From the Bill of Rights to the Alien and Sedition Acts

1. From the Bill of Rights to the Alien and Sedition Acts

2. Explaining the Unexplainable

3. 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.

4. 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.

5. Working Constitution Our Two Constitutions Formal 1787-1788 Constitution 1791 Bill of Rights • 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: The Revolutionary Generation, 11-12.

6. 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.

7. 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: The Revolutionary Generation, 11-12.

8. What’s a President? • “Article II obliged the Founders to venture deep into uncharted territory. The young continent needed a president who would be far more than a legislative presiding officer, a state governor, or a prime minister, but far less than a king. Nothing quite like this new office had ever existed. Nevertheless, as Americans in 1787 tried to envision a republican head of state who could protect them against old King George without becoming a new King George, they did have a particular George in mind.” • Akhil Reed Amar, America’s Constitution, 131.

9. 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

10. 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.

11. 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.

12. Why do we have a Bill of Rights? “There might have been a federal Constitution without Madison but certainly no Bill or Rights.” Gordon S. Wood, Empire of Liberty, 69. Madison’s Copy of the Proposed Bill of Rights

13. Establishing the Judiciary • Judiciary Act of 1789 • Selection Criteria • Chief Justice John Jay

14. 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)

15. 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

16. The French Revolution in America • Jefferson and the Democratic-Republicans • Hamilton and the Federalists • Proclamation of Neutrality (1793), Washington and the Citizen Genet • 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 pre-revolutionary 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

17. An Era of Crisis, 1796-1801 • The Significance of George Washington’s Retirement • The 1796 Election • John Adams and Foreign Policy • The Decision to Pass the Alien and Sedition Acts • Federalist versus Republican Readings of the Alien and Sedition Acts

18. Kentucky and Virginia Resolutions 1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

19. The 1800 Election The Defective Electoral College—Jefferson and Burr tie! March 4, 1801: A Peaceable Transfer of Power President Jefferson, “We are all Republicans, we are all Federalists.”

20. 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

21. 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.