In 1798 the United States stood on the brink of war with its former ally, France, because of pro-British trade policies on the part of the Adams administration. Federalists believed that Democratic-Republican criticism of these policies was disloyal to the United States, and that foreign nationals living in the United States might support the French in the event of a conflict. To combat these concerns, the predominantly Federalist Congress passed the Alien and Sedition Acts.
The Alien Acts bolstered citizenship requirements and allowed for the arrest, imprisonment, and deportation of resident aliens during wartime. The Sedition Act made it a crime for American citizens to “print, utter, or publish . . . any false, scandalous, and malicious writing” about the government or its officials.
The passage of these acts almost caused a constitutional crisis. John Marshall, just two years before he was appointed to serve as Chief Justice of the Supreme Court, defended the constitutionality of the Sedition Act in particular. While he voted to repeal it in 1800 because he opposed it on political and prudential grounds, he did not believe it violated the 1st Amendment. James Madison and Thomas Jefferson, on the other hand, opposed the legislation stridently.
The most famous opposition to the Alien and Sedition Acts came in the form of the Virginia and Kentucky Resolutions, penned by Madison and Jefferson respectively. These resolutions objected to the Alien and Sedition Acts both on 10th Amendment grounds (that the powers not delegated to the United States by the Constitution are reserved to the states) and on 1st Amendment grounds. Jefferson’s Kentucky Resolutions gave more prominence to the 10th Amendment argument, proclaiming that the states “retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom.” And Madison’s proposed remedy for this constitutional transgression was not to seek judicial redress by the Supreme Court, but rather to submit these resolutions to the executive and legislative branches of the other states. In other words, he sought a political rather than a judicial resolution to federal acts that he believed were unconstitutional. (This controversy took place a few years before Marshall’s Marbury v. Madison established the precedent of judicial review.)
The Supreme Court never passed judgment on the Sedition Act, but the Act backfired politically. Madison rightly predicted from the outset that the bill was “a monster that must forever disgrace its parents.” Although several were successfully prosecuted under the Sedition Act, juries were not always willing to convict. One defendant who was charged with making an unflattering reference to President Adams’ posterior was found not guilty by the jury—on the grounds that truth may be used as a defense.