Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) by Kevin R. C. Gutzman
Authors: Kevin R. C. Gutzman
Ads: Link
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.
The Federalists' secret weapon:
Judges
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.
Jefferson and Madison argue for states' rights
Virginia Republican leaders, meanwhile, met at Monticello and decided
that Virginia and Kentucky, two Republican-controlled states, would adopt resolutions in their state legislatures spelling out their objections
to the Alien and Sedition Acts.
Kentucky's Resolutions of 1798, drafted secretly by Jefferson to avoid
prosecution under the Sedition Act, argued for state-centered constitutionalism. The Constitution had been ratified-and thus the federal government had been
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.
The Federalists' secret weapon:
Judges
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.
Jefferson and Madison argue for states' rights
Virginia Republican leaders, meanwhile, met at Monticello and decided
that Virginia and Kentucky, two Republican-controlled states, would adopt resolutions in their state legislatures spelling out their objections
to the Alien and Sedition Acts.
Kentucky's Resolutions of 1798, drafted secretly by Jefferson to avoid
prosecution under the Sedition Act, argued for state-centered constitutionalism. The Constitution had been ratified-and thus the federal government had been
Similar Books
