American history reveals a recurrent pattern of governmental violations of civil liberties in times of war. For their part, Presidents have, at best, a mixed record of preserving rights and liberties when the nation has taken up arms and is engaged in hostilities. As Justice Robert H. Jackson pointed out, “it is easy, by giving way to passion, intolerance and suspicions of wartime, to reduce our liberties to a shadow, often in answer to exaggerated claims of security.” Typically unsuccessful efforts to reconcile the Constitution with perceived military needs reflects James Madison’s observation that “war is the true nurse of executive aggrandizement of power.” Indeed, President often have led the way in curbing civil liberties on the home front during times of war.
The Quasi-War with France, from 1798-1800, is illustrative, not merely of presidential participation in the repression of constitutional liberties, but the shift by Congress of broad discretionary powers to President John Adams. As tensions between the United States and France escalated in 1798, Adams asked Congress to enact “war measures” in the event of military hostilities between the two nations. As we have observed, Congress passed some two dozen statutes authorizing Adams to take actions against France. Congress, dominated by the Federalist Party, was concerned about the pro-French factions in the country, as well as the influx of French and Irish immigrants, who harbored sympathies toward France and often joined the Jeffersonian Republicans. In addition, Congress drafted, with the support of President Adams, three significant bills to lengthen the time needed to become a citizen, to deport aliens, and to punish individuals who spoke or wrote what the government interpreted to be seditious statements. Adams had asked Congress to act with unanimity, which made it clear that the opposition party would be cast as disloyal.
The first of the four measures, The Naturalization Act, was designed to cut-off one of the great sources of Republican strength—French and Irish immigrants. The Federalists were unable to prevent the Jeffersonians from recruiting former aliens—now citizens—into their ranks, and so they slowed the process of enlistment by nearly tripling the time required for immigrants to become citizens.
The second bill, The Act Concerning Aliens, vested the President with authority to deport all aliens whom he judged to be dangerous to the peace and safety of the United States, or whom he suspected of being engaged in “any treasonable or secret machinations against the government.” As it happened, Adams signed several blank warrants in case offenders should be seized, but no aliens were deported under the law’s provisions.
The third measure, the Alien Enemies Law, was enacted with bipartisan support and authorized the imprisonment or banishment of aliens who were citizens of an enemy nation in time of war. Since Congress did not declare war with France, the law was not enforced during the Quasi-War, but it has remained a fundamental part of American wartime policy ever since.
The infamous Sedition Act of 1798 was the centerpiece—and most controversial part– of the Federalists’ agenda to repress those who supported the Republican cause. The Federalists had linked the Republicans with France; as a consequence, Republican speech was viewed as disloyal, indeed, nearly treasonous. The law made it a federal crime for anyone to conspire or impede governmental measures or to write or publish “any false, scandalous, and malicious” criticism of the federal government, Congress, or the President, or bring them into contempt or disrepute by exciting against them “the hatred of the good people of the United States.” At bottom, the Federalists construed criticism of the Adams Administration as opposition to the government and subversion of the Constitution.
In the heated debate over the measure, Congress grappled with the meaning of the First Amendment. Republican opponents wondered how it could possibly be constitutional when, less than a decade before, Congress had championed the First Amendment’s protection of freedom of expression: “Congress shall make no law” abridging freedom of speech or the press.
The Federalists argued that the original Constitution gave Congress jurisdiction over sedition, including seditious words, and that the Bill of Rights had not removed that authority. They asserted that the federal government had the power to protect itself against sedition that endangered its existence. Thus, all means intended to endanger the government were criminal. While the Constitution did not delegate the power to punish sedition, Congress could make all laws “necessary and proper” to protect its delegated powers. Lastly, the Federalists claimed that the constitution conferred common law jurisdiction on the federal courts, and they defined freedom of speech and press according to English common law—as an exemption from all previous restraints or censorship. According to the Federalists, subsequent punishment of words was, therefore, no violation of this freedom, and the Sedition Act did not restrict the liberty of the press but was instead aimed at its licentiousness.
