When confronted with the passage of the Alien and Sedition Acts on July 14, 1798, which Thomas Jefferson and James Madison viewed as an untrammeled attack on the fundamental rights of freedom of speech and freedom of the press, as well as the republican system itself, they turned to familiar constitutional guardrails Americans fierce defense of their rights, public opinion and the powers of individual states to preserve our foundational liberties.
The Federalists hysteria about supposed French influence in American politics led to prosecution under the terms of the Sedition Act, despite First Amendment guarantees ratified just seven years earlier, for criticism bringing either Congress or the President (John Adams) into contempt or disrepute. Federalist prosecutors took dead aim at newspapers editors of the Republican press sympathetic to Vice-President Jefferson and various public officials, including Rep. Matthew Lyon of Vermont. Lyon and others were sentenced by federal courts to nine months in prison. Vermont voters, however, were not deterred by Lyons conviction and re-elected him to the House of Representatives, while he was in prison.
Jefferson, who characterized the Federalists tenure as the reign of witches, met with Madison in Virginia to discuss responses and remedies to the repressive measures. Jefferson believed that with a little patience, and the spells dissolved, that the people would recover their true sight and restore their government to its true principles. They believed that it was necessary to let the Federalist hysteria run to the point of arousing popular disgust, but that both the people and the Republican press needed a rallying point, perhaps a statement of principles that could focus the publics sentiment against the administration.
In terms reflective of opposition strategies that resonate across time, Madison and Jefferson agreed that public opinion could be spiked through use of state legislatures, which they believed could be the most effective organs of protest. In their own time, from the run-up to the American Revolution and the Declaration of Independence, the use of assemblies to issue protests and resolutions, were a common place. In retirement, after serving as vice-president and president, Jefferson continued to believe in the strength and vitality of states as defenders of rights and liberties.
In 1811, Jefferson wrote to a European philosopher that the true barriers of our liberty in this country are our State governments; and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed. Seventeen distinct States can never be so fascinated by the arts of one man, as to submit voluntarily to his usurpation. Nor can they be constrained to it by any force he can possess.
While American history does not reveal the wholesome record that matches Jeffersons idealism about the virtues of states, his point is crucial: states have the potential and power to thwart federal repression of our civil liberties, human rights and a host of actions that offend our constitutional democracy, including executive usurpation of power. Madison and Hamilton shared Jeffersons recognition of the capacity of states to preserve our Constitution.
Writing 10 years earlier, Madison declared in 1788 that even in the absence of specific constitutional guarantees of the rights of individuals, these were secured by the limited powers of the federal government and the jealousy of the subordinate governments. He said that state legislatures were sure guarantees of the peoples liberty, and urged the right of states to interpose their opposition to unconstitutional federal measures. Alexander Hamilton, in Federalist Papers 26 and 28, had asserted similar, and even stronger statements. It may be safely received as an axiom of our political system that the State governments will, in all possible contingencies, afford complete security against the invasions of public liberty by the national authority. He emphasized that states can communicate with other states and unite for the protection of their common liberty. This united front suggested possible courses of action in the face of federal menace.
Hamilton wrote, perhaps prophetically: The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national government, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the voice, but if necessary the ARM of discontent.
David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.
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