and ambition; and to explain such parts of the Constitution, as have been already, or may be interpreted contrary to the intention of those who adopted it.”51

Pendleton suggested the following constitutional amendments to correct several notable “defects” in the Constitution. As he believed the presidency was too powerful, he proposed that the president be ineligible for a second term, and his power of appointing federal judges and ambassadors be transferred to the House of Representatives. He also believed the federal Senate was too powerful, and he recommended either shortening senators’ terms of service or making them removable by the state legislatures, and depriving them of their “executive” powers (the power to ratify treaties and confirm appointments), which presumably would be transferred to the House.

Pendleton saw a defect in the irresponsibility of the federal judiciary. He proposed that by a concurring vote of both houses, Congress could remove federal judges and Supreme Court justices from office. He believed there to be a lack of restrictions on the power of the federal government to borrow money and go into debt. Pendleton suggested “some check” on this power, although he did not specify what kind. He was also worried about the lack of precision in certain areas and the existence of some general phrases in the Constitution which provided opportunities for mischievous constructions. He recommended “defining prohibited powers so explicitly, as to defy the wiles of construction.” He recommended that the Constitution should state explicitly that the common law of England was not a part of the law of the United States, and that the crime of treason was “confined to the cases stated in the Constitution” and could not be extended further by law or construction. He also believed that there existed too much uncertainty about the exact boundaries between the federal and state spheres of authority. Therefore, he suggested that “the distinct powers of the General and State Governments” should be “marked out with more precision.” He closed his article by quoting from an unnamed classical-republican author who had observed “that of men advanced to power, more are inclined to destroy liberty, than to defend it.” He urged them not to let this propitious opportunity be lost before forming “new barriers to counteract recent encroachments on their rights.”52

Adams himself wondered why Jefferson never pushed for an amendment to excise “certain phrases in the Constitution [which] had been shown by experience to be full of perils, and were so well-established by precedent in their dangerous meaning,” such as the necessary and proper clause. He wondered why Jefferson did not try to limit constitutionally the war- and treaty-making powers “with their undefined and therefore unlimited consequences.”53 He also asked why Jefferson did not ask Congress “to confirm the action of Virginia and Kentucky by declaring the Alien and Sedition Laws to be unconstitutional and null as legislative precedents.” After all, as Adams points out, John Taylor and other Virginia Republicans at the time thought that Congress should have formally repealed those laws instead of merely allowing them to expire according to statute.54

Jefferson also did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall’s opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review. Jefferson believed that since Marshall’s opinion was issued obiter dictum (an incidental opinion having no bearing on the case in question, and hence not binding) and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it. Last, Jefferson erred by deciding against pushing for an amendment to authorize the Louisiana Purchase and to answer the questions raised by territorial expansion—namely, which other North American territories could be incorporated in the Union, how could they be incorporated lawfully, what powers exactly did Congress and the president have over the territories, and what would be the exact procedure for forming new states out of them and admitting them to the Union.

Jefferson also failed to appoint a states’-rights Republican to the Supreme Court who could rival John Marshall in erudition, strength of personality, and determination to uphold a consistent constitutional philosophy. Jefferson had three Supreme Court appointments. He appointed William Johnson of South Carolina in 1804, Henry Brockholst Livingston of New York in 1806, and Thomas Todd of Kentucky in 1807. Although all three were Republicans, none of them consistently upheld the compact theory of the Constitution, or what was then known as the Virginia school of constitutionalism. Johnson, who was the most republican of the three, cited Marbury as a precedent and concurred in Marshall’s major centralizing opinions (McCulloch v. Maryland; Martin v. Hunter; Gibbons v. Ogden; and Dartmouth College v. Woodward). Livingston was an even greater disappointment than Johnson. Instead of helping to form a Jeffersonian phalanx on the court, he quickly fell under Marshall’s influence and voted with the nationalist majority on all major cases. Thomas Todd, whom Jefferson appointed to fill a newly created sixth associate justice position, turned out to be a non-entity, a mere rubber stamp for Marshall and Story.

Historians have little or nothing to say about Jefferson’s Supreme Court appointments. Neither Henry Adams nor Dumas Malone even discuss them. Yet here was Jefferson’s best chance to counter John Marshall. With three strong Republican appointments, Jefferson could have reduced Marshall’s majority to a bare 4–3 by 1807. With just one more solid appointment in 1811, Jefferson’s hand-picked successor, Madison, could have ended the Marshall Court and begun a Jeffersonian Court with strict constructionist, states’-rights jurists in the majority. In the meantime, vigorous dissenting opinions issued by Jeffersonian jurists could have weakened the force of Marshall’s opinions and added legitimacy to future reversals. Because Marshall’s most seminal nationalist decisions, apart from Marbury in 1803, came after the War of 1812, Jefferson could have changed the whole course of constitutional history.

Why did Jefferson make such weak appointments? It was not because there were no intellectually formidable jurists committed to states’ rights and strict construction. Actually, there were many available, including two prominent Virginians with whom Jefferson corresponded. Judge Spencer Roane (1762–1822) had been on the Virginia Court of Appeals since 1794, and after the death of Edmund Pendleton in 1803 became its recognized leader. President-elect Jefferson was apparently considering appointing him to the position of chief justice of the Supreme Court before Adams appointed Marshall just six weeks before he was to leave office. Why Jefferson at the first opportunity did not appoint Roane to the court as a check upon Marshall is not clear. Another formidable Virginia jurist who shared Jefferson’s constitutional and judicial philosophy was St. George Tucker (1752–1827). Tucker had been a judge of the general court of Virginia for twelve years, and a professor of law at the college of William and Mary from 1800–1803, and he was elected to the state court of appeals in 1803 to fill the vacancy created by the death of Pendleton. In the same year, he published a five-volume annotated edition of William Blackstone’s Commentaries of the Laws of England. Tucker suffused his “republicanized” version of Blacks tone with the doctrines of states’ rights, strict construction, and the compact theory.55 There is no doubt that Roane and Tucker were the intellectual and scholarly equals, and possibly superiors, of Marshall and that they would have challenged his centralizing and nationalistic opinions at every opportunity. If Jefferson had appointed these two men to the court and favored a true Republican, instead of Madison, to be his successor, it is very likely that the Marshall Court would have come to an end in 1811; and historians would now be writing about a Roane or a Tucker Court during the 1810s and 1820s.

Jefferson did try the experiment of whether Congress’s power of impeachment could be used as a means of disciplining or checking the power of federal judges and Supreme Court justices. In February 1803, Jefferson recommended to the House that they consider the impeachment of Federal District Judge John Pickering of New Hampshire. Jefferson charged that Pickering’s habitual drunkenness rendered him unfit to perform his duties and that such dereliction constituted a misdemeanor which was legal grounds for impeachment. On March 3, 1803, the House voted 45–8 to impeach Pickering. A year later, on March 12, 1804, the Senate found Pickering guilty of a misdemeanor and ordered him removed from office.56

Jefferson was certainly pleased with Pickering’s impeachment, but it was two other events in the late winter and spring of 1803 that finally motivated him to recommend to his chief supporters in Congress the impeachment of a Supreme Court justice. On February 24, 1803, John Marshall rendered his gratuitous and bold assertion of judicial power in Marbury v. Madison. Jefferson was alarmed and angered by the decision. Then, on May 2, Associate Justice Samuel Chase of the Supreme Court delivered a political harangue before a grand jury in Baltimore. Chase denounced the Republican’s repeal of the Judiciary Act of 1801, the recent adoption of universal manhood suffrage by the state of Maryland, and “the modern doctrines of our late reformers [the Jeffersonians], that all men in a state of society are entitled to enjoy equal liberty and equal rights.” Chase warned the jury that unless these changes were reversed and the doctrines behind them repudiated, the government would become “a mobocracy . . . and peace and order, freedom and property, shall be destroyed.”57 Jefferson was infuriated. He considered Chase’s comments to be “seditious,” constituting an “official attack on the principles of our Constitution and the proceedings of a State.” Consequently, just ten days later, he wrote a letter urging one of his chief supporters in the House to begin impeachment proceedings against Chase.58 For Jefferson, the time had arrived to humble the power and pretensions of the Federalist-controlled Supreme Court and at the same time to see if impeachment could function as an effectual legislative check upon the judiciary. On March 12, 1804, the House voted to impeach Chase by a vote of 73–32. The Senate trial would begin a year later. The chief House managers at the Senate trial were John Randolph of Virginia, Joseph Nicholson of Maryland, and George W. Campbell of Tennessee.

