Caleb Crain: Andrew Jackson’s assault on habeas corpus
By late 1814, it was clear that America was no winning the War of 1812. Washington, including th Capitol and the White House, was in ashes. Ne Englanders were so demoralized that they wer considering secession. When British troops, hardene from battling Napoleon, set sail for Louisiana, som feared that America might not be able to hold on to its recent acquisition.
Into the national gloom, however, light broke. On January 8, 1815, a major general from Tennessee named Andrew Jackson stopped the British from taking New Orleans. The battle lasted less than two hours, but more than two thousand British soldiers were killed or wounded, compared with only a few dozen Americans. The victory had almost no practical effect. Although the news hadn’t yet reached the Western Hemisphere, British and American representatives had negotiated peace, on Christmas Eve at the Treaty of Ghent, restoring the pre-war territorial boundaries. Nonetheless, Jackson’s victory was a public-relations triumph. It “restored and inflamed the national self-love,” as James Parton puts it in an elegant, pleasantly cynical 1860 biography. He achieved sudden and overwhelming popularity, which became, according to Parton, “the principal fact in the political history of the United States” for the next generation, a period that Arthur Schlesinger, Jr., famously called the Age of Jackson.
In the two months immediately following the Battle of New Orleans, however, Jackson put his glory in jeopardy, keeping a tight grip on civil liberties and seeming to take personally the restlessness of those under his control. He censored a newspaper, came close to executing two deserters, and jailed a state congressman, a judge, and a district attorney. He defied a writ of habeas corpus, the legal privilege recognized by the Constitution which allows someone being detained to insist that a judge look into his case. Jackson was fined for his actions, and, for the rest of his life, was shadowed by the charge that he had behaved tyrannically. In retirement, after two terms as President, he called on his reserves of political clout to get the fine refunded, and Congress ended up debating the legality of his actions in New Orleans for nearly two years. As Matthew Warshauer argues in a lucid and well-researched new book, “Andrew Jackson and the Politics of Martial Law” (University of Tennessee; $39.95), the debates changed the definition of martial law in American jurisprudence. They also set a precedent for granting emergency powers to the executive branch which remains a troubling legacy today....
By surveying changes in law compendia and military treatises, edition by edition, Warshauer shows that America’s legal community finally accepted the new meaning of martial law in the eighteen-forties, probably because the refund debates put it into currency. Indeed, when Rhode Island declared martial law in 1842, a contemporary blamed the “damnable heresies preached in the halls of Congress.” On the debate’s afterlife, Warshauer’s findings are even more intriguing. When Lincoln needed to justify his restriction of civil liberties in the early eighteen-sixties, he cited the 1844 refund as demonstrating Congress’s approval of Jackson’s declaration of martial law, calculating that nothing would silence his Democratic opponents so well as the example of Andrew Jackson. Warshauer finds nine politicians and commentators who lived long enough to debate both Jackson’s refund and the Civil War–era suspensions of habeas corpus. A Whig congressman who had called necessity the “universal plea of tyrants” in 1844 found himself declaring martial law in Maryland in 1863. The three Democrats in Warshauer’s sample supported Jackson’s declaration of martial law but didn’t trust Lincoln with the same powers. One of them, Chief Justice Roger B. Taney, wrote privately to Jackson in 1844 that “a grosser act of injustice was never perpetrated by any court, than the infliction of that fine upon you,” but upbraided Lincoln bitterly in his Ex Parte Merryman decision of 1861, warning Americans that if the military could suspend the writ of habeas corpus at will, they might “no longer [be] living under a government of laws.” So egregious is Taney’s flip-flop that Warshauer suspects that he cared more about thwarting Lincoln than about habeas corpus. In fact, Warshauer ends up doubting that politicians are even capable of rising above partisanship on the issue.
The evidence certainly suggests that it has always been difficult to find a reliable base of support for habeas corpus in America; it’s a vulnerable right, especially during emergencies and when a charismatic leader is involved. (“In free governments, dangerous precedents are to be dreaded from good and popular characters only,” Martin warned.) Maybe the solution to this dilemma, like so many others in American politics, is to be found in fruitful conflict between the executive, judiciary, and legislative branches. The jurist Abraham D. Sofaer has suggested that, in Jackson’s predicament, checks and balances were rather well distributed: so long as generals and Presidents who exceed the Constitution are vulnerable to the courts and to Congress, as Jackson was vulnerable to Hall, emergency powers are less likely to turn into permanent ones. One could argue that, by that logic, smoothing over the conflicts removes an important check on executive power; it was a mistake for the 1844 Congress to refund Jackson’s fine, and a mistake for the 2006 Congress to deprive the detainees in Guantánamo Bay of the writ of habeas corpus, helping President Bush maneuver around the Supreme Court’s ruling in Hamdan v. Rumsfeld. If the President takes away a civil right, he should have to worry about explaining himself to the people. He should fear as well as love us.
