US Buys Alaska *Before* the ACW--and the Supreme Court Finds the Purchase Unconstitutional?

Several times we have asked "what if the US had not purchased Alaska"--but never AFAIK "what if it had purchased it *earlier*--specifically, before the ACW? Yet the idea was seriously considered. One of California's first two senators, William Gwin, showed considerable interest in the idea until 1861 (when Gwin, who had been a Mississippian before he moved to California, became a Confederate). On the Russian side, too, there was an important promoter of sale. For some background, see Frank A. Golder, "The Purchase of Alaska," The American Historical Review, Vol. 25, No. 3 (Apr., 1920), pp. 411-425:

"The real promoter of the sale of Alaska was no other than the Grand-duke Constantine, brother of the Tsar Alexander II. On March 23/April 4, 1857, he wrote a letter to [Foreign Minister] Gorchakov urging the transfer of the Russian American possessions to the United States. He gave three reasons why this should be done: (1) the small value of the colonies to Russia, (2) the great want of money, and (3) the need of the territory by the United States to round out its holdings in the Pacific. He suggested that in order to determine the worth of the property the retired officers of the company, Baron Wrangell and others whom he named, should be consulted, but he cautioned against taking their figures too seriously, since they were stockholders of the company. The matter was referred to Wrangell, and he put the selling price of the colonies at 7,442,800 rubles silver, one-half of it to go to the company in payment for its 7484 shares and the other half to the government.

"In the course of a month Gorchakov made a report to the grandduke based on the opinion and estimates given by Wrangell. He explained the necessity of caution and secrecy in order not to injure the interest of the Russian American Company. At that time the company was having some misunderstandings with the American Russian Commercial Company of San Francisco about a contract made in 1853, and Gorchakov proposed to let the matter rest until these differences were adjusted.

"Stoeckl [Russia's minister to the US] in Washington was having trouble in protecting the interests of the Russian American Company. Each year more and more Americans were settling in the Oregon Territory, and this colonization made him uneasy. 'L'etablissement des Americains', he wrote to Nesselrode in January, 1856, 'dans le voisinage de nos possessions Nord Ouest mettra ces derniers dans un danger reel et deviendra une source d'embarras et de tracasseries entre les deux gouvernements.' In November, 1857, he reported to Gorchakov that the situation was becoming very embarrassing. According to the treaty of April 5/17, 1824, between Russia and the United States, it was agreed 'that the citizens of the United States shall not resort to any point where there is a Russian establishment, without the permission of the governor or commander; and that, reciprocally, the subjects of Russia shall not resort, without permission, to any establishment of the United States upon the Northwest coast'. Russia enforced this article of the treaty; the United States did not. The Russian American Company's ships could enter San Francisco and its agents could open offices and stores there, but American vessels and agents were not allowed the same rights in the Alaskan ports. The Americans were naturally and justly indignant and threatened more than once to close their harbors not only to the company's but to all Russian ships, which by treaty they claimed a right to do. Each year the complaints became louder, and Stoeckl predicted that in the near future this one-sided arrangement would bring on strained diplomatic relations between the two nations.

