From the Bill of Rights to the Alien and Sedition Acts

1

• From the Bill of Rights to the Alien and Sedition
  Acts

2
The Promise of 1787

• "After a period of six thousand years had elapsed
  since the creation, the United States exhibits to
  the world the first instance of a nation,
  unattacked by external force, unconvulsed by
  domestic insurrections, assembling voluntarily,
  deliberating fully, and deciding calmly,
  concerning that system of government under which
  they would wish that they and their posterity
  should live.
• James Wilson, 1787

3
The Ratification Debates Predicting the Future

• The original interpretations of 1787-1788 could
  yield nothing more than reasonable explanations
  and predictions of what the Constitution would
  mean.
• Jack Rakove, Original Meanings, 160.

4
Perilous Times

• Alexander Hamilton and James Madison, two of
  the driving forces behind the Constitution, went
  to their death with the Unions vulnerability on
  their mind.
• Joanne Freeman

5
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.

6
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.

7
Our Two Constitutions

• Formal

• Working Constitution

• 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, 11-12.

8
Competing Visions

• Alexander Hamiltona 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 Jeffersonsupported only amending the
  Articles of Confederation in the 1780s and
  emerged as the leader of opposition to the
  Federalists in the 1790s
• James Madisonan 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.

9
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, 11-12.

10
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

11
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.

12
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.

13
Why do we have a Bill of Rights?

• Quiet the minds of people uneasy about the new
  government
• Help bring North Carolina and Rhode Island into
  the union
• Secure the peoples faith in public rights
• Allow the judiciary to become the peculiar
  guardians of these rights

There might have been a federal Constitution
without Madison but certainly no Bill or
Rights. Gordon S. Wood, Empire of Liberty, 69.
14
Madisons Proposal

• From more than 200 proposed amendments, he
  selected only 12 that focused on the protection
  of personals rights and amendments that would not
  harm the structure stamina of Government.
  (i.e., taxation, regulation of elections,
  judicial authority, and presidential terms.).

• He proposed that they be incorporated in Article
  I, Section Ias prohibitions on Congress and
  also an amendment that would have prohibited
  States, not only the Federal Government, from
  violating rights of conscience, freedom of the
  press, and trial by jury in criminal cases.

15
Establishing the Judiciary

• The Judiciary Act of 1789
• Washingtons Judicial Selection Criteria
• The Appointment of Chief Justice John Jay

16
Hamiltons 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)

c. 1755 to 1804
Facing a chaotic treasury burdened by the heavy
debt of the Revolutionary War, Hamilton's first
interest when he took office was the repayment of
the war debt in full. The debt of the United
States ... was the price of liberty, he
affirmed, and he then put into effect, during
1790 and 1791, a revenue system based on customs
duties and excise taxes. http//www.treasury.gov/
about/history/Pages/ahamilton.aspx
17
Congressman James Madison (February 2, 1791)

• The essential characteristic of the government,
  as composed of limited and enumerated powers,
  would be destroyed If instead of direct and
  incidental means, any means could be used, which
  in the language of the preamble to the bill,
  "might be conceived to be conducive to the
  successful conducting of the finances or might
  be conceived to tend to give facility to the
  obtaining of loans.

18
Whats 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

19
Mr. President

• The Supreme Court wont provide him with an
  advisory opinion
• Attorney General Edmund Randolph provides legal
  analysis.
• Secretary of State Thomas Jefferson provides
  legal analysis.
• Secretary of the Treasury Alexander Hamilton
  provides a rebuttal.

20
The French Revolution in America

• Jefferson and the Democratic-Republicans
• Hamilton and the Federalists
• Proclamation of Neutrality (1793), Washington and
  the Citizen Genet

• Every true friend to this Country must see and
  feel that the policy of it is not to embroil
  ourselves with any nation whatsoever but to
  avoid their disputes and politics and if they
  will harass one another, to avail ourselves of
  the neutral conduct we have adopted. Twenty
  years peace with such an increase in population
  and resources as we have a right to expect added
  to our remote situation from the jarring powers,
  will in all probability enable us in a just cause
  to bid defiance to any power on earth.

21
The Whiskey Rebellion of 1794

• Farmers in Western Pennsylvania Liberty,
  Equality and Fraternity
• Putting down the rebellion
• Condemning Democratic Societies

22
President Washington to Congress (November 19,
1793)

• During the session of the year one thousand
  seven hundred and ninety, it was expedient to
  exercise the legislative power, granted by the
  constitution of the United States, 'to lay and
  collect excises." In a majority of the States,
  scarcely an objection was heard to this mode of
  taxation. In some, indeed, alarms were at first
  conceived, until they were banished by reason and
  patriotism. In the four western counties of
  Pennsylvania, a prejudice, fostered and
  embittered by the artifice of men, who labored
  for an ascendency over the will of others, by the
  guidance of their passions, produced symptoms of
  riot and violence.

