For the first few years of Constitutional government, underthe leadership of George Washington, there was a unity, commonlycalled Federalism that even James Madison (the future architectof the Republican Party) acknowledged in describing theRepublican form of government– ” And according to the degree ofpleasure and pride we feel in being republicans, ought to be ourzeal in cherishing the spirit and supporting the character ofFederalists.” Although legislators had serious differences ofopinions, political unity was considered absolutely essential forthe stability of the nation.Political parties or factions wereconsidered evil as “Complaints are everywhere heard from ourmost considerate and virtuous citizens, equally the friends ofpublic and private faith, and of public and personal liberty,that our governments are too unstable, that the public good isdisregarded in the conflicts of rival parties, and that measuresare too often decided, not according to the rules of justice andthe rights of the minor party, but by the superior force of aninterested and overbearing majority_” Public perceptionof factions were related to British excesses and thought to be”the mortal diseases under which popular governments haveeverywhere perished.” James Madison wrote in Federalist Papers#10, “By a faction, I understand a number of citizens, whetheramounting to a majority or a minority of the whole, who areunited and actuated by some common impulse of passion, or ofinterest, adversed to the rights of other citizens, or to thepermanent and aggregate interests of the community.” He went onto explain that faction is part of human nature; “that the CAUSESof faction cannot be removed, and that relief is only to besought in the means of controlling its EFFECTS.” The significantpoint Madison was to make in this essay was that the Unionwas a safeguard against factions in that even if “the influenceof factious leaders may kindle a flame within their particularStates, [they will be] unable to spread a general conflagrationthrough the other States.”What caused men like Thomas Jefferson and James Madison to defytradition and public perceptions against factions and build anopposition party? Did they finally agree with Edmund Burkes’famous aphorism: “When bad men combine, the good must associate;else they will fall, one by one, an unpitied sacrifice in acontemptible struggle?” Did the answer lie in their oppositionwith the agenda of Alexander Hamilton and the increases of powerboth to the executive branch as well as the legislative branch ofgovernment? Hamilton pushed for The Bank of the United States, alarge standing Army raised by the President (Congress was toraise and support armies,) a Department of Navy, funding andexcise taxes, and, in foreign policy, a neutrality that wassympathetic to British interest to the detriment of France. Manylegislators, especially those in the south, were alarmed to thepoint that a separation of the Union was suggested as the onlyway to deal with Hamilton’s successes. Many were afraid that thearmy would be used against them as it had during the WhiskeyRebellion. Southerners saw the taxes to support a new treasuryloan favoring “pro-British merchants in the commercial cities,”and unfairly paid by landowners in the South. These issues aswell as neutrality issues between France, England, and the UnitedStates were the catalyst for the forming of the Republican Party.
The French and English conflict caused many problems withAmerica’s political system. The English “Order of Council” andthe French “Milan Decree” wreaked havoc with America’s shippingand led to Jay’s Treaty of 1794. Jay’s Treaty was advantageousto America and helped to head off a war with Britain, but it alsoalienated the French. The French reacted by seizing Americanships causing the threat of war to loom large in American minds.
President Adams sent three commissioners to France to work out asolution and to modify the Franco-American alliance of 1778, butthe Paris government asked for bribes and a loan from the UnitedStates before negotiations could even begin. The Americancommissioners refused to pay the bribes and they were denied anaudience with accredited authorities and even treated withcontempt. Two of the commissioners returned to the United Stateswith Elbridge Gerry staying behind to see if he could worksomething out. This became known as the XYZ affair and was thebeginning of an undeclared naval war between France and theUnited States.
