Transcript Overhead for the Bill of Rights to the Alien and Sedition Acts

From the Bill of Rights to the Alien and
Sedition Acts
The Promise of 1787
"After a period of six thousand years had
elapsed since the creation, the United States
exhibits to the world the first instance of a
nation, unattacked by external force,
unconvulsed by domestic insurrections,
assembling voluntarily, deliberating fully, and
deciding calmly, concerning that system of
government under which they would wish that
they and their posterity should live.“
James Wilson, 1787
The Ratification Debates: Predicting the Future
“The original interpretations of 1787-1788 could
yield nothing more than reasonable
explanations and predictions of what the
Constitution would mean.”
Jack Rakove, Original Meanings, 160.
Perilous Times
“Alexander Hamilton and James Madison, two
of the driving forces behind the Constitution,
went to their death with the Union’s
vulnerability on their mind.”
Joanne Freeman
The Odd Bookends of the 1790s
Amendment I [1791]
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
The Sedition Act of 1798
SECT. 2. And be it further enacted, That if any person shall write, print, utter, or
publish, or shall cause or procure to be written, printed, uttered, or published,
or shall knowingly and willingly assist or aid in writing, printing, uttering, or
publishing any false, scandalous and malicious writing or writings against the
government of the United States, or either House of the Congress of the United
States, or the President of the United States, with intent to defame the said
government, or either House of the said Congress, or the said President, or to
bring them, or either of them, into contempt or disrepute; or to excite against
them, or either or any of them, the hatred of the good people of the United
States, or to stir up sedition within the United States; or to excite any unlawful
combinations therein, for opposing or resisting any law of the United States, or
any act of the President of the United States, done in pursuance of any such
law, or of the powers in him vested by the Constitution of the United States; or
to resist, oppose, or defeat any such law or act; or to aid, encourage or abet
any hostile designs of any foreign nation against the United States, their people
or government, then such person, being thereof convicted before any court of
the United States having jurisdiction thereof, shall be punished by a fine not
exceeding two thousand dollars, and by imprisonment not exceeding two
years.
Our Two Constitutions
Formal
1787-1788 Constitution
1791 Bill of Rights
Working Constitution
Precedents
Habits
Understandings
Attitudes
“[The first decade of our history as a
sovereign nation. . . set the
precedents, established in palpable
fact what the Constitution had only
outlined in purposely ambiguous
theory, thereby opening up and
closing off options for all the history
that followed.”
– Joseph Ellis, Founding Brothers,
11-12.
Competing Visions
Alexander Hamilton—a nationalist in the 1780s, who sought to
build a modern European-type state in the 1790s (federal
bureaucracy, standing army, perpetual debts, and a powerful
executive)
Thomas Jefferson—supported only amending the Articles of
Confederation in the 1780s and emerged as the leader of
opposition to the Federalists in the 1790s
James Madison—an ardent nationalist in the 1780s, with Hamilton
co-wrote much of The Federalist Papers, but in 1792 became
fearful of the powerful national government that he had helped to
create.
Still Debating After All These Years
“It is truly humbling, perhaps even dispiriting, to realize that the historical
debate over the revolutionary era and the early republic merely recapitulates
the ideological battle conducted at the time, that historians have essentially
been fighting the same battles, over and over again, that the members of the
revolutionary generation fought originally among themselves. Though many
historians have taken a compromise or split-the-difference position over the
ensuing years, the basic choice has remained constant, as historians have
declared themselves Jeffersonians or Hamiltonians, committed individualists
or dedicated nationalists, liberals or conservatives, then written accounts that
favor one camp over the other, or that stigmatizes one side by viewing it
through the eyes of the other, much as the contestants did back then.”
--Joseph Ellis, Founding Brothers, 11-12.
Launching the New Republic
On June 21, 1788, New Hampshire Ratifies the
Constitution
On February 4, 1789 Electors cast their votes
On April 14, 1789, George Washington is notified
First Inaugural Address
Fellow-Citizens of the Senate and of the House of
Representatives:
No people can be bound to acknowledge and adore the
Invisible Hand which conducts the affairs of men more than
those of the United States. Every step by which they have
advanced to the character of an independent nation seems to
have been distinguished by some token of providential
agency; and in the important revolution just accomplished in
the system of their united government the tranquil
deliberations and voluntary consent of so many distinct
communities from which the event has resulted can not be
compared with the means by which most governments have
been established without some return of pious gratitude,
along with an humble anticipation of the future blessings
which the past seem to presage. These reflections, arising out
of the present crisis, have forced themselves too strongly on
my mind to be suppressed. You will join with me, I trust, in
thinking that there are none under the influence of which the
proceedings of a new and free government can more
auspiciously commence.
