Unprecedented Times?

The United States, which seemed unified not so long ago, was divided like never before.

The two political parties were in nearly constant conflict. Their support came from very different parts of the country: for one, the core consisted of rural folk and farmers; for the other, people who lived in the cities. Recently, a bribery scandal with a foreign power had rocked the nation, leading both parties to claim the other was seeking to upend the Constitution and overthrow democratic government. One leading politician said the other party was willing “to immolate the independence and welfare of” the US for the benefit of a foreign country.

The party of the president came to believe that the nation’s very survival was dependent on ensuring that the other party did not gain power, and feared that foreigners might sway the next presidential election. Soon, they pushed new laws through Congress that made it harder for foreigners to become US citizens, authorized the imprisonment or deportation of certain aliens, and criminalized malicious speech against the government.

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They say history doesn’t repeat, it rhymes. Sometimes, however, it is more like an echo, the same sounds from the past returning to us, distorted but familiar.

Other than perhaps that last part about criminalizing speech, this could be a description of the US today. But it isn’t.

The two parties here are the Federalist Party, of John Adams and Alexander Hamilton (who provided the quote above), and the Democratic-Republican Party of Thomas Jefferson.

The year was 1798. The unifying power of the presidency of George Washington was over. Adams, who had defeated Jefferson by three electoral votes in the 1796 election, was president. And Europe was at war, Great Britain and its allies against revolutionary France. The Federalists generally sided with Britain, while the Democratic-Republicans leaned toward France. To help finance the war, the French looked to seize merchant ships carrying British goods, which, probably intentionally, included many American merchant ships. Soon the conflict grew into an undeclared war between the US and France, known as the Quasi-War. Many in the US started to worry (or hope) that open war with the French was on the horizon.

In 1797, Adams sent a delegation to France to attempt to negotiate a resolution. In what became known as the “XYZ Affair,” the French demanded the US make a loan to France and pay a substantial bribe to the French foreign minister, all before they would even begin negotiations. Adams declined, and the affair eventually became public, sparking outrage in the US against the French.

In the context of what appeared to be imminent war, the Federalists saw the opposition of the Democratic-Republicans, and their leanings toward the French, as treasonous. They feared French immigrants in the US as well as Irish immigrants, who were thought to be sympathetic to the French, and all of whom were believed to favor the Democratic-Republican Party. In response, in June and July of 1798, the Federalist Congress passed four acts, which were signed into law by President Adams. These were the Alien and Sedition Acts.

Three of the acts related to non-citizens. The first of the acts, the Naturalization Act, changed the number of years an immigrant had to wait to obtain citizenship and the right to vote from five to fourteen years. The Alien Friends Act gave the president the power to imprison or deport any alien he considered dangerous. And the Alien Enemies Act provided for the imprisonment or deportation of any male alien over the age of 14 who came from a country at war with the US.

The fourth act was the Sedition Act, which made it a crime, punishable by fine and imprisonment, to “write, print, utter or publish . . . any false, scandalous and malicious writing . . . 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 . . . or to bring them, or either of them, into contempt or disrepute . . . .”

To our eyes, this last law seems shocking in what appears to be a dramatic violation of the First Amendment rights to free speech and a free press. And several of the founders agreed. Thomas Jefferson and James Madison anonymously drafted resolutions adopted by the Kentucky legislature and the Virginia legislature, respectively, that argued that the Alien and Sedition Acts were beyond the power of Congress.

But none of the other states concurred.

Did the Sedition Act violate the First Amendment? It was passed less than seven years after the Bill of Rights was ratified. Certainly, many of the members of Congress at the time, as well as legislators in the states, had themselves been in the same positions seven years prior when those bodies voted in favor of the amendments. John Adams himself signed the act. Did they not understand what the First Amendment meant?

This is an early example of the potential peril of assuming we can divine the “original meaning” of the Constitution.

Supporters of the Sedition Act argued, consistent with English common law, that the First Amendment only prohibited what is known as “prior restraint,” meaning laws that prohibit speech or publication in advance; punishment for false and malicious speech afterward was constitutional. Moreover, one accused under the Sedition Act could defend themselves by proving what they had said was true. Of course, proof of truth is not always easy, particularly with respect to opinions.

Ultimately, 25 people, all of whom were Democratic-Republicans, were indicted under the Sedition Act, ten of whom were convicted. Among them was a Vermont congressman who had published an article that accused Adams’ administration of “ridiculous pomp, foolish adulation, and selfish avarice.”

By its own terms, the Sedition Act expired on March 3, 1801, the last day of John Adams’ presidency, and was not renewed. Adams was succeeded by Thomas Jefferson, largely marking the end to the power of the Federalist Party in the US. The Alien Friends Act expired two years after it was adopted, and the Naturalization Act was repealed in 1802. The Alien Enemies Act remains in effect today.

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It is far too easy to get caught up in the non-stop day-and-night news cycle. Even before the pandemic, the unrelenting accumulation of issues and crises seemingly every day could be overwhelming. And it certainly can feel like we are facing unprecedented challenges that threaten our nation and democracy.

I don’t want in any way to minimize the difficulties we face as a country, or the suffering that many feel. And neither should we minimize the perils of the past; the continued existence of the US was indeed in doubt back in those years at the end of the eighteenth century. But as we face the future, it can be helpful to realize that we are not alone, that people before us have been through similar difficulties, and that with great effort and commitment, they prevailed. We can too.