"At some time during 1858-1859 Stoeckl went to Petrograd [Golder is writing in 1920, and so calls the city by this anachronistic name--DT] on his vacation and while there discussed Alaskan affairs with Gorchakov. It was agreed between them that if America should make another move to purchase the territory it should be considered seriously. Towards the end of 1859 the move came. On January 4, 1860 (N. S.) Stoeckl reported that Gwin had approached him recently on the matter of the sale of Alaska and had assured him that the President was ready to buy. A few days later Gwin brought up the subject again and told Stoeckl it was Buchanan's wish that the Russian government should be sounded on the question' and that, for the present, discussion on the subject should be with the assistant secretary of state, Appleton, and not with Cass, the secretary, who was purposely left in the dark. In the course of the conversation Gwin incidentally mentioned that the United States would be willing to pay as high as five million dollars. To Stoeckl this seemed a large sum, more than the colonies were then worth or would ever be worth from the point of view of revenue, and probably as much as the United States would ever be willing to give. Without directly recommending the sale Stoeckl nevertheless managed to slip in indirectly a few telling arguments in its favor. He pointed out that the situation on the Pacific had completely changed in the course of the century. The fur-trade which at one time held a commanding position was becoming a thing of the past, and in its place agriculture, commerce, and industry were rapidly developing. But the Russian American possessions, because of their geographic position, could not hope to grow along these lines and would therefore drop behind the other parts of the coast. If the company should in the future, as in the past, dominate the colonies, the situation would undoubtedly grow worse; and if the government should take them over no one could be certain that it would improve. Then again, the colonies were of no importance to Russia and could not be protected; any naval power at war with Russia could get them by going after them. Finally, and this was the shot intended to reach home, by the handing of Alaska to the United States England would be greatly discomfited. The conquest of California by the Yankees was the first effective blow to Great Britain's ambitions in the Pacific, and the acquisition of Alaska would put an end to them altogether. Sandwiched in between Oregon and Alaska, British Columbia could have no great future.

"Among the documents in the Russian ministry of foreign affairs there is a paper on the Russian colonies, dated February 7, 1860, written by some one who had been in California and Alaska. There is reason to believe that the author was Rear-admiral Popov, who had cruised in the North Pacific about that time. He frequently wrote to the Grand-duke Constantine, who took a leading part in guiding Russia's naval affairs and who probably transmitted copies to Gorchakov. The report paints in black colors the great misery the Russian American Company had brought on the natives of Alaska, the harm it had done to that territory, and the injury it had caused to Russian commerce. All the company thinks about, says the report, is dividends, and the only people who profit by its existence are the shareholders. It has a monopoly of the trade in the North Pacific and this is deeply resented by the Americans who live there; and were it not for Stoeckl, Senator Gwin would have brought the matter to the attention of Congress before now. Not only is the company not advancing the interest of Russia, but it is actually alienating the good-will of a friendly people. It is easy enough, the writer goes on to say, for Europeans to sneer at the Monroe Doctrine and 'Manifest Destiny', but if they were better acquainted with the Americans they would know that these ideas are in their very blood and in the air they breathe. There are twenty millions of Americans, every one of them a free man and filled with the idea that America is for Americans. They have taken California, Oregon, and sooner or later they will get Alaska. It is inevitable. It cannot be prevented; and it would be better to yield with good grace and cede the territory to them. Let them have the Alaskan mainland, the Aleutians, the islands in the Bering Sea--geographically all these are American--but let us retain the Commander Islands so as not to leave the Yankees too near us. Russia, too, has a manifest destiny on the Amur, and farther south, even in Korea. Expansion in that direction will not weaken us in a military way.

"Notwithstanding this eloquent statement of the case made by Stoeckl and Popov, Gorchakov remained cold. In his communication of May 14, 1860 (O.S.), he said that personally he could not see that from the political point of view it would be to Russia's interest to cede the American possessions. The only argument that could persuade him to sell would be financial, but the five million dollars offered was entirely inadequate and much below the real value of the colonies. He instructed Stoeckl to keep the negotiation pending and tell Appleton and Gwin that they would have to come up on the price. In the meantime the minister of finance would send a commission to Alaska to study conditions on the spot and make a report, and on this report the future Alaskan policy would be based. Knowing that Appleton would soon leave office, Stoeckl said little to him on the subject other than that Russia would not discuss the question of sale until after the expiration of the lease of the Russian American Company. But with Gwin the conversation was prolonged and the subject of finance was taken up. The California senator assured the Russian minister that the Pacific Coast representatives would be willing to offer a higher figure, but he doubted whether the other members of Congress would be of their mind. They would have to be reached by special arguments, such as the detriment to England's prestige and interest by the purchase, and the amount of money in the Treasury. In any case, concluded Gwin, negotiations were out of the question for the time being and could not be resumed before the end of 1861 or the beginning of 1862, when the new administration and Congress would be in; for the present Congress would not pass any measure, no matter how praiseworthy, that was recommended by the Buchanan Cabinet. During the years immediately succeeding the above conversation, both Russia and the United States had all they could do to retain the territory they already held without busying themselves with selling or buying additional possessions. The Russian commission which was sent to Alaska returned in 1861 with a report which was not favorable to the company, but the opportunity for selling was gone. Numerous conferences were held by the ministers on the subject of the disposition of the colonies and finally, not knowing what else to do, they allowed the company, under certain minor restrictions, to exploit Alaska for a time longer..." https://archive.org/stream/jstor-1836879/1836879#page/n3/mode/2up