The XYZ affair played right into the hands of the FederalistParty. They immediately renounced all treaties of 1788 withFrance and began their agenda of creating a large standing armyand a Navy Department to deal with the threat of an American-French war. Fear and patriotism were fanned and a strong anti-French sentiment swept the land. Then a gem of a caveat wasthrown into the Federalist hands when Monsieur Y boasted that”the Diplomatic skill of France and the means she possess in yourcountry, are sufficient to enable her, with the French party inAmerica, to throw the blame which will attend the rupture of thenegotiations on the Federalist, as you term yourselves, but onthe British party, as France terms you.” This boast was to causesuspicion and wide spread denunciation of the Republican Partyand its leaders. Senator Sedgwick, majority whip in the Senate,after hearing of the XYZ Affair, said, “It will afford a gloriousopportunity to destroy faction. Improve it.” Hamilton equatedthe public’s perception of the Republican’s opposition to theFederalist’s agenda like that of the Tories in the Revolution.
All in all, this boast began the process that became the Alienand Sedition Acts of 1798.
The Republicans debated against the bills for about a month, butthe Federalist had the votes. A background of fear helped keepthe public silent and perhaps somewhat approving to the loss ofsome personal freedoms, as nobody wanted to be accused as aJacobean. In May of 1778, President Adams declared a day ofprayer and fasting. Many thought that the Jacobeans were goingto use that day to rise up in insurrection and “cut the throatsof honest citizens.” They even thought they were going to attackPresident Adams and citizens of Philadelphia came out by thehundreds to protect him. Federalist saw this as a demonstrationof support for the government. Those who spoke against theSedition bill were accused of being in league with the Jacobeans.
Edward Livingston, in opposing the bill said, “If we are ready toviolate the Constitution, will the people submit to ourunauthorized acts? Sir, they ought not to submit; they woulddeserve the chains that our measures are forging for them, ifthey did not resist.” The Federalist accused Livingston ofsedition because of his implied threat of popular rebellion; apractice seen in future debates when unlawful power was to beenforced.
Republican newspapers were railing against the Federalist andespecially against the Sedition bill. The Aoura was the leadingRepublican publication and Benjamin Bache was its editor. Bachesability to get the story out caused much consternation amongFederalist. Harrison Gray Otis said that Baches’ writinginfluenced even intelligent people, “What can you expect from thegaping and promiscuous crowd who delight to swallow calumny..?”The Federalist needed the Sedition bill to shut down theRepublican presses and Bache played right into their hands withhis publication of Tallyrand’s conciliatory letter to theAmerican envoys before the President had even seen it.
Republicans insisted that this was a journalistic scoop thatwould lead to peace because France was willing to negotiate withEdmund Gerry. The Federalist wanted Bache to explain how he hadreceived a letter that the President hadn’t even seen yet. Theybegan to accuse him of being in league with France, an agent ofTallyrand and an enemy of the people of the United States. Theadministration was so incensed with Bache that they didn’t waitfor passage of the Sedition bill, but had him arrested fortreason on June 27, 1778.
From the very beginning Republican leaders recognized that theSedition bill was primarily directed toward the destruction ofany opposition to the Federalist Party and its agenda. AlbertGallatin said the Sedition Act was a weapon “to perpetuate theirauthority and preserve their present places.” Proof that thisbill was politically motivated became obvious when the Housevoted to extend the act from the original one year proposed tothe expiration of John Adams term, March 3, 1801.
The States response to the passing of the Sedition Act was mixed.
Kentucky and Virginia each responded with acts basicallynullifying the Congressional act, but other states accepted theCongress taking authority from what had been a state function.
The public response initially appeared mixed. British common lawseemed to have preconditioned many to accept a limitation oftheir personal freedoms. The victory of the Republicans, who ranon a platform of anti-sedition, in the election of 1800 showedthat Americans were much more interested in personal freedom thanthe aristocratic Federalist thought.
What would happen if Congress submitted a Sedition Bill today asthey did in 1778? With our established two-party system (inmarked contrast to their conceptions of factions), the freedom ofpress as a well developed principle, and freedom of speech thecornerstone in American’s sense of liberty; it seems that therewould be a major revolt. Are there any instances in 20th centuryhistory that compares to the Sedition Act’s flagrant disregard ofthe First Amendment? No government actions seem so blatantlyunconstitutional as the Sedition Act of 1798; but, there are manyactions since then that have caused much more personal pain thanthe twenty-seven persons convicted under the Sedition Act.
