Cato V, Part XXX: The Same Causes, contd.

Two things needed to happen, by and large, if Andrew Jackson’s plan to destroy the Second Bank of the United States in the aftermath of his reelection in 1832 was going to come to pass. First, the government would need to find a group of state banks willing to accept custodianship of federal deposits. This, it turned out, was rather easily done. Over the course of the spring and summer of 1833, two of the foremost anti-Bank stalwarts in Jackson’s cabinet, Postmaster General Amos Kendall (1789-1869) and Attorney General Roger Taney (1777-1864), managed to compile a list of over twenty state banks they deemed suitably trustworthy. All things going to plan, these institutions would split the governments deposits between them one they were removed from the possession of the Second Bank, thus decentralizing access to credit and eliminating a proven source of financial and political mischief. In order to complete this objective, however, Jackson would also need to find a Treasury Secretary willing to give the requisite orders. Louis McLane, who had been serving in the post since the summer of 1831, had always been a public supporter of the Second Bank, and unsurprisingly recoiled at the idea of removing the federal deposits suddenly and carelessly. Congress had only just declared that the federal government’s funds were completely secure, he protested at the time, and it seemed likely to him that tampering with the deposits would trigger another economic crisis. Jackson, of course, had already made up his mind, and so he replaced McLane at the Treasury with an Irish-born Pennsylvanian named William J. Duane (1780-1865). Duane was not as ardently anti-Bank as Taney or Kendall but had nonetheless made clear his dislike for the institution. He was regarded accordingly as a dependable compromise amongst the divided members of Jackson’s cabinet.

As it turned out, Duane was not quite as dependable as Jackson had been led to believe. On June 1^st, 1833, he was sworn in as the 11^th United States Secretary of the Treasury. On June 3^rd, he met with Jackson in the White House, where he was told of the President’s intention to remove the federal deposits. When Duane protested that Congress needed to be consulted before such an action could be taken by the Department of the Treasury, Jackson responded by explaining what he felt to be the true stakes of the situation. Congress, he asserted, could not be trusted to resist the corrupting influence of the Second Bank, and unless action was taken in the immediate Nicolas Biddle would simply buy himself a veto-proof majority and initiate another re-charter effort. Duane disagreed with this assessment, in no small part because it offended his sense of pride to be given so little latitude as the head of a government department, and the two men argued back and forth over the course of the summer over the propriety and the implications of each of their preferred strategies. On September 19^th, having seemingly had enough, Jackson sent Duane what amounted to an ultimatum. Order the removal of the deposits, he declared, or refuse; it was Duane’s prerogative, after all. Either way, an announcement would be printed in the next day’s paper serving notice that the funds would begin to be transferred no later than October 1^st. When Duane failed to act and the threatened announcement was indeed printed in the administration-friendly Washington Globe, everyone involved saw clearly what was to follow. Duane was removed from his post on September 22^nd – less than four months after being sworn in – Attorney General Taney was tapped to be his replacement, and an order went out declaring an official shift in federal policy. The United States would no longer utilize a national bank. Thereafter, and in perpetuity, all federal funds would be held by state banks.

Biddle, his allies in the National Republican Party, and the members of the Democratic Party who continued to favor the Second Bank reacted to this seeming defeat in ways that were both varied and variously effective. Clay and Webster, while reluctant to pursue a joint resolution of Congress demanding the restoration of the deposits – in the knowledge, no doubt, that Jackson would likely veto that as well – did express support for a second re-charter bill in the event that a compromise might be reached between Congress and the White House. John C. Calhoun, who had helped secure passage for the original charter bill in 1816 – and who was now a Senator representing South Carolina following his replacement as Jackson’s Vice President by Martin Van Buren – was of like mind, though he could not manage to strike an agreement with Webster and Clay. In contrast to these rather lukewarm efforts, Biddle’s response to the imminent destruction of the Second Bank was both vigorous and vindictive. Not only did his efforts to raise interest rates, call in loans, and generally stockpile monetary resources represent sound fiscal policy if the Second Bank was to survive long enough to successfully secure re-charter, but they also contributed to exactly the kind of financial disaster Jackson had feared Biddle would someday unleash. As credit contracted, businesses failed, and people were thrown out of work, Biddle’s intention was for those effected to identify Jackson’s war against the Second Bank as the cause of their woes and to petition their elected representatives for some form of relief. Writing to a business contact in Massachusetts in January of 1843, Biddle summed up his strategy thusly: “Nothing but the evidence of suffering abroad will produce any effect in Congress [...] I have no doubt that such a course will ultimately lead to the restoration of the currency and the recharter of the Bank.”