Samuel Chase was an arch-Federalist of imperious habits who had allowed his own political partisanship to influence his official duties as an associate justice of the Supreme Court. Chase had favored the government prosecution in his handling of two important sedition trials in Baltimore in 1800; he had left the bench without a quorum in order to campaign for John Adams the same year; he was also given to harassing Republican lawyers and delivering political diatribes while on the bench. The House managers brought eight articles of impeachment against Chase. The most serious charges were that during the sedition trial of John Fries, Chase had denied the defendant the right to counsel and had treated him in an “arbitrary, oppressive, and unjust” manner; during the libel trial of James Callender, Chase had failed to excuse a prejudiced juror and had refused to hear an important witness for the defense; after a federal grand jury in Newcastle, Delaware, had finished its business, Chase kept it in session and urged it to inspect a local paper for evidence of sedition; and Chase had delivered a political speech before the grand jury in Baltimore.59

The chief issue before the Senate was what were the proper grounds for judicial impeachment. The Federalists and some Northern Republicans contended that a justice could be impeached only for actual violations of the law (criminal impeachment). The Southern Republicans, led by John Randolph and William Branch Giles, contended that a justice could be impeached for misconduct, partisanship, and abuses of judicial power (political impeachment). The latter was Jefferson’s opinion. On March 1, 1805, the Senate began voting on the eight articles of impeachment. In order to convict Chase, two-thirds of the senators present (twenty-three) would have to vote to convict him on at least one article. The most votes to convict were nineteen on article eight and eighteen on articles three and four. Chase was acquitted. Although Randolph has often been blamed for botching the trial, the real reason for the failure to convict was that five Northern Republicans and one Southern Republican voted to acquit Chase on all eight articles.60

Thus, to Jefferson’s and Randolph’s great disappointment, the issue of whether impeachment could be used to check a politicized and consolidationist judiciary had been settled in the negative. Right after the acquittal, John Randolph introduced a resolution that the House should pass and submit to the states an amendment to the Constitution providing that “the judges of the Supreme and all other courts of the United States shall be removed by the President on the joint address of both houses of Congress.”61

Joseph Nicholson of Maryland pushed for an amendment empowering the legislature of any state to recall one of their senators and vacate his seat. The House voted to refer both resolutions to the next Congress.62 Jefferson gave neither amendment any support. Writing just two years later during the Burr treason trial, Jefferson admitted to one of his chief supporters in the Senate that “impeachment is a farce which will not be tried again.” He observed with alarm that “one of the great coordinate branches of the government [the judiciary]” had set “itself in opposition to the other two and to the common sense of the nation.” He suggested that if Burr were acquitted due to the obstructions placed in the way of conviction by Chief Justice Marshall, who was presiding over the trial, that the people “will see then and amend the error in our Constitution, which makes any branch independent of the nation.”63

Once again Jefferson did nothing. He even sounded as if the president had no power or influence in proposing a constitutional amendment which would have limited the powers of the federal court and made its justices, as well as other federal judges, removable for misconduct. He had many ways of making such a recommendation: he could have drafted a special message to Congress; he could have included it in his upcoming annual message; and he could have suggested it to his chief supporters in Congress. But he did none of these things. Jefferson should have known better. He should have realized that political power in a republic is ephemeral and that the temptations to abuse power were so great that future administrations and congresses would be sure to seize the forbidden fruit, which was all the more reason to erect as many dikes and moats and eliminate as many unguarded passages to the throne of arbitrary power as was possible. Years later, when Jefferson himself admitted that the enemy was in the camp, he could not say that he had not been warned; his fellow Virginian Republicans, Edmund Pendleton, John Randolph, and John Taylor, had warned him.

Henry Adams suggested four reasons why Jefferson did not push for constitutional revision and reform. First, Jefferson found some federal powers useful for his policy of territorial expansion, such as the treaty-making power. Second, his majority in the Senate was too small; he needed two-thirds to pass an amendment. Third, he could not count on the support of his Northern political allies. Adams contended that while the “Southern Republicans” were strongly committed to limited government, states’ rights, and strict construction, the “Northern democrats” were more interested in making the federal government responsive to the wishes of the people than in restricting its power. Fourth,

Jefferson wished to overthrow the Federalists and annihilate the last opposition before attempting radical reforms. Confident that States-rights were safe in his hands, he saw no occasion to alarm the people with legislation directed against past rather than future dangers.64

Adams was right. Early in his presidency, Jefferson made a fateful decision to safeguard the Republican revolution by political rather than constitutional means. His strategy was to draw away the great body of the Federalist voters, most of whom he believed were republican at heart, from their ambitious and unprincipled leaders. Once that had been done, the republic would be safe and fundamental reforms could be enacted. He admitted to a correspondent very early in his presidency that

some things may perhaps be left undone from motives of compromise for a time, and not to alarm by too sudden reformation, but with a view to be resumed at another time. . . . What is practicable must often controul [sic] what is pure theory; and the habits of the governed determine in a great degree what is practicable.65

In the meantime, he hoped “by degrees to introduce sound principles and make them habitual.” In other words, he feared that radical measures would alarm many moderate Federalists and new Republican voters, thus driving them back into the arms of the Hamiltonians and the High Federalists of New England.

Many of Jefferson’s early policy decisions can be explained only by a desire to placate and win over the bulk of the Federalists to the Republican Party. Why else was he so reluctant to remove any but the most partisan or incompetent Federalists from office? Why did he decide only to reduce, instead of abolish, the navy when the latter had been his initial intention and the fond wish of so many of his Southern supporters? Why did he decide to send the fleet to the Mediterranean to fight the pasha of Tripoli when he needed only to sign a new treaty with an increased tribute? After all, Jefferson continued throughout his presidency to pay tribute to the other Barbary powers. Jefferson knew that the navy was popular in the Eastern states, the region of his weakest strength, and he knew that most navy officers were Federalists. Why did Jefferson support a compromise settlement for the shameful Yazoo bribery scandal, if not to win over New England Federalists who were personally interested in that sordid financial transaction?

There are numerous references in Jefferson’s letters during the course of his presidency indicating how important it was to him that the Republican majority grow and the Federalist minority shrink.66 Moreover, there are indications that Jefferson was not simply postponing constitutional reform to a later day when the Republicans were stronger, but that he actually regarded such reforms as secondary in importance to winning over the Federalist minority to republicanism:

[S]hould the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious and solid, while so respectable a portion of its citizens support principles which go directly to change of the federal Constitution, to sink the State governments, consolidate them into one, and to monarchize that.67

In other words, Jefferson understood that constitutional prohibitions alone would not deter or prevent a determined faction from subverting a government in which they did not believe. By his policies, Jefferson placed stronger emphasis on restoring harmony and unity to the country and on bringing back the great body of the Federalists to their “ancient principles,” “the principles of ’76,” than he did on constitutional reform. Jefferson simply refused to believe that the majority could not be relied upon to defend the Constitution and the cause of liberty. He was sure that while they might stray from sound principles on occasion they would always return to their senses before it was too late.

Internal Improvements and a Military Academy

During Jefferson’s Second Inaugural Address, he suggested for the first time that federal funds be applied in the future “to rivers, canals, roads, arts, manufactures, education, and other great objects within each state.”68 On the basis of this passage, many historians have rushed to the conclusion that Jefferson in his second term became an advocate of public works programs, government spending as an engine of prosperity, and expansive federal powers. They are wrong, for Jefferson was merely suggesting one way in which surplus federal funds could be spent after the federal debt had been fully retired. He also made it clear that an amendment to the Constitution would have to be obtained in order to authorize such spending.

