Saturday, July 14, 2018

This Day in Constitutional History (Alien and Sedition Acts Omen of Later Freedom Threats)

July 14, 1798—As tensions with France verged toward war, President John Adams (pictured) signed the last of four pieces of legislation passed over the past month by the Federalist Party in Congress to crack down on Gallic immigrants and their Irish Catholic and domestic allies. The Alien and Sedition Acts, the first major federal attempt to curtail immigration and press rights, sparked a furious reaction by the Democratic-Republican Party, led by Vice-President Thomas Jefferson.

If you want to know about the evolution of such current controversies as immigration, states’ rights, voter suppression, the role of the press, and resistance to unpopular federal measures, this early wide-ranging attempt to interfere with the Bill of Rights is a good place to start. 

Actually, the Trump Administration’s heavy-handed attempt to label both Muslims and Mexicans as security threats has thrown an unexpected spotlight on a period of history that Americans have conveniently forgotten—or never really learned. 

For years, the passage of these bills and Adams’ signature “were to be rightly judged by history as the most reprehensible acts of his presidency," according to Adams’ keenly appreciative biographer, David McCullough. 

Yet it would appear that, two hundred and eighteen years later, the principles of the Alien and Sedition Acts “have sprung, with surprising vigor, from their resting place in history,” wrote Jelani Cobb in a “Talk of the Town” piece for The New Yorker right after the last Presidential election. The last few weeks have only made that observation even more relevant.

The question of revolutionary France was the great fault line in the decade following adoption of the Constitution. The Democratic-Republicans regarded the new republic as a natural extension of the American Revolution by a nation that had served as our ally in the war, while the more Anglophile Federalists regarded it first with suspicion, then, as the Reign of Terror took hold, with horror.

The execution of Louis XVI plunged France into war with the Bourbon dynasty’s Continental allies, and, in the case of monarchical England, a newly sympathetic force. The possibility of involvement in that conflict compelled President George Washington to issue a Proclamation of Neutrality.

To be sure, there were plenty of domestic issues—notably, the place of the First National Bank in the new nation—to divide the Federalists from the Democratic-Republicans. 

Yet the quarrel with France ensured that the divisions would be relentlessly rancorous. For the argument about the French Revolution was, at bottom, an argument about ours—about what was the true legacy of that struggle, and about which side was the worthier custodian of its legacy.

Additional tensions arose in the Adams administration over France’s seizure of ships by neutral countries such as the United States. Adams’ attempt at negotiations collapsed when the French government demanded bribes. The resulting X, Y, and Z Affair (christened because of the initials standing for redacted names in the correspondence that Congress insisted the President release related to the incident) led to the abrogation of the 1778 treaty of alliance with France, and fiscal authorization of new frigates.

The Federalists also used the opportunity to smite their Democratic-Republican opponents. through four measures: 

*The Naturalization Act, the most dramatic of the measures, increased the period necessary for immigrants to become citizens from five to 14 years.

*The Alien Friends Act authorized the president to deport foreigners deemed "dangerous to the peace and safety of the United States" during peacetime.

*The Alien Enemies Act allowed the president to arrest, imprison, and deport any foreigner subject to an enemy nation.

*The Sedition Act made it a crime to “write, print, utter or publish…any false, scandalous and malicious writing” against the Federal government, including the Congress and the preside

The four pieces of legislation collectively christened the Alien and Sedition Acts were the Federalists’ attempt to stem the dissent and anarchy they saw all around. In a time of unrelenting demographic and political change, it found favor among those who wanted to calcify current conditions before they changed again.

The immediate cause of the legislation was the Quasi-War that had erupted between the U.S. and France. The French and their Irish Catholic allies newly arrived on U.S. shores seemed to the Federalists like a fifth column, undermining the U.S. from within. 

But limiting immigration was, for the Federalists, not just a matter of national security; it was also an early—and unusual—attempt at voter suppression. 

Once settled, French immigrants had displayed, by Federalist lights, a dismaying tendency to vote Democratic-Republican. 

More alarmingly, the same phenomenon was occurring with Irish immigrants. What began, in the early 1790s, as a primarily Irish Protestant immigration to the U.S. had shifted, by the end of the decade, toward an Irish-Catholic flood that elected Democratic-Republicans in key urban districts of Philadelphia.

By 1798, “The Year of the French,” a French-aided rebellion by the United Irishmen had raised a threat close to England. Such Federalists as Harrison Gray Otis and Roger Griswold made no secret of their contempt for the new arrivals from this now-revolutionary homeland. 

Reflecting the partisan spirit in which the legislation was framed, the Sedition Act stipulated that "opposing or resisting any law of the United States, or any act of the President of the United States" and publishing "any false, scandalous and malicious writing" against the president or the Congress would resist in imprisonment or fines. 

Notice the one official left out among these maligned groups: the Vice-President. As the current occupant of that office was Jefferson, the Federalists had no objection to any criticism lobbed against him

Adams had no interest in using the authority handed to him by the Alien Acts to regulate immigration, so he kept Secretary of State Timothy Pickering on a short leash when it came to enforcing that.

But the choleric President was too thin-skinned to ignore insults, and before long journalists and politicians were being locked up or intimidated into silence for running afoul of the Sedition Acts. 

Among those who ran afoul of the new legislation was Benjamin Franklin Bache, editor of Philadelphia's Democrat-Republican Aurora and the grandson of Benjamin Franklin, who died of yellow fever before he could be brought to trial, and Matthew Lyon, a Democratic-Republican representative from Vermont, who had said Adams’ foreign policy proved the President should be confined to a "mad house." 

By itself, a prison term would have been enough to make newspaper editors nervous about criticizing the administration. But the financial penalty of $2,000 may have been even more staggering. The sum would have been difficult-to-impossible to pay, forcing the editors into bankruptcy and debtor’s prison.

The Democratic-Republicans did more than register their disapproval at the polls; they also sought to defy federal power at the state level. Jefferson and protégé James Madison crafted the Virginia and Kentucky Resolutions, passed by those two legislatures not only declaring their opposition to the bills but explaining why they were null and void.

With Jefferson still a member of the federal government, he and Madison had to hide their authorship of the resolutions.(In fact, this would not become known until the 1820s, when both were old men no longer actively involved in electoral politics). 

But the resolutions, by insisting that a single state could nullify federal law, laid the groundwork for the Nullification Crisis 30 years later led by John C. Calhoun. By this time, Madison was insisting that his work and Jefferson’s could not be construed into an implied endorsement of Calhoun’s defiance of federal authority. But the genie had been let loose from the bottle, and Madison and Jefferson were, in effect, the intellectual grandfathers of secession.

Once Jefferson was inaugurated in 1801, the Alien and Sedition Acts became effectively inoperative. The legislation expired the day before he took office, and those jailed under its terms were released. The courts progressively viewed the legislation, as Associate Supreme Court Justice William Brennan noted in Sullivan v. New York Times (1964), and null and void. 

Although the legislation certainly excited and crystallized opposition to the Federalists, it did not by itself ensure their defeat at the polls. Instead, responsibility for their loss in 1800 lay in the feud between Alexander Hamilton, the party’s guiding light, and the Federalist who refused to act on the basis of political faction, Adams.

The President, contemplating the impact of another war on the young republic, authorized peace negotiations in 1799. Hamilton then launched an intemperate attack on Adams, dividing the Federalists and ensuring they would never win another Presidential election.

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