The Alien and Sedition acts, passed in 1798, are said to have been an attempt by the Federalist Party to suppress opposition.

In Chapter 74 Section 2, the law seems to put restrictions on freedom of speech, which violates the first amendment. How did a bill that violates the constitution manage to pass Congress, the president, and (although judicial review had not yet been established) the Supreme Court?

  • Excellent question; everyone wonders about that, and we all have to make a separate peace with the notion that the Nation could so quickly and knowingly violate the new Constitution. – MCW Apr 17 '15 at 18:47
  • Many laws, even constitutional ammendments, violate the constitution. Presidents and congress have been chipping away at the constitution since the day it took effect... – jwenting May 10 '15 at 4:47

Fairly simply, the Federalists had a majority in both houses of Congress at the time, and held the Presidency. So they had the power to do it.

They were suffering withering attacks from Jefferson and Madison's newly organized Democratic-Republican Party, which had just run its first presidential campaign in the previous cycle, and had developed its own network of newspapers pumping out anti-administration editorials. So the Fedralists would have felt a bit besieged, which gives you part of their motivation. Fear has a nasty habit of making good people abandon their principles.

The other part was that there was at the time an undeclared naval war with France, called the Quasi-War. At the time many seriously argued that Republics were incapable of effectively waging war. The new Constitution had some provisions for this, but the whole thing was as yet untested. So a series of wartime acts with a time limit, to allow the government to operate with less political friction while hostilities were ongoing, probably seemed like a good idea to many*. Particularly so for those of the same party as the government in question.

And finally, immigrants and the press were tending to side with the Democrat-Republicans. Thus attacking their rights was a good way of hamstringing the D-R's. At the time it was thought the Acts were in particular aimed at House Minority Leader Albert Gallatin (whose native language was French), and Benjamin Franklin Bache (head of the most prominent D-R newspaper, and grandson of Benjamin Franklin).

As for the Supreme Court, there was in fact a longstanding principle of Judicial Review in both English Law and in the various states. So even though SCOTUS had never yet invoked it, they could have if they'd wanted to. However, the entire court had been appointed by Federalists as well, so from a political standpoint there would have been no motivation to do so. The first SCOTUS strike-down of a law had to wait until these Federalist judges came up against a Democratic-Republican Congress.

* - Sound familiar?


To us, the Sedition Act may seem unthinkably contrary to American values. It did not seem this way to Federalists, so it should be no surprise that the Federalist majorities supported these bills. In fact, the Sedition Act seemed to many to be a liberal law:

Ironically, the Sedition Act was actually a liberalization of the common law of seditious libel that continued to run in the state courts. Under the new federal statute . . . the truth of what was said or published could be admitted as a defense, and juries could decide not only the facts of the case (did so-and-so publish this particular piece?) but the law as well . . . Neither truth as a defense nor juries' deciding the law was allowed under American common law. Indeed, some Federalists believed that the national government did not even need a statute to punish seditious libel (p. 260)

Also, the Sedition Act was mild compared to British law (the most reasonable comparison):

Compared to the harsh punishments Britain had meted out in its sedition trials of 1793-1794--individuals transported to Australia for fourteen years for expressing the slightest misgivings about the war with France--the American punishments for seditious libel were tame (p. 259)

Both Federalists and Republicans were very aware of the novelty of the American experiment, and both feared that history taught that republics often collapsed into tyranny. The major ideological battles of the day were over what conditions could best preserve republican government. The Federalists believed in a hierarchical, ordered society led by a natural elite; they saw the Alien and Sedition acts as propping up that ordered society. The Republicans saw the acts as destroying liberty. In the end, the Republicans won, and they established the basic political philosophical framework within which all subsequent political debates would occur.

Source: Gordon Wood, Empire of Liberty: A History of the Early Republic


The important thing to know is that the passage of the Alien and Sedition Acts represented the "high water mark" of the Federalist Party. Put another way, it rose and fell with these two acts.

The Federalists had always controlled the Senate, and the 1794 Congressional elections gave them control of the House of Representatives. Finally, in 1796, John Adams beat Thomas Jefferson for the Presidency by three electoral votes, with Adams getting the five New England States, New York, New Jersey, Maryland and Delaware, and Jefferson getting six southern states plus Pennsylvania.

The Federalists represented the business and banking interests of the Northeast United States, in the manner of Alexander Hamilton, while Jefferson represented the southern, agrarian interests. The Federalists justified the passage of the Acts through Hamilton's doctrine of "implied powers" of the Constitution. Lastly, the Federalists had benefited from foreign developments; the French Revolution and a near-war with France in 1797 strengthened the hands of the pro-British, pro central government, Federalist against the pro-French, "states rights" Jeffersonians.

The "countervailing" coalition of southern agrarians and northern immigrants defeated Adams and the Federalists in 1800; New York state "switched sides" and gave its electoral votes to Jefferson (and Aaron Burr), meaning that Jefferson and Burr each had eight more electoral votes than Adams. After being named President by Congress, Jefferson let most of the Alien and Sedition Acts "sunset" in 1801, and pardoned most people (his allies) that had been fined or imprisoned under them.

As to why the Supreme Court didn't do anything, it was not a full "third branch" of government at the time of the Alien and Sedition Acts; in fact, not until the principle of judicial review was established by Marbury v. Madison in 1805. Recent Supreme Court decisions on free speech suggest that the Alien and Sedition Acts would have been found unconstitutional by a fully empowered Supreme Court.

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