For a time, as the economy indeed began to suffer, Biddle’s plan appeared as though it would produce the desired result. Congress was flooded with petitions demanding the Second Bank’s re-charter, Jackson’s advisors began to speak with concern of the economic downturn beginning to grip states like New York and Massachusetts, and certain of Jackson’s fellow Democrats began to decry his recent behavior as unconstitutional and lament his clear ignorance of finance and economics. But Jackson, as ever, was far cannier than he appeared. Pressed again and again by delegations from hard-hit regions as to how he planned to respond to the loss of American jobs and the destruction of American businesses, his response was always the same. “Go to Nicholas Biddle,” he said, in this case to group representing distressed New York merchants.

We have no money here, gentlemen. Biddle has all the money. He has millions of specie in his vaults, at this moment, lying idle, and yet you come to me to save you from breaking. I tell you, gentlemen, it's all politics.

In time, after it became clear that there was nothing more to be gained from making requests of the President, people instead began to take his advice. Not only did they seek out Biddle, who was either consistently absent or alarmingly unsympathetic, but they ultimately determined to place the blame for their predicament squarely on his shoulders. Many members of Jackson’s own Democratic Party remained unsure as to the wisdom of removing the federal deposits without the approval of Congress, even to the point of questioning the legality of the same. But steadily, consistently, public opinion won out.

The last gasp of resistance to Jackson’s war on the Second Bank came in the form of a political gesture bearing hardly any material consequences. Jackson had won reelection in 1832, it was true, and his fellow Democrats had maintained their majority in the House of Representatives. But the National Republicans succeeded in taking control of the Senate by a margin of 26 to 20, at long last permitting them the opportunity to express their displeasure through the medium of institutional power. They couldn’t simply vote to restore the federal deposits, of course. The Democrats in the House would never approve such a measure. And it would have been entirely pointless for them to expect the House to send over articles of impeachment based on Jackson’s recent actions. But they could refuse to ratify certain of Jackson’s cabinet appointments, many of which, during the re-shuffle that accompanied the closing act of the “Bank War,” had been made on an ad-hoc, acting basis. And they could, for what it was worth, vote to censure the President. What this amounts to, in practice, has never been all that clear. Unlike impeachment or expulsion, both of which are mentioned in the Constitution as punishments Congress may enact against such officers of the federal government as the majority therein feels are deserving, censure is a power that Congress had to grant itself in the absence of some form of official condemnation more severe than a reprimand and less drastic than removal. By a simple majority vote, either the House or the Senate may censure an individual, thus signifying the displeasure of the relevant body towards the individual in question and establishing the same as a matter of public record.