Making Amends
Besides the ordinary objects submitted to your care, it will remain with your
judgment to decide how far an exercise of the occasional power delegated by
the fifth article of the Constitution is rendered expedient at the present
juncture by the nature of objections which have been urged against the
system, or by the degree of inquietude which has given birth to them. Instead
of undertaking particular recommendations on this subject, in which I could
be guided by no lights derived from official opportunities, I shall again give
way to my entire confidence in your discernment and pursuit of the public
good; for I assure myself that whilst you carefully avoid every alteration
which might endanger the benefits of an united and effective government,
or which ought to await the future lessons of experience, a reverence for the
characteristic rights of freemen and a regard for the public harmony will
sufficiently influence your deliberations on the question how far the former
can be impregnably fortified or the latter be safely and advantageously
promoted.
Why do we have a Bill of Rights?
Quiet the minds of people uneasy
about the new government
Help bring North Carolina and
Rhode Island into the union
Secure the people’s faith in public
rights
“There might have been a federal
Constitution without Madison but
certainly no Bill or Rights.”
Gordon S. Wood, Empire of Liberty,
69.
Allow the judiciary to become the
peculiar guardians of these rights
Madison’s Proposal
From more than 200
proposed amendments,
he selected only 12 that
focused on the protection
of personals rights and
amendments that would
not harm “the structure &
stamina of Government.”
(i.e., taxation, regulation
of elections, judicial
authority, and presidential
terms.”).
He proposed that they be
incorporated in Article I,
Section I—as prohibitions
on Congress; and also an
amendment that would
have prohibited States, not
only the Federal
Government, from violating
rights of conscience,
freedom of the press, and
trial by jury in criminal
cases.
Establishing the Judiciary
The Judiciary Act of 1789
Washington’s Judicial Selection Criteria
The Appointment of Chief Justice John Jay
Hamilton’s Economic Vision
On September 11, 1789,
Alexander Hamilton become
Secretary of the Treasury
How to mobilize best the
economic energies of the people?
Faith in the Merchant class
1. Sound system of taxation
2. Stability of credit, national
and international
3. Secure the Public Debt
4. National Bank (dependable
sources of credit and a
substantial circulating medium
based on a minimum of scarce
specie)
c. 1755 to 1804
“Facing a chaotic treasury burdened by the heavy debt
of the Revolutionary War, Hamilton's first interest when
he took office was the repayment of the war debt in
full. ‘The debt of the United States ... was the price of
liberty,‘’ he affirmed, and he then put into effect, during
1790 and 1791, a revenue system based on customs
duties and excise taxes.
http://www.treasury.gov/about/history/Page
s/ahamilton.aspx
Congressman James Madison
(February 2, 1791)
“The essential characteristic of the government,
as composed of limited and enumerated
powers, would be destroyed: If instead of direct
and incidental means, any means could be used,
which in the language of the preamble to the
bill, "might be conceived to be conducive to the
successful conducting of the finances; or might
be conceived to tend to give facility to the
obtaining of loans.”
What’s a President to do?
“Washington was genuinely
perplexed. He had never used
the veto before, and he must
have been disturbed by the
constitutional arguments
propounded by a trusted advisor
in an area where he did not have
much faith in his own unaided
judgment.”
– Stanley Elkins and Eric McKitrick,
The Age of Federalism: The Early
American Republic, 1788-1800
“Mr. President”
The Supreme Court won’t provide him with an
advisory opinion
Attorney General Edmund Randolph provides
legal analysis.
Secretary of State Thomas Jefferson provides
legal analysis.
Secretary of the Treasury Alexander Hamilton
provides a rebuttal.
The French Revolution in America
Jefferson and the
“Every true friend to this Country must
Democratic-Republicans see and feel that the policy of it is not to
embroil ourselves with any nation
whatsoever; but to avoid their disputes
Hamilton and the
and politics; and if they will harass one
Federalists
another, to avail ourselves of the neutral
Proclamation of
conduct we have adopted. Twenty years
Neutrality (1793),
peace with such an increase in
Washington and the
population and resources as we have a
Citizen Genet
right to expect; added to our remote
situation from the jarring powers, will in
all probability enable us in a just cause
to bid defiance to any power on earth.”
The Whiskey Rebellion of 1794
• Farmers in Western Pennsylvania: “Liberty,
Equality and Fraternity”
• Putting down the rebellion
• Condemning Democratic Societies
President Washington to Congress
(November 19, 1793)
“During the session of the year one thousand seven hundred and
ninety, it was expedient to exercise the legislative power, granted
by the constitution of the United States, 'to lay and collect
excises." In a majority of the States, scarcely an objection was
heard to this mode of taxation. In some, indeed, alarms were at
first conceived, until they were banished by reason and
patriotism. In the four western counties of Pennsylvania, a
prejudice, fostered and embittered by the artifice of men, who
labored for an ascendency over the will of others, by the
guidance of their passions, produced symptoms of riot and
violence.”
