Executive Power

Shane Harris on Madison and Civil Liberties

By Benjamin Wittes
Thursday, December 6, 2012, 6:13 PM

Over at Washingtonian, Shane Harris has a very generous blog post about Ritika and my recent chapter on James Madison and civil liberties during the War of 1812---which was published as part of a recent book edited by my colleague Pietro Nivola, What so Proudly we Hailed: Essays on the Contemporary Meaning of the War of 1812Shane begins,

Remember when wartime presidents were exemplars of Constitutional restraint, and such stalwart defenders of free speech, association, and due process, that, even in the face of an existential threat to the homeland, they employed no special claims of executive authority to snuff out or silence their adversaries? Of course you don't, because there's only been one such president, and he was in office 200 years ago.

James Madison, you may be surprised to learn, turns the conventional narrative of the imperial presidency (aka, the presidency we all know today) on its head. During the War of 1812, the nation’s fourth chief executive faced an array of threats that would presumably have justified extraordinary actions of political repression. Not only did the British march on Washington and burn down the White House, but Madison faced overt opposition to the war from some of his fellow countrymen, among them a group that met to consider dissolving the union and forging a separate peace with America’s foreign adversary. Such actions could easily be called sedition if not outright treason.