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Chapter 4 The Louisiana Purchase and the Lewis & Clark Expedition A Constitutional Moment? Peter A. Appel “Scarcely any political question arises in the United States,” noted Alexis de Tocqueville, “that is not resolved, sooner or later, into a judicial question.”1 If Tocqueville is correct, then the Lewis and Clark expedition—in some ways, the culmination of the Louisiana Purchase—ought to be a constant reference in the case law of American courts. Instead, the legal researcher combing through Westlaw or Lexis unearths such mundane and irrelevant matters as cases involving Lewis and Clark College in Portland, Oregon, Lewis and Clark County, Montana, a recent decision of the Supreme Court entitled Lewis v. Lewis and Clark Marine, Inc., and a series of cases involving a boat captain named Lewis N. Clark.2 Even the important cases, involving Indian tribes that had their first contact with the government of the fledgling United States through the expedition, treat the expedition more in passing reference.3 The case most directly involving the expedition itself concerns a dispute over the fate of Clark’s diary.4 These cases surely are not the resolution of great political matters by the judiciary. This lack of attention in the reported decisions is unusual, given the sweeping claims made for the impact of the Louisiana Purchase on the legal system. For Henry Adams, the Louisiana Purchase was the absolute beginning of nineteenth-century politics; it was “in historical importance next to the Declaration of Independence and the adoption of the Constitution —events of which it was the logical outcome.”5 Everett Sommerville Brown concluded in 1917 that the purchase “serves as the corner stone for all interpretations of the constitutional right of the United States to acquire and govern foreign territory; and such acquisitions have been one of the most significant features in the history of the United States.”6 Frederick Jackson Turner agreed with Adams and argued that “[w]hen the whole sweep of American history and the present tendencies of our life are taken 87 into view, it would be possible to argue that the doctrines of the Louisiana Purchase were farther-reaching in their effect upon the Constitution than even the measures of Alexander Hamilton or the decisions of John Marshall .”7 The great constitutional thinker and judge Thomas Cooley argued that, after the Louisiana Purchase, congressional debate over whether the federal government had limited powers or not died down.8 More recently, Merrill Peterson wrote that the ratification of the treaty with France worked “a revolution in the Constitution. A momentous act of Jeffersonian statesmanship unhinged the Jeffersonian dogmas and opened, so far a precedent might control, the boundless field of power so much feared.”9 (Not all writers are quite so gushing in describing the constitutional effects of the Louisiana Purchase. For example, one modern critic allows that the Louisiana Purchase “is a good example of early constitutional change,” but only as “constitutional change on a relatively small scale.”)10 But scholarly and historical claims about the constitutional importance of Jefferson’s purchase are lacking in three important areas. First, for the most part they do not identify exactly how the Constitution changed as a result of the Louisiana Purchase. To be sure, the reach of the federal government expanded after the Louisiana Purchase, but to what did that reach extend ? Did the federal government now possess power over local (sometimes called municipal) issues, or did its expanded power still have well-defined limits? Second, to the extent that writers like Brown do identify how the federal government’s power expanded as a result of the Louisiana Purchase, few of these historians attempt to spell out the precise effect that the Louisiana Purchase had on the inner workings of the federal government. Was the expanded power equally divided among the three branches? Or was it largely vested in one or two? Third, and finally, the past argument concerning the Louisiana Purchase ignores the signal event that made the purchase truly part of the United States, namely the Lewis and Clark expedition . The instructions that the explorers received on setting out and the public adulation that they received on their return complete the story of the constitutional effects of the Louisiana Purchase. The instructions directed the explorers not only to go beyond the physical boundaries of the United States but also to investigate matters beyond the powers of the federal government. One solution to these inquiries, and one that allows us to...


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