Warshauer, ANDREW JACKSON AND THE POLITICS OF MARTIAL LAW

Mark Graber

Just finished reading and reviewing (for the Kentucky Historical Society) Matthew Warshauer’s Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship. This is a wonderful monograph that should not go under the radar screen of those history, martial law, the constitution outside the court, and antebellum partisan politics. The central focus of the book is Andrew Jackson’s effort during the 1840s to have the federal government refund with interest the $1000 fine he paid in 1815 for contempt of court. Jackson declared martial law during the battle of New Orleans, refused to life that order, imprisoned a politician who had the temerity to suggest the order be lifted, then refused to obey a writ of habeas corpus challenging the legality of his imposition of martial law (sound familiar Lincoln fans). The Congressional debate over the issue raised important questions of martial law, and judicial authority that would be refought during the Civil War.

Three eminent politicians, in made very different arguments about martial law during the refund debates than they made during more famous debates over national power. John Quincy Adams, who had previously championed martial law as a means by which military commanders might free slaves, during the refund debates "scoffed at the idea of justifying martial law under the dictates of self-defense." James Buchanan in 1861 famously insisted that the federal government could do nothing to prevent secession. During the refund debate, he asserted that "strictly speaking, we admit that [Jackson] had no Constitutional right to make this declaration [of martial law], but its absolute necessity for the purpose of defending [New Orleans] amply justified the act." While Roger Taney in Ex Parte Merryman (1861) condemned Abraham Lincoln for declaring martial law and ignoring a writ of habeas corpus, in 1843 the future Chief Justice described as "disgraceful" Judge Dominick Augustan Hall’s effort to challenge Andrew Jackson’s similar declaration. These and numerous other examples, Professor Warshauer correctly concludes, challenge common claims that Democratic opposition to Lincoln administration war policies during the Civil War "grew ‘out of an ideology rooted in their traditions and experiences.’" Alexander Stephens seems the one prominent politician who took a consistent stance on governmental authority to suspend ordinary law, opposing the refund bill during the 1840s and the Confederate suspensions during the Civil War.

Andrew Jackson should be of great interest to historians interested in antebellum partisan politics, political scientists interested in the constitution outside of the courts, and lawyers interested in the origins of martial law. Professor Warschauer does a first rate job excavating a constitutional debate too long lost to scholars and detailing how during the years before the Civil War a distinctive notion of martial law as binding civilians was hived from the traditional notion of military law, which was bound only persons in the armed forces. Some non-historians may quibble that persons from other disciplines might have told the story differently. Still, no scholar can cover all bases and Andrew Jackson covers most. Professor Warshauer has written the rare book that will please the historically curious and inspire the historical researcher.
Posted 8:53 PM by Mark Graber [link]