Faithful Execution:

Andrew Jackson, Worcester v. Georgia, and the Indian Removal Affair

by Lowell D. Jacobson

    On March 20^th, 1828, Andrew Jackson, sworn in by Chief Justice John Marshall, took the presidential oath of office. Four years later, on March 20^th, 1832, Jackson took the same oath of office at the start of his second term as president of the United States of America and again swore that he would "faithfully execute the office of the President of the United States and [would] to the best of [his] ability preserve, protect, and defend the Constitution of the United States" (Article II, Section 1). However, Jackson violated his oath of office, failing to "preserve, protect and defend the Constitution" in the aftermath of Worcester v. Georgia (1832) when he usurped Congress’ power "[t]o declare war," (Article I, section 7) as he effectively declared war on the Cherokee Indians, breaking the treaty between the Cherokee Nation and the United States when he refused to order federal troops out of sovereign Cherokee territory in Georgia, ostensibly to "assist" the Cherokee in their forced removal from their resource-rich land. Jackson also overstepped his powers as president, blatantly disregarding the decision of the Supreme Court, whose judicial power then extended to cover cases such as Worcester v. Georgia, as Samuel Worcester was a citizen of Vermont, and the Court’s judicial power then covered "controversies between a State and citizens of another State" (Article III, section 2). In addition to failing to "preserve, protect, and defend the Constitution" by disregarding the system of checks and balances that the founding fathers built into the Constitution to protect the people, Jackson not only broke the law by violating John Marshall’s decision and by refusing to remove federal troops from Georgia, but he also did not "take care that the laws be faithfully executed," a presidential duty, not a power, as outlined in section 3 of Article II of the Constitution. In that section, the Constitution clearly states that it was Jackson’s responsibility to see that Marshall’s decision was enforced. One only needs to read a few lines down, to section 4 of Article II, to see that "[t]he President… shall be removed from office on impeachment for… high crimes and misdemeanors." Clearly, by violating his oath of office, and by failing to fulfill his duty as President of the United States, Jackson opened himself up to the possibility of impeachment, as his failure to defend the constitution and make sure that Marshall’s decision was faithfully executed constituted high crimes and misdemeanors.

    The Indian removal affair was not the first time Jackson’s headstrong personality affected his good judgement during his presidency. Jackson was commonly referred to as "King Andrew" in the political cartoons of the era, because of his near-monarchial control of the country, and because those whom Jackson did not favor did not advance politically. Although not illegal as was the Indian removal affair, Jackson’s impulsive and ill-thought out actions regarding the Second Bank of the United States were much more controversial. Jackson, when informed that congress had passed the renewal of the bank’s charter by a significant, but not veto-proof margin, he remarked to his vice-president, "The bank, Mr. Van Buren, is trying to kill me, but I will kill it!" (Schlesinger, The Age of Jackson, p. 89). The bank issue, like Indian Removal and so many others during his two terms, had come to be a personal, rather than a political, issue with Jackson, a pistol duel of the sort of which Jackson was both fond and successful. Jackson, acting on his own personal opinions and biases and ignoring the protests from Congress, vetoed the bill for the renewal of the Bank’s charter. Senator Henry Clay, a strong advocate of the necessity of the Second Bank of the United States, was incensed at Jackson’s actions, which he felt overstepped the limits of the office of the presidency. Speaking for three straight days, Clay warned that Jackson’s actions were "dangerous to the liberties of the people," and, if left unchecked, could soon result in "a concentration of all the powers of government in the hands of one man," (Morin, Impeaching The President, p. 11), that one man being "King" Andrew Jackson. Throughout both of Jackson’s terms, the moniker of King Andrew was true in all but name, as Jackson did what he wanted, what he felt was right, even if the legality or constitutionality of the issue was in question, from Indian removal to the Second Bank of the United States. Partly because of Clay’s speech, and partly because they knew Jackson’s actions were bending the Constitution to the limit, if not breaking it, the members of the Senate voted in March 1834 (Morin, p. 13) to censure Jackson for his actions regarding the Second Bank of the United States. Although the Senate did censure Jackson in a futile attempt to warn Jackson against other attempts to overstep the power limits of his office, the censure vote only passed by a margin of 26-20 (Morin, p. 16), a majority, but 6 votes short of the 2/3 majority needed for the Senate to convict the impeachment of a president. In addition to the fact that many of Jackson’s strongest and most vocal opponents were in the Senate, which cannot, according to the Constitution, begin impeachment proceedings, the members of Congress were leery of setting a precedent for impeachment by beginning impeachment proceedings against Andrew Jackson. However, the Senate’s censure was the first official warning to the head of the executive branch in American history.

