The Genius of America (13 page)

This conflation of personal and national interest is exactly what the framers feared would bring down their new government. If in fact the framers had witnessed President Ford's inauguration, their biggest surprise, at least governmental surprise, would have been the continuation of the Republic itself. This fear of its failure, resulting from self-interest and self-regard, was behind Franklin's famous characterization of the new government as a “republic, if you can keep it.” Indeed, many delegates to the Constitutional Convention shared Franklin's worry that only “with luck” could the framers “produce a government that could forestall, for a decade perhaps, the inevitable decline of the Republic into tyranny.”

Indeed, in less than a decade, the fears were proved right, and one of the signers of the Constitution, John Adams, was at the heart of the crisis.

T
HE
C
RIME OF
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OLITICAL
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RITICISM

Under the threat of war and in the name of national security, one political party in 1798 tried to destroy the other, and the nation almost unraveled. At the heart of the matter was a piece of legislation, a blight on American constitutional history, known as the Sedition Act.

The Act created for John Adams what history would measure as the most pivotal decision of his career. Adams had become the second president of the United States on March 4, 1796. His victory had been razor thin, three electoral votes, over his opponent, Thomas Jefferson, who then became vice president. (Until the ratification of the Twelfth Amendment in 1804, the candidate who received the second-most votes for president became the vice president.) While neither candidate had campaigned for office, their supporters had waged brutal campaigns on their behalf in this first contested presidential election. In fact, this race was the first in which political parties vied for power, the Federalists for Adams and the Democratic Republicans for Jefferson. The closeness of the race reflected a serious divide in the American electorate over whom to favor in the ongoing war between England and France.

The choice of England or France, both predators circling their desired American carcass, reflected the divide between the newly emerging political parties. The Federalists, under Adams and Hamilton, were even more suspicious of human nature and more distrusting of the “people” and democracy than Madison's and Jefferson's Democratic Republicans. The Federalists favored more order and more concentrated power. They wanted that power in the hands of the nation's elite. The Democratic Republicans stood for more liberty and a broader dispersion of political power to the nation's many yeomen and artisans and to the states, or, as one of the Republicans' most ardent critics had it, to the “mobocracy.” Through those ideological screens the Federalists favored England and the Democratic Republicans favored France, and through those screens emerged the development of “clearly recognized Federalist and Democratic Republican points of view on all political questions.”

America's policy of neutrality had upset both the English and the French. England responded by seizing American ships, forcing American sailors into the British navy and refusing to honor a number of terms of the Treaty of Paris, which had officially ended the War of Independence. To resolve these matters, President Washington sent John Jay to England. The result was the Jay Treaty.

The Jay Treaty was, at first, enormously unpopular. Most Americans shared the view that it had not accomplished the nation's primary goals of ending English intrusiveness. Even the Federalists considered it only a means to avoid war with England. The Republicans saw it as betrayal of American liberty. Jay was hung in effigy many times over. Alexander Hamilton, a strong treaty supporter, was stoned by a mob in New York. Even George Washington could not avoid attack.

The Jay Treaty was unpopular with the French as well. They saw it as an American alliance with England. In response, France threatened America with a break in diplomatic relations and then seized American ships. President Adams dispatched a mission to France to reduce the tensions. The French foreign minister, in what became known as the XYZ Affair, demanded a bribe and a loan from America as conditions for commencing negotiations. When that demand was rebuffed, the French refused to meet with the American delegation.

The news of the XYZ Affair roiled Americans, many of whom wanted Adams to declare war. Support of France became anti-American. Everyone was now a Federalist. The Republican Party was left sputtering.

President Adams, now a hero for the first time in his political career, resisted calls from other Federalists for war against France. Americans were not yet ready for war with such a powerful country, the conqueror of much of Europe. Adams adopted the view that, in the words of his son (and future president) John Quincy Adams, “the government can never carry through any war, unless the strong unequivocal and decided voice of the people leads them into it.” Rather, President Adams prepared Americans for a war through a broadly supported military build-up but hoped that he could avoid one.

Thanks to the XYZ Affair, the Federalists had won the ideological war with the Republicans, but this was not enough for their hard-liners, who viewed opposition to their policies as opposition to the Constitution and America. “Jacobins,” they called the Republicans, after the radical French political club that had instituted the Reign of Terror in France in 1793, and they acted to destroy their opposition.

On July 10, 1798, the Federalists passed the Sedition Act, which in effect criminalized criticism of the president and Congress. The target was the press, in particular the nation's many Republican newspapers. The Republican press, wrote one ardent supporter of the Act, “has inspired ignorance with presumption, so that those who cannot be governed by reason are no longer to be awed by authority.” Adams himself complained that the Republican press would go to any length to defame “our government.” Of course, the Federalist press, in the manner of the times, was equally as strident in its assault on Republicans.

The goal of the Act was simple: “to muzzle dissent and browbeat the Republicans into submission.” And it was to be enforced by Federalist prosecutors and judges throughout the country. For the Federalists, “force and coercion rather than reason and argument were to be the ultimate arbiters of political controversy.”

The Act's design was hardly subtle. It was to expire on March 3, 1801, the last day of Adams's first term of office. This would “ensure that the act would not be turned against the Federalists” if they lost the 1800 presidential election. Also, the Republican vice president was excluded from the act's protection. The never-ending criticism of Jefferson in the Federalist press could be continued. And this criticism was lurid. Observed Hamilton about his enemy Jefferson, “To be the proconsul of a despotic Directory over the United States, degraded to the condition of a province, can alone be the criminal, the ignoble aim of so seditious, so prostitute a character.”

