Executive Power, Civil Liberties, and the War of 1812

By Benjamin Wittes, Ritika Singh
Thursday, March 29, 2012, 10:48 AM

In case you didn't already know this with all of the attention it's getting, this year is the 200th anniversary of the beginning of the War of 1812. Our Brookings colleague, Pietro Nivola, and our friends at the Center for the Constitution at James Madison's Montpelier, are putting together a book on various aspects of the oddly-forgotten war, and we have been asked to write the chapter on executive power and civil liberties.

This turns out to be a remarkably rich subject--one that has led to some surprising conclusions. We are still working on this paper, but put out the following thoughts in case readers have material of which we should be aware or thoughts that should inform our thinking. The following is culled from our draft introduction:

In November of 1814 the White House lay in ashes, burned to the ground by British troops. President James Madison, having returned to Washington after fleeing the city from the invading forces, was living in temporary quarters in the so-called Octagon House (which is still around, by the way). His government had seen division and humiliation, and it had not yet seen the redemptive after-the-fact triumph in New Orleans that would come a few months later. In a letter to Virginia governor Wilson Cary Nicholas, Madison reflected on the difficulties 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.

This was not a stray comment on  Madison’s part. In a letter to former President Thomas Jefferson, he 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.” And in a letter to a New England sympathizer, he lamented:

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, and 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.

Nor was Madison much, if at all, exaggerating the situation. The behavior of at least some of the Federalist opposition--which involved the marshaling of state resources to oppose federal war policy, the open siding with the enemy against Washington, and the frank contemplation of the dissolution of the union--looks as positively disloyal in retrospect as it did to Madison at the time. At one point late in the war, some of the New England states even convened a convention to discuss, among other things, secession.

One might reasonably expect, given the scope and scale of the opposition to the war and the intensity of the president’s feeling about it, bold moves against the opposition. It is an age-old maxim, after all, that “inter arma silent leges”--that civil liberties fall by the wayside when the 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 the political opposition as the main reason the British war effort had persisted. 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 and had been deployed by the Federalists barely a decade earlier against printers of Madison’s own political party. If ever a political moment in American history would have justified a measure of political repression, the War of 1812 was surely one of them.

Yet the many books about the history of civil liberties 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. So does Stone’s more general treatment of civil liberties in wartime. 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: “True, during the War of 1812, the British sailed into Chesapeake Bay, burned the capital, and briefly invaded Maryland. But that was only an episode in a war that was quite unlike the Civil War, and the national government under President James Madison was too weak and inert to abridge anyone’s civil liberties.”

There is a reason the standard treatments of civil liberties in wartime omit this period--and Rehnquist’s barb suggests it: Despite the dire threat the nation faced, the War of 1812 didn’t see serious infringements on civil liberties. Particularly in comparison with presidents during other wars, Madison showed remarkable restraint in nearly all respects during a war at the country’s infancy when there was still great conceptual space for robust claims of presidential power to restrain freedom. The war saw dramatically fewer civil liberties intrusions than did later wars--or even than did earlier episodes short of war in the country’s still-young history. Madison’s leading biographer, Ralph Ketcham, describes him as the “unimperial president” for his wartime behavior, writing that

Madison's course [during the War of 1812] was consistent with his theory of republican government and especially of the use of executive power. Though in the last extremity he might have suspended civil liberties or even marched in the army, even to have had to do so would for him have been a stunning, profoundly sorrowful defeat—a "victory" in such an effort would have had only a bitter taste. . . to have acted as a tyrant within his own country would have been to default grievously and utterly. . . . To be imperious, or domineering, or grand was to him simply inappropriate in a president who was the agent of the people, the follower of Congress in matters of policy, and the creature of the Constitution in the definition of his powers. In this sense Madison's conduct of the War of 1812, with all its difficulties, indecisiveness, and failures, was an ultimate triumph in that republican government emerged confirmed and strengthened.

Irving Brant, in his book about Madison’s presidency during the war, similarly calls him,

the bulwark of civil liberties in a passion-torn country wherein the spirit of treason ran rampant. He took this stand at a time when Jefferson was suggesting tar and feathers, hemp and confiscation [for dissenters], when a justice of the Supreme Court was asking for prosecution under unwritten law, and when personal calumnies were being poured in a ceaseless stream upon his head by the very men whose liberties he was refusing to curtail.

The story of civil liberties during the War of 1812 is often ignored because it is a story of a dog that didn’t bark--of repression that didn’t happen, of strong executive actions not taken, and of risks incurred and tolerated, not preempted.

But it actually raises a vexing question--kind of the mirror image question we generally confront in thinking about presidential conduct during wartime: Was Madison's restraint a virtue or a vice? In the modern era, we tend to fear excessive executive muscularity, even as we demand action of our presidents. But the contours of the presidency--and public expectations of it--were in Madison’s day still very much contested. And Madison’s handling of domestic opposition during the War of 1812 thus offers a rare opportunity to imagine executive crisis management had the executive not evolved in such a relentlessly Hamiltonian direction in later years. And it therefore offers an opportunity to ask ourselves the opposite question we ask of Abraham Lincoln, Franklin Roosevelt, Woodrow Wilson, George W. Bush--and now Barack Obama. Instead of asking whether and how the president went too far, we have to ask of Madison whether he went far enough.

Put another way, if the White House burns and you haven't arrested people calling for dissolution of the country, have you been a little too solicitous of civil liberties?

We'd love to hear from readers who know about this period and the cases during it.