    Although Jackson is commonly known as the hero of the War of 1812, valiantly defeating the British at the Battle of New Orleans, his actions during the occupation of Florida and his treatment of the Seminole show that Jackson’s biased handling of the Worcester v. Georgia decision was not an isolated incident and that Jackson had a history of hatred and bias towards the American Indian tribes. Jackson swept through Florida, burning down Indian villages and terrorizing the Seminole people. In fact, Jackson destroyed so much, and acted with so little regard for both the lives and culture of the Seminole, that by the end of his sojourn in Florida, he was noted "to have violated nearly every standard of justice" (Ward, Andrew Jackson, p. 59). Jackson, acting totally on his own impulsive initiative, "acted, and let the legal rationalization catch up with the deed" (Ward, p. 59). Contrary to common modern belief, there was quite an uproar over Jackson’s actions, although, admittedly, the Senate that censured Jackson for his actions down in Florida was more concerned about how he treated the British in Florida than the native Seminole. Even as a young general, Jackson did not follow orders or laws, and had very little regard for the culture and rights of American Indians.

    Andrew Jackson, who was never noted for his political judgement, erred grievously in the Indian Removal affair just as much, if not more, than he did when he broke the Second Bank of the United States, as both events ended catastrophically. Jackson’s refusal to enforce the Supreme Court’s decision led to the Trail of Tears, the forced Cherokee march westward that was "supervised" by federal soldiers, and his decision to take down the Bank directly resulted in the Panic of 1837, the worst financial crisis in American history up until the Great Depression. Four thousand Cherokees died on the march westward, and most of the country was hurt in one way or another in the Panic of 1837, but it profanes the memories of the Cherokees who died on the Trail of Tears to say that financial hardship for a good deal of the country was worse than the deaths of the Cherokee. According to John Spencer Bassett, a historian who wrote a biography of Andrew Jackson, "His lack of political knowledge made him, in cases where knowledge was essential, a bad judge of men," (Bassett, The Life of Andrew Jackson, p. 704). Jackson’s rampage in Seminole Florida shows this lack of knowledge, and so do his decision to break up the Second bank of the United States and his refusal to enforce the Supreme Court’s decision. Clearly, Jackson’s judgement was faulty not just in judging John Ross, then-leader of the Cherokee, but in judging the entire Cherokee nation as well. Ironically enough, the Cherokee saved Jackson’s life during the War of 1812, when they killed a Creek warrior who was sneaking up behind Jackson with his weapon ready. Despite the fact that he owed them his very life, Jackson, who bore no love for American Indians of any tribe, did not care how many Cherokee would die or be injured when they were forced out of their ancestral lands in Georgia, and he flat out refused to enforce the Supreme Court’s decision vis a vis Worcester v. Georgia. Jackson showed not just a lack of good judgement, but a poor understanding of the Constitution and a callous disregard for human life.

    In order to see how Jackson’s refusal to oversee that John Marshall’s decision was faithfully executed violated both his oath of office and presidential duties as outlined by the constitution, it is necessary to note some of John Marshall’s points in Cherokee Nation v. Georgia (1831) and in Worcester v. Georgia (1832). The precursor to Worcester, Cherokee Nation v. Georgia (1831) includes in the text of its decision several interesting points which bear directly on Worcester and on the forced removal of the Cherokee. In that decision, the justices said that