On July 14, President Adams took his fateful step. Despite his earlier sentiment that “a free press maintains the Majesty of the People,” he signed the bill. The “most reprehensible act of his Presidency,” according to his otherwise sympathetic biographer David McCullough.

The Sedition Act caused enormous uproar. Only seven years after the ratification of the First Amendment, intended to protect freedom of speech and the press, Congress enacted legislation to prosecute Americans for the expression of their political views. And the statute was enforced. Congressman Matthew Lyon of Vermont and many newspaper publishers were prosecuted or threatened with prosecution. No Federalist was even charged despite the equal malice and misrepresentation from the Federalists.

On the surface, the justification for the Sedition Act was the threat of war. Adams and other Federalists viewed criticism of the government as national weakness and a dangerous invitation to the French to attack. Congressman Harrison Gray Otis of Massachusetts saw the Republicans as “crowd[s] of spies and inflammatory agents” everywhere “fomenting hostilities” and “alienating the affections of our own citizens.” One Federalist newspaper, the
Albany Centinel
, wrote without apparent irony, “It is patriotism to write in favor of our government and sedition to write against it.” For the Federalists, silencing these critics would strengthen the country. But silencing them would also end political debate over the central issue of the time, an outcome frequently attractive to people in power. Noted Madison, “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against dangers real or pretended from abroad.”

But whether or not the French threat was real or imagined, beneath the surface the issue was political power. Confusing or obscuring their self-interest with the national interest, the Federalists, through the Sedition Act, saw the opportunity to maintain their hold on America's governing institutions. “By leveraging a moment of high patriotism, they managed to enact a legislative program designed to cripple, perhaps even destroy, the Republican Party.” In the end, the country would defeat their attempt.

But first the Republicans deepened the constitutional crisis and almost pulled apart the country. The Republicans were in a bind. They could not challenge the Sedition Act by going to court. Jefferson had once expressed to Madison the hope that the Bill of Rights would “put into the hands of the judiciary” a legal check on the acts of the government. But this role of the courts as the independent guardian of the Constitution had not yet evolved. The views of most federal judges corresponded with those of the Federalists who had appointed them. The “entire Federal bench joined in the crusade against ‘Jacobinism.' ”

Yet the Republicans had to counter the Federalists' attack. The course they chose, under Madison's and Jefferson's guidance, was to have the states respond. In an argument that would reverberate strongly through the Civil War (and in weaker notes even today), the Republicans proclaimed that states had the right, indeed the responsibility, to protest and perhaps reject (nullify) congressional acts that they judged unconstitutional.

This was a strange position for Madison, who at the Convention had deplored any meaningful roles for the states in federal governance. But Madison's view of strong national government did not include the authoritarian stance the Federalists, like Hamilton, had added to the original model. He saw the Federalists' conduct as a threat to his most fundamental Constitutional principle. “Information and communication among the people . . . is indispensable to the just exercise of their electoral rights.” In Madison's words arguing for a state's right to effectively nullify a federal statute was a “calculation,” one necessitated by a majority's usurpation of power (that is, ignoring the First Amendment) and the “oppressive exercise on a minority by a majority” of that power. But in this case the calculation would prove wrong.

Two states, Virginia (under Madison's guidance) and Kentucky (under Jefferson's), responded. Both adopted resolutions declaring the Sedition Act unconstitutional under the First Amendment. Virginia's recommended course of action was argument alone. Kentucky wanted more. “That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.”

Both state resolutions caused an enormous uproar. George Washington, historically one of Madison's closest allies, charged that the Virginia resolution would “dissolve the union or produce coercion.” And some Federalists saw the resolutions as close to a call for war.

No other states joined Virginia and Kentucky, but a number of states adopted resolutions condemning them. “No State government,” declared Maryland, has the power “to declare an act of the Federal Government unconstitutional.” That power, according to Vermont, was “exclusively vested in the judiciary courts of the Union.” (A contention that would not be realized until the Supreme Court itself ruled that it had such power in 1803.) The federal government considered indicting the governor of Kentucky for sedition.

The nation was headed for a schism. But then suddenly the crisis was over, not through indictment, nullification, the courts or civil war, but through the most fundamental check on what Jefferson called the “evil propensities of the government.” The voters threw the incumbents out.

The English defeated the French, but, even with the war over, the Federalists kept pushing for more enforcement of the Sedition Act. With their fear reduced, Americans could more calmly view the political landscape, and they judged it ugly. In the election of 1800, the voters overwhelmingly ousted the Federalists from power. Vice President Thomas Jefferson became the third president of the United States, and the Republicans took control of both the House and the Senate. One day before the Republicans took power, the Sedition Act expired.

At one level the Constitution had worked, and the country moved on. But the crisis had revealed a weakness in the system. There was no consensus on an institutional means for judging whether a law or the act of a government official was constitutional.

T
HE
R
ISE OF THE
C
OURTS

For many Americans today, the Republicans' failure to challenge the Sedition Act in the Supreme Court might seem strange. The Court's power of constitutional review has become an accepted part of American governance. But this was not the case from the beginning. No nation then gave their courts the power to overturn laws. And the Constitution did not clearly grant the courts such power.

Article III provides only for a single Supreme Court and such other lesser courts that Congress determines the country needs. These lesser courts now number in the hundreds with each state having federal trial courts (district courts), whose work is reviewed by a far fewer number of appellate courts (courts of appeals). The number of Supreme Court justices was also left for Congress to decide, and that number (nine now) has varied over our history. Article III provides that the power of the Supreme Court shall extend to cases “arising under this Constitution.” But, at the beginning of the Republic, it was unclear whether the framers' had intended this language to allow the Court to declare an act of Congress unconstitutional or had some narrower reach in mind, for example, declaring state legislation that clashed with federal power unconstitutional.