Read entire article at New Yorker
Into the national gloom, however, light broke. On January 8, 1815, a major general from Tennessee named Andrew Jackson stopped the British from taking New Orleans. The battle lasted less than two hours, but more than two thousand British soldiers were killed or wounded, compared with only a few dozen Americans. The victory had almost no practical effect. Although the news hadn’t yet reached the Western Hemisphere, British and American representatives had negotiated peace, on Christmas Eve at the Treaty of Ghent, restoring the pre-war territorial boundaries. Nonetheless, Jackson’s victory was a public-relations triumph. It “restored and inflamed the national self-love,” as James Parton puts it in an elegant, pleasantly cynical 1860 biography. He achieved sudden and overwhelming popularity, which became, according to Parton, “the principal fact in the political history of the United States” for the next generation, a period that Arthur Schlesinger, Jr., famously called the Age of Jackson.
In the two months immediately following the Battle of New Orleans, however, Jackson put his glory in jeopardy, keeping a tight grip on civil liberties and seeming to take personally the restlessness of those under his control. He censored a newspaper, came close to executing two deserters, and jailed a state congressman, a judge, and a district attorney. He defied a writ of habeas corpus, the legal privilege recognized by the Constitution which allows someone being detained to insist that a judge look into his case. Jackson was fined for his actions, and, for the rest of his life, was shadowed by the charge that he had behaved tyrannically. In retirement, after two terms as President, he called on his reserves of political clout to get the fine refunded, and Congress ended up debating the legality of his actions in New Orleans for nearly two years. As Matthew Warshauer argues in a lucid and well-researched new book, “Andrew Jackson and the Politics of Martial Law” (University of Tennessee; $39.95), the debates changed the definition of martial law in American jurisprudence. They also set a precedent for granting emergency powers to the executive branch which remains a troubling legacy today....
By surveying changes in law compendia and military treatises, edition by edition, Warshauer shows that America’s legal community finally accepted the new meaning of martial law in the eighteen-forties, probably because the refund debates put it into currency. Indeed, when Rhode Island declared martial law in 1842, a contemporary blamed the “damnable heresies preached in the halls of Congress.” On the debate’s afterlife, Warshauer’s findings are even more intriguing. When Lincoln needed to justify his restriction of civil liberties in the early eighteen-sixties, he cited the 1844 refund as demonstrating Congress’s approval of Jackson’s declaration of martial law, calculating that nothing would silence his Democratic opponents so well as the example of Andrew Jackson. Warshauer finds nine politicians and commentators who lived long enough to debate both Jackson’s refund and the Civil War–era suspensions of habeas corpus. A Whig congressman who had called necessity the “universal plea of tyrants” in 1844 found himself declaring martial law in Maryland in 1863. The three Democrats in Warshauer’s sample supported Jackson’s declaration of martial law but didn’t trust Lincoln with the same powers. One of them, Chief Justice Roger B. Taney, wrote privately to Jackson in 1844 that “a grosser act of injustice was never perpetrated by any court, than the infliction of that fine upon you,” but upbraided Lincoln bitterly in his Ex Parte Merryman decision of 1861, warning Americans that if the military could suspend the writ of habeas corpus at will, they might “no longer [be] living under a government of laws.” So egregious is Taney’s flip-flop that Warshauer suspects that he cared more about thwarting Lincoln than about habeas corpus. In fact, Warshauer ends up doubting that politicians are even capable of rising above partisanship on the issue.
The evidence certainly suggests that it has always been difficult to find a reliable base of support for habeas corpus in America; it’s a vulnerable right, especially during emergencies and when a charismatic leader is involved. (“In free governments, dangerous precedents are to be dreaded from good and popular characters only,” Martin warned.) Maybe the solution to this dilemma, like so many others in American politics, is to be found in fruitful conflict between the executive, judiciary, and legislative branches. The jurist Abraham D. Sofaer has suggested that, in Jackson’s predicament, checks and balances were rather well distributed: so long as generals and Presidents who exceed the Constitution are vulnerable to the courts and to Congress, as Jackson was vulnerable to Hall, emergency powers are less likely to turn into permanent ones. One could argue that, by that logic, smoothing over the conflicts removes an important check on executive power; it was a mistake for the 1844 Congress to refund Jackson’s fine, and a mistake for the 2006 Congress to deprive the detainees in Guantánamo Bay of the writ of habeas corpus, helping President Bush maneuver around the Supreme Court’s ruling in Hamdan v. Rumsfeld. If the President takes away a civil right, he should have to worry about explaining himself to the people. He should fear as well as love us.