January 24, 2007


BAD PRECEDENT: Andrew Jackson's assault on habeas corpus CALEB CRAIN, 2007-01-29, The New Yorker)

By late 1814, it was clear that America was not winning the War of 1812. Washington, including the Capitol and the White House, was in ashes. New Englanders were so demoralized that they were considering secession. When British troops, hardened from battling Napoleon, set sail for Louisiana, some 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", 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.

What wouldn't most pols give for the sort of "shadow" that gets them elected president twice?

Posted by Orrin Judd at January 24, 2007 11:37 AM


Is there any infraction that might go against your "imperial presidency" rhetoric.

Could not Jackson have been elected and re-elected with out his actions in NO?

How about his flouting of the Sup. Ct. decision re: the Cherokees? Might not the misdeeds of that episode be the cause of much distrust of our leaders when the talk about the "rule of law." Might not the lingering problems with today's Native Americans be better if these people acted in accordance with the principles they supposedly espouse?

I hate to sound like a lefty here, but the cancers caused by these types of actions are not yet done wreaking havoc.

Posted by: Bruno at January 24, 2007 2:12 PM


As a native of South Dakota, lemme tell ya: We tried acting "in accordance with the principles they supposedly espouse." The Lakota still kvetch about us breaking the 1868 Fort Laramie Treaty and are still holding out for the Black Hills in lieu of the 1980 cash award. Sometimes you have to straight-up whup 'em in order to get the point across, as today's Cherokee can tell you.

And let's just say Ol' Hickory knew his constituency when he gave the finger to John Marshall.

Posted by: Brad S at January 24, 2007 2:48 PM

I think Jackson said it the best: "Is it wise," he asked rhetorically, "to sacrifice the spirit of the laws to the letter, and by adhering too strictly to the letter, lose the substance forever, in order that we may, for an instant, preserve the shadow?" or maybe Justice Jackson: "The Constitution is not a suicide pact".

In times of great emergency, it is folly to elevate form over substance. Perhaps Jackson overreached a bit but on the whole, his actions in NO seem pretty reasonable.

As for Bruno's specific questions.

"Might not the misdeeds of that episode be the cause of much distrust of our leaders when the talk about the "rule of law."

No. Jackson was supported by about 99% of the people at that time.

"Might not the lingering problems with today's Native Americans be better if these people acted in accordance with the principles they supposedly espouse?"

No. The Indians were in the way, legal nicities have never gotten in the way of an expanding empire.

In American history, during a crisis, we have never let the "rule of law" stand in the way of the paramount purpose of government: protecting the people. Witness Jackson, Lincoln, FDR. Is it an accident, Bruno, that these presidents, rightfully or wrongly, are widely considered the greatest?

Posted by: Bob at January 24, 2007 3:09 PM


No. We were a democracy at war. Nothing he did to Brits or Indians could be objectionable.

Posted by: oj at January 24, 2007 5:10 PM

Assuming all of you are extremely wise, one can only surmise that this is not a Judeo Christian nation, then, but a Greco-Roman one.

Let us dispense with the claptrap that we are "informed" by Christian ethics, and simply admit that it is a pretense we strip away the moment we want land (Mexicans in Californian, Cherokee, etc.) feel threatened (those Japanese Americans might have signaled fleets & planes doncha know), or want cheap labor (slavery).

I don't know who is right, but I'd rather err on the side of the putative principles we espouse over "might makes right."

It seems to me that every time we go against our principles we are left with locusts and boils (Indian issues, La Raza, and ...uhhh...oh yeah, Black anger)


What does routing the British have to do with screwing the Cherokee?


If we had treated the Cherokee the way the court decided, the issues in SD may have been resolved by natural assimilation. Call me crazy, but after that, why should they trust us?

Posted by: Bruno at January 25, 2007 1:08 AM


Both were just enemies. Your enemy isn't a neighbor.

Posted by: oj at January 25, 2007 8:40 AM