23
Diplomacy

• Jays Treaty (1795)recognized Englands 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

24
The Significance of George Washingtons
Retirement and Farewell Address

• Unity at Home

• Independence Abroad

• Citizens, by birth or choice, of a common
  country, that country has a right to concentrate
  your affections. The name of American, which
  belongs to you in your national capacity, must
  always exalt the just pride of patriotism more
  than any appellation derived from local
  discriminations. With slight shades of
  difference, you have the same religion, manners,
  habits, and political principles. You have in a
  common cause fought and triumphed together the
  independence and liberty you possess are the work
  of joint counsels, and joint efforts of common
  dangers, sufferings, and successes.

• The great rule of conduct for us in regard to
  foreign nations is in extending our commercial
  relations, to have with them as little political
  connection as possible. So far as we have already
  formed engagements, let them be fulfilled with
  perfect good faith. Here let us stop. Europe has
  a set of primary interests which to us have none
  or a very remote relation. Hence she must be
  engaged in frequent controversies, the causes of
  which are essentially foreign to our concerns.
  Hence, therefore, it must be unwise in us to
  implicate ourselves by artificial ties in the
  ordinary vicissitudes of her politics, or the
  ordinary combinations and collisions of her
  friendships or enmities.

25
An Era of Crisis, 1796-1801

• The 1796 Election (President Adams and Vice
  President Jefferson)

John Addams October 30, 1735 July 4, 1826
Thomas Jefferson April 13, 1743 July 4, 1826
26
The Sedition Act

• From July 1798 to March 1801, when the Sedition
  Act expired, the Federalists arrested
  approximately twenty-five well-known Republicans
  under the act. Fifteen of these arrests led to
  indictments. Ten cases went to trial, all
  resulting in convictions. In addition, the
  Federalists initiated several common-law
  prosecutions for seditious libel. (Geoffrey
  Stone, Perilous Times, 63).

27
The Federalist Justification

• There is a want of accordance between our system
  and the state of our public opinion. THE
  GOVERNMENT IS REPUBLICAN OPINION IS ESSENTIALLY
  DEMOCRATIC. . . .Either, events will raise public
  opinion high enough to support our government, or
  public opinion will pull down the government to
  its own level. They must equalize.
• Federalist Fisher Ames in 1800

28
Legitimacy and Authority

• If the masses lost respect for their political
  leaders, what would be the foundation of
  government? Were the personal reputations of
  national political leaders the ultimate source of
  political legitimacy and authority? And if so,
  did seditious attacks against national
  officeholders strike at the process of democratic
  representation itself?
• Joanne Freeman

29
Wouldnt Be Prudent

• Dana Carvey portraying President George Herbert
  Walker Bush on Saturday Night Live.

30
The Virginia Resolutions (1798)

• That the General Assembly doth particularly
  protest against the palpable and alarming
  infractions of the Constitution, in the two late
  cases of the "Alien and Sedition Acts" passed at
  the last session of Congress the first of which
  exercises a power no where delegated to the
  federal government, and which by uniting
  legislative and judicial powers to those of
  executive, subverts the general principles of
  free government as well as the particular
  organization, and positive provisions of the
  federal constitution and the other of which
  acts, exercises in like manner, a power not
  delegated by the constitution, but on the
  contrary, expressly and positively forbidden by
  one of the amendments thererto a power, which
  more than any other, ought to produce universal
  alarm, because it is levelled against that right
  of freely examining public characters and
  measures, and of free communication among the
  people thereon, which has ever been justly
  deemed, the only effectual guardian of every
  other right.

31
The Kentucky Resolutions (1798)

• That this commonwealth does upon the most
  deliberate reconsideration declare, that the said
  alien and sedition laws, are in their opinion,
  palpable violations of the said constitution and
  however cheerfully it may be disposed to
  surrender its opinion to a majority of its sister
  states in matters of ordinary or doubtful policy
  yet, in momentous regulations like the present,
  which so vitally wound the best rights of the
  citizen, it would consider a silent acquiescence
  as highly criminal That although this
  commonwealth as a party to the federal compact
  will bow to the laws of the Union, yet it does at
  the same time declare, that it will not now, nor
  ever hereafter, cease to oppose in a
  constitutional manner, every attempt from what
  quarter so ever offered, to violate that compact

32
The 1800 Election

• President Jefferson, We are all Republicans, we
  are all Federalists.

33
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

34
Are you a?

• Jeffersonian or Hamiltonian?
• Committed individualist or dedicated nationalist?
  
• Liberal or Conservative?

35
Further Readings

• Joseph J. Ellis, Founding Brothers The
  Revolutionary Generation (Vintage Books, 2002).
  Ellis provides incisive analysis of six key
  episodes from the nations 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.