Saturday, February 11, 2017

Trump No Jackson, Blumenthal no Louaillier


"We're careening, literally, toward a constitutional crisis. And he's [Judge Gorsuch] been nominated by a president who has repeatedly and relentlessly attacked the American judiciary on three separate occasions, their credibility and trust is in question" Blumenthal on CNN 

President Donald Trump is irascible and prone to childish fits of personal outrage, but his dealings with the judiciary are not quite as bloodcurdling as those of President Andrew Jackson, the founder of the modern Democratic Party.


Following the Battle of New Orleans, which he won, lofting him into celebrity status, Jackson declared martial law. A prominent state legislator, Louis Louaillier, vented his displeasure anonymously in the Louisiana Courier. Discovering the identity of the author, Jackson had Louaillier arrested. When his lawyer applied for a writ of habeas corpus, an outraged federal district judge, Dominick Augustin Hall signed the writ, further inflaming Jackson, who ordered his troops to arrest Hall. The judge was hustled off to the pokey and placed in Louaillier’s cell, where no doubt they commiserated with each other. Yet another judge, Joshua Lewis, issued a writ of Habeas corpus demanding Hall’s release. Andrew McCarthy writes in National Review, “As night follows day, Jackson had Lewis arrested, too. The plenipotent general then had five soldiers escort Judge Hall out of town, marching him four miles upriver.”

The judge was lucky he was not hanged on the first oak tree available upon his release, the punishment President Jackson threatened to inflict on John C. Calhoun for having defied one of his orders.

The question of whether the Supreme Court was constitutionally authorized to declare state laws unconstitutional was much debated during Jackson’s time. Jefferson’s view was that the court had no such power; his comrade in arms, James Madison, argued that it did. Jackson wavered between the two disputants, adopting each view to accommodate his own policies.

When Justice John Marshall ruled in Worcester v. Georgia that the state of Georgia could not unconstitutionally seize Cherokee lands on which gold had been found because such laws violated federal treaties, Jackson is reputed to have said, "John Marshall has made his decision, now let him enforce it." Jackson’s retort may be apocryphal, but it typifies his cruel arrogance. Commenting on the case, Jackson wrote in a letter to John Coffee, "...the decision of the Supreme Court has fell still-born, and they find that they cannot coerce Georgia to yield to its mandate.”

Associate Justice of the Supreme Court Joseph Story thought Marshall’s decision in Worcester might have been an attempt to mitigate Marshall’s earlier opinions in Fletcher and Johnson, which had been deployed by Georgia to justify the seizure of Cherokee lands. “Thanks be to God,” Story wrote to his wife in 1832, “the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.

Worcester provided the juridical backbone for future treatment of Indian tribes as independent nations subject to treaties conducted by federal agencies rather than states, but because Marshall did not ask federal marshals to enforce his decision in Worcester, Jackson proceeded with Cherokee removal. Jackson’s forced relocation of the Cherokees and other tribes from their native land led to the “Trail of Tears,” which closely followed the “Indian Removal Act” passed by Congress in 1830.

While intemperate, Trump’s ill-conceived remark concerning a judge whose decision postponed a presidential measure that is constitutional and clearly authorized by statute does not signal a threat to constitutional order. Trump, now redrafting his order, had not jailed the judge or threatened to hang him from an oak tree.; nor has he threatened to disregard a Supreme Court decision, as had Jackson.  In an interview following his presidency, Jackson expressed regret that he hadn’t shot Henry Clay, one of his more vocal political opponents. Though Trump did say during his primary campaign that he could probably shoot someone on Main Street and get away with it, this was press-baiting, an art Trump has perfected during his years in the media floodlights. 

During his twenty years as attorney general in Connecticut, Blumenthal was no stranger to hyperbole. It has often been said of him “There is no more dangerous spot in Connecticut than the space between Blumenthal and a TV camera.” Blumenthal – though he does not have the military record of a Jackson – lusts after media attention, knowing that notoriety is one among many tickets to election, and here he is in competition with two masterful media manipulators – Jackson and Trump.


Just as Trump is no Jackson, so it must be said of Blumenthal – he is no Trump. Following Blumenthal’s hysterical notion that Trump’s comments on judges amounted to a constitutional crisis, Trump questioned whether anyone should take seriously the word of a man who had several times claimed he had served as a marine in Vietnam when in fact, having exhausted his deferments, Blumenthal served in Washington DC delivering Toys to Tots and ingratiating himself with the Washington Post.

Since Blumenthal is not a judge but a senator in need of smelling salts, the remarks cannot be said to have triggered a constitutional crisis. 


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