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Wednesday, March 01, 2017

Of Aliens and Sedition

In his Empire of Liberty, historian Gordon Wood wrote,

Except for the Civil War, the last several year of the 18th century were the most politically contentious in United States history. … As the Federalist and Republican parties furiously attacked each other as enemies of the Constitution, party loyalties became more intense and began to override personal ties. People who had known each other their whole lives now crossed the street to avoid confrontation. … By 1798 public passions and partisanship had increase to the point where armed conflict among the states and the American people seemed likely. By the end of the decade, in the opinion of the British foreign secretary, the ‘whole system of American Government’ seemed to be “tottering to its foundations.”

I’m not ready to claim that things have gotten quite that bad in the here and now, but it is true there we might draw some interesting parallels.   Perhaps most alarming is the recollection that it was this troubled period that gave us the infamous Alien and Sedition Acts. These were four laws pushed through the Federalist Congress in 1798, born from fears that military tensions with the French abroad might spark Republican led uprisings at home.   Traitorous French sympathizers in our midst, the Federalists worried, might terrorize and undermine our political institutions from within. This maybe starts to sound a little bit familiar.

The Naturalization Act nearly tripled (from 5 to 14 years) the residency period before immigrants could apply for naturalized citizenship, while the Alien Friends and Alien Enemies Acts authorized President Adams to imprison and/or deport noncitizens he deemed dangerous, or whose mother country was hostile to the United States.   These statutes were designed to root out French operatives and sympathizers that the Federalists feared might foment unrest and opposition—in effect bringing the French Revolution across the Atlantic.

The Republicans, led by Francophile Thomas Jefferson, had long championed the French spirit in opposition to the monarchical British sentiments they saw at work in the Federalist party. Indeed, Republican partisans sometimes took to wearing the French tricolored cockades in public. And, by 1798, the Republicans had developed a much, much stronger “ground game” of independent newspaper and pamphlet presses around the country.   No paper symbolized the powerful Republican press more than Benjamin Franklin Bache’s Philadelphia Aurora, which frequently took on Adams and the Federalists in vitriolic terms. It was thus the Aurora and papers like it that Congress targeted with the Sedition Act, which criminalized the utterance of false statements critical of the government.

Franklin Bache was only one of several publishers indicted under the Act, though he died before he could stand trial. David Brown of Massachusetts received the harshest sentence, 18 months in prison, because he refused to name his accomplices in setting up a satirical "liberty pole". Despite Federalist claims that the Sedition Act merely codified (and, in fact, liberalized by allowing truth as a defense) the common law offense of seditious libel, the Republican backlash was intense and forceful. Jefferson and James Madison argued (anonymously) that the Acts were unconstitutional in the Kentucky and Virginia Resolution, and threatened to dissolve the Union.   And the Acts’ unpopularity undoubtedly helped sweep Jefferson and the Republicans into power in the election of 1800. Within a decade the Sedition Act, at least, had settled into the constitutional anti-canon (as perhaps now have Jefferson and Madison’s resolutions?).

The Alien Enemies Act, however, remains on the books, and has in fact been recodified. Indeed, it serves as at least as a partial justification for President Trump’s executive order banning immigrants from seven majority Muslim nations. And I suspect that, if he could, he would reenact the Sedition Act to punish those pesky “fake news” purveyors. Again it seems that, in some minds, the aliens and the un-American lurking among us pose a grave, indeed an existential, threat to American democracy. We live in interesting times. And as a sign off (thank Prawfs for tolerating me again), I would just pause to remember that, in fact, it was the Alien and Sedition Acts—not the French or the Republican press—that actually threatened our vulnerable constitutional culture back in 1798. Here’s to hoping that, 219 years later, that culture is strong enough to withstand another storm.

Posted by Ian Bartrum on March 1, 2017 at 04:11 PM | Permalink

Comments

You're right. This sounds eerily similar to liberal icon Woodrow Wilson's Sedition Act.

Posted by: YesterdayIKilledAMammoth | Mar 1, 2017 10:08:18 PM

Mammoth: Yes, that was also a dark constitutional moment. Not entirely sure what the the "liberal icon" part has to do with anything.... unless you think I was suggesting that only "conservatives" do bad things, which I certainly was not...

Posted by: Ian Bartrum | Mar 2, 2017 2:42:08 AM

And, of course, Wilson is hardly a liberal icon these days. https://www.theatlantic.com/politics/archive/2015/11/wilson-legacy-racism/417549/

Posted by: gdanning | Mar 2, 2017 11:24:35 AM

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