In lieu of an abstract, here is a brief excerpt of the content:

97 ChapterFive James Madison, Presidential Power, and Civil Liberties in the War of 1812 Benjamin Wittes and Ritika Singh In November of 1814, the White House lay in ashes, burned to the ground by British troops. President James Madison was living in temporary quarters at the so-called Octagon House, having returned to Washington after fleeing the city. His government had seen division and humiliation, and it had not yet seen Andrew Jackson’s redemptive after-the-fact triumph in New Orleans, which would come a few months later. In a letter to Virginia governor Wilson Cary Nicholas on November 25, 1814, Madison reflected on the difficulties that the nation faced in prosecuting the war: You are not mistaken in viewing the conduct of the Eastern States as the source of our great difficulties in carrying on the war; as it certainly is the greatest, if not the sole, inducement with the enemy to persevere in it. The greater part of the people in that quarter have been brought by their leaders, aided by their priests, under a delusion scarcely exceeded by that recorded in the period of witchcraft; and the leaders are becoming daily more desperate in the use they make of it. Their object is power.1 It was not a stray comment on Madison’s part. In a letter to former president Thomas Jefferson more than two years earlier, he had complained that “the seditious opposition in Massachusetts and Connecticut, with the intrigues elsewhere insidiously co-operating with it, have so clogged the wheels of the war that I fear the campaign will not accomplish the object of it.”2 And in a letter to a New England sympathizer in September 6, 1812, he lamented: 05-2414-8 ch5.indd 97 9/11/12 3:45 PM 98 / Benjamin Wittes and Ritika Singh I will not conceal the surprise and the pain I feel at declarations from any portion of the American people that measures resulting from the National will constitutionally pronounced, and carrying with them the most solemn sanctions, are not to be pursued into effect, without the hazard of civil war. This is sure not . . . a course consistent with the duration or efficacy of any Government.3 Nor was Madison much, if at all, exaggerating the situation. The behavior of at least some of the Federalist opposition—which involved marshaling state resources to oppose federal policy, openly siding with the enemy against Washington, and frankly contemplating the dissolution of the union—looks as positively disloyal in retrospect as it did to Madison at the time. One might reasonably expect, given the scope and scale of the opposition to the war and the intensity of the president’s feelings about it, that he would have taken bold action against the opposition. It is an age-old maxim, after all, that “inter arma silent leges”—that the law, along with the liberty that it protects, falls by the wayside when a country is threatened. In the War of 1812, not only was the country threatened, the White House and the Capitol lay in ruins—and the president saw domestic political opposition as the main reason that the British persisted in their war effort. What’s more, this was the period immediately following the era of the Alien and Sedition Acts, the latter of which had criminalized criticism of the federal government and its policies. It had also been deployed barely a decade earlier against members of Madison’s political party by the very same Federalists who were now opposing the president’s policies. If ever a moment in American political history justified a measure of political repression, the War of 1812 was surely one. Yet the many books about the history of civil liberties in the United States in wartime all seem to have a chapter missing—and strangely, it is the chapter that would deal with this very period. For example, Geoffrey Stone’s book on the history of free speech in wartime jumps straight from the Sedition Act and the quasi-war with France in the late 1790s to the Civil War.4 The late chief justice William Rehnquist touches on the War of 1812 only glancingly in his famous book, All the Laws but One: Civil Liberties in Wartime. He devotes a few paragraphs to Andrew Jackson’s repression of dissent in New Orleans, but as to Madison’s handling of civil liberties during the war more generally, he offers only two derisive sentences...

Share