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122 ChapterSix The War over Federalism: The Constitutional Battles in the War of 1812 Peter J. Kastor The United States has declared war five times. It did so for the first time in 1812, and Americans immediately recognized that declaring war put them in an unprecedented constitutional no-man’s-land. They were right. The Constitution had provided the means for the United States to declare war, but how the United States would mobilize to wage war was far less certain. In more than two years of warfare, Americans saw the federal system pushed to the breaking point. Along the way, they repeatedly argued about the very meaning of the republic. Understanding just how challenging the War of 1812 would become begins with recapturing a definition of federalism that was, in certain key ways, very different from our own. In contemporary terms, federalism refers to a complex but highly specific set of relationships between the federal government , the states, and the federal courts. In the early republic, Americans invoked the notion of federalism more broadly. It was defined not only by the specifically enumerated powers of the states and the central government but by a set of relationships that connected states to one another and to a national leadership in which the presidency and Congress played very different roles from the roles that they play today. Within that context, the function of the federal court system remained ambiguous, but it was far less powerful than it is now. In addition, the United States included a half-dozen federal territories, polities that were on track for eventual incorporation as states but that were temporarily under the direct supervision of the central government in Washington. Finally, there was a more abstract, diffuse way that Americans used the term “federalism.” In addition to the relationships 06-2414-8 ch6.indd 122 9/11/12 3:45 PM Constitutional Battles / 123 between government institutions, federalism was supposed to embody the relationship among American citizens, who were at once residents of a state and citizens of a nation.1 What follows is a story of federalism in the United States, a story that explains not only how Americans conceived of their country but also how its constitutional system shaped the outcome of the war. It is a story told through four men—James Madison, Henry Clay, Andrew Jackson, and William Clark—and best understood not by looking at the beginning of the War of 1812 but by looking at the four very different endings to the war experienced by these four men. Most accounts of the War of 1812 describe the war as coming to an end on December 24, 1814, when negotiators from the United States and Great Britain , meeting on neutral ground in the Belgian town of Ghent, signed a treaty. Even if the treaty would not go into effect until ratified by the U.S. Senate, the negotiators saw its signing as the end of the conflict. Yet one of the most well-known facts of the War of 1812 is that the Battle of New Orleans, the greatest American battlefield victory of the conflict, came almost two weeks later. If the victory at New Orleans became a symbol of American military prowess, the timing of the battle and the Treaty of Ghent has become a symbol of everything that went wrong with the war, at least from an American perspective. The conflict was ill conceived and poorly executed from the start. Now that two centuries have passed and the trauma of warfare has faded from memory, the American effort to manage the war is, quite literally, laughable. But the timing of the treaty and Battle of New Orleans is hardly so telling a metaphor for the war as people might think. The fact that such a major battle came after the conclusion of peace negotiations was not unique. The War of 1812 was like most wars before modern communications, when violent conflict continued long after a peace treaty or cease-fire was signed. So if this is not to be simply a story of miscommunication, we need to look at the War of 1812 differently. The experiences of Madison, Clay, Jackson, and Clark provide the means to do so. Clay was one of the negotiators at Ghent. He also had played a key role in the declaration of war, only to learn from personal experience that the federal structure itself made conducting war extraordinarily difficult. Meanwhile , Jackson, the hero of New...

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