Credit: Courtesy of American Memory at the Library of Congress.
As the end of the 18th century drew near, relations between the United States and France were deteriorating. President John Adams wanted to preserve American neutrality in conflicts between Britain and France. He sent a minister to France who was not received. President Adams then addressed a joint session of Congress on May 16, 1797, expressing his concern about the possibility of war with France and dissension at home caused by France and its supporters. In October, three commissioners appointed by Adams arrived in Paris in hopes of "restoring mutual confidence" between the countries. French Prime Minister Talleyrand's agents—known only as X, Y, and Z, and assumed to be acting on Talleyrand's orders—refused to receive the diplomats. They demanded a bribe, presumably for Talleyrand himself, and a large loan for France. The American people were incensed. War with France seemed inevitable; in fact, the U.S. is often described as being in an undeclared war with France following the XYZ affair.
At the same time, two opposing political parties were developing in the U.S. Tending to sympathize with France in foreign policy were the Thomas Jefferson-led Democratic-Republicans. Their loyalty was called into question by the Federalists, who dominated Congress during Adams's administration. It was a dangerous time both for the security of the young Republic and the freedoms its citizens enjoyed.
The Federalists clashed frequently with Democratic-Republicans who disagreed sharply with what they regarded as a philosophy of "huge public debt, a standing army, high taxes, and government-subsidized monopolies" (The Birth of Political Parties, Gilder Lehrman Institute of American History, a link from the EDSITEment-reviewed website History Matters). Could the Federalists, the party in control, wield the power necessary to protect America against those who opposed it without wielding that power against those who opposed them?
The Sedition Act touched off a lively debate about the right of free speech. It also presented an early test case to the citizens and government of the United States. In times of war or imminent danger, how do you balance the need for security with the rights of individuals? How can partisan politics affect the process of shaping security policies?
After completing the lessons in this unit, students will be able to:
Supporters of Thomas Jefferson and James Madison believed the Sedition Act was designed to repress political opposition to President John Adams and the Federalists. Because the Democratic-Republicans were in the minority in Congress, they were unable to stop passage of the bill. Jefferson did not believe the Constitution gave the Judiciary power to declare unconstitutional a law passed by Congress, so Jefferson and Madison resorted to another tactic.
Share with the class Jefferson's September 1804 letter to Mrs. John Adams, describing his understanding of checks and balances in the Republic while reflecting on the expired Sedition Act. (NOTE: The date of this letter is worth noting. It was written a year or so after Marshall asserted the power of judicial review in Marbury v. Madison, a decision that Jefferson had found objectionable for a variety of reasons. While his beliefs may have been the same before and after the decision, the timing should at least be taken into account.)
You seem to think it devolved on the judges to decide on the validity of the Sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch. Nor does the opinion of the unconstitutionality, and consequent nullity of that law, remove all restraint from the overwhelming torrent of slander, which is confounding all vice and virtue, all truth and falsehood, in the United States. The power to do that is fully possessed by the several State Legislatures. It was reserved to them, and was denied to the General Government, by the Constitution, according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so.
—From Jefferson on the Sedition Law: Page 795 and Jefferson on the Sedition Law: Page 796 on the Electronic Text Center of the University of Virginia, a link from the EDSITEment-reviewed website Internet Public Library
Jefferson believed there was a horizontal set of checks and balances, with the three branches checking each other, though only "in their own sphere of action." The Judiciary could overrule a lower court on a case. It could not, in his opinion, rule on acts of the Legislature or Executive. The Executive could refuse to implement a law it believed to be unconstitutional. Jefferson also believed there was a vertical set of checks and balances. States are bound by the Constitution as well, but a state could refuse to comply with a Federal law it considered unconstitutional. All powers not expressly granted to the Federal government were reserved for the states; states could enact their own laws about matters over which the Federal government has no jurisdiction. Jefferson did not necessarily object to regulation of speech in principle.
If desired, as an extension to this activity, share these additional quotes from Jefferson about judicial review from Thomas Jefferson on Politics & Government, an exhibit of the Electronic Text Center at the University of Virginia Library, a link from the EDSITEment resource Internet Public Library:
The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches. —Thomas Jefferson to W. H. Torrance, 1815
But the Chief Justice says, "There must be an ultimate arbiter somewhere." True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force. —Thomas Jefferson to William Johnson, 1823
But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best. —Thomas Jefferson to John Cartwright, 1824
If desired, take the opportunity to briefly review the content of the Sedition Act and the Alien Act. According to the seventh edition of The Encyclopedia of American History (Morris and Morris, Harper Collins, 1996):
Several of the leading Republican publicists were European refugees. The threat of war with France sharpened hostility to aliens and gave Federalists an opportunity to impose severe restrictions…
25 June (1798) The Alien Act authorized the president to order out of the U.S. all aliens regarded as dangerous to the public peace and safety, or suspected of "treasonable or secret" inclinations. It expired in 1800…
14 July. Sedition Act made it a high misdemeanor, punishable by fine and imprisonment, for citizens or aliens to enter into unlawful combinations opposing execution of the national laws; to prevent a federal officer from performing his duties; and to aid or attempt "any insurrection, riot, unlawful assembly, or combination." A fine of not more than $2,000 and imprisonment not exceeding 2 years were provided for persons convicted of publishing "any false, scandalous and malicious writing" bringing into disrepute the U.S. government, Congress, or the president; in force until 3 March 1801.
The Sedition Act was aimed at repressing political opposition …
Republicans attached the Alien and Sedition Acts as unnecessary, despotic, and unconstitutional.
Distribute one Jefferson quote to each of five student groups from the handout "Thomas Jefferson on the Alien and Sedition Acts" on pages 15–16 of the Master PDF. Have each group of students describe their excerpt to the class, answering the following questions in their description:
Jefferson and Madison decided that action against the Sedition Act (and the Alien Act) had to be taken at the state level. Share with the class this excerpt from the Thomas Jefferson Timeline on the EDSITEment-reviewed website American Memory:
September-October. Jefferson and James Madison consult on how to block the Alien and Sedition Acts at the state level. Jefferson, who is still vice president, privately drafts resolutions against the Acts and has them introduced into the Kentucky legislature. Madison drafts similar resolutions for the Virginia legislature. In November the Kentucky legislature passes Jefferson's resolutions declaring the Acts void, and in December the Virginia legislature passes Madison's, declaring the Acts unconstitutional.
Now share with the class the annotated "Excerpts from the Virginia and Kentucky Resolutions" on pages 17–18 of the Master PDF. Complete texts of the Kentucky and Virginia Resolutions are available on the EDSITEment resource The Avalon Project. Compare the two resolutions. Students interested in Madison's complete explanation of the Virginia Resolutions can read Madison's Report on the Virginia Resolutions on James Madison: His Legacy, a link from the EDSITEment-reviewed website The American President. For more on the Kentucky and Virginia Resolutions, consult the Library of Congress's exhibit Jeffersonians Claim Extreme Rights for States, a link from the EDSITEment resource American Memory.
Assign students a short position paper (2–3 pages) in which they become partisans and are asked to justify their support for either the Federalists or the Jeffersonian Republicans. Students should begin their essays with clear statements of their party affiliations. Avoiding hindsight, they should defend their choices using both practical and constitutional arguments, and they should challenge their opposition using the same criteria.
1-2 class periods