The President Needs to Invoke the Constitution's Wartime Provisions: "How Do We Get from the Decisive Actions of [Andrew] Jackson, [Abraham] Lincoln, and [Franklin] Roosevelt to the Obama Administration's Stunning Mishandling of Umar Farouk Abdulmutallab?"
McCarthy, Andrew C., USA TODAY
"YOU ARE HEREBY commanded to show cause." The General studied the document in his hands. It was a writ of habeas corpus. A Federal judge was presuming, in the midst of war, to order him to report to the courthouse the following morning and explain the basis on which the U.S. Army was holding a prisoner of war.
(Habeas corpus: "You shall have the body." It is known as "the Great Writ," an inheritance from the Magna Carla and British common law that formally was established in the American colonies in the 1690s. When the Constitution was adopted in 1787, it became part of our fundamental law, enshrined in Article I, Section 9: '"l-he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The writ, in short, is a time-honored bulwark against tyranny.)
Returning to our story: Louisiana only had been a state for about three years when, in early 1815, Gen. Andrew Jackson authorized the arrest and detention of Louis Louailler. "Old Hickory" had just saved the Republic by detbating the British forces of Gen. Sir Edward Pakenham in the decisive Battle of New Orleans. The Treaty of Ghent, which formally concluded the War of 1812, actually had been signed by British and American foreign ministers more than two weeks earlier, but news of the treaty did not reach the U.S. in time to forestall the battle. It was the one great American victory of the war.
Just as Jackson had not known about the formal armistice, neither did he know what the British army would do. Would it regroup and attempt another assault? So, he imposed martial law. That did not please Louailler, who took to the newspapers to attack Jackson's decision. Perceiving this as an incitement, Jackson had Louailler arrested. Supporters of the imprisoned man appealed to the Honorable Dominick Augustin Hall, the U.S. District Judge in Louisiana.
Hall, being a jurist, bad no responsibility for national security--a responsibility assigned by the Constitution to elected officials. The judge's only duty was to ensure that any litigants properly before him were afforded due process, but Judge Hall was of a mind that he, not Gen. Jackson, personified the rule of law--security or no security. Jackson was of a different mind. Instead of responding to the writ as directed, he had Hall arrested and, after a time, escorted by troops several miles outside the city limits and set free.
We have come a long way from Andrew Jackson to Barack Obama--and an even longer way from Louis Louailler to Umar Farouk Abdulmutallab, the so-called Christmas bomber. It has become fashionable these days to invoke the "role of law" as if it means the rule of lawyers--and, in particular, the rule of judges, but that never has been the term's meaning. In the U.S., the nile of law is embodied in the Constitution and resides in the statutes, treaties, rules, and regulations adopted pursuant to it. The rule of law does not refer either to judges or to elected officials, who are themselves servants of the Constitution.
It also has become trendy in recent years, especially among our legal elites, to declaim piously that "the Constitution is not suspended in wartime." Of course, no true patriot believes that the Constitution ever could be suspended. Yet, the Constitution is not--nor has it ever been--the imposition of judicial rule. Indeed, the Constitution imposes strict limitations on the judicial power, just as it does on Congress and the Executive Branch. It never has been the case that, where judicial power ends, anarchy begins.
Gen. Jackson may have been wrong to lock up Louis Louailler in 1815. In fact, the military court that tried Louailler acquitted him, but Jackson was not wrong in determining that it was his decision to make--not as a tyrant, but within the constraints of military protocols in wartime. When formal word of the peace treaty reached New Orleans, Jackson immediately reinstated civilian control. …