Jackson had most definitely earned the displeasure of the men who came to control the Senate majority in the aftermath of the Election of 1832. It accordingly stood to reason, in the absence of a more effective form of rebuke, that the National Republicans would seek to use what little power they had gained to make it known to all concerned that Andrew Jackson had behaved in a manner they considered to be unbecoming of the President of the United States. Jackson, Senator Henry Clay thereby asserted, was little more than a, “Backwoods Caesar” whose administration was tantamount to a, “Military dictatorship [.]” By removing the federal deposits from the possession of the Second Bank of the United States without the approval of Congress, he had dangerously overstepped his authority as President, made a mockery of the balance of federal authority crafted by the Framers, and threatened to transform the United States of America in a despotic autocracy wherein the only will that warranted being expressed was that of the Commander-in-Chief. Democrats allied to Jackson – particularly in the House – protested by drawing attention to the fact that the President had but recently been elected by the majority of the whole electorate of the American republic while the Senators who sought to pass judgement upon his behavior had been selected by the various state legislatures. Since the President accordingly possessed a much closer relationship to the American people than the Senate, and the American people have just reelected him by a wide margin, it stood to reason that the actual mood of the country was very much in Jackson’s corner. Undaunted, the National Republicans in the Senate countered by reminding their Democratic colleagues that the President had in fact been chosen by the majority of the members of the Electoral College rather than by a simple majority of the popular vote. The Senate, therefore, had as much right to claim to speak for the American people as did the President. In the end, notwithstanding this rather petty exchange, the final tally – as recorded on March 28^th, 1834 – conformed exactly to the extant partisan makeup of the Senate. Twenty Senators voted against censure, twenty-six voted in favor.

And that, in essence, was that. Jackson’s opponents had more or less reached the limit of their formal ability to resist or oppose his conflict with the Second Bank. Censure carried with it no more severe a penalty than having the incident recorded in the annals of Congress. It represented something of an indignity, to be sure, for a man like Jackson to have his name at all blackened in the eyes of the American people. Having participated in many a duel in his younger days over slights that were far less public, Old Hickory was not one simply to shrug and let matters rest as they might when aspersions were cast upon his honor or integrity. In the moment, however, the censure vote caused few ripples, if any. The Democrats controlling the House held a vote of their own in April, affirming by two separate resolutions that the Second Bank should not ever be re-chartered and that the deposits should not ever be restored. The House leadership doubtless would have preferred to formally ratify Jackson’s decision to remove the deposits, but this was impossible without the concurrence of the Senate. The President, for his part, was nevertheless quite pleased. Having thus, in his estimation, sealed the Second Bank’s fate for good and all, Jackson regarded the aforementioned resolutions as a, “Glorious triumph [.]” By 1835, with the economy having substantially recovered from Biddle’s engineered crisis, Jackson succeeded in paying off the entirely of the national debt. In 1836, in anticipation of the expiration of its federal charter, the Second Bank was re-established as a private corporation in the state of Pennsylvania. And by 1837, the Democrats having taken back control of the Senate in 1834, the upper house of Congress voted by a margin of 25 to 19 to expunge Jackson’s censure from the record. A banquet was held shortly thereafter in celebration. Jackson left office as President scarcely two months later. 

The difference between what Jackson did in 1832 when he vetoed the Second Bank’s re-charter bill and what he did in 1833 when he ordered the federal deposits to be removed – notwithstanding the protests of his supporters – was in point of fact rather substantial. Vetoing a bill – any bill, for any reason – fell well within the purview of the President of the United States. Custom may have expected him to exercise this particular power only in such circumstances as the constitutionality of the relevant legislation remained generally ambiguous, but the law of the land demanded no such discretion. What it did demand was that the President of the United States respect the authority and the prerogatives of Congress in such areas as the Constitution declared the latter to be solely responsible. Congress had not formally been allocated the power to charter a national bank in the text of that document, it was true. But the Supreme Court had ruled in 1819 that the Necessary and Proper Clause permitted exactly that measure to be taken, since it served to further other responsibilities that the Constitution did denote. When Congress approved the bill chartering the Second Bank of the United States in 1816, therefore, and when President Madison signed it into law, the action being undertaken accordingly represented a wholly valid exercise of congressional authority. Congress could charter a national bank, and in so doing could specify how and under what circumstances it would perform its intended function.

This, indeed, is exactly what Congress did. A group of private shareholders was incorporated, operating procedures were set in place, administrative offices were described and empowered, and the exact nature of the relationship between the Second Bank and the federal government was defined and established. For the most part, as relates to the events that followed, this was all rather pro forma. The Second Bank, in essence, behaved like the First Bank, and was seen as no more or less objectionable to those who rejected the very concept out of hand. Of particular significance to the events of the Bank War, however, was the text of Section 16. The clause in question stated – excerpted here almost in its entirety – that,  

The deposits of the money of the United States, in places in which the said bank and branches thereof may be established, shall be made in said bank or branches thereof, unless the Secretary of the Treasury shall at any time otherwise order and direct; in which case the Secretary of the Treasury shall immediately lay before Congress, if in session; and if not, immediately after the commencement of the next session, the reasons of such order or direction.

