Andrew Jackson and the "Unitary Executive"

Image: Old Hickory battles the Money Power

This is depressing. John Yoo, aka, Torture Yoo, one of the chief legal enablers of the Cheney-Bush torture policy, has written a paper attempting to make Andrew Jackson an example to support Yoo's extreme theory of the "unitary Executive". The paper is Andrew Jackson and Presidential Power 07/08/08 Charleston Law Review Vol. 2/2008.

Elizabeth Hillman, one of Yoo's colleagues at the UC Hastings College of the Law, makes available a useful critique of Yoo's deeply flawed view of Andrew Jackson by Louis Fisher in Louis Fisher on John Yoo, Jackson, and presidential power Legal History Blog 08/05/08.

This article explores Jackson's views on executive power and how he "laid the foundations for what we can begin to recognize as the modern presidency." We are familiar with Jackson's view that the President is the direct representative of the people and therefore an agent in assuring that the "will of the majority" would prevail. According to Yoo, Jackson held a more extreme view. Jackson believed that the "more elected representatives there were, the more likely the popular will would be frustrated" (Yoo's language). Such a position is plainly monarchical and necessarily subordinates Congress - as the elected representatives - to a subordinate role in government. I'm not aware that Jackson adopted that view or intended to carry it out.

It's worthwhile to look at a bit more of the argument that Yoo makes in that context to see how very selective his reading of American history is. He merrily conflates the notion of majority rule with the idea of the President as elected monarch:

Upon winning the election of 1828, Jackson embarked on a transformation of the political system and the Presidency. He sought to advance the cause of democracy, and made an expanded executive power his tool in that great project. To Jackson, democracy meant that the will of the majority should prevail, regardless of existing governmental and social arrangements. Even Jefferson had not gone that far. The Framers designed a government to check and balance majority rule with the Senate, the Electoral College, and an independent judiciary. Jackson followed a different star. "[T]he first principle of our system," Jackson declared in his State of the Union Address, is "that the majority is to govern." He called for a constitutional amendment to eliminate the Electoral College because "[t]o the people belongs the right of electing their Chief Magistrate." The more elected representatives there were, he observed, the more likely the popular will would be frustrated. Jackson remains one of the greatest Presidents because he reconstructed the office into the direct representative of the American people.

Jackson, who had fought in the Revolutionary War as a young man and was thus the last of the Founders to hold the Presidency, did see himself as the representative of the American people. And he served as their partisan against plutocratic bankers and treasonous secessionists. But he did so in defense of the Constitution with its system of checks and balances. And to establish the rule of law over the arbitrary and extra-legal power of financial manipulators and slaveowners who were ready to reject republican government even for white males in order to preserve their own brand of power. Yoo argument, made here by implication and omission (which is pretty much the only way it can be made), that Jackson's view of himself as the people's representative equated to the notion that he had the arbitrary power of a tyrannical monarch is frivolous.

I would also observe that it reflects the argument of Jackson's opponents who coalesced into the emerging Whig Party, who were horrified at Jackson's willingness to defend the interests of farmers, small businesspeople, workers, debtors and the developing union movement against the "better sort of people" whose interests the Whigs defended. Yoo is making a warmed-over case from reactionary Whiggery.

Fisher discusses Jackson's actions in his previous career as a general, during his imposition of martial law in the territorial city of New Orleans during the War of 1812, in which he refused to recognize the right of habeus corpus in that situation. Fisher connects that with Abraham Lincoln's suspension of habeus corpus for Copperhead suspects during the Civil War. And he concludes, "Jackson and Lincoln understood that this exercise of emergency power was subject to checks. If the executive unwisely and illegally exercised emergency power, the other branches could invoke checks, including impeachment." I would add that the situation that the United States faced during the Cheney-Bush administration doesn't remotely compare to those situations.

Fisher discusses one of the more controversial events in Jackson's military career, from the Seminole War, the execution of two British functionaries who had been advising the Seminole tribes in that war. The were tried and sentenced to death by a military commission, though the commission had changed the sentence in one of the cases, but Jackson overrode that latter decision and had him executed. The legality of this particular wartime situation, as Fisher points out, was very much disputed in terms of the laws of the 1810s. It scarcely provides any meaningful precedent in the context of US and international law today for Yoo's extreme legal theories.

Fisher takes issue with Yoo's treatment of Jackson's attitude toward recognition of the Republic of Texas:

As Yoo notes, "Jackson pursued the acquisition of Texas throughout his Presidency." He took a number of initiatives, but declined to recognize Texas. Many specialists in constitutional law regard the power of recognition as centered in the presidency, even though it is not expressly stated in the Constitution. That is not how Jackson saw it. Under pressure to recognize Texas, Yoo correctly states that Jackson "was unwilling to move forward with annexation because he worried that sectional divisions over slavery would complicate the election of his chosen successor, Martin Van Buren." Interestingly, Jackson "left the matter to Congress to decide, as under the Constitution it controlled the acquisition of new territory and the admission of states."

