Matthew Warshauer, professor of history at Central Connecticut State University, recently addressed a John Locke Foundation North Carolina History Project Headliner luncheon in Raleigh. He also discussed his book, Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship, with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: People who have paid a lot of attention to the executive branch and the president, the powers that he has and uses in the wake of 9/11, might not know that this is an issue that goes back many, many years in our history. As you have been following what’s been going on with the post-9/11 United States, do you think, “Hey, I’ve been studying about this with Andrew Jackson for years.”
Warshauer: The timing could not have been better. You know, one of the things about American society is that we are a law-based society, and therefore everything is built upon the idea of precedent and the powers that President Bush has taken on, he has used precedent and history to support and justify what he has done. But he has expanded more, I think, than other presidents have in terms of executive privilege and executive power. But certainly the idea of it is nothing new.
Kokai: When you look at the example of Andrew Jackson and the steps that he took, what are some of the main things that people should know about the use of executive power in that time?
Warshauer: Well, the really interesting thing about Jackson is that most people aren’t aware of it. Even most constitutional historians have not really paid attention to what Jackson did. When they look at the origins of emergency war powers and executive power, they turn to Lincoln. But Lincoln turned to Jackson. And what Jackson actually did was not done while he was chief executive. He was not president at the time. Rather, he was a general. And this is what created his national fame. It was the Battle of New Orleans, in which he just absolutely devastated a formidable British army that was attempting to invade New Orleans. Everyone expected him to lose the battle. He did not. He became an overnight sensation and it is what paved the way to the White House for him.
But in order to win that battle what did he need to do? He needed to impose martial law and suspend the writ of habeas corpus, and it was the first in American history it had ever been done. And it didn’t create immediate controversy at the time he did it. To an extent it did — and I can be more specific about that if you would like — but it was the aftermath, years later, when Congress debated what he did that really created the precedent that Lincoln turned to and then in turn other presidents. Woodrow Wilson, Franklin Delano Roosevelt, and then, of course, George Bush turned to these previous precedents.
Kokai: Of course this tends to come up during a war, when the nation’s security seems to be most threatened. Do you get the sense that Jackson at the time that he took his actions was pretty well supported among those who were fighting the British enemy in the War of 1812?
Warshauer: Well, the interesting thing — that’s a great question. It’s the logical question. Most people in New Orleans when Jackson imposed martial law supported it. It helped to ready the city for defense against the British. Once the victory was won on January 8 everyone expected Jackson to relinquish martial law. He thought that another British invasion was imminent, and therefore he held martial law in place for another two months. Well, those in support of martial law began to wane rather quickly in their support. And so the internal struggle in New Orleans was pretty unique and got rather nasty to the extent that Jackson was hauled before a federal district judge and fined $1,000 for contempt of court. And outside of New Orleans in Washington, virtually nothing was said about this. Jackson received a couple of lengthy letters from the secretary of war, Armstrong, expressing President Madison’s deep concern over military exertions. But beyond that Madison did absolutely nothing. And one of the things that I have argued in the book is that in doing nothing Madison left really a gaping hole in the future of civil liberties in this nation.
Kokai: By taking no action at that point, was there a precedent set that things like this could be done if you could come up with ends that seemed appropriate?
Warshauer: Yeah, well, it was a precedent that set no precedent if you follow me. Jackson was fined $1,000 for contempt of court by a federal judge. He paid the fine. A thousand dollars is a lot of money at that time. Years later, after he retired his presidency, he was sitting at home in the Hermitage in Tennessee, and he is looking back over an otherwise brilliant career. He thought, “I have one final stain on my reputation and my legacy. And it is this New Orleans fine, and I want the money back with interest. And importantly I want to set that very clear precedent for acknowledging emergency powers in a time of, you know, great danger to the nation.”
And so this turned into a two-year struggle in Congress over returning this fine. And it was very partisan motivated. You know, the Whigs hated Jackson. The Democrats loved him. It turned into a partisan free-for-all that was as much about the presidential election of 1844 as it was about civil liberties in the Untied States. And it did, in fact, create a precedent because it changed the definition of the very term, the legal definition, of the term “martial law.” It did not, however, create a precedent in terms of legislation. Because the actual bill refunding Jackson’s fine did not say one word, not a single word, about whether or not what Jackson did was legal, illegal, whether it should be allowed in the future.
But the very silence of the legislation created that precedent with no precedent. And when Lincoln turned to the use of martial law and the suspension of habeas corpus during the Civil War, in an 1863 letter, he specifically cited Jackson’s use of martial law in New Orleans and Congress’ subsequent approval. Now the legislation, of course, didn’t say approval, but giving him the money back with interest — precedent with no precedent.
Kokai: Fast forward now to the post-2001 era. As you have seen what has happened with the use of executive power in the Bush administration, what parallels do you see?
Warshauer: Well, the primary parallel is this question of security over freedom. What do we do to balance maintaining our civil liberties on which this nation is founded? The legacy of, you know, the very creation of our Constitution and how the founders set up our system of government in this nation that we hail as a nation of liberty? They understood that governments have the tendency to increase power over time. That is certainly what has occurred in this nation across many levels. Not just involved with civil liberties, but certainly executive power has expanded, you know, exponentially especially in the 20th century and now in the 21st century. And I think that if there are any lessons from the Jackson episode, from the Lincoln episode, from Woodrow Wilson, form Franklin Delano Roosevelt, and then from September 11 and what George Bush has done, the very, very clear lesson is that we need to be proactive in the future in regards to protecting our civil liberties.
What that truly requires is an emergency action plan that is very clearly defined and spelled out as to how long the president can invoke emergency powers and what type of support he needs from Congress in order to maintain those emergency powers. I don’t think that there is anything wrong with imposing emergency powers in a time of really dire emergency. I believe that what Jackson did was correct. I believe that what Lincoln did was correct. But it can’t be open-ended because I sat and I watched many of these 9/11 tributes, and they are moving and they are thoughtful and people discuss liberty and freedom and fighting for our democracy.
Well, what happens if we destroy it from within by breaking down the essential frameworks of our own Constitution, which protects liberty? … Yale law professor Bruce Ackerman … outlines, you know, a blueprint for an emergency Constitution that would in fact give the president the executive powers that he needs when an emergency is before us, but not so open-ended that the president can claim and do anything he would like to do. I think that is really the key.