Evidently, when Congress set about re-establishing a national bank in the aftermath of the War of 1812, the Representatives and Senators responsible wished to ensure that the federal funds deposited therein could not be tampered with on the unilateral authority of the Executive Branch. Perhaps they feared, in light of the controversy that had dogged the First Bank over the whole course of its existence, that some President at some point might try to engineer its destruction. Or perhaps they simply felt that removing the federal deposits for any reason entailed such drastic potential consequences that it was only prudent for the most representative branch of the national government to be included in the process. In either case, the law was clear. The President could, on his own authority, order the Treasury Secretary to remove the federal deposits. But the Treasury Secretary could not, on his own authority, remove the federal deposits without first consulting with Congress.

Naturally, President Jackson would claim that this restriction was not a binding one. Congress, he avowed time and time again, did not have the authority to charter a national bank. And while the Supreme Court may have disagreed – again, see McCulloch v. Maryland (1819) – it just so happened Jackson also believed that the Supreme Court was likewise devoid of any authority over the other branches of the federal government. He had said as much in his veto message in 1832 – that each of the three branches were independently responsible for evaluating the constitutionality of a given object – and here, in 1833, he put his words into action. Who could argue? If neither Congress nor the Supreme Court could legitimately countermand the President, then Jackson’s word was as good as constitutional law. In point of fact, Congress and the Supreme Court could and did argue, but to little practical avail. Jackson’s fellow Democrats agreed with the leader of their party and prevented any action from being taken against him in the House. And the American people, in 1832, expressed their own support by re-electing Jackson and sending another Democratic majority to the lower house of Congress. Even if Jackson had broken the law, who would punish him? Who could? The answer to both questions, in practice, was no one. Old Hickory had the cards; the game was his.

This isn’t to say that there wasn’t some degree of ambiguity surrounding Jackson’s actions towards the Second Bank even within the framework of constitutional government he himself had described. Granting, for the moment, that Jackson was right, and that the President could judge independently of the Legislative or Judicial branches whether an object, action, or law was constitutional, did it therefore stand to reason that the sitting Chief Executive could countermand the judgement of a previous Chief Executive? President Madison, recall, had given his assent to the bill that first established the Second Bank when it was submitted to him by Congress in 1816. In so doing, he thus theoretically gave the stamp of constitutionality which Jackson insisted he possessed. Did this not mean that the entire bill was constitutional? Or were subsequent occupants of the office of President perfectly free to countermand, modify, or rescind the orders of their predecessors? What if the order in question contained a qualifying protection against modification? The bill that established the Second Bank was by its own terms set to expire no earlier than the year 1836. By putting his name to it, didn’t President Madison thus bind the Executive Branch to these terms in perpetuity? And if he didn’t – if Jackson could still choose to ignore them at his leisure – why were such terms made explicit at all? If the President of the United States was indeed free to interpret the Constitution as he saw fit, what possible limits did his authority really have?

Though Jackson was most definitely responsible for creating the circumstances in which disquieting question like these might naturally arise, it bears acknowledging that he almost certainly never intended to empower the office of President to a wholly unlimited degree. He was, after all, a self-avowed strict constructionist whose dislike of the Second Bank stemmed in large part from his belief that a close reading of the Constitution simply did not grant Congress the ability to create such an institution. From Jackson’s view, while his claim that the President was free to evaluate the constitutionality of a given law on his own authority represented a potentially drastic enlargement of the powers available to the Chief Executive of the American republic, his stated purpose was to force Congress to adhere more closely to the text of the Constitution rather than to create opportunities for himself to do the opposite. The problem – the reason that he met with so much resistance – is that he went about realizing his intended objective in a completely backwards and counter-intuitive fashion. In order to promote closer adherence to the plain text of the Constitution, he undertook to empower the office of President to a degree that the Constitution came nowhere close to permitting. Any reasonable observer can see quite plainly how little sense this makes. And yet there is almost no cause to doubt that it made perfect sense to Andrew Jackson. Why? Well, as far as he was concerned, that’s just how Presidents did it.