Suppose the Tsar is persuaded--by the Grand-Duke and perhaps by a Gorchakov more favorable to the purchase than he was at this time in OTL--that the purchase is a good idea, and suppose that the Buchanan administration agrees, and that the resulting treaty is approved by the Senate. (No doubt that last part will be difficult--one can see the scoffing at "Buchanan's ice-box"--but Democrats might go along out of expansionist and anti-British sentiment and party loyalty, and even some Republicans might not not allow partisanship to stand in the way of acquisition of new territory as long as it obviously would not be slave territory. After all, Seward was as expansionist in 1857 as he would be in 1867, as long as expansion did not mean slavery expansion.)

Well, you might say, what difference would it make if Alaska were acquired during the late 1850's rather than the late 1860's? Here is one difference--the Supreme Court might declare the purchase unconstitutional! To see why, we must turn to the notorious *Dred Scott* case.

Hardly anyone thinks of *Dred Scott* as an anti-imperialist decision; yet Chief Justice Taney stated in his opinion that the *sole* basis for the US acquiring new territory was for such territory eventually to be admitted as a state: "There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character.... " http://law2.umkc.edu/faculty/projects/ftrials/conlaw/ScottvSandford.html

Would the purchase of Alaska be acceptable under this standard? Gary Lawson and Guy Seidman in *The Constitution of Empire: Territorial Expansion and American Legal History* (Yale UP 2004) p. 105, note that "there are serious questions whether the acquisition of Alaska in 1867 passed muster as a means for implementing the admissions power." http://books.google.com/books?id=M_vwm-dG6r4C&pg=PA105 They quote Max Farrand's remarks in 1900: "But with the purchase of Alaska in 1867 the territorial system of the United States entered upon a new phase. The remote situation of Alaska, its inhospitable climate, the difficulty of developing such resources as it might prove to have, and especially the fact that its scanty population was so largely composed of uncivilized Indians, all tended to render it extremely improbable that this region would ever sufficiently develop to be organized as a state and to be admitted into the Union. And this fact was recognized in the treaty by which we acquired possession of Alaska. In the treaties with France, Spain and Mexico, by which our other territorial acquisitions had been made, it was specifically provided that the inhabitants of the ceded territories should be incorporated into the Union. But in the treaty with Russia for the cession of Alaska it was only stipulated that the civilized inhabitants should have the rights and privileges of the citizens of the United States, while the uncivilized tribes were to be completely under the regulation of Congress." http://books.google.com/books?id=tgo5AAAAMAAJ&pg=PA678

(Farrand's "new phase" argument in 1900 was anticipated at the time of the acquisition of Alaska, one opponent of the acquisition complaining that "[W]e are furnishing an example for the annexation of territory not contiguous, by which we may be led on to buy remote islands and to annex distant nations with populations that we cannot control by our own institutions, and to govern whom will only be preparing ourselves for the overthrow of a republican and the introduction of a despotic government."
http://books.google.com/books?id=M_vwm-dG6r4C&pg=PA118 )

It has to be said though that *Dred Scott* was as dubious (though less pernicious) in its argument that congressional power to govern territories came *solely* from the power to admit new states as it was in its reasoning on slavery in the territories or the alleged inability of African-Americans to be citizens of the United States. Taney's argument involved a tortured explaining-away of the clause of Article IV, section three, giving Congress power "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States..."

