What Would James Madison (Not) Do?

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. 

And yet Madison held his executive fire. He did not silence dissenters. He did not suspend the rights of those plotting against him. How, and more intriguingly why he made those choices is explored in a new book, What So Proudly We Hailed, about the War of 1812 and its contemporary meaning. A chapter on civil liberties and Madison’s use of presidential power, or lack of it, was written by Benjamin Wittes and Ritika Singh of the Brookings Institution, which published the book. Wittes writes extensively about civil liberties and the war on terrorism, both as an author and the editor-in-chief of the blog Lawfare, where Singh is a contributor. 

The history of Madison at war reads like some alternative universe of the American Presidency. We don’t expect our commander-in-chief to draw back when the enemy is at the gates and rebellion is in the offing. “If ever a moment in American political history justified a measure of political repression, the War of 1812 was surely one,” write Wittes and Singh. 

I was impressed, and at times even concerned, that in the face of dire threats both foreign and domestic Madison adhered to a limiting interpretation of the Constitution, one that arguably tied his hands. (Given his particular familiarity with the text, I’m reluctant to second guess him.) 

It’s not that Madison was unconcerned or ignorant about the opposition. Indeed, he singled out state governors who refused to commit their militias to the national war effort as “the source of our greatest difficulties in carrying on the war; as it certainly is the greatest, if not the sole, inducement with the enemy to persevere in it.” 

And yet Madison didn’t seek the unilateral and more expedient remedies that his successors in office would: repress dissent, suspend habeas corpus, and claim the authority to hold American citizens in military custody. In fact, Madison explicitly disclaimed that authority. 

“The story of civil liberties in the War of 1812 is often ignored because it is a story of a dog that didn’t bark,” the authors write, “of repression that did not occur, of strong executive actions not taken, and of risks incurred and tolerated, not preempted.” This discrete story has been overlooked because it doesn’t comport with the broader one we know, and, especially in the past decade, have come to expect.   

Wittes and Singh describe Madison’s bold inactions in greater detail than we have room for here. And lest we lionize Madison as an unqualified champion of civil liberties, they add some important caveats to the story. For instance, while Madison did nothing to encourage a mob that ransacked the offices of a newspaper that had criticized the President for waging war against the British, he did nothing to stop the mob, either. Madison could be accused of turning a blind eye to other forms of oppression or even illegal acts, as when Congress “encouraged civilian attacks on British warships, a practice that would be unthinkable today,” the authors write. 

But what emerges in Wittes and Singh’s account is the story of a uniquely conservative President. I’m not sure whether Madison had the right reading of his job description. And I’m tempted to think he should have stretched a little more. British troops, after all, invaded the White House, ate a still-warm meal they found on the table, and then toasted the President before burning his house to the ground. But I wonder, too, how the nation might have changed course if Abraham Lincoln, Franklin Roosevelt, and George W. Bush had brushed up on their Madisonian history.