He brought up the subject again in his Sixth Annual Message. He explained to his countrymen that federal revenues were increasing at such a rate that there would be very soon a surplus beyond what was required to pay the interest and the sinking fund on the federal debt. He pointed out that there were two things that could be done. Congress could reduce the impost, or it could apply the funds to “public education, roads, rivers, canals, and other such objects of public improvement as it may be thought proper to add to the constitutional enumeration of federal powers.”69 Once again, he stressed the need for an amendment to the Constitution, for “the objects now recommended are not among those enumerated in the constitution, and to which it permits the public moneys to be applied.”70 As the impost was low, and as it was applied mainly to “foreign luxuries,” he recommended spending the surplus on objects of public improvement. Jefferson was not suggesting that an empowered federal government take up the responsibility of funding and supervising educational institutions all over the country; rather, he was suggesting merely that Congress should consider founding a “national establishment for education,” or a national university:

Education is here placed among the articles of public care, not that it would be proposed to take its ordinary branches out of the hands of private enterprise, which manages so much better all the concerns to which it is equal; but a public institution can alone supply those sciences which, though rarely called for, are necessary to complete the circle, all the parts of which contribute to the improvement of the country.71

That he had thought through this subject is evident from the fact that earlier in the year he had discussed the issue with his friend Joel Barlow and had sent him a draft of a “bill for the establishment of a National Academy & University at the city of Washington.”72 However, Jefferson refused to propose such a bill to Congress until the latter had obtained constitutional authorization by passing an amendment. Jefferson again brought the subject up in his last annual message to Congress. He asked:

Shall [the surplus] lie unproductive in the public vaults? Shall the revenue be reduced? Or shall it rather be appropriated to the improvement of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which Congress may already possess, or such amendment of the constitution as may be approved by the States?73

Here Jefferson for the first time equivocated on this issue. Just four months before he would be stepping down as president, he suggested that maybe Congress already had the power to fund internal improvements: “While uncertain of the course of things, the time may be advantageously employed in obtaining the powers necessary for a system of improvement, should that be thought best.”74 Jefferson had run into the same problem he had encountered with the Louisiana treaty. He was finding himself alone in defending strict construction.

Jefferson himself was fairly consistent in not undertaking unconstitutional improvement projects. In March 1802, he signed a bill which authorized him to establish a military academy at West Point, New York. The law limited the academy to twenty officers and men. Establishing an institution for the training of military officers, particularly engineers, certainly fell within Congress’s powers to “provide for the common Defense” and “raise and support Armies.”75 Jefferson’s one slight inconsistency in this area was his approval of the Cumberland Road bill in March 1806. Under its terms, Congress appropriated $30,000 and authorized the president to appoint three commissioners and surveyors to survey and lay out a national road connecting Cumberland, Maryland, on the Potomac River with Wheeling, Virginia, on the Ohio River. The president was also required to get the approval of Maryland, Pennsylvania, and Virginia, states through which the road would pass. Jefferson fulfilled the terms of the law. However, construction did not begin nor were any funds appropriated for that purpose under Jefferson’s presidency.76 President James Madison began construction of the road in 1811; Monroe completed it in 1818.

Foreign Policy and the Embargo: The Second Term

Jefferson’s second term was marked by the growing controversy with Great Britain over the latter’s increasing restrictions on and seizures of American commerce and impressments of American seamen. These began and steadily increased after the resumption of war between Great Britain and France in 1803. The two chief points of controversy were the right of the Americans to transport the products of the French and Spanish West Indies to ports on the continent controlled by these two powers (the neutral trade), and the status of ex-British seamen who were now serving on American merchant ships and even on American naval vessels. The neutral trade not only was profitable for American merchants, but it was swelling the federal customs revenue, thus helping Jefferson and Gallatin pay off the federal debt.

The neutral trade was strongly supported by the New England commercial interests, the Federalist Party, and some Northern Republicans. After the resumption of war, the British Royal Navy had quickly swept the Atlantic Ocean of French and Spanish vessels. The British hoped to weaken Napoleon by depriving him of the rich exports from the French West Indies. Obviously, American neutral carriers frustrated their plans. Thus, in July 1805, a British judge rendered the infamous Essex decision, which declared that trade forbidden in peace could not be legal during war. In other words, since the peacetime navigation laws of France and Spain forbade American or British vessels from carrying French or Spanish colonial produce to the continent, then such laws could not be relaxed or disregarded in time of war. The judicial decision was nakedly political and of doubtful legality. Nevertheless, it provided the British Ministry the pretext it sought, and soon the Royal Navy was interdicting American commerce and seizing those ships that were carrying French or Spanish property. British naval vessels would take captured American ships to a British port where a British judge would rule that the cargo was now British property. Then a British merchant vessel or warship would transport it to London where it would be sold and often shipped to a European port. The Americans were right to suspect that British seizures had as much to do with driving American mercantile competition from the ocean and making money than it did with national security. (Throughout the war, Napoleon purchased the uniforms for his soldiers from British textile firms.)

By 1806, the British Navy had established a cordon around every American port on the Atlantic seaboard. No American ship could leave port without the likelihood of being stopped and searched for ex-British seamen or Caribbean goods. As for the ex-British seamen, some had actually deserted from the Royal Navy, either by jumping ship in an American port or simply walking away while on shore leave; many had left British commercial vessels; and a few had simply migrated to America. Americans were quick to grant citizenship to the seamen, for they needed them to fill their growing merchant marine. The British were alarmed at the growing desertions of experienced sailors, for it was weakening both their navy and their merchant marine. Not surprisingly, as Napoleon went from victory to victory on land, gradually gaining mastery of the whole continent, the Royal Navy stepped up its impressments of British-American sailors, whom they considered as still British subjects. In June 1807, the British escalated the conflict when the Royal Navy frigate Leopard fired on, boarded, and removed four British deserters from the American navy frigate Chesapeake a few miles off Norfolk, Virginia. Americans regarded this act as an insult to American honor and national independence. The British regarded American employment of their seamen as a threat to their national security and an insult to their national honor.

Jefferson had five foreign policy options. At one extreme, he could go to war with Great Britain. Jefferson knew that this would be a risky endeavor. New England was strongly opposed to a war with England and would give it little support. The country was vulnerable to British attack. The British could launch raids, shell cities, land an invasion force anywhere they wanted along the coast, launch a ground invasion from Canada, and blockade the Atlantic ports. To defend the country, his administration would have to fortify the Atlantic cities, arm and train the militia, increase the size of the navy, and raise a larger standing army, all of which would be an expensive endeavor requiring taxes and borrowing. In short, war meant the overthrow of his fiscal program of economy, tax reduction, and debt reduction. Not surprisingly, Jefferson rejected this option out of hand.

At the other extreme was the option of a British alliance, whether formal or informal. The minimal terms of such an alliance would require the United States to cease trading directly with France or her allies on the Continent. Instead, all American vessels, whether their cargo were American exports or French and Spanish re-exports, would have to land in London and pay a duty before proceeding to a Continental port. The Americans would have to cease accepting British seamen for service on their ships. In return, the British would cease their seizures of American commerce. Apart from some New England Federalists, virtually no Americans favored such an alliance. Jefferson regarded this option as a dishonorable and disgraceful submission to the edicts of an imperious and predatory military commercial empire, as well as a compromise of the republic’s independence.

Jefferson had three other options. First, he could continue his policy of strict neutrality and commercial engagement. It would avoid war, keep down military expenditures, and keep up the customs revenue. American shipping increasingly suffered from British seizures and some French seizures as well, but the New England and middle-state merchants decided that the profit to be made from completed voyages in the neutral trade and the regular export trade outweighed the losses they were sustaining. Jefferson followed this course until the end of 1807, right before the last year of his presidency. Second, he could authorize the arming of merchant vessels and issue letters of marque, authorizing private vessels to attack and seize foreign commercial vessels. Third, he could adopt a policy of commercial coercion by either restricting or banning all trade with European powers on the theory that they so needed the American market, American foodstuffs, and American neutral carriers that they would be forced to revoke their restrictions and depredations on American commerce. Jefferson believed that peaceful coercion was the perfect republican solution to the worsening commercial crisis. It would avoid war and entangling alliances, keep down military expenditures along with debt and taxes, vindicate the national honor, defend vital interests, and preserve the country’s independence.

Jefferson felt his hand being forced by the British in 1807. First, in January, there was an Order in Council issued which prohibited neutral—that is, American—shipping from the North American coasting trade. (American ships could make only one stop and then had to return.) Next, in June, there was the Chesapeake incident, an act of war which had infuriated the American public and created the strongest anti-British sentiment since the Revolution. Finally, in December, news reached Washington of a new Orders in Council (November 11) which prohibited all neutral, or American, trade with any European port from which the British flag was excluded (which was most of them). It also prohibited the export of cotton to France. Only ships that first landed in a British port, paid a customs duty, and bought a license could proceed to ports on the French-controlled Continent. By these new orders, the British were no longer simply claiming the right to interdict the American carrying trade; they were claiming the right to interdict the American regular export trade (cotton, rice, tobacco, beef, fish, grains, etc.). The Americans would now have to pay the British for the privilege of being allowed to trade. Jefferson believed that the British had finally pressed his country to the point where they had only two options: submission or resistance.

