Excellent research! And thank you. Now let's see what Jefferson has to say (Carson).
How these checks and balances work, how each branch interpreting the Constitution for itself limits and restrains government, may best be illustrated with actual examples. When Jefferson became President, he pardoned those who had been convicted under the Sedition Act. He explained his action in letters to Abigail Adams: "I discharged every person under punishment or prosecution under the Sedition Law because I considered, and now consider, that law to be a nullity.... The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to them by the Constitution. That instrument meant that its co-ordinate branches should be checks on one another." 19
Jefferson believed that each branch decided constitutional necessity for themselves where it cames to the actions that they themselves are responsible for.
(Emphasis modified.)
There is a huge difference between Jefferson and Jackson. Jefferson exercised a power which, as he wrote, was "confided to [him] by the Constitution." Jackson, however, broke treaties, violated a federal statute, subverted the Constitution, arrogated to himself the powers of a dictator, and killed thousands of people.
The Constitution gives the President the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (U.S. Const., Art. II Sec. 2.) There are only three limits on that power: The President cannot grant pardons for State crimes, pardons in cases of impeachment, or pardons for crimes not yet committed. (
See Ex parte Garland, 71 U.S. 333, 380 (1867).)
Other than that, the President can exercise the pardon power however he (or, perhaps someday, she) pleases. (
See Hamilton,
Federalist No. 74.) And he is not required to explain his reasons to anyone. (
Contrast U.S. Const., Art. I Sec. 7 (when vetoing a bill, the President must "return it, with his Objections to that House in which it shall have originated").) So Jefferson's personal reasons for issuing pardons are immaterial: He had the constitutional power to grant pardons for any reason or for no reason at all.
But Jackson had no authority to violate the treaties with the Cherokee (or with the Choctaw or with the Muskogee, etc.). On the contrary, the Constitution makes treaties part of "the supreme Law of the Land," and it was Jackson's duty to "take Care that the Laws be faithfully executed" (U.S. Const., Art. VI and Art. II Sec. 3).
And he violated federal law when he forced the Cherokee off of their land. Congress had not authorized any forcible removal. It had authorized Jackson only "to cause so much of any territory belonging to the United States, west of the river Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into a suitable number of districts, for the reception of such tribes or nations of Indians as may
choose to exchange the lands where they now reside, and remove there ...." (Indian Removal Act of 1830, 4 Stat. 411 (emphasis added);
see also Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 149 (2d Cir. 2003);
Cobell v. Norton, 240 F.3d 1081, 1087 (D.C.Cir. 2001).)
And Congress had specifically provided that "nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian Tribes." (
Id.; see also U.S. v. Michigan, 417 F.Supp. 192, 260 (W.D.Mich. 1979),
remanded on other grounds, 623 F.2d 448 (6th Cir. 1980),
modified, 653 F.2d 277 (6th Cir. 1981).
cert. denied, 454 U.S. 1124 (1981).) Thus, Congress had authorized only voluntary removal.
But Jackson took it upon himself to remove the Cherokee (and others) by force -- to violate treaties which the Supreme Court had held binding and which Congress had explicitly reaffirmed.[1] He usurped both the legislative power and the judicial power. He acted, in short, as an absolute monarch.
And that is a crucial distinction. Jefferson used the executive branch as a check on the legislative and judicial branches by wielding an aspect of the executive power conferred on him by the Constitution. But Jackson flouted the legislative and judicial branches as a check on the executive branch by usurping powers not conferred on him by the Constitution. Unsurprisingly, therefore, Jackson's conduct did not "limit[] and restrain[] government". Rather, by casting aside the restraints imposed by the law, Jackson permitted the government to run amok at the cost of thousands of innocent lives.
As a result of his making himself
de facto dictator, four-thousand out of sixteen-thousand Cherokee pushed off their land died. Four-thousand out of thirteen-thousand Choctaw pushed off their land died. Nine-thousand out of twenty-two-thousand Muskogee (Creek) pushed off their land died. One can define "worst" in many different ways. But at least insofar as it means "most criminal," Jackson has no serious competition.
Note:1. The framers understood and intended that treaties, once entered into, could be altered or canceled only by the consent of both parties:
Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land, They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them.
(John Jay (member of the First and Second Continental Congresses, delegate at the New York ratifying convention, first Chief Justice of the United States, etc.),
Federalist No. 64;
see also James Wilson (member of the Second Continental Congress, delegate at the Pennsylvania ratifying convention, Associate Justice of the Supreme Court, etc.), "Summation and Final Rebuttal" ("There is no doubt, sir, but under this constitution, treaties will become the supreme law of the land; nor is there any doubt but the senate and president possess the power of making them. But though treaties are to have the force of laws, they are in some important respects very different from other acts of legislation. In making laws, our own consent alone is necessary. In forming treaties, the concurrence of another power becomes necessary; treaties, sir, are truly contracts, or compacts, between the different states, nations, or princes, who find it convenient or necessary to enter into them.").)
The Supreme Court, however, has held that Congress can, by statute, amend or override a previously entered-into treaty. (
See, e.g., Breard v. Greene, 523 U.S. 371, 376 (1998);
Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion);
Whitney v. Robertson, 124 U.S. 190, 194 (1888);
Cunard Steam-Ship Co. v. Robertson, 112 U.S. 580, 597-599 (1884);
The Cherokee Tobacco, 78 U.S. 616, 621 (1870).) In my opinion, Jay had it right, and the Supreme Court got it wrong. With respect to Jackson, however, the point is irrelevant: Congress did not alter the treaties with the Cherokee; Congress explicitly reaffirmed the treaties with the Cherokee (and others), but Jackson violated them anyway.
You have to admit, John Kerry looks and sounds like a President. Given his continual fine-tuning of his positions to be more popular, he acts like one as well, which is really intended to be a compliment, if a backhanded one. Our smarter leaders tend to vacillate on important issues -- GHWB, for instance, used to be pro-choice before becoming VP -- I don't mind, as long as they end up on the right side. It's a sign of an engaged, questioning mind, which I see in most presidents... Bush and Reagan are notable exceptions. These guys appear to have "the courage of their convictions" when really I suspect they're just too intellectually uncurious to examine their position. I'm not talking about real intelligence -- Reagan, for one, was certainly a shrewd man, and contrary to that hoax going around a couple years ago, no one has measured the IQs of Presidents... I'm talking about intellectuality, which I see Bush lacking.
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