Diplomacy
Jay’s Treaty (1795)—recognized England’s right to retain
tariffs on American exports; granted English imports
most-favored status in the U.S.; implicitly accepted
English impressments of American sailors; committed
the U.S.to compensate English creditors for prerevolutionary debt; England agreed to submit claims by
Americans merchants for confiscated cargoes to
arbitration; and evacuate troops from their posts on
the Western frontier
A repudiation of the Franco-American Alliance of 1778
The Significance of George Washington’s
Retirement and Farewell Address
Unity at Home
Independence Abroad
Citizens, by birth or choice, of a common
country, that country has a right to
concentrate your affections. The name of
American, which belongs to you in your
national capacity, must always exalt the just
pride of patriotism more than any
appellation derived from local
discriminations. With slight shades of
difference, you have the same religion,
manners, habits, and political principles.
You have in a common cause fought and
triumphed together; the independence and
liberty you possess are the work of joint
counsels, and joint efforts of common
dangers, sufferings, and successes.
The great rule of conduct for us in regard to
foreign nations is in extending our
commercial relations, to have with them as
little political connection as possible. So far
as we have already formed engagements,
let them be fulfilled with perfect good faith.
Here let us stop. Europe has a set of
primary interests which to us have none; or
a very remote relation. Hence she must be
engaged in frequent controversies, the
causes of which are essentially foreign to
our concerns. Hence, therefore, it must be
unwise in us to implicate ourselves by
artificial ties in the ordinary vicissitudes of
her politics, or the ordinary combinations
and collisions of her friendships or
enmities.
An Era of Crisis, 1796-1801
The 1796 Election
(President Adams and
Vice President Jefferson)
Thomas Jefferson
April 13, 1743—
July 4, 1826
John Addams
October 30, 1735—
July 4, 1826
The Sedition Act
“From July 1798 to March 1801, when the
Sedition Act expired, the Federalists arrested
approximately twenty-five well-known
Republicans under the act. Fifteen of these
arrests led to indictments. Ten cases went to
trial, all resulting in convictions. In addition, the
Federalists initiated several common-law
prosecutions for seditious libel.” (Geoffrey
Stone, Perilous Times, 63).
The Federalist Justification
“There is a want of accordance between our
system and the state of our public opinion. THE
GOVERNMENT IS REPUBLICAN; OPINION IS
ESSENTIALLY DEMOCRATIC. . . .Either, events will
raise public opinion high enough to support our
government, or public opinion will pull down
the government to its own level. They must
equalize.”
Federalist Fisher Ames in 1800
Legitimacy and Authority
“If the masses lost respect for their political leaders,
what would be the foundation of government?
Were the personal reputations of national political
leaders the ultimate source of political legitimacy
and authority? And if so, did seditious attacks
against national officeholders strike at the process
of democratic representation itself?”
Joanne Freeman
“Wouldn’t Be Prudent”
Dana Carvey portraying President George Herbert Walker Bush on
Saturday Night Live.
The Virginia Resolutions (1798)
That the General Assembly doth particularly protest against the palpable and
alarming infractions of the Constitution, in the two late cases of the "Alien and
Sedition Acts" passed at the last session of Congress; the first of which exercises
a power no where delegated to the federal government, and which by uniting
legislative and judicial powers to those of executive, subverts the general
principles of free government; as well as the particular organization, and
positive provisions of the federal constitution; and the other of which acts,
exercises in like manner, a power not delegated by the constitution, but on the
contrary, expressly and positively forbidden by one of the amendments
thererto; a power, which more than any other, ought to produce universal
alarm, because it is levelled against that right of freely examining public
characters and measures, and of free communication among the people
thereon, which has ever been justly deemed, the only effectual guardian of
every other right.
The Kentucky Resolutions (1798)
That this commonwealth does upon the most deliberate reconsideration
declare, that the said alien and sedition laws, are in their opinion, palpable
violations of the said constitution; and however cheerfully it may be disposed
to surrender its opinion to a majority of its sister states in matters of ordinary
or doubtful policy; yet, in momentous regulations like the present, which so
vitally wound the best rights of the citizen, it would consider a silent
acquiescence as highly criminal: That although this commonwealth as a party
to the federal compact; will bow to the laws of the Union, yet it does at the
same time declare, that it will not now, nor ever hereafter, cease to oppose in
a constitutional manner, every attempt from what quarter so ever offered, to
violate that compact:
The 1800 Election
President Jefferson, “We are all Republicans, we
are all Federalists.”
The Jeffersonian Revolution
“Federalism is to become so scouted that no
party can rise under [that name]. . . .I shall . .
.by the establishment of republican principles.
. .sink federalism into an abyss from which
there shall be no resurrection for it.”
– Thomas Jefferson in a private letter, 1801
Are you a?
Jeffersonian or Hamiltonian?
Committed individualist or dedicated
nationalist?
Liberal or Conservative?
Further Readings
Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (Vintage Books, 2002). Ellis provides
incisive analysis of six key episodes from the nation’s founding
Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (Yale University Press,
2002). Freeman emphasizes the cultural component of politics.
Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800
(Oxford University Press, 1993). This is an essential political history.
Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act to the War on Terror
(W.W. Norton, 2004). Stone includes a fascinating chapter on the 1790s.
Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University
Press, 2009). Wood provides a fascinating account of the Alien and Sedition Acts.