Recall, for a moment, the events of George Washington’s tenure as President as discussed in the present series. When seeking to accomplish a particular objective and faced with a degree of uncertainty as to his ability to achieve the same, what did Washington do? In both of the cited cases – i.e. the passage of the Jay Treaty (1795) and the events of the Whiskey Rebellion (1794) – he brushed aside any doubts to the contrary, grabbed firm hold of the power he felt he needed, and didn’t look back. Granted, in neither instance could anyone unambiguously establish that Washington was guilty of violating the Constitution, but a precedent to that end was seeded all the same. When President Jefferson next sought to purchase and incorporate foreign territory into the United States of America and then attempted to severely regulate American trade by way of placing a tremendous amount of power at the disposal of the office of Chief Executive, there was thus already a model in place which he could follow. He may have railed against the notion during the years he led the Democratic-Republicans in opposition, but once in power Jefferson seemed to change his tune fairly quickly. Ideological convictions to the contrary be damned, he realized that the office of President could practically achieve a great deal more than the Framers had intended, and at times it even should. In the end, what mattered more than the strict constitutionality of the Chief Executive’s every action was what James Madison memorably described as, “The magnitude of the object,” and, “The candor of the country.” If the American people accepted it, in essence, then the Constitution could go hang.

If this was the attitude of the party that controlled the office of President for the entire period between the years 1801 and 1825, it should accordingly come as no surprise that Andrew Jackson’s election brought on only more of the same. For the whole of his public career up to the time that he entered the White House – a span of some forty years – he had watched how successive American presidents behaved. He saw them brush aside doubts, seize the power they felt the situation demanded they wield, and time and again have their actions ratified by success. Why, then, should he have behaved otherwise once in office himself? Indeed, given his military background and the success he had enjoyed as a result of his own aggressive style of command, why shouldn’t he have tried to push the envelope further still? He had always been rewarded when overstepping his stated authority in the past, and so had many of the men who occupied the office of Chief Executive. To be President, it seemed, was to be bold, aggressive, and somewhat cavalier as to the limits of one’s power. And so, in his own inimitable fashion, this is precisely what Jackson did. It wasn’t that he followed the examples of Washington and Jefferson exactly. For all that these men did to enlarge the practical power of the Executive Branch, neither of them could be said to have unambiguously violated the reigning constitutional order. Rather, it was that Jackson embraced the sense of certainty that had come to characterize presidential power in the contemporary United States. He was decisive, confident, and forceful. He worried less about upsetting the existing balance of federal power than simply taking what it was he wanted. He relied on the American people to validate his actions after the fact. He behaved as though he alone knew what was best for the American people.

Returning – at long, long, long last – to the prognostications offered by George Clinton in the text of Cato V, the evolutionary process which ultimately gave rise to the likes of Andrew Jackson would once more seem to align quite neatly with the example he put forward from the history of ancient Rome. As Julius Caesar gave way to Caligula, who led to Nero, who paved the way for Domitian, so Washington opened the door for Jefferson, who made possible the emergence of the likes of Andrew Jackson. From the perspective of the first step, the last might seem wholly impossible. From Caesar, who maintained most of the mechanisms of the Roman state as they were, recognized many of the traditional prerogatives of the Senate, and never questioned the paramount importance of the city of Rome itself, how could the Romans have ever allowed themselves to make obeisance to the likes of Nero or Domitian? To the likes of men who spat on the traditions of the Senate, dismantled the traditional bureaucracy, and made Rome little more than an expensive bauble in their personal collections? Just so, from the sober, judicious leadership of George Washington, how could the American people ever bring themselves to elevate a man like Andrew Jackson to the highest office in the land? Washington was thoughtful, restrained, and sensible. Certainly, he expanded the definition of executive power beyond what the Framers had likely intended, but infrequently, and in small, subtle ways. Jackson was conversely a brash, assertive, braggart of a man whose conception of the power at his disposal was often alarmingly expansive. How was it possible for the American people, like the Romans before them, to alter their conception of political leadership so completely in so short an amount of time?

