Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (13 page)

Washington followed Hamilton's advice, called out the militia of four
states, got on his horse, and became the only sitting president ever to lead
an army in person when he rode out toward the rebels. The rebellion dissolved as the army approached, but the point had been made. Republicans now believed the Federalists would stop at nothing to impose their
views. Hamilton had avowed his monarchist sympathies in Philadelphia
in 1787. Republicans looked at the Federalist record-a "monarchist" financial system, sympathy for European monarchies against republican
France, a monarchist reading of the federal Constitution, using the army
to enforce federal law-and decided it all fit neatly together as a monarchist plot. (And as far as Hamilton goes they were right; in private conversation with Vice President John Adams and Secretary of State Thomas
Jefferson, Hamilton had affirmed his belief in monarchy. And John
Adams, for his part, had told Virginia's senators that the government must
soon be replaced with a monarchy.)

As the political divisions deepened, Republicans saw themselves as
defenders of the Constitution against Federalist usurpers.

Republicans had another source of contention when, in 1795, Chief Justice John Jay brought home from England a treaty subsequently known
by his name. Jay's Treaty purported to resolve some of America's outstanding issues with Great Britain-including the resolution of debt owed
to Britain and settlement of the Canadian border-while increasing trade
with the British Empire, even if at the price of restricting American cotton exports. The opposition took the treaty as a sell-out of American
interests. The chief justice was a known Anglophile, a Federalist from
New York, and a personal and political friend of Hamilton's. Jay, on the
other hand, knew the treaty would be unpopular-it may have cost him
the presidency-but believed it to be in America's interests, most especially because it voided the danger of war with Britain.

Opposition to the treaty centered in the House, where Madison had by
this point come to the head of a unified Republican opposition. Although
the Senate, at Washington's request, ultimately ratified the treaty, Madison held that the treaty could be effectively negated if the House refused
to appropriate money to implement it.

Today, it's no surprise that many liberal professors take the Republicans' opposition to funding Jay's Treaty as proof that the Republicans
weren't concerned with the "original understanding" of the Constitution.
Why? Because the Constitution, they say, vests the Senate with the exclusive role in adopting treaties.

No Aliens Allowed

The Alien Enemies Act authorized the
president to apprehend and deport resident aliens if their home countries were
at war with the United States. Enacted
July 6,1798, with no expiration date, it
remains in effect today.

But, in fact, Madison's argument that the Jay Treaty could be defeated
by the House's refusal to fund it was perfectly consistent with what Madison, the architect of the Constitution, had said during the ratification
process. "It is true that this branch [of the Congress, referring to the
House]," he said, "is not of necessity to be consulted in the forming of
Treaties. But as its approbation and cooperation often may be necessary
in carrying treaties into full effect; and as the
support of the Government and of the plans
of the President & Senate in general must be
drawn from the purse which they hold, the
sentiments of this body cannot fail to have
very great weight, even when the body itself
may have no constitutional authority."'
Madison's Republicans suffered a narrow
defeat, anyway, when the House voted to
fund implementation of the treaty.

This ratcheted up the political fervor in
the country. The treaty meant that the
United States would have a closer trade relationship with Britain than it had since the Revolution. The Republicans
were furious. What, they asked, about our mutual defense treaty with
France? What about the fact that Britain impressed American sailors
(albeit who might have been British-born) into the Royal Navy? From the
Republicans' perspective, not to mention France's, the Federalists were ignoring America's moral and legal obligation to its fellow republic in
favor of monarchical Britain.

Washington's retirement in 1796 and John Adams's election as the next
president exacerbated the political rift in the country. Party divisions
among Americans were fierce. Republican mobs threatened Federalists
and even, according to Abigail Adams, the president himself.

Federalists (who fancied themselves "loyal Americans") worried about
the large number of immigrants joining the Republicans. So they
reformed the nation's immigration laws. Under the Naturalization Act, it
would now take fourteen years of residency before an immigrant could
become a citizen.

In 1798, an undeclared naval war with France began to protect American shipping from the French navy (which was trying to disrupt trade
with Britain). Federalists in Congress levied new taxes to fund expansion
of the army and navy. The Federalists also enacted the Alien Enemies
Act, which authorized the president to apprehend and deport resident
aliens if their home countries were at war with the United States. The
Alien Friends Act authorized him to deport any resident alien considered
"dangerous to the peace and safety of the United States." The Federalists
also implemented the Sedition Act, signed into law by President Adams
on July 14, 1798 (surely not by coincidence), which stifled dissent among
Americans.

By this time James Madison had retired from Congress, and Jefferson
remained in the government essentially as a figurehead. Jefferson and
other leading Virginia Republicans, including John Taylor of Caroline,
insisted that these Federalist laws were unconstitutional.