"The court spent a great deal of time and energy trying to establish that the Territories Clause applied only to territory in the possession of the United States at the time of ratification...[T]his is an impossible position to maintain. The language of the Territories Clause is general; the Northwest Territory may have been its primary subject, but that does not exclude application to other territory, including as Justice Curtis pointed out in dissent, anticipated but unexecuted cessions from North Carolina and Georgia that took effect in, respectively, 1790 and 1802...The Court's determination to limit the scope of the Territories clause is all the more remarkable because, as Justice Curtis pointed out, the conclusion is irrelevant even on the court's own reasoning..." Lawson and Seidman, *The Constitution of Empire,* pp. 199-200. http://books.google.com/books?id=M_vwm-dG6r4C&pg=PA199

Anyway, my real point is this: *After* the ACW, the Supreme Court was very unlikely to use *Dred Scott* for *any* purpose. The decision was just too discredited. A few anti-imperialists did try to use it in the 1890's, arguing that it was still valid on this point even if it had been superseded on race and slavery. A critic replied:

"The Dred Scott decision has never been judicially reiterated. No court ever concurred in it. It precipitated the Civil War; it is stamped with the bad eminence of ante-bellum conflicts. . . .

"The decision is either law or not law. It can not be valid as to colonies, a secondary consideration, and invalid as to slavery, a primary issue. It must stand or fall as a whole. Hence we have this dilemma. If to-day the Dred Scott decision is law, then the Thirteenth, Fourteenth, and Fifteenth Amendments are not law; the results of the rebellion are nullified; the Missouri Compromise was unconstitutional; slavery can be maintained in all our Territories; and the negro has no 'rights which the white man is bound to respect.'4 This dilemma has been overlooked.

"The major premise of Judge Taney's argument against colonies is that our sole authority to acquire territory is derived from the power to admit States. That proposition has never been accepted by any other judge or court. On the contrary, unanimous benches have declared our right to acquire territory, irrespective of its situs, and irrespective also of any franchise of statehood, as a primary attribute of sovereignty and as a corollary of the war and treaty powers. Judge Taney's major premise has been specifically overruled three times.5 The Supreme Court having held it utterly fallacious, all his arguments fall with it. His conclusion, therefore, that we can not hold territories per se falls also, and is as dead to the American people as the Stamp Act or statutes against witchcraft..." http://books.google.com/books?id=OEvQAAAAMAAJ&pg=PA543

*But* suppose the Supreme Court considers the constitutionality of the purchase of Alaska *before* the ACW? Is it at least conceivable it will use *Dred Scott* to find the purchase unconstitutional? You might ask who will have standing to question the constitutionality of the purchase, but it seems to me that anyone arrested by US authorities in Alaska would have standing: "You had no right to arrest me, because it isn't US territory..." OTOH, the Court would realize that practically speaking, once the treaty had been ratified, it could not reverse the purchase. ("Hey, there, Russia, it looks like we never bought Alaska from you at all! Now could we have our money back?"...) And it could seize on the fact that after all eventual statehood was not explicitly foreclosed. As a friend of mine remarked, "What might be interesting is if the Court, in upholding the Alaska purchase, expanded on Dred Scott to hold that the purchase was valid *because* Alaska might someday become a state, and that all future American territorial acquisitions would have to be made eligible to apply for statehood. Then, there would be an anti-imperialist holding *separate* from Dred Scott that the anti-annexationists could cite in the 1890s and 1900s..."

Incidentally, can anyone think of any non-judicial consequences (apart from butterflies) of purchasing Alaska a decade earlier than in OTL? We could see the northernmost battles of the ACW with Confederate commerce raiders pursuing the US whaling fleet in Alaskan waters and maybe even briefly planting the Stars and Bars on Alaskan soil. Bue that's not so far removed from what happened in OTL! https://www.nps.gov/cwindepth/statebystate/Alaska.html
 
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