The Patriot Act of the 18th Century

By Ishmael Reed

Nations sometimes lose their bearings when confronted by an enemy. In a state of crisis or even panic, they implement measures that are later viewed as regrettable. From 1798 to 1800, the French were considered terrorists, pirating ships and making things uncomfortable for the fledgling American republic. The Federalist Party led a backlash against the French, and Thomas Jefferson and his Republican Party were seen as Francophiles. The XYZ Affair--a scandal centering on the fact that some French officials demanded bribes from American diplomats--brought relations between France and the U.S. to the breaking point. The Federalist Administration of President John Adams considered such solicitations to be grave insults. There were cultural differences as well. In the view of Abigail Adams, Frenchwomen were risque at best.

The reaction to the threat from France came in the form of the Alien and Sedition Acts, which were championed by the Federalists, passed by Congress and signed by Adams in 1798. The Alien Act required immigrants to reside in the U.S. for 14 years instead of 5 to qualify for citizenship. The act also gave the President the legal right to expel those the government considered "dangerous." The Sedition Act punished "false, scandalous and malicious" writings against the government with fines and imprisonment. Most of those arrested under the Sedition Act were Republican editors, and instead of sending boatloads of aliens back to France, it resulted in no one's deportation. In a foreshadowing of the climate that inspired today's USA Patriot Act, at the turn of the century 200 years ago, it was common practice to question the patriotism of citizens, immigrants and the political opposition.

Jefferson, who was Vice President at the time, drafted his position in secret and wrote it into the Kentucky Resolutions of 1798. James Madison, in collaboration with Jefferson, subsequently authored the Virginia Resolutions. In the second and fourth of the Kentucky Resolutions, Jefferson cited the 10th Amendment, which gives the states powers not delegated to the government by the Constitution, to declare the Alien and Sedition Acts unconstitutional. Jefferson feared that a strong central government might put an end to slavery. Jefferson's fight against the Alien and Sedition Acts is often placed in the context of free speech, but it had unintended consequences beyond that. The Kentucky Resolutions were among the first to defend states' rights, and Jefferson had even threatened secession. Similar ideas helped spark the Civil War.

After Jefferson defeated Adams and was elected President in 1800, the Alien and Sedition Acts were allowed to expire. Adams, looking to distance himself from the mess, blamed the whole idea on Alexander Hamilton--who by then had been murdered by Aaron Burr.

The expiration of the acts did not end challenges to the First Amendment or the tendency on the part of some Presidents to behave like monarchs, sometimes with the cooperation of Congress. The Espionage Act of 1917 prohibited "false statements" that might "impede military success." During World War II, FBI Director J. Edgar Hoover and President Franklin Roosevelt wanted to use sedition charges to suppress black newspapers, claiming they undermined the war effort with reports of racial dissension and demands for civil rights. It took Chief Justice Earl Warren's Supreme Court on March 9, 1964, in The New York Times Co. v. Sullivan, to finally declare unconstitutional the Sedition Act of the Adams Administration. Though the act had expired under Jefferson's Administration, the court's action buried that particular threat to free speech once and for all--or so people hoped. Writing for the majority, Justice William Brennan held that L.B. Sullivan, an Alabama official, had not been libeled in a New York Times ad that had been paid for by civil rights proponents. Brennan supported his arguments by citing Jefferson.

Reed, who writes frequently on dissent, is the author of Another Day at the Front