    What that boils down to is that the Constitution regards Indian tribes not as states, and having all the rights that statehood confers, nor as foreign nations, with all the rights that that confers. According to the text of the Supreme Court’s decision, the Indian tribes belong to a separate class with distinct, but not delineated, rights that "may, more correctly, perhaps, be denominated domestic dependent nations" (PBS.org, 1996). Because the word "nation" was used, and because there were treaties governing interactions between the United States and these domestic dependent nations, the Indian tribes should have been given the same status that foreign nations received with regards to matters of war, despite the fact that the Supreme Court ruled that the Cherokee nation was not a full-fledged foreign nation, and as such could not sue in a Federal court. The treaties that existed between the Cherokee and the United States fall under the protection of the supreme law of the land clause of the Constitution, which states that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land… anything in the Constitution or laws of any State to the contrary notwithstanding" (Article VI). Not only is Jackson failing to live up to his duties to insure that the laws are faithfully executed, but he is violating yet another section of the Constitution, and as such is not only breaking his oath of office, but the very backbone of the Constitution as well. Also, the opening paragraph of the majority decision asserts that "the lands of the [Cherokee] nation have been assured to them by the United States, in solemn treaties repeatedly made and still in force" (PBS.org, 1996). This assertion in the decision further supports the idea that sending federal troops into Georgia to forcibly remove the Cherokee was, if not a blatant act of war, at least an explicit treaty violation and violation of the supreme law of the land clause of the Constitution, and Jackson, by refusing to enforce the Supreme Court’s decision on Worcester v. Georgia (1832), had in effect declared war on the Cherokee nation.

    Many of the points made in Cherokee Nation v. Georgia (1831) bear directly on the Worcester v. Georgia (1832) decision, and on Jackson's failures to enforce parts of both decisions. The Supreme Court's decision in Worcester v. Georgia (1832) builds on that of Cherokee Nation, especially in the area of delineating the rights of the Cherokee and their status as a domestic dependent nation. The Worcester decision asserts that the Federal Government of the United States

    This clause in the decision of Worcester v. Georgia (1832) strengthens the Supreme Court's earlier assertion that the Indian nations are domestic dependent nations by outlining some of the rights that the Indian tribes have as domestic dependent nations. Not only did Georgia not have any right to the Cherokee land, but because the Indian nations have territorial boundaries, and exclusive authority within those boundaries, but sending Federal troops in to forcibly evict the Cherokee constitutes an act of war. Marshall described the Cherokee Nation as "a distinct community, occupying its own territory," and noted that within those boundaries, the Cherokee authority was exclusive because the Indian nations are explicitly labeled "distinct political communities" (PBS.org, 1996). Marshall also noted that "The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States," (PBS.org, 1996). With respect to the Constitution, and the rights emanating from it, the Cherokee Nation was, in a legal sense, a domestic sovereign nation, independent but under the protection of the United States, and Jackson did not have the right to withdraw that protection at a whim. This decision also supports the idea that Jackson’s actions break the supreme law of the land clause of the Constitution by explicitly mentioning treaties between the Cherokee and the United States, and by also clearly stating that they are still in effect, whereas Cherokee Nation does not mention the treaties themselves.

    The Supreme Court decision also decries Georgia's ruthless, greedy attempts to take the Cherokee land, stating that "the Acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States," (PBS.org, 1996). Also in this decision, the Supreme Court notes that Georgia's actions "interfere forcibly with the relations established between the United States and the Cherokee Nation, the regulation of which according to the settled principles of our Constitution, are committed exclusively to the government of the Union" (PBS.org, 1996). In that clause, the Supreme Court is asserting that Georgia, as a state, has no right to deal with the Cherokee, an independent nation, by itself, and if it wants to deal with the Cherokee nation, must do so through the entity of the federal government. In this clause, the Supreme Court is saying that Georgia is violating the separation of powers clause of the Constitution, and that Georgia’s actions are, for instance, analogous to New York calling in the National Guard to attack Canada. The Supreme Court said in no uncertain terms that Georgia’s actions were making a mockery of the Constitution that Andrew Jackson swore to preserve, protect, and defend when he took his presidential oath of office but Jackson refused to intervene as Georgia "relocated" the Cherokee nation via the trail of tears.