Jefferson decided it was time to try the experiment of “peaceable coercion.” His Republican allies promptly reinvoked the Non-Importation Act that had passed in April 1806 and had been suspended in December 1806, which prohibited the importation of English manufactures which could be produced in the United States, and passed the Embargo Act (December 22, 1807), which forbade any U.S. vessels from leaving for a foreign port, or for any foreign vessel to depart from a U.S. port carrying American merchandise. The act required all registered sea-letter vessels to post bonds of double the value of the ship and cargo before embarking on voyages to other American ports. All ships were required to obtain clearance papers and show a manifest of the cargo before departing and to produce a certificate proving that they had landed in a foreign port. Just one week after the embargo went into operation, Congress passed a supplementary measure, the Second Embargo Act (January 8, 1808), in order to prevent vessels licensed only for the coasting trade from secretly sailing to a Canadian or West Indian port. The act required all coasting vessels, as well as whalers and fishing boats, to post bonds. Although it was ostensibly designed for their benefit, the embargo was not a popular measure among the American mercantile class, and they soon found loopholes and ways of evading the provisions of the law. For instance, American merchants began a brisk trade with Canada across the northern border and to a lesser extent with the Spanish Floridas. As a result, Congress passed the Third Embargo Act (March 12, 1808) forbidding trade by land or inland waterway between the U.S., Canada, and Florida. But massive evasions of the law continued. Smuggling along the northern border continued, and American ships and vessels began to engage in an illicit trade with British ships off the Atlantic coast, often with the active assistance and participation of the British navy. One of the most notorious smuggling routes was Lake Champlain. New Yorkers and Vermonters openly transported products on large rafts and boats across to Canada.

On April 19, 1808, Jefferson proclaimed the existence of an “insurrection” along the northern border “too powerful to be suppressed by the ordinary course of judicial proceedings.”77 He called on the governors of Vermont and New York to call out their militia to suppress the illicit traffic. Jefferson and Gallatin soon realized that if the embargo were to be successful, a strict enforcement act was going to be necessary. Congress passed the Fourth Embargo Act, also known as the Enforcement Act, in late April 1808. Under its terms, no ship or coasting vessel could depart for a port or district adjacent to foreign territory without the express permission of the president; collectors in districts adjacent to foreign territory could seize merchandise on shore they suspected was intended for eventual export and detain it until the owner would pay a bond guaranteeing that it would be transported to a domestic port; federal revenue cutters and naval vessels could stop, search, and bring back to port any American ship on mere suspicion that it might be carrying goods for export; and collectors could detain suspicious vessels in harbor until the president personally sanctioned their release. In authorizing searches, seizures, and detentions of ships and merchandise, the law made no mention of such constitutional requirements as search warrants and judicial due process. Yet despite this new measure, smuggling and illicit trading continued.

To enforce the embargo against a recalcitrant public, Jefferson early on resorted to regular army and navy forces to assist the customs service. The First Embargo Act authorized the navy to interdict ocean-going vessels headed for foreign ports. Without legislative authority, Jefferson, in February 1808, directed Secretary of the Navy Robert Smith to send naval gunboats to intercept American merchantmen trading with the British off the Delaware coast. The Enforcement Act authorized naval vessels to stop, search, and detain any ship or boat suspected of engaging in unlawful commerce, whether at sea, along the coast, sailing an inland waterway, or still in harbor. In July, Jefferson directed Smith to place his ships at the disposal of Secretary of Treasury Gallatin, whom Jefferson had made the chief enforcement officer for the embargo. Thus, by late summer of 1808, revenue cutters, naval gunboats, brigs, and frigates were patrolling the Atlantic coastline as well as every harbor, bay, inlet, inland waterway, and bordering Canada, lakes Ontario and Champlain. In July, Jefferson ordered Secretary of War Henry Dearborn to send regular army units to the Lake Champlain area to assist the local militia in interdicting smuggling. In August, after Governor Tompkins of New York ordered five hundred state militia to his northern border, Jefferson ordered Dearborn to station regulars in upper New York at key points along Lake Ontario and the St. Lawrence River. Thus, by the late summer of 1808, Jefferson had deployed a military and naval cordon around the United States from Lake Ontario in the north to New Orleans in the south.

However, widespread and systematic evasions of the law continued into the fall, and Jefferson and Gallatin decided that an even more rigorous enforcement measure was needed. In early January 1809, Congress passed the Second Enforcement Act. It gave the president and anyone under his authority (collectors, federal marshals) the authority to employ the army and naval forces of the United States to assist them in their duties whenever and wherever they thought it necessary. It also granted collectors and marshals even greater latitude in their searches, seizures, and detentions. Federal officers were now authorized to search any vehicles of transportation or warehouses and to seize and hold specie or other articles of domestic growth, produce, or manufacture which they suspected were intended for export at any port or location in the Union, not just at ports or locations adjacent to foreign territory. To obtain their release, owners had to give bonds to the full value of the articles. Coasting vessels now had to give bonds amounting to six times the value of the vessel and cargo. Once again, Jefferson, his administration, and the Republican-controlled Congress ignored the protections afforded by the Fourth, Fifth, and Sixth Amendments to the Constitution.

In deciding for an embargo, Jefferson made the biggest mistake of his presidency. Commercial coercion failed utterly to achieve its object of forcing Great Britain and France to respect neutral rights. Despite fifteen months of embargo, the Royal Navy continued to impress American seamen, and the British ministry did not revoke their Orders in Council. Jefferson overestimated the effect an embargo would have on the British economy. While British manufacturing suffered, farmers benefitted from a higher price for their crops, British shipping filled the vacuum created by the removal of American competition, and British merchants turned to South America as a new export market and source of imports. In addition, with the active cooperation of the Royal Navy at sea and the British army in Canada, British merchants engaged in a brisk smuggling trade with Americans who were determined to keep on trading in defiance of the law.

In pursuing an embargo policy, Jefferson did serious damage to the Republican cause for which he was the recognized national leader, and he violated many of the Republican principles for which he had contended in the 1790s. First of all, the enforcement provisions of the embargo acts were in clear violation of the Fourth and Fifth Amendments, for they authorized revenue officers, custom collectors, federal marshals, and naval officers to conduct searches and seizures without judicial warrants or any kind of due process. Furthermore, Jefferson and his Republican allies assumed a power of doubtful constitutional legitimacy. As John Randolph contended in the House, the Constitution granted the federal government the power to “regulate” commerce with foreign nations, but it did not grant it the power to prohibit it altogether. To concede that the power of prohibition is implied in that of regulation could only add legitimacy to the Federalist doctrine of implied powers.

Jefferson understood as well as Randolph that the assumption of a doubtful power would establish a precedent for others and that the doctrine of implication once conceded eventually would render the Constitution ineffectual as a check upon government power. However, unlike the Louisiana question, Jefferson never seemed to consider the constitutional implications of his embargo and enforcement measures. Perhaps his dislike of the British and also of New Englanders rendered him temporarily blind. But whatever the reason, there is no doubt that Jefferson had become the author of a major enhancement in unconstitutional federal power.

There was great irony in the fact that the major judicial decision upholding the constitutionality of the embargo was rendered by a New England Federalist, Judge John Davis of the federal district court for Massachusetts.78 Judge Davis’s opinion (September 1808) drew on all the expansive constitutional doctrines first advanced by Alexander Hamilton in the early 1790s. He spoke of the “discretion of the national government” with regard to locating the proper bounds of the commerce power; he cited the “necessary and proper clause” as authorization for the power to lay an embargo; he invoked the doctrine of “inherent sovereignty,” which was simply the doctrine of implied powers by another name; and he even denied the federated and limited nature of the American confederation. In a sentence which should have sent Jefferson rushing to repeal his experiment in peaceable coercion, Davis wrote that “in our national system, as in all modern sovereignties, it [the commerce power] is also to be considered as an instrument for other purposes of general policy and interest.”79

Judge Davis clearly knew what he was about. Instead of bowing to the shortsighted wishes of his mercantile friends and fellow Federalists in striking down the hated embargo, he saw an opportunity to lay a foundation stone for the nationalist-centralist theory of the Constitution which was favored by the neomercantilists and empire-builders in the Federalist party. Even better, in defending the constitutionality of a Republican measure, he could make the nationalist theory appear nonpartisan and render his centralizing opinion unassailable by the Republicans. For if the latter attacked his reasoning, they would be all but admitting that Jefferson had transgressed the bounds of the Constitution.

