Vail Law: Alien and Sedition Acts of 1798 seem to have regained resonance (column)
June 5, 2018
There was a time in this country when immigrants and other aliens were feared and the press — free speech itself — was suspect.
John Adams was the president, having succeeded George Washington after his second term. The nation was on the cusp of war with France and many in Congress were pushing Adams to issue a declaration commencing the hostilities.
High Federalists, who made up a significant faction of Adams' party but of whom Adams was not a part, used the anti-French fever to push a bill through Congress authorizing a vastly expanded standing army and the revenues to support it. The old warhorse, Washington, was called back into service — at least symbolically — to head the forces.
In the heat of the moment, the rhetoric flew, and, in order to quell domestic criticism, the High Federalists summoned up the forces to enact the Alien and Sedition Acts.
But what, exactly, were they?
Four in number, the Acts were: the Naturalization Act of June 18, 1798; the Alien Act of June 25, 1798; the Alien Enemies Act of July 6, 1798; and Sedition Act of July 14, 1798.
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The first of these — the Naturalization Act — changed the length of required residency to become a citizen from five years to 14. Why? Much like in our own time, the Federalists — the party then in power — presumed that new immigrants would vote for the "progressive" out-party, the Republicans, in the vanguard of which was Vice President Thomas Jefferson. By stretching out the length of time it took to become a citizen — and therefore to be entitled to cast a vote — the Federalists intended (at least in the short run) to keep "aliens" away from the polls and, thus, keep themselves in power.
The Alien Act conferred upon the president the authority to expel from the country any non-naturalized person of foreign birth who he determined was "dangerous to the peace and safety of the United States." By presidential fiat alone, the president could oust any foreign-born non-citizen who he — and he alone — decided was a threat. It is worth noting that due process was not to be afforded nor was the nicety of a trial to be indulged.
Alien Enemies Act
The Alien Enemies Act granted the president, in the event of war, the authority to designate as an alien enemy any citizen or subject of a hostile nation residing in the United States. After making such designation, the Act contemplated the promulgation of regulations whereby persons so designated could be apprehended, restrained or removed.
Again, neither due process nor the opportunity to be heard before the courts was contemplated. It was simply "out with you" on the president's imperious say-so alone.
Then there was the Sedition Act; in its way, the most frightening of all and perhaps the most contrary to fundamental American ideals. What the Act did was to make it a crime to publish, or even utter, "any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, with intent to defame … or to bring them … into contempt or disrepute …" Read this, among other things, as a bald-faced grab to muffle the press and free speech in particular. Dissent would not be suffered.
The Acts were not only a stain on the Adams legacy and a dark moment in American history, but may have redounded against him when he sought his second term. Rather than stay in power, Adams was a one-trick pony and was ousted after one term by the Republican, Jefferson.
While in the heat of the moment, the Acts may have been well-intended, they were poorly conceived, lodging undue power in the Executive, blaspheming the First Amendment and treading on the sacred precept of having proof adduced against you before being deprived of the right to life, liberty or property. This, of course, ran contrary to the Fifth Amendment, which was passed by Congress in 1789 and ratified by the states in 1791 (albeit a few months after the Sedition Act was adopted).
There were failed efforts to repeal the Acts, but ultimately they expired of their own accord.
Food for thought
Why, other that pure historical interest, raise this now? Well, it seems there is a certain resonance with the Acts in our own day and age. At various times over the past year and a half, the president has called for ousting various immigrants, barring immigration from "unfriendly" nations, maneuvered to consolidate power in his own hands and to quell both dissent and the press. Add to that his calls for dampening free speech and … well, you can draw your own conclusions.
Although the nation survived the Alien and Sedition Acts and war with France was averted, as the Spanish philosopher, George Santayana, famously observed, "Those who cannot remember the past are condemned to repeat it."
Food for thought, I suppose, in Happy Valley on a Wednesday morning.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.