Was the Louisiana Purchase Constitutional?

I received, over the weekend, an email that questioned Jefferson's Louisiana Purchase, and more specifically, the constitutionality of the transaction.  The email reads:

Subject: A question for you

Mr. Gibbs:

 

 You recently spoke to out Riverside County Unified Citizens (RCUC), but my  question (below) was not read.

 I am curious regarding your response to this, thank you.

 

  Do you consider the "Elastic Clause, Article I, Section 8, last ¶ as part of the United States Constitution?

  It reads, "To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof."

  Thomas Jefferson was a strict Constitutionalist, but when he wanted to make the Louisiana Purchase, it was not mentioned in the Constitution.  Jefferson finally turned to the Elastic Clause to make that purchase.  If he had not done that, the United States would still be along the Atlantic Coast.

My response is as follows:

Friends,

Thank you for the email. Your question is a very good one, and I hope you appreciate my response.

I do believe the final paragraph of The Necessary and Proper Clause, or The Elastic Clause, to be a part of the United States Constitution. The Elastic Clause alone was not what made the purchase of the Louisiana territories constitutional, nor could it have without other pieces being in place. The Elastic Clause says that being necessary and proper is not enough for the action by the government to be constitutional, but that the action must be carried into execution in pursuance of "the foregoing powers, and all other powers vested by this Constitution." In other words, the purchase could be made as a necessary and proper action, if it was constitutional under other criteria.

You are correct that purchasing land as Jefferson did with the Louisiana Purchase is not a power specifically expressed by the Constitution. Therefore, on the surface, people believe that the transaction was unconstitutional. However, don't be fooled by the rhetoric. The Louisiana Purchase was constitutional.

First of all, Jefferson did not make the purchase without Congressional oversight. The House did indeed appropriate the funds for the purchase. The real key, however, is explained in Article VI of the Constitution, in the Supremacy Clause. The second paragraph of Article VI. reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

The negotiations with Napoleon over the Louisiana Purchase were by treaty, signed by the President, and ratified by the U.S. Senate. As indicated by Article VI., like the Constitution, and laws made in pursuance to the Constitution, "all" treaties are the law of the land - making the purchase constitutional.

One last note. Some will argue that "unconstitutional treaties" cannot be considered the law of the land, and that is false. Unconstitutional laws are not the law of the land, and therefore are null and void, and can be nullified by the States. However, in the clause, after the words "Pursuance thereof," is a semi-colon, separating treaties from that requirement. The word "all" before the words "Treaties made," therefore, is literal. All treaties made are the law of the land, and therefore once ratified by the Senate become constitutional, and the supreme law of the land.

I hope this helps in your studies.

Blessings,

Douglas V. Gibbs
Constitution Radio, KCAA 1050 AM
www.politicalpistachio.com
www.douglasvgibbs.com