In times of war it is understood that many personal liberties maybe curtailed, especially for enemy aliens living in the UnitedStates. The War Relocation Authority signed by PresidentRoosevelt caused thousands of enemy aliens as well as Japanese-American citizens to lose everything as they were interned inconcentration camps throughout the West. These Americans weretold that if they were true patriotic citizens they would gowithout complaining. If they were to complain then that was primafacie evidence that they were not loyal citizens.
In June of 1940, America’s fear of German aggression led to theenactment of the Smith Act. Much like the Alien and Sedition Actit required all aliens to be registered and fingerprinted. Italso made it a crime to advocate or teach the violent overthrowof the United States, or to even belong to a group thatparticipated in these actions. The United States Supreme Courtupheld the constitutionality of the law in the case of elevencommunist (Dennis v United States.) This decision was latermodified in 1957 (Yates v United States.) The Court limitedconviction to direct action being taken against government,ruling that teaching communism or the violent overthrow ofgovernment did not in itself constitute grounds for conviction.
Another instance of governmental infringement of the liberties ofAmerican citizens is the well known Senate Sub-committee on un-American Activities headed by Joseph McCarthy. Thousands ofpeople lost their livelihood and personal reputations wereshattered by innuendo, finger pointing, and outright lies. As inearlier instances of uncontrolled excesses by people ingovernment, guilt was assumed and protestations of innocence wereevidence that “something” was being hidden.
In 1993, rumblings were heard from the Democratic controlledCongress that there needed to be fairness in broadcasting. Ifone viewpoint was shared, they felt the opposing viewpoint mustbe given fair time to respond. This was facetiously called the”Rush Act” in response to the phenomenal success of conservativeradio talk show host, Rush Limbaugh. As in the 1790’s whenRepublicans formed newspapers to counteract the Federalistcontrol of the press; many conservatives felt that the fewconservative broadcasters and programs had a long way to gobefore they balanced the liberal press. Fortunately, as in the1800 election, Republicans gained control of Congress in 1992 andthe “Rush Act” died a natural death.
Recently many Americans have become concerned with domesticterrorism. Waco, the Oklahoma Federal Building, and now theFreemen in Montana have caused citizens and legislators alike towant something done. The House of Representatives justapproved HR2768. This bill will curtail many liberties forAmerican citizens as well as Aliens. The following are eightpoints made by the ACLU concerning this bill:1.Broad terrorism definition risks selective prosecution2.More illegal wiretaps and less judicial control willthreaten privacy3. Expansion of counterintelligence and terrorism investigationsthreatens privacy4. The Executive would decide which foreign organizationsAmericans could support5. Secret evidence would be used in deportation proceedings6. Foreign dissidents would be barred from the United States7. Federal courts would virtually lose the power to correctunconstitutional Incarceration8. Aliens are equated with terroristsThis bill has many points in common with the Alien and SeditionActs of 1798, the Smith Act of 1950, the McCarren Act of 1950,and the Executive Order of Feb.19, 1942 that led to WarRelocation Authority. Each one of these actions were taken whenfear controlled the public and an agenda controlled the people inauthority. Thankfully, the American people have the Constitutionand the Bill of Rights to bring them back from the edge, andto force those in positions of responsibility to accountability.
The responsibility of government lies with the governed. If theAmerican people react to trying situations and events in fear,then a general malaise and sense of helplessness will permeatethe collective American consciousness. The abdication ofpersonal responsibility erodes liberty, creating an atmosphere ofdependency, that leads to bigger government and its pseudosecurity. Edward Livingston’s statement, “If we are ready toviolate the Constitution, will the people submit to ourunauthorized acts? Sir, they ought not to submit; they woulddeserve the chains that our measures are forging for them, ifthey did not resist,” serves as a timely warning to Americanstoday.