The Republicans, led by Albert Gallatin, rejected the Federalists’ arguments. If the federal courts had a common law jurisdiction over seditious libel, why was it necessary to pass a law conferring that jurisdiction on them? In addition, denied that there was a federal common law. It was Gallatin who threw down the gauntlet. This bill, he declared, represented an attempt by the Federalists “to perpetuate their authority.” He stated that since time immemorial, tyrants had used laws against political criticism “to throw a veil on their folly or their crimes.” The “proper weapon to combat error,” he explained, “is truth.”
In the end, the Republican view on seditious libel was most effectively offered by James Madison. In his most scholarly manner, the inimitable Father of the Constitution and the Bill of Rights explained that whatever the peculiarities of English history, it made no sense to construe the First Amendment as embodying the English law of seditious libel. He observed that fundamental differences between the English and American political systems rendered the limited English conception of free speech inappropriate for the United States.
In England, he noted, the rulers—kings and lords—were deemed the “superiors” of the people. In such a system, it was natural to require subjects to treat their rulers with respect and to prohibit them from criticizing their judgments and policies. In the United States, however, “a greater freedom” of criticism is essential, because governmental officials are “responsible to their constituents,” who have a right to bring them “into contempt or disrepute” if they fail “to live up to their trusts.”
Whatever might have been the case in England, Madison concluded, the Sedition Act violated the First Amendment because it undermined “the responsibility of public servants and public measures to the people” and embraced the “exploded doctrine” that the administrators of the Government are the Masters and not the servants, of the people.”
But the Federalists had the votes and President Adams signed the bill into law on July 14, 1798. Persons convicted under this statute were subject to fines not exceeding $2,000 and imprisonment not exceeding two years. Those prosecuted were allowed to offer, as part of their defense, “the truth of the matter contained in the publication charged as a libel.” English law had rejected truth as a defense. However, as Gallatin asked: “how could the truth of opinions be proved by evidence”? Besides, the government could decide for itself what was true and what was false.
President Adams vigorously enforced the Sedition Act. He was clearly irritated by the mass protests against his policies. His wife, Abigail, was even more so. She called for the suppression of “wicked and base, violent and calumniating abuse . . . leveled against the government.” In an era described by Thomas Jefferson as “the reign of witches,” the Adams Administration issued 17 indictments under the statute, and 10 were found guilty of intent to defame the President and the national government. The first person prosecuted was Matthew Lyon, a member of the House of Representatives from Vermont. Lyon, the only former indentured servant to serve in Congress had declared that, under President Adams, “every consideration of the public welfare” had been “swallowed up in a continual grasp for power in an unfounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
In October 1798, Lyon was indicted, tried and convicted by a Federalist judge and jury on the ground that, through his colorful statement, he had attempted “to bring the President and government of the United States into contempt.” The judge fined Lyon to four months and sentenced him to four months in jail. While serving his sentence, Congressman Lyon sought -–and won—reelection to the House, thus serving two terms at once. Lyon was the first candidate in American history to seek a seat in Congress while behind bars. The Federalists weren’t quite finished with Lyon. They tried to expel him but couldn’t muster the necessary two-thirds majority. Lyon and others prosecuted and convicted under the Sedition Act were pardoned by President Jefferson. In 1840, a repentant Congress determined that the act was “unconstitutional, null and void,” and appropriated funds to reimburse the heirs of those who had been fined under the statute. In 1964, in New York Times v. Sullivan, the U.S. Supreme Court noted that the Sedition Act had been rejected, not by a court of law, but by the “court of history.” President Adams was repudiated by American voters in the election of 1800, partly for his promotion and enforcement of the Sedition Act. He had failed to learn an important lesson imparted by James Madison: freedom of speech, like freedom of the press, is a critical check on the American government.