December 15, 2004 · Geof Stone
Lots of interesting comments and questions. Let me go back to the beginning, to a time less than a decade after the United States adopted our Constitution. In 1798, there was a bitter political division in the young nation between the Federalists (led by John Adams and Alexander Hamilton) and the Republican (led by Thomas Jefferson and James Madison). In the elections of 1796, the Federalists had retained control of both houses of Congress and Adams had defeated Jefferson by a scant three electoral votes. It’s important to understand that at this time in history Americans were deeply uncertain about the nation’s future. Would democracy work? There was no good precedent. It was truly an experiment, and no one was sure the nation wouldn’t simply fall apart. The Federalists represented the propertied class. They were very concerned about stability and security, and were very anxious about the passions and irresponsibility of the common man. The Republicans exalted liberty over security and were deeply suspicious of the Federalists.
At this time, a war raged in Europe between England and France. The United States tried to maintain its neutrality so it could both avoid war and continue to engage in commerce with both all sides. But in 1798 the United States entered into a treaty with England that infuriated the French. Adams put the nation on war footing. The Federalists gave him a larger army and a larger navy. We were on the brink of declaring war. The Republicans were furious. They were much more sympathetic to the French (who had overthrown their monarchy) and much more hostile to the English (who were still ruled by a monarch). It was in this context that the Federalists enacted the Alien and Sedition Act.
The Alien Act empowered President Adams to arrest, detain, and deport any non-citizen he found to be a danger to the security of the nation. The individual was given no right to a hearing and no right to present evidence in his defense. The Republicans objected that this was unconstitutional; the Federalists responded that aliens had no rights under the United States Constitution because they were not part of “We the People.” The Sedition Act effectively made it a crime for any person to criticize the President, the Congress or the Government of the United States. The Republicans vehemently object that the Act violated the First Amendment; the Federalists argued that in time of war it was essential to stifle criticism of the government because if the People lost confidence in the government they would not make the sacrifices war demands.
The Federalist prosecutors and judges used the Sedition Act exclusively against Republicans, especially against Republican congressmen and editors who criticized the President. Although the Federalists argued that this legislation was necessary because the nation was on the brink of war, the real reason the Federalists wanted it was to silence Republican criticism and thus to ensure that Adams would defeat Jefferson in the election of 1800.
The plan backfired. The American people rose up in protest against these Act and elected Jefferson. This led to the demise of the Federalist Party. Jefferson pardoned all those who had been convicted under the Act. Fifty years later, Congress declared that the Sedition Act of 1798 was unconstitutional, and the Supreme Court has never since missed an opportunity to declare that the Act was unconstitutional in the “court of history.”
There are (at least) two lessons we can learn fro this episode: First, clever politicians will often take advantage of a wartime atmosphere to enact policies that will serve their partisan ends. Second, it will often fall to the People themselves to protect their civil lliberties. They cannot always rely on elected officials or judges to protect them for them.
Do you think any of this is relevant to the present?