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Welcome! I'm Charlie Jett coming to you from my studio in beautiful downtown Chicago. This is the Jefferson Madison Letters Series, a history lesson from the Founders One Letter at a Time. Fifty years of correspondence between Thomas Jefferson and James Madison, and every word you'll hear is verified against the original manuscripts at Founders Online, the Digital Archive of the National Archives. Well, it is late August eighteen oh three. Two and a half years have passed since our last letter, and the silence is the story. Jefferson is President of the United States. Madison is his Secretary of State. The two men who build a partnership by post now govern face to face in Washington, and the correspondence thins to almost nothing. It revives only in summer when each retreats to his mountain, Monticello and Montpelier, thirty miles apart, and the State Department's business travels between them by rider. And what business? On the fourth of July, official word reached Washington, Livingston and Monroe have bought not just New Orleans but all of Louisiana, the whole western watershed of the Mississippi, roughly doubling the country for fifteen million dollars. It is the triumph of the administration. It is also, for this particular president, a constitutional crisis of his own making. Jefferson's whole public creed is strict construction. The government has only the powers the text delegates. Where does the text say that the United States may acquire an empire and make its people citizens? Since July, he has been circulating draft amendments to the cabinet, revising as objections come in. But the clock is merciless. The treaty must be ratified by autumn. Spain is protesting the sale, and Napoleon's moods are like the weather. Push an amendment and risk the purchase. Skip it and become the loose constructionist he spent the seventeen nineties opposing. As he writes on august twenty fourth, the Senate has not voted, and Jefferson himself does not yet know which way he will jump. So come stand in Monticello's cabinet at the end of august eighteen oh three. On the desk is the ordinary paper of a presidency, dispatches returned, a diplomat's temper, an expense allowance, and at the bottom of today's letter to the Secretary of State, the President is quietly rewriting the Constitution. What follows is an extract. I'll summarize the rest. After pages of State Department housekeeping, Jefferson turns to the new territory's boundaries and to his oldest tools. I have used my spare moments to investigate, by the help of my books here, the subject of the limits of Louisiana. I am satisfied our right to the Perdido is substantial and can be opposed by a quibble on form only, and that our right westwardly to the Bay of Saint Bernard may be strongly maintained. The books again. The thread that opened this series with a book order in seventeen eighty four now measures the boundaries of half of a continent. Then the pivot. Further reflection on the amendment to the Constitution necessary in the case of Louisiana satisfies me it will be better to give general powers with specified exceptions somewhat in the way stated below. Stated below because at the foot of the letter in Jefferson's hand is a draft amendment to the Constitution of the United States. Listen to it carefully. 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. Its white inhabitants mark the word. We will come back to it. The draft continues Save only that as to the portion thereof lying north of the latitude of the mouth of Arkansas, the old spelling of the Arkansas River, no new state shall be established, nor any grants of land made therein, other than to Indians in exchange for equivalent portions of land occupied by them until an amendment to the Constitution shall be made for these purposes. And a reach further south. Florida too, whensoever it may be rightfully obtained, shall become a part of the United States. Then the letter simply returns to being a letter between neighbors. Mrs. Madison promised us the visit about the last of this month. A visit. Governor Page expected within days. And then accept my affectionate salutations and constant attachment. The Constitution redrafted between an expense report and a house guest list. So what does the author assume? That the Constitution's silence is the real problem, and this is worth pausing on. This is a private letter to the one reader who would forgive him of any shortcut, and still he is drafting. Whatever we conclude about how the story ends, the scruple itself is sincere. Strict construction is not opposed Jefferson strikes for audiences. He assumes too that Florida comes next. The draft annexes it in advance, whensoever it may be rightfully obtained. And he assumes the expansion should be governed north of the Arkansas. No new states, no land grants until the people amend the Constitution again. He is trying to put a bridle on his own windfall. So what does the author fear? Precedent The whole design General powers with specific exceptions is the fear of unbounded implication made into drafting technique. Grant the power, then fence it in. And underneath the fear he does not write here but which shapes every clause losing the purchase the deadline Spain's protests Napoleon's Caprice. We know from the balcony how that fear resolves the dilemma. Standing in August, it is simply pressure on the pen. So what do they take for granted that we no longer do? First, admirably, that a president treats constitutional doubt about his own greatest achievement as a private working problem, self limitation as instinct, not litigation strategy. But second and gravely the word white. The treaty itself promised that the inhabitants of the ceded territory would be incorporated and admitted to the rights of citizens, no racial qualifier. Jefferson's draft quietly adds one. In a single adjective, the free people of color of New Orleans and the enslaved thousands of Lower Louisiana are written out of the amendment's promise. And the Arkansas line, that clause treats Indian country as a ledger, land granted in exchange for equivalent portions. The accounting logic of removal a generation early. He takes the boundaries of belonging so much for granted that they need no argument. That silence is the hardest thing in the letter, and this series does not talk about it. So what's missing? The amendment's future because it has none. Jefferson never sends this draft or any draft to Congress. We know the end. The Senate ratifies the treaty in October twenty four to seven, no amendment attached, and the most revealing constitutional document of his presidency stays at the foot of a letter. Missing too is any sermon. He is done arguing the principle and is engineering around it. And missing from this channel are the famous lines every textbook quotes The Guardian investing for his ward, the counsel that the less said of constitutional difficulties the better. Those went to Breckenbridge, to Nicholas, to Dickinson. To Madison he sent no spin at all, just the drafting. With everyone else, he managed the difficulty. With Madison he simply worked it. That difference is the friendship measured exactly. Well in closing, the most revealing constitutional document of Jefferson's presidency was never proposed, never debated, never ratified, just drafted at the foot of a letter between friends, then set aside when the calendar demanded. Principle wrote the amendment. Power filed it. Well that's our episode. These letters remind us that the hardest constitutional questions were worked out not in marble halls, but at writing desks, by people honest enough to see the problem even when the answer costs them. So stay informed, stay engaged, and above all, stay curious. Today's letter is verified against Founders Online, the papers of James Madison, Secretary of State series. I'm Charlie Jett, and I thank you for listening to the five minutes.