    It is interesting to note that the Supreme Court labeled Georgia's actions as "repugnant to the Constitution," because Jackson, who took the presidential oath of office, refused to enforce the Supreme Court decision that invalidated Georgia's disgusting laws. Clearly, there is a conflict between what Jackson swore to do and what Jackson did, when his duties met up with his biases. It is also noteworthy that the Supreme Court stated that Georgia's actions violate the separation of powers clause of the Constitution, and weaken the Federal government's authority, because when South Carolina refused to pay the so-called Tariff of Abominations, Jackson brought federal troops into South Carolina to end the Nullification Crisis. It appears that Jackson, to whom executive privilege was a personal motto, was playing favorites because of racist bias, and was only letting Georgia exercise powers that it did not have because it was trying to remove the Cherokee.

    Whether or not Jackson said, as Horace Greeley alleges, "John Marshall has made his decision, now let him enforce it!" Jackson's policy was, in clear violation of the Constitution, in full accordance with that statement. Even if Jackson did not say that he would not enforce John Marshall's ruling, Jackson's refusal to enforce the decision, and subsequent breaking of the United States-Cherokee treaties show a clear pattern of activities that, at the very least, constitute "high crimes and misdemeanors," if not something far more dangerous. Jackson's "high crimes and misdemeanors," his impeachable offenses, come from his refusal to see that the Supreme Court decision vis a vis Worcester v. Georgia (1832) was faithfully executed and from Jackson's clear failures "to preserve protect and defend the Constitution of the United States". Even if Jackson did not make the statement that is often attributed to him, the fact is that he did not enforce the Supreme Court decision, and instead sided against the Supreme Court, where he was Constitutionally obligated to side with the Court. According to the Constitution, insuring that the laws were faithfully executed was one of Jackson's presidential duties, something that he had to do whether he liked it or not. However, Jackson's demagoguery and biases rose to the forefront when the Supreme Court ruled against the side that Jackson supported, and Jackson refused to fulfill his presidential duties out of spite and racist bias. Even if Jackson had refused to enforce the decision on moral grounds, rather than because of prejudice and misguided personal beliefs, Jackson's actions would still constitute a Constitutional violation. Insuring that the laws of the United States were faithfully executed was not a power that Jackson could exercise when he chose, as he treated it in this matter, but was an obligation that Jackson had to do whether he liked it or not. Clearly, Jackson's failure in regards to the Constitution in this matter is a misdemeanor, if not a high crime.

    The Constitution says that "[t]he President... shall be removed from Office on Impeachment for, and Conviction of, treason, bribery, or other high crimes and misdemeanors" (Article II, Section 4). The phrase "high crimes and misdemeanors" is a holdover from the language of earlier British laws, and in seventeenth century Britain, "impeachments did proceed for misconduct that was not ‘criminal’ in the sense of the criminal law" (Berger, Impeachment: The Constitutional Problems, 1973, p. 69). The phrase, which does not explicitly mention misconduct but instead implies it, was left intentionally vague by the framers of the Constitution in order to cover a wide variety of offenses, a sort of elastic clause to cover the changing laws of the United States. The exact meaning of the phrase is so unclear that then-Congressman Gerald Ford said in 1970 that "an ‘impeachable offense’ is whatever the House, with the concurrence of the Senate, ‘considers [it] to be,’" (Berger, p. 53). Gerald Ford’s broad view of impeachable offenses in the context of "high crimes and misdemeanors" comes from "Rufus King’s remark that impeachment was the ‘forum... established for trying misbehavior’" (Berger, p. 159). While Andrew Jackson did not commit treason and neither gave nor received bribes, his actions, and his refusal to act, in the Indian Removal Affair are definitely "high crimes and misdemeanors." Jackson not only broke his oath of office, but he refused to intervene and save the Cherokee from the federal troops in Georgia, he broke the supreme law of the land of the United States by violating the treaties, and hence violated the Constitution itself. His refusal to fulfill his presidential duties by insuring that the Supreme Court’s Worcester v. Georgia decision was faithfully executed and his breaking of the oath of office "to preserve, protect, and defend the Constitution of the United States" from Georgia’s "repugnant" actions and violation of separation of powers clearly fall under the realm of "high crimes and misdemeanors."