The answer, by and large, would seem to take the form of a fairly durable axiom. Over a sufficient period of time, with reasonable inducements along the way, people can grow accustomed to almost anything. On one hand, this is rather a comforting thing. Destructive attitudes can successfully be eliminated, and constructive habits can successfully be embraced. People are not doomed to a static existence. On the other hand, however, it is a potentially terrifying prospect. Even a people renowned for their virtue can come to accept iniquity. Time, if permitted, erodes even the best morals. This latter dimension seems to be what Clinton was most eager that his countrymen keep in mind. It might indeed have seemed impossible to quite probably the majority of Americans in the late 1780s that the ratification of the proposed constitution would someday lead to the expansion of executive power eventually heralded by the rise of Andrew Jackson. In truth, of course, there was every reason to fear such an outcome. The Romans, who had for generations prided themselves on being virtuous, and prudent, and distrustful of power, eventually came to accept the rule of supreme egotists like Nero and unrepentant autocrats like Domitian. Why should the American people think themselves immune from this same course of degeneration? Indeed, they were not immune. The creation of a unitary chief executive under the auspices of the Constitution opened the door for this same transformation to occur once more in America. What seemed impossible became simply what was. 
         

  None of this is to say, mind you, that Clinton – and, by extension, the Founders – were always right whenever they held for in such a manner. Putting aside the fact that various members of the Founding Generation were astoundingly wrong about a great many things – not the least of which was the notion that owning human beings is in any way acceptable – it bears noting that Clinton was not trying to warn his fellow countrymen in the text of Cato V of what would inarguably come to pass if they consented to ratify the proposed constitution. On the contrary, far from being certain as to the fate that awaited them all, he was profoundly uncertain. He did not know, any more than anyone could know, what would come to pass in the event that the American republic adopted a more centralized form of government. But he was an intelligent man, and he knew his history. And what he knew made him afraid. He feared what might become of the nation he and his cohorts had helped to create; that it might unravel or succumb to corruption. And he wrote about these fears, tried to turn them into a warning. We might look back on the attempt as being hopelessly naïve. What could this man have known of what America would become? Even as long ago as the 1830s, this same sentiment seemed to be in common circulation. Having survived for nearly fifty years under the auspices of the Constitution, it doubtless appeared to even the most clear-eyed statesmen of that now far-distant era that the American republic was as robust and as durable as any nation ever created by man. Far from being in danger of dissolution or corruption, it was a country on the rise; powerful, vigorous, and hungry. What could such a nation possibly have to fear? Nothing, Andrews Jackson most assuredly would have answered. The United States of America had nothing to fear at all.

Was Clinton wrong to be afraid, then? Were his fears wholly unfounded? No. It’s just that he viewed the United States of America from a wholly different perspective than anyone one else ever could. He and his colleagues stood in the midst of a pivotal moment in the history of the world and gazed down the river of time at all the possible futures that suddenly lay before them. There was greatness to be had, and glory, and fame, and wealth. America might someday become the greatest empire in the history of human civilization. But there also lay a great darkness in the future. The American people might feel their newfound potential too keenly and grasp it too greedily. They might sacrifice all that their forebears had left them for more and greater power. Who could say which of these fates would come to pass? And how much difference was there between one and the other? The American people might proceed down one path, assured in their choice by the prosperity that came with it, only to realize too late that they had strayed from the course of virtue and destroyed all that they professed to cherish. Caution would seem to be the only contraceptive: extreme caution, prudence, and respect for the wisdom of the past. This, in essence, is what the Founders teach and what the Founders embody. Were they always right? Of course not. But sometimes, in some things, they knew more than anyone else could.  

         

Anyway, that’ll do me. Decide for yourself, by all means.