He gave the same warning to his Cabinet:[74] “I infer that the less we say about constitutional difficulties the better; and that what is necessary for surmounting them must be done sub silentio.”
He then drew up a new amendment, which he sent to the members of his Cabinet.[75] The July draft was long, elaborate, and almost a new Constitution in itself; the August draft was comparatively brief. “Louisiana as ceded by France to the 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 in analogous situations.” The whole country north of the Arkansas River was reserved for Indians until another amendment should be made; and as an afterthought Florida was to be admitted as a part of the United States “whenever it may be rightfully obtained.”
These persistent attempts to preserve his own consistency and that of his party were coldly received. Jefferson found himself alone. Wilson Cary Nicholas, a prominent supporter of the Virginia Resolutions in 1798 and a senator of the United States in 1803, had a long conversation with the President, and in the early days of September wrote him a letter which might have come from Theodore Sedgwick or Roger Griswold in the days of Jay’s treaty, when Federalist notions of prerogative ran highest.
“Upon an examination of the Constitution,” wrote Nicholas,[76] “I find the power as broad as it could well be made (Sect. 3, Art. IV.), except that new States cannot be formed out of the old ones without the consent of the State to be dismembered; and the exception is a proof to my mind that it was not intended to confine the Congress in the admission of new States to what was then the territory of the United States. Nor do I see anything in the Constitution that limits the treaty-making power, except the general limitations of the other powers given to the government, and the evident objects for which the government was instituted.”
Had Nicholas reasoned thus in 1798 he would have been a Federalist, as he seemed conscious, for he went on to say: “I am aware that this is to us delicate ground, and perhaps my opinions may clash with the opinions given by our friends during the discussion of the British treaty.” Nevertheless he argued that if this treaty was unconstitutional, all other treaties were open to the same objection, and the United States government in such a case could make no treaty at all. Finally, he begged the President to avoid giving an opinion on the subject: “I should think it very probable if the treaty should be declared by you to exceed the constitutional authority of the treaty-making power, it would be rejected by the Senate, and if that should not happen, that great use would be made with the people of a wilful breach of the Constitution.”
Such reasoning in the mouths of Virginia Republicans, who had asked and gained office by pledging themselves to their people against the use of implied powers, marked a new epoch. From them the most dangerous of all arguments, the reductio ad absurdum, was ominous. What right had they to ask whether any constitutional grant was less complete than the people might have wished or intended? If the Constitution were incomplete or absurd, not the government, but the people of the States who had made it were the only proper authority to correct it. Otherwise, as Nicholas had so often pointed out, their creature would become their tyrant, as had been the law of politics from the beginning.
Jefferson was distressed to find himself thus deserted by his closest friends on an issue which he felt to be vital. The principle of strict construction was the breath of his political life. The Pope could as safely trifle with the doctrine of apostolic succession as Jefferson with the limits of Executive power. If he and his friends were to interpret the treaty-making power as they liked, the time was sure to come when their successors would put so broad an interpretation on other powers of the government as to lead from step to step, until at last Virginia might cower in blood and flames before the shadowy terror called the war-power. With what face could Jefferson then appear before the tribunal of history, and what position could he expect to receive?
All this he felt in his kindly way; and with this weight on his mind he wrote his reply to Nicholas.[77] Beginning with the warning that Bonaparte could not be trusted, and that Congress must act with as little debate as possible, particularly as respected the constitutional difficulty, he went on:—
“I am aware of the force of the observations you make on the power given by the Constitution to Congress to admit new States into the Union without restraining the subject to the territory then constituting the United States. But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the United States, ... I do not believe it was meant that [Congress] might receive England, Ireland, Holland, etc., into it,—which would be the case on your construction.... 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.”
From the Virginia standpoint nothing could be better said. Jefferson in this letter made two points clear: the first was that the admission of Louisiana into the Union without express authority from the States made blank paper of the Constitution; the second was that if the treaty-making power was equal to this act, it superseded the Constitution. He entertained no doubts on either point, and time sustained his view; for whether he was right or wrong in law, the Louisiana treaty gave a fatal wound to “strict construction,” and the Jeffersonian theories never again received general support. In thus giving them up, Jefferson did not lead the way, but he allowed his friends to drag him in the path they chose. The leadership he sought was one of sympathy and love, not of command; and there was never a time when he thought that resistance to the will of his party would serve the great ends he had in view. The evils which he foresaw were remote: in the hands of true Republicans the Constitution, even though violated, was on the whole safe; the precedent, though alarming, was exceptional. So it happened that after declaring in one sentence the Constitution at an end if Nicholas had his way, Jefferson in the next breath offered his acquiescence in advance:—