The embargo also violated the classical-liberal principles that Jefferson had defended in the 1790s and had consistently respected as president. In a letter written to a Massachusetts supporter in 1800, Jefferson promised to limit “the general government . . . to foreign concerns only” and to leave “commerce, which the merchants will manage the better, the more they are left free to manage for themselves,” alone.80

Seven years later, Gallatin wrote to Jefferson warning him that the embargo would have many negative consequences, including “privations, sufferings, [loss of] revenue,” and a strengthening of the Federalists, and would be of doubtful effect in swaying the British to change their hostile policy Gallatin described hopes for the latter as altogether “groundless.” He urged that the embargo should be of short duration, that it should not be pressed too hard upon their countrymen, and that they should be prepared to retract it at the first signs that it was doing more harm than good. Gallatin concluded his argument with a beautiful statement of laissez-faire principles:

Government prohibitions do always more mischief than had been calculated; and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals, as if he could do it better than themselves.81

Jefferson should have heeded Gallatin’s advice, for the latter’s warnings and predictions were vindicated by events. Yet Jefferson pressed on despite mounting evidence that the embargo was proving a disaster. It is difficult to defend the embargo as a policy of national defense or honor, for those who were chiefly suffering at the hands of the British navy (the Northern mercantile classes) were the embargo’s most vigorous opponents. No one was forcing them to continue trading in the Atlantic market in face of mounting British and French restrictions, seizures, and confiscations. In fact, despite the steady loss of cargo, sailors, and ships, they were still making a sizeable profit, still finding a market for American produce, and still bringing in record sums for the federal treasury through customs. Years later, Condy Raguet of Philadelphia, perhaps the most influential classical-liberal political economist of the 1830s, dated the republic’s first and fateful departure from its original free-trade policies to Jefferson’s 1807 embargo. As Raguet pointed out, the embargo was followed by the nonintercourse acts, the War of 1812, and the protective tariffs of 1816, 1820, 1824, and 1828.82

The economic effects of the embargo were calamitous for the commercial and navigating interests of New England and the middle states. Despite smuggling, trade was crippled: sailors and mechanics could not find work; ships languished in dock; many merchants and shipbuilders were ruined, all suffering diminished business. Nor was the distress limited to the Eastern states. The South suffered grievously by losing the market for their tobacco, cotton, rice, indigo, wheat, and corn.

John Randolph would lament years later that the embargo and the economic restrictions were the beginning of ruin for many planters in Virginia. That Jefferson would cause such misfortune through a policy which was intended to vindicate the cause of free trade is the supreme irony and is yet more proof that an activist government invariably does more harm than good to its intended beneficiaries.

Other unintended consequences of the embargo were an increase in sectional animosity and distrust between the Eastern and Southern states, a revival of Federalist political strength in New England, and the sanction lent by the Jeffersonians to the precedent of using the army and navy to enforce an unpopular law on American citizens.

There was a bitter irony for Federalists and dissident Republicans in that the chief use of Jefferson’s gunboat flotilla and additional army regiments turned out not to defend the country against British invasion but to enforce the terms of an unpopular federal law upon the citizens of the states. The political party that rose in opposition to a standing army and navy on the grounds that they posed a threat to the liberties of the citizens was now using those very forces to deprive Americans of their right to trade with foreign countries. The historian Henry Adams summed up well the damage done by Jefferson to his own cause by his policy of “peaceful” coercion:

The embargo and the Louisiana purchase taken together were more destructive to the theory and practice of a Virginia republic than any foreign war was likely to be. Personal liberties and rights of property were more directly curtailed in the United States by embargo than in Great Britain by centuries of almost continuous foreign war.83

Military Policy: the Second Term

As tensions with Great Britain increased during his second term, Jefferson thought it prudent to make some defensive preparations. At first these involved modest appropriations. In 1806, the Republican Congress authorized $250,000 for the construction of fifty gunboats and $150,000 to increase the fortifications at some key harbors. Jefferson believed that gunboats were the answer to the American dilemma of how to defend the large country from the threat posed by the British navy without having to spend a fortune building ships-of-the-line, heavy frigates, and brigs.

Jefferson knew that British naval supremacy was so great that their ships could crush whatever fledgling fleet the Americans could build and put out to sea. What is more, the very building of such a fleet would be seen as a threat and might provoke them into launching a preemptive strike to destroy the new ships and shipyards before they would become large enough to challenge the British navy. The British destruction of the Danish fleet as it lay at anchor in Copenhagen—Denmark was a neutral power and not at war with Britain at the time—was proof that they would not let the technicality of American neutrality stop them from sailing up the Chesapeake in force to destroy the Norfolk and Washington shipyards.

The Americans had nothing but a handful of frigates, brigs, and schooners, how could they defend their coastline from British depredations in the event of a war? For Jefferson, gunboats were the answer. Gunboats were basically floating barges with lots of guns. They were relatively cheap to build; they did not pose a threat to the British fleet on the ocean; and they were thought to be effective in battling larger warships in the close quarters of harbors, bays, and inland waterways. In other words, Jefferson saw them as the perfect defensive weapon to guard against British invasion.

Jefferson also decided to augment the size of the standing army and to arm the state militias. In February 1808, Jefferson had Dearborn request authorization to add eight regiments to the regular army since war loomed with Great Britain. The Republicans promptly passed a bill authorizing the increase. Just ten years previously, when the country was engaged in an undeclared naval war with France, the Republicans had vetoed an Adams administration measure to create twelve new army regiments. John Randolph was one of the few Republicans in the House to remain consistent with his classical-republican opposition to standing armies and commercial wars. He voted against the eight regiment bill, just as he had voted against the twelve regiment bill in 1798.

In the last year of his presidency, Jefferson doubled the size of the regular army, thus making it larger than it had been when he took office. Nor was that all. At the president’s urging, Congress passed other military measures including $850,000 for 188 gunboats, $1 million for harbor fortifications, authorization for the president to sell surplus muskets to the states, $200,000 to arm and equip the state militias, authority for the president to require the state governors to organize, arm, and equip 100,000 state militia, and the authority for the president to call all, or part, of those forces for six months of federal service.84

The question of Jefferson’s motivation in making preparations for war, even while embarking on a policy of peaceable coercion, is important. There are three possibilities for this. First, he may have believed that defensive preparations on top of the embargo would induce the British to repeal their Orders in Council and cease their impressments for fear of a war with the United States. This explanation is consistent with his earlier diplomacy in which he repeatedly dropped hints to one of the three great powers that he was considering making an offensive alliance with one of their rivals. Second, he may have already foreseen the need for new gunboats and army regiments to enforce his embargo. Jefferson knew that the mercantile classes, especially in New England, did not favor the embargo and that they had a long tradition of resisting commercial restrictions by smuggling. Third, Jefferson may have been seriously contemplating an eventual war with Great Britain. While Jefferson sincerely wanted peace and understood that a war would bring in its train taxes and debt, he also knew that a successful war would offer one splendid prize—Canada.

The Republicans had long coveted Canada, and it was taken for granted that in the event of a second war with Great Britain, the Americans would invade and add it to the confederation. During the war fever produced by the British attack on the American frigate Chesapeake, Jefferson and his cabinet discussed the feasibility of invading Canada during the winter of 1808–1809. Gallatin even prepared a memorandum for Jefferson outlining possible military operations against their northern neighbor; he estimated that its conquest would require 30,000 soldiers.85

Jefferson believed that acquiring Canada would bring the same kind of benefits as had acquiring Louisiana—land, security on the cheap, and independence from Europe. He understood that the more territory his countrymen controlled on the North American continent, the less need they would have of a regular army, the more secure they would be from invasion, and the more insulated they would be from the incessant wars and political entanglements of the Old World. Throughout his career, Jefferson often expressed his wish “that there were an ocean of fire between us and the Old World.”86

An important contrast should be kept in mind. Jefferson and his party were willing to consider war only if it were in the national interest; the Federalists, on the other hand, sought war for the incidental benefits it would bring—taxes, debt, centralization of power, patronage, glory—and seemed not to care a whit for the good of the country. For instance, it is hard to see what benefits (land, increased security, or commercial wealth) a military alliance with Great Britain would have brought the people.