    However, despite his myriad of impeachable offenses resulting from his poor judgement in the Indian Removal Affair, Jackson would not have been impeached. As the frontier of the United States moved farther west, anti-Indian sentiment rose, and so there was very little non-Indian opposition to Jackson and his refusal to act. As the Federalists had disappeared after the Hartford Convention, Congress was solely Democrat-Republican, and even so the vote to censure Jackson for his actions with the Second Bank of the United States only passed 26-20, and a censure is a much less controversial and much less powerful action than impeachment is. Also, the Senate, which housed the more powerful and influential of Jackson’s political rivals and enemies, cannot by law begin impeachment proceedings, which is solely relegated to the House, which at that time, as it is now, is composed of politicians much less experienced than those in the Senate. Because of the relative inexperience of the members of the House, any so inclined to start a Jackson backlash would have been much more wary of any actions that could have angered the powerful and hot-tempered Jackson. In addition, Jackson, who deserved the moniker King Andrew, would not have stood for anyone trying to remove him from office. Jackson became homicidal when he felt that the bank, an institution, not even a person, was "trying to destroy him," and only a person with a lot of courage and conviction such as Calhoun, Clay, or Webster could have stood up to Jackson in such a manner. Almost anybody in the House who would have tried to begin impeachment proceedings would have met the same fate as Nicholas Biddle, the Creek, the Seminole, or Jackson’s two secretaries of the treasury who refused to remove the funds from the bank. Not only would almost nobody have been stupid enough to try to fight a near-monarchial president such as Andrew Jackson, but history shows Jackson took those kind of things personally, and almost always won.

    Despite the illegality and almost genocidal nature of the Indian Removal Affair, Jackson’s popularity did not waver because of it. If anything, Jackson’s botched handling of the Second Bank of the United States may have been one of the few events that was even able to harm his popularity in the slightest way, and Jackson’s popularity was hurt more in the Senate than in the rest of the country. Jackson was the first President not named Adams or born in Virginia, and instead was born on the frontier in Tennessee. The common man identified with Jackson, an arrogant man with humble origins, who, through the spoils system, opened up the inner workings of the government to people who would not have had a chance at working for the government before. Basically, Jackson was able to do what he did because he was popular. Jackson had incredible public support, winning both the election of 1832 and the election of 1836 handily, and would have won the election of 1828, had the so-called "corrupt bargain" between Henry Clay and John Quincy Adams not occurred. Jackson, who most of the nation already identified with on a socio-economic level, gained even more support from his successes in the War of 1812. Jackson never lost a battle, and most of the voters of the United States still carried the romanticized notion of Jackson as the noble, victorious general, the same notion that helped Jackson garner so much popular support.

    Because he was so popular as a general and as a president, Jackson was able to violate the Constitution with impunity. He violated his oath of office, his duties as president, and the supreme law of the land clause, and like his duel in which he allowed his opponent to shoot first, Jackson stayed alive, and even thrived, in the adverse climate. Had there been a Congress of an opposition party, and had that Congress been sympathetic to the plight of American Indians, it is likely that Jackson would have been censured at least, for his refusal to act in the Indian Removal Affair. Even with an opposing party Congress, and one that was sympathetic to the Indians as well, Jackson’s power, stature, and temper would likely have intimidated many representatives and senators alike. However, had Jackson’s popular support been shaky on top of all of that, he probably would have been impeached, but that never happened, and 4000 Cherokee needlessly died on a forced westward march, and Jackson got off scot-free, despite making a mockery of his duties, influence, and of the Constitution itself.

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Cornell University. The Legal Information Institute: Selected Historical Decisions of the U.S. Supreme Court. Worcester v. Georgia, and Cherokee Nation v. Georgia. Available:

http://supct.law.cornell.edu/supct/cases/historic.htm

Morin, Isobel V. Impeaching the President. Brookfield: Millbrook Press, Inc., 1996.

PBS. PBS.org: Archives of the West: Cherokee Nation v. Georgia – 1831, Worcester v. Georgia – 1832. Available: http://www.pbs.org/weta/thewest/wpages/wpgs600/w600_001.htm

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