The Republicans had three objections to the Alien Friends Act: as "dangerous" aliens could be identified only through their associations, utterances, or publications, the act violated the First Amendment. Even aliens,
they said, could claim the rights of free speech, freedom of the press, and
free assembly-rights that Congress was prohibited from infringing.

Not so, said the Federalists. Foreigners had no claim to constitutional
rights, and Congress was perfectly entitled to ask them to leave at any
time. Republicans answered that the Constitution explicitly left it to the
states to regulate immigration until 1808, so the statute was unconstitutional. They also insisted that the act violated the principle of the separation of powers by giving the president responsibilities properly
confided to the judicial branch.

Of more concern to Republicans, however, was the Sedition Act.
While the Alien Enemies Act applied to foreigners from hostile countries and the Alien Friends Act applied to foreigners from non-hostile
countries, the Sedition Act was aimed at American citizens. Republicans
said that the Sedition Act violated the Tenth Amendment, because no
power to enact such a law was mentioned in the Constitution. Some portions of the Sedition Act were statements of
the obvious: one section made it a crime to
thwart federal law.

What was controversial, however, was the
Sedition Act's ban on saying or publishing
anything that portrayed the governmentincluding all its agents except, in a hilarious
exception, the vice president (Thomas
Jefferson)-in a bad light. Among those punished by fine, imprisonment, or both for violating the Sedition Act were editors of major
Republican newspapers and a Republican
congressman.

Don't Trust Judges

Federal judges very happily sought out
people to prosecute for their political
opinions under the Sedition Act of 1798
(signed into law by monarchist-bet you
didn't know that either-President John
Adams).

Republicans insisted that these four acts were unconstitutional, but
Federalists disagreed. The First Amendment, Federalists noted, did not
say that Congress must allow people to say or print whatever they wanted
to, but that their freedoms of speech and press could not be "abridged"
by Congress. That meant that the preexisting limits on the freedom of
speech-such as that one could not defraud a purchaser or commit perjury in court-continued to be in effect. In
English common law, they said, sedition was
illegal, so a federal statute banning sedition
did not "abridge" freedom of speech. And
because the Sedition Act made truth a
defense, as common-law sedition prohibitions
had not done, far from abridging freedom of
speech, Federalists argued, the Sedition Act
broadened it.

What a
Patriot Said

"On every question of
construction let us
carry ourselves back to the time when the
Constitution was adopted, recollect the
spirit manifested in the debates, and
instead of trying what meaning can be
squeezed out of the text, or invented
against it, conform to the probable one
which was passed."

Thomas Jefferson

Federal judges in the period 1798-1801 were
all Federalists. From the beginning, they had
been chosen for their eminence-and because
they were Federalists. Washington had enunciated those tests at the beginning of his administration, and while he
later appointed former Republican opponents of ratification (and would
have appointed more, had they accepted the jobs), he left office having
filled the federal courts entirely with members of his party. All fell somewhere along the monarchist-nationalist continuum, which, ironically,
had been repudiated at the Constitutional Convention in favor of a republican, state-centered model. So the Constitution was, arguably, in the
hands of its enemies.

These men, then, enthusiastically supported the Sedition Act. And far
from worrying about "checks and balances," federal judges believed-as
John Jay once told Washington-that their chief obligation was to secure
the success of Washington's and then Adams's administration.

Given that Congress had passed the Sedition Act, the president had
signed it, and federal judges had enforced it, where could Republicans
look for succor? From Monticello, Thomas Jefferson answered, "To the
states." (He had been persuaded of this by John Taylor of Caroline.) In
Jefferson's words, the states represented "the last ditch" of Republican
resistance to the "reign of witches."

In early June 1798, Jefferson wrote Taylor a letter. Taylor, apparently,
was now flirting with secession. Jefferson told him that the political problems of the 1790s would not be solved by Virginia and North Carolina
leaving the United States to form a separate confederation. It was part of
man's nature, Jefferson said, to be fractious, and so a union of Carolinians and Virginians must soon be divided between a Carolina party and a
Virginia party; in the end, he said, each state would be left to itself.

Besides, Jefferson argued, the American people had been deluded into
supporting the Federalists. Once the tax bills for the recent military
buildup arrived, they would see the error of their ways and cast the Federalists out for good. Taylor was unpersuaded. He told Jefferson that a
mere change of parties would not solve the problem, because the problem was human nature: men always wanted more power. A southern aristocracy ruling the country would be as bad as a northern one. Instead,
Taylor's answer was to amend the Constitution extensively to prohibit
federal overreaching.