Yoo doesn't mention it, but Jackson had another reason not to recognize Texas. Both Houses of Congress passed resolutions stating that the independence of Texas ought to be acknowledged. Jackson refused to act. Had Texas been independent for a number of years and had other nations recognized it, he would have felt freer to act. But with Texas just breaking with Mexico, Jackson concluded that recognizing its independence could provoke war with Mexico and therefore invade the prerogatives of Congress. Yoo states that Presidents and Congresses "had long considered" the power to recognize other countries "part of the executive power over foreign relations. Jackson was no different." Yes he was.

Fischer also points out that Yoo fails to recognize Jackson's view of the Senate's partnership with the President in treaty negotiations. And that Yoo mistakenly credits Jackson with being the first President to exercise a "pocket veto".

Fisher writes that Jackson in the fight against the Bank of the United States insisted that the President has the power to interpret the Constitution. Despite Jakcson's conflict with the Supreme court over the execution of the Indian Removal Act, he did not oppose the notion of judicial review, which is a well-established part of the US Constitutional law, then and now. As Fisher puts it:

[N]othing in that position smacks of monarchical government. Jackson took an oath to support and defend the Constitution, to reach an interpretation as he saw it, not as other branches saw it. There is nothing arrogant or overbearing about that position. It is a power and a duty vested in the President by the Constitution.

And Fisher takes issue with Yoo on the Constitutional implications of Jackson's protest of the Senate's censure resolution against him:

As part of the dispute between Jackson and Congress over the U.S. Bank, the Senate passed a resolution censuring Jackson. Yoo regards his "Protest" as "one of the most forceful declarations of presidential power in American history." Yoo doesn't explain on what principled grounds Jackson denounced the Senate's action. The grounds were constitutional. The Senate, adopting a resolution that stated that Jackson had acted "in derogation" of the Constitution and the laws, claimed the right to censure him on the basis of unspecified charges and without an opportunity to be heard. The Senate had acted in circumvention of the formal constitutional procedure for impeachment. The branch that had acted in derogation of the Constitution was the Senate, not Jackson. Three years later the Senate later expunged the resolution of censure from its records.

My admiration for Jackson as a political figure has to do with his substantive accomplishments in expanding democracy and in defining American patriotism in terms of democracy rather than nativistic nationalism. But I've never tried to defend Jackson's role in the Indian removal he set up. I have argued that to understand what actually happened and why it was wrong by the standards of the time, you have to make some effort to understand the mutual relations between the Americans and the Indian tribes of the time. It's not immediately obvious from today's perspective.

Yoo's essay is a good example of why it's important to make that effort. He's happy to draw a superficial lesson, whose application to Yoo's own dark recent past is pretty obvious. He writes, "By our standards today, American treatment of the Indians is shocking and repulsive. Under the standards of his time, Jackson's views can be said to represent the views of the voting public."

Actually, most Americans today would have a hard time saying just why they thought the Indian removal was wrong. Once you start wrestling seriously with the complexities of the relations of various Indian tribes to each other, to ambitious American private citizens, to the US and state governments, as well as their role in international competition for land and power in North America, easy generalizations become more difficult than most people might think.

We see a glimpse of that complexity in the Seminole War incident touched on above. Britain went to war against America for a second time in 1812, even occupying Washington and burning down the Capitol building. It was at the start of the year 1815 that Jackson and his soldiers, allied with the French pirate Jean Lafitte, turned back the British attempt to seize New Orleans and thereby establish control over the crucial Mississippi River trade route. Just four years later, Jackson caught those two Brits providing military advice to the Seminole tribe fighting against the United States. American leaders in the nineteenth century couldn't simply ignore the role that Indian tribes could and did play at times as allies of much more powerful foreign foes.

Real human beings aren't plaster saints. And the symbol of Andrew Jackson is a reminder that advances in democracy have come at times along with terrible human costs. I see Andrew Jackson as a symbol that incorporates a Niebuhrian caution about the dangers of power and the limits of human judgment along with a passionate commitment to democracy.

Fisher provides a good bottom line to his argument against Yoo's seriously off-base interpretation of Jackson's Presidency:

Jackson strengthened the presidency and established important precedents that are still followed today. But he never claimed, as the Bush administration did after 9/11, that he could adopt policies in secret that were in violation of statutes and treaties. In exercising powers vigorously, he called on powers that derived from the Constitution. (my emphasis)

Tags: andrew jackson, robert rimini