The Alien and Sedition Acts almost strangled the American republic shortly after its birth. Terri Diane Halperin, who teaches at the University of Richmond, has written a lucid and concise account of a controversy whose importance to American history is not to be underestimated.
As their names suggest, the acts took aim at two perceived threats to the young republic: the influx of recent immigrants to America and the “seditious” criticism by citizens of their own government. The debate over these enactments reflected two starkly different visions of the kind of nation America should be.
The Federalist party, whose members included such notables as John Adams and Alexander Hamilton, was above all the party of order: The new republic needed time to settle down and for national unity to take hold. A period of relative peace was required for American commerce to flourish, and such events as the antitax Whiskey Rebellion in western Pennsylvania (1791-94), which caused President George Washington to call out the militia, were viewed by many Federalists with alarm.
The Constitution had not provided for political parties. Their somewhat surprising emergence in the waning years of the 18th century brought a potential for inflamed passions that further disturbed the Federalist preference for a restrained political order. The Democratic-Republicans, whose leaders were Thomas Jefferson and James Madison, represented to many Federalists democracy at its rambunctious worst, for the Democratic-Republicans placed great faith in the wisdom of the people, the ultimate bulwark against the suspected aristocrats and monarchists who inhabited the Federalist party.
Professor Halperin recounts the ensuing struggle with an admirable balance. Her narrative seldom loses focus and she has rightly declined to indulge in revisionist history. While the acts undoubtedly have contemporary ramifications, Halperin has wisely framed the debate as the participants saw it and left judgments largely to her readers.
The Federalists were convinced that recent immigrants from France and Ireland posed a threat to American security. They viewed the newcomers as ones who had fomented unrest in their home countries and would do the same in the United States. As Halperin puts it, if ”the French invaded America, these Irish immigrants, along with the French aliens, would happily join the invading forces and turn against their American hosts.” (Incidentally, most of the newcomers whom the Federalists deplored were expected to support the Democratic-Republicans.)
With the alien acts, the Federalists sought to build a figurative wall. They wished to remove responsibility for citizenship from the states and lodge it in the federal government. The period of residency for citizenship was extended from 5 to 14 years. The president was given discretion to deport suspicious aliens who, in turn, were stripped of virtually all due process rights. Even without deportations, the acts operated as a threat that encouraged many new immigrants to depart the United States and others to abandon plans to come here.
The Sedition Act was even more oppressive. It outlawed “any false, scandalous, and malicious writing” that brought the president or Congress “into contempt or disrepute.” The Federalists believed that the government and the nation were much the same and that intemperate criticism of the government not only destabilized the country but bordered on treason. The Democratic-Republicans viewed the Sedition Act not only as an attempt to shield Federalist officials from criticism, but as a mortal threat to free speech and repeal of rights guaranteed by the newly ratified Constitution.
Undeterred, the Federalists forged ahead with 17 indictments for seditious speech. Most of the prosecutions were timed to affect the presidential election of 1800. Most were brought before Federalist judges, who had been appointed by Presidents Washington and Adams, and acted, Halperin writes, more like “prosecutors” than judges. And most were brought against the editors of Democratic-Republican newspapers. When, Jefferson wondered, would “the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to [its] true principles”?
The case of Matthew Lyon, a Democratic-Republican congressman from Vermont, illustrates how the prosecutions not only failed to silence opposing speech but created martyrs of the dissidents. Lyon had accused Adams of “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” Put on trial for defaming the government, Lyon had the temerity to ask the presiding judge whether he had “dined with the President and observed his ridiculous pomp and parade.” As Halperin notes, Lyon “put his trial and conviction at the center of his reelection campaign, becoming the first congressman to run for and win reelection while in prison.” Democratic-Republican sympathizers offered to pay his fines both in silver and gold. He became, says Halperin, “a hero in the cause of liberty.”
Were the story to end there, the Federalists might endure the black eye of history alone. The question, however, is whether Thomas Jefferson’s response to the Alien and Sedition Acts was as bad, or worse, than the acts themselves. Jefferson took a hand in drafting the Kentucky Resolutions of 1798, which posited the Constitution as a compact between the states and the federal government, allowing the states to nullify federal acts and, in extreme cases, to withdraw from the compact itself.
Jefferson warned further that laws such as the Alien and Sedition Acts would, “unless arrested at the threshold, necessarily drive these States into revolution and blood.” While the Kentucky legislature (slightly) toned down Jefferson’s rhetoric, the damage had been done: The enormous prestige of one of America’s foremost Founders had been committed to the possibility of fragmentation and disunion, his ideas left to rumble through the Southern states in the years prior to the Civil War and, later, in resistance to the Supreme Court’s decision in Brown v. Board of Education (1954).
After Jefferson won the presidency in 1800, most of the provisions of the Alien and Sedition Acts expired. The acts continue, however, to illustrate just how easily the American experiment can veer off course and how authoritarian and separatist impulses lie not far from the surface in even the most enlightened countries.
The threats to free speech and to American nationhood in 1798 did not arise from just anybody. The threats were leveled by two Founders whose experience with American independence and constitutionalism should have led them to know better. Many of their contemporaries opposed what they did—only Virginia would adopt a milder version of the Kentucky Resolutions—and in so doing saved Adams and Jefferson from themselves. But the acts, to this day, serve notice to us not to take our freedoms or our national unity for granted.
Terri Diane Halperin reminds us that such things are not self-perpetuating. Their life and care remain as much our responsibility today as they were our ancestors’ two centuries ago.
J. Harvie Wilkinson III sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, and is the author, most recently, of Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.