Whatever Jefferson’s initial intentions in increasing military expenditures and making war preparations, by June 1808, he was already considering the possibility that the embargo would fail and his country would have to go to war with England.

But if this is before the repeal of the Orders of Council, we must abandon it only for a state of war. “The day is not distant, when that will be preferable to a longer continuance of the embargo. But we can never remove that, and let our vessels go out and be taken under these orders, without making reprisal.”87

Reprisal meant issuing letters of marque and arming merchant ships, both of which Jefferson knew would lead to war with Great Britain. By late 1808, most of the new gunboats and army regiments were employed trying to prevent Americans from trading with the British, and the latter showed no sign of wanting to negotiate or make concessions. What is more, opposition to the embargo in the Eastern states was steadily increasing. Jefferson’s response was to intensify the enforcement effort and prepare for war. Jefferson and his cabinet agreed that the proper policy to pursue was to tighten the enforcement of the embargo, increase war preparations, and set a date in the early summer of 1809 when, unless the British and French repealed their restrictions on American commerce, Congress would declare war against one or both powers.

In early December, at the recommendation of Gallatin (and hence Jefferson) Senator William Branch Giles introduced the Second Enforcement Act in Congress. Later in the month, at the recommendation of Dearborn (and hence Jefferson), the House began debating a bill to raise, train, and equip 50,000 volunteers at the cost of $2.1 million. The volunteers would serve one month annually for a period of two years, and they could be called into active service by the president at any time during that period. If this bill were to pass on top of the 9,000 regulars already serving and the president’s new authority to call up 100,000 militia at any time, President Madison would be able to deploy 160,000 troops for an invasion of Canada, the defense of the coastline, and perhaps an invasion of Florida as well.

Jefferson’s program was only partly enacted. On January 6, Congress passed the Second Enforcement Act. On January 20, the House passed a bill calling for an early or extra session of Congress to meet on May 22, the purpose of which would be to end the embargo and declare war. On January 30, Jefferson’s close ally Wilson Cary Nicholas introduced a measure declaring that if Great Britain and France had not repealed their orders and edicts directed against America’s neutral commerce before June 1, then the embargo would cease and letters of marque and reprisal would be issued against those two powers. Everyone knew that the issue of such letters would initiate hostilities and be followed by war.88

In a series of votes in early February 1809, Congress stepped back from enacting Jefferson’s and Madison’s war program. First, it rejected the Nicholas bill and voted to end the embargo on March 4; second, it voted for a mild nonintercourse act; and third, it refrained from passing the bill for 50,000 volunteers. The Northern Republicans, especially those from New York and New England, had turned against the administration’s measures because they decided that neither they nor their constituents wanted war. When the bulk of the Northern Republicans joined the antiwar, antiembargo coalition of Federalists and Old Republicans, Jefferson’s party lost its majority and the embargo was doomed. Bowing to the inevitable, Jefferson signed the bill repealing the embargo on March 1, just three days before he retired from the presidency.

What saved the country from war in 1809 was the activity and defiance of the New England Federalists, acting in the same spirit and on the same principles as the Republicans had done in 1798–1799. By late 1808, prominent New England Federalists were taking the preliminary steps to calling a convention of the five New England states and New York to protest the embargo and to adopt measures of cooperation in resisting its enforcement. The chief leaders of this movement were U.S. Senators Timothy Pickering of Massachusetts and James Hillhouse of Connecticut, Massachusetts Senate leader Harrison Gray Otis, and Connecticut Governor Jonathan Trumbull.89

The first public manifestation of this well-organized and well-orchestrated movement was the holding of town meetings all across Massachusetts in January 1809. Resolutions passed by these meetings challenged the constitutionality of the embargo, vowed cooperation among the towns in resisting the second Enforcement Act, and promised to oppose any future war with Great Britain.90 The Boston town meeting appealed to the General Court for its “interposition” to protect the “liberties and property” of the people of the state from the oppressive embargo system.91 Soon thereafter, the Massachusetts legislature passed a series of antiwar, antiembargo resolutions. They promised to “co-operate” with their “sister States” “in measures to rescue our common country from impending ruin,” including the adoption of amendments to the Constitution designed to defend the rights of commerce; “to give to the commercial States fair and just consideration in the government of the Union”; and to afford “permanent security, as well as present relief, from the oppressive measures under which they now suffer.”92 The Connecticut legislature soon followed Massachusetts’s example and passed similar resolutions. Governor Trumbull publicly invoked the doctrine of state interposition in his opening speech to the Connecticut legislature:

Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State legislatures in great emergencies devolves the arduous task—it is their right, it becomes their duty—to interpose their protecting shield between the rights and liberties of the people and the assumed power of the general government.93

Trumbull was not just blowing smoke. When War Secretary Dearborn requested him to select militia officers on whom the collectors might call for military assistance in enforcing the embargo, he refused to lend his cooperation. Trumbull reasoned that the Second Enforcement Act was “unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States.”94 The New England states had made their intent plain: Not only would they not cooperate in the Republican policy of embargo followed by war but they would actively resist it by collective measures, including the calling of a New England convention.

Jefferson and his cabinet were faced with a grim dilemma. Not only was the embargo not working, but they feared that were it to be persisted in, it might provoke the Eastern states to secede. If they opted for war, they could not count on New England troops to help in the invasion of Canada; what was worse, war might well drive those states to secession and common cause with England. If they chose to abandon the embargo, they would be admitting a costly and humiliating failure of policy. Ultimately, members of their own party forced their hand. When the state resistance of New England was coupled with the growing defection of Northern Republicans from the embargo and quasi-war policy, Jefferson and his cabinet had no choice but to surrender their experiment of commercial coercion and their preparations for war. Years later, he would write:

I felt the foundations of the government shaken under my feet by the New England townships. . . . [a]nd although the whole of the other States were known to be in favor of the measure, yet the organization of this little selfish minority enabled it to overrule the Union.95

Jefferson was bitter about this denouement. He long believed that at a time when the nation’s independence and honor was at stake, the Federalists of New England could think only of their pocketbooks.

If the irony of the political situation was palpable, so was the opportunism and hypocrisy of many New England Federalists who only eight years previously had been hard-core consolidationists and advocates of federal over state authority. Nevertheless, the New England Federalist’s invocation of the principles of ’98 gave added weight to Jefferson’s own core belief that states’ rights were “the surest bulwarks against anti-Republican tendencies.”96 Jefferson’s belief that the decentralized and extensive nature of the federal Union was the best security for popular liberties had now been confirmed twice by experience. Although Jefferson never admitted it, Massachusetts and Connecticut in 1809 had served the cause of constitutional liberty much as Virginia and Kentucky had done in 1798 when

by a part of the Union having held on to the principles of the Constitution, time has been given to the States to recover from the temporary frenzy into which they had been decoyed, to rally round the Constitution, and to rescue it from the destruction with which it had been threatened even at their own hands.97

Conclusion

When assessing Jefferson’s presidency, it is worthwhile to reconsider what his old rival, Alexander Hamilton, said of him seven weeks before he took office:

Nor is it true that Jefferson is zealot enough to do anything in pursuance of his principles which will contravene his popularity or his interest. He is as likely as any man I know to temporize, to calculate what will be likely to promote his own reputation and advantage; and the probable result of such a temper is the preservation of systems, though originally opposed, which, being once established, could not be overturned without danger to the person who did it. To my mind, a true estimate of a temporizing rather than a violent system.98

While slightly overdrawn, Hamilton’s prophecy is a fairly accurate prediction of the course of Jefferson’s presidency, and it offers a plausible explanation of why Jefferson would shrink from truly revolutionary measures. It certainly helps to explain why Jefferson never tried to repeal the Judiciary Act of 1789, repeal the charter of the national bank, or abolish the navy. The Old Republicans were certainly disappointed that Jefferson did not go further in reversing Federalist innovations and creating safeguards against future encroachments by a government controlled by consolidationists and neomercantilists. John Taylor of Virginia summed up Jefferson’s presidency in 1810:

There were a number of people who soon thought and said to one another that Mr. Jefferson did many good things, but neglected some better things; and who now view his policy as very like compromise with Mr. Hamilton’s. . . . Federalism, indeed, having been defeated, has gained a new footing by being taken into partnership with republicanism. It was this project which divided the Republican party by changing its principles from real to nominal.99

That was harsh, but it was also true. The “good things” to which Taylor was referring were undoubtedly the repeal of the Judiciary Act of 1801, the abolishment of the internal taxes, the reduction in the number of federal officials, the reduction of the regular army, the shrinking of the navy, the paying down of the national debt, and the addition of New Orleans and Louisiana to the Union. These were real and solid accomplishments. However, as Taylor pointed out, Jefferson “neglected some better things.” He did not try to repeal the Judiciary Act of 1789 or revoke the charter of the national bank. He left most of the ocean-going navy in service. He did not appoint a Spencer Roane or a St. George Tucker, both intellectually powerful and consistent states’-rights’ Republicans, to the Supreme Court. And worst of all, he did not push for constitutional reform in the form of amendments that would have checked the power of the federal judiciary by negating the power of judicial review and making federal judges removable by Congress and by inhibiting the ability of the federal government to make use of general phrases in the Constitution to expand its powers at the expense of the states.

Jefferson’s compromises with Federalism were as follows: the retention of the navy and the national bank; the appointment of quasi-Federalists to the Supreme Court; his administration’s broad reading of the treaty-making power; and perhaps worst of all, his choice of the neo-Federalist James Madison to be his successor. Another Old Republican from Virginia, John Randolph, was equally harsh in his assessment of Jefferson’s presidency:

It had my hearty approbation for one-half of its career. As to my opinion of the remainder of it, it has been no secret. The lean kine of Pharaoh devoured the fat kine. The last four years, with the embargo in their train, ate up the rich harvest of the first four, and, if we had not some Joseph to step in, and change the state of things, what would have been now the condition of the country? I repeat it; never has there been any administration which went out of office and left the country in a state so deplorable and calamitous as the last.100

While most of Jefferson’s sins were those of omission, the embargo was his one great sin of commission. It led to other sins: the tripling of the standing army in 1808, the precedent of turning the regular army and navy against American citizens to enforce an unpopular law of dubious constitutionality, and the violations of the Fourth, Fifth, and Sixth Amendments under the enforcement acts—not a record of which any president claiming to be a Republican can be proud. In fact, as Taylor pointed out, Jefferson’s adoption of increasingly harsh measures to enforce his embargo policy recalled the Federalist excesses of the 1790s: Washington’s calling out of the militia in 1794 to crush the “whiskey insurrection,” the Alien and Sedition Acts of 1798, and Adams’s calling out militia and regulars to suppress “Fries rebellion” in 1799.

Ultimately, Jefferson’s failure to institutionalize his “revolution” was due to his misplaced faith in the good sense of the people. He simply could not believe that they would ever discard the federal Constitution and its restraints on power for the allure of an energetic state that could accomplish “great” things. He was wrong. Jefferson’s faith in self-government turned out to be stronger than his faith in constitutionalism or liberty, to the long-term detriment of all three.

After two hundred years, what can we conclude about Jefferson’s presidency? He advanced the cause of liberty in many concrete ways, and his state papers include some of the most eloquent defenses of federalism, constitutionalism, and liberty in our political literature.

However, he did little for the cause of constitutionalism, and he may even have harmed it. He had an opportunity to perfect America’s federal constitutional order, but through a misplaced faith in the wisdom and watchfulness of the people, he let it pass by. The lesson by now should be clear to all: In the long run, democracy cannot be relied upon to protect liberty and the rule of law.

[S]ound principles will not justify our taxing the industry of our fellow citizens to accumulate treasure for wars to happen we know not when, and which might not perhaps but from the temptations offered by that treasure.

The course the Legislature means to pursue, may be inferred from the act now passed for a meeting in May, and a proposition before them for repealing the embargo in June, and then resuming and maintaining by force our right of navigation. [Should France and Great Britain not relent in the spring], we must again take the tented field, as we did in 1776 under more inauspicious circumstances. (Jefferson to Colonel James Monroe, January 28, 1809, Thomas Jefferson: Writings, p. 1199)

After Nicholas’s resolution was defeated, Jefferson wrote in evident disappointment:

I thought Congress had taken their ground firmly for continuing their embargo till June, and then war. But a sudden and unaccountable revolution of opinion took place the last week, chiefly among the New England and New York members, and in a kind of panic they voted the 4th of March for removing the embargo, and by such a majority as gave all reason to believe they would not agree either to war or non-intercourse. (Jefferson to Thomas Mann Randolph, February 7, 1809, quoted in Adams, History of the United States, vol. 2, pp. 1230–31)

• 1Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973).
• 2Forrest McDonald, The American Presidency: An Intellectual History (Lawrence: University Press of Kansas, 1994).
• 3President Washington is invariably ranked with Lincoln and Franklin Roosevelt as the three greatest presidents in these polls of the professional historians, which speaks volumes about the political persuasion of a large part of this profession.
• 4Ralph Raico, “The Rise, Fall, and Renaissance of Classical Liberalism—Part I” Freedom Daily (August 1992): 11.
• 5Felix Morley, The Foreign Policy of the United States (New York: Alfred A. Knopf, 1951), p. 4.
• 6This was first noted in two popular magazines at the time, the New Republic and Nation which both supported their ideas. See Dwight D. Murphey, Liberalism in Contemporary America (McLean, Va.: Council for Social and Economic Studies, 1992).
• 7Webster’s New Universal Unabridged Dictionary, deluxe 2nd ed. (New York: New World Dictionaries/Simon and Schuster, 1979), p. 334.
• 8David Conway, Classical Liberalism: The Unvanquished Ideal (New York: St. Martin’s Press, 1995); see also another excellent history and analysis of classical liberalism in Great Thinkers in Classical Liberalism, vol. 1, The Locke-Smith Review, Amy H. Sturgis, ed. (Nashville, Tenn.: LockeSmith Institute, 1994).
• 9Conway, Classical Liberalism, p. 8.
• 10Ibid., p. 25.
• 11Ludwig von Mises, Liberalism: In the Classical Tradition (Irvington-on-Hudson, N.Y.: Foundation for Economic Education and San Francisco: Cobden Press, 1985).
• 12See the classic work by Albert Jay Nock, Our Enemy, The State (New York: Free Life Editions, 1973).
• 13See Joan Kennedy Taylor, ed., Liberty Against Power: Essays by Roy A. Childs, Jr. (San Francisco: Fox and Wilkes, 1994).
• 14Charles T. Sprading, ed., Liberty and the Great Libertarians: Anthology on Liberty, A Handbook of Freedom (New York: Arno Press and The New York Times, 1972), p. 82.
• 15Antony Jay, ed., The Oxford Dictionary of Political Quotations (New York and Oxford: Oxford University Press, 1996), p. 193 (emphasis added).
• 16Christopher Hollis, The American Heresy (New York: Minton, Balch, 1930), p. 38.
• 17Sprading, ed., Liberty and the Great Libertarians, p. 53.
• 18Ludwig von Mises, Omnipotent Government: The Rise of the Total State and Total War (New Rochelle, N.Y.: Arlington House, 1969), pp. 46–47.
• 19Yohann Christian Friedrich Hölderlin as quoted by F.A. Hayek in The Collected Works of F.A. Hayek, vol. 10, Socialism and War: Essays, Documents, Reviews, Bruce Caldwell, ed. (Chicago: University of Chicago Press, 1997), p. 175.
• 20John V. Denson, ed., The Costs of War: America’s Pyrrhic Victories, 2nd ed. (New Brunswick, N.J.: Transaction Publishers, 1999), app. 1, p. 496; see also Essays in the History of Liberty: Selected Writings of Lord Acton, J. Rufus Fears, ed. (Indianapolis, Ind.: Liberty Classics, 1985), p. 365.
• 21See Christopher Hollis, The American Heresy, cited earlier. This is an excellent study of American history which concludes that the Jeffersonian theory of a limited central government and States’ rights ended with the Civil War and was replaced by Hamilton’s ideas of big government in partnership with big business, which was solidified into place by Woodrow Wilson who led America into World War I.
• 22Richard E. Welch, Jr., The Presidencies of Grover Cleveland (Lawrence: University Press of Kansas, 1988), pp. 118, 129.
• 23Ibid., pp. 83, 88, 93.
• 24Ibid., p. 147.
• 25Ibid., pp. 147, 207.
• 26Garet Garrett, “The Revolution Was” in The People’s Pottage (Caldwell, Idaho: Caxton Printers, [1953] 1993), p. 55.
• 27Ibid.
• 28Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995), p. 42.
• 29H.D. Rickover, How the Battleship Maine was Destroyed (Washington, D.C.: U.S. Department of Navy, 1976), p. 91.
• 30Welch, The Presidencies of Grover Cleveland, p. 145.
• 31Ibid., p. 147.
• 32Ibid., p. 211.
• 33For the same opinion, see David T. Beito and Linda Royster Beito, “Gold Democrats and the Decline of Classical Liberalism, 1896–1900,” The Independent Review: A Journal of Political Economy vol. 4, no. 4 (Spring 2000): 555–71.
• 34The interested student may want to consult the following works analyzing the Harding and Coolidge administrations: Eugene P. Trani and David L. Wilson, The Presidency of Warren G. Harding (Lawrence: University Press of Kansas, 1977) and Robert Sobel, Coolidge: An American Enigma (Washington, D.C.: Regnery Publishing, 1998).
• 35Schlesinger, The Imperial Presidency, p. 208.
• 36Ibid., p. 212.
• 37Edward S. Corwin, Total War and the Constitution (New York: Alfred A. Knopf, 1947), p. vii.
• 38Ibid., p. 16.
• 39Hughes served in numerous public offices including Governor of New York, Associate Justice of the U.S. Supreme Court, Secretary of State and as Chief Justice of the U.S. Supreme Court from 1930 to 1941. Woodrow Wilson barely defeated him for the presidency in 1916.
• 40Corwin, Total War and the Constitution, p. 2; see also Schlesinger, The Imperial Presidency, p. 93 (emphasis added).
• 41Corwin, Total War and the Constitution, pp. vii and viii.
• 42Ibid., p. viii.
• 43Fisher, Presidential War Power, p. 90.
• 44See Garry Wills, Cincinnatus: George Washington and the Enlightenment, Images of Power in Early America (Garden City, N.Y.: Doubleday, 1984).
• 45John F. Kennedy, Profiles in Courage (New York: HarperPerennial, 1964), pp. 132–58. Also for a very favorable and thorough analysis of the amazing career of Andrew Johnson, including his presidency and his subsequent return to the U.S. Senate, see Lloyd Paul Stryker, Andrew Johnson: A Study in Courage (New York: Macmillan, 1929).
• 46For an excellent analysis of the disastrous consequences of Franklin Roosevelt’s alliance with the bloody dictator Josef Stalin, see Amos Perlmutter, FDR and Stalin: A Not So Grand Alliance, 1943–1945 (Columbia: University of Missouri Press, 1993).
• 47Wythe Holt, “The Judiciary Act of 1789,” in The Oxford Companion to the Supreme Court of the United States, Kermit L. Hall, ed. (New York: Oxford University Press, 1992), pp. 472–74.
• 48Adams, History of the United States, vol. 1, pp. 174–75.
• 49Edmund Pendleton, “The Danger Not Over,” October 5, 1801, reprinted in Life and Letters of Edmund Pendleton, 1734–1803, David John Mays, ed. (Charlottesville: University Press of Virginia, 1967), pp. 695–99.
• 50Ibid., p. 698.
• 51Ibid., p. 695.
• 52Ibid., pp. 698–99.
• 53Adams, History of the United States, vol. 1, pp. 173–74.
• 54Ibid., p. 177.
• 55For an excellent short discussion of Tucker and his edition of Blackstone, see St. George Tucker, View of the Constitution of the United States: With Selected Writings, Clyde Wilson, ed. (Indianapolis, Ind.: Liberty Fund, 1999), pp. vii–xvii.
• 56Adams, History of the United States, vol. 2, pp. 398–99.
• 57Quoted in ibid., vol. 2, pp. 401–02.
• 58Ibid., pp. 402–03.
• 59M.E. Bradford, “Samuel Chase: Maryland Vesuvius,” in Against the Barbarians and Other Reflections on Familiar Themes (Columbia: University of Missouri Press, 1992), pp. 110–12.
• 60Adams, History of the United States, vol. 2, pp. 451–66.
• 61Ibid., p. 463.
• 62Ibid.
• 63Jefferson to William Branch Giles, April 20, 1807, Thomas Jefferson: Writings, p. 1175.
• 64Adams, History of the United States, vol. 1, pp. 174, 176, 178.
• 65Jefferson to P.S. Dupont de Nemours, January 18, 1802, Thomas Jefferson: Writings, pp. 1099–1101.
• 66Jefferson to Elbridge Gerry, March 29, 1801, ibid., pp. 1088–89; Jefferson to C.F. de C. Volney, February 8, 1805, ibid., p. 1158; Jefferson to Barnabas Bidwell, July 5, 1806, ibid., p. 1163.
• 67Jefferson to Gideon Granger, August 13, 1800, ibid., p. 1078.
• 68Jefferson, “Second Inaugural Address,” ibid., p. 519.
• 69Jefferson, “Sixth Annual Message,” December 2, 1806, ibid., p. 529.
• 70Ibid., p. 530.
• 71Ibid.
• 72Jefferson to Joel Barlow, February 24, 1806, ibid., p. 1160.
• 73Jefferson, “Eighth Annual Message,” November 8, 1808, ibid., p. 549 (emphasis added).
• 74Jefferson, “Eighth Annual Message,” ibid., p. 549.
• 75Malone, Jefferson the President: Second Term, 1805–1809, p. 510; Adams, History of the United States, vol. 1, p. 205.
• 76Malone, Jefferson the President: Second Term, p. 556.
• 77Jefferson, “Proclamation of April 19, 1808,” Annals of Congress (1808–09), p. 580.
• 78Adams, History of the United States, vol. 2, pp. 1111–13.
• 79Ibid., pp. 1112–13.
• 80Jefferson to Gideon Granger, August 13, 1800, Thomas Jefferson: Writings, p. 1079.
• 81Gallatin to Jefferson, December 18, 1807, quoted in Adams, History of Jefferson’s Second Administration, vol. 2, pp. 1043–44.
• 82Condy Raguet, “On the Principles of Free Trade,” Free Trade Advocate (January 1829): 2.
• 83Adams, History of the United States, vol. 2, p. 1116.
• 84Adams, History of the United States, vol. 2, p. 1081; Malone, Jefferson the President: Second Term, pp. 512, 515.
• 85John Randolph referred to the Republican desire to incorporate Canada during his famous speech on Gregg’s Resolutions in March 1806, quoted in Russell Kirk, John Randolph of Roanoke (Indianapolis, Ind.: Liberty Press, 1978), p. 326; see also Malone, Jefferson the President: Second Term, pp. 427, 508–09. Ten days after the United States Congress declared war on Great Britain, Jefferson expressed the hope that his countrymen would invade and conquer Canada and thus “strip her [Great Britain] of all her possessions on this continent.” Jefferson to General Thaddeus Kosiusko, June 28, 1812, Thomas Jefferson: Writings, p. 1265. A year and a half later, he repeated his desire that the American army would “remove them [the British] fully and finally from our continent.”
• 86Jefferson to Madame de Tesse, December 8, 1813, ibid., p. 1316.
• 87Jefferson to Dr. Thomas Leib, June 23, 1808, ibid., pp. 1188–89.
• 88Jefferson remarked thus on his program:
• 89Adams, ibid., pp. 1204–07.
• 90See Adams’s summary of these meetings, ibid, pp. 1209–13.
• 91Ibid., pp. 1210–11.
• 92Ibid., pp. 1213–14.
• 93Ibid., p. 1215.
• 94Ibid., pp. 1214–15.
• 95Jefferson to Joseph C. Cabell, February 2, 1816, Thomas Jefferson: Writings, p. 1381.
• 96Jefferson, “First Inaugural Address,” ibid., p. 494.
• 97Jefferson to Gideon Granger, August 13, 1800, ibid., pp. 1079–80.
• 98Hamilton to Bayard, January 15, 1801, quoted in Adams, History of the United States, vol. 1, pp. 188–89.
• 99John Taylor to James Monroe, October 26, 1810, quoted in Richard Ellis, Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971), p. 235.
• 100Quoted in Kirk, John Randolph of Roanoke, p. 92.