From June 18 to July 14, 1798, the Federalist Party in Congress passed four acts regulating the press and controlling the activities of aliens, collectively known as the Alien and Sedition Acts. These were the Naturalization Act, the Alien Act, the Alien Enemies Act, and the Sedition Act. Because of the scandalous treatment of U.S. ministers in France, dubbed the XYZ affair, anti-French sentiment reached a level not seen since the French and Indian War (1756–63), and military conflict with the United States’ former ally of the Revolution now seemed likely. With these new laws, Federalists would have the power to deport immigrants who were too prominent in Republican causes and prosecute Republican newspaper editors for seditious libel.
President John Adams, Jefferson’s onetime compatriot and friend in the War for Independence, was disturbed by the radicalism of revolutionary France and concurred with the Gazette of the United States that “[s]urely we need a sedition law to keep our own rogues from cutting our throats, and an alien law to prevent the invasion by a host of foreign rogues to assist them.” But to Republicans like Jefferson and Madison, the sedition laws were a flagrant violation of the First Amendment’s prohibition of any congressional law “abridging the freedom of speech, or of the press.” More troubling still, the acts appeared to undermine the Federalists’ own original argument that a popular government was a government of delegated powers only. Now Federalists asserted by implication “legislative supremacy” to enact any law deemed necessary to the public safety: “The Government is bound not to deceive the people, and it is equally bound not to suffer them to be deceived. Delusion leads to insurrection and rebellion, which it is the duty of the Government to prevent. This they cannot prevent unless they have a power to punish those who with wicked designs attempt to mislead the people.” The Republican response was to invoke the countervailing force of the states, an early test of American federalism.
Congressman Madison and Vice President Jefferson worked in secret to prompt the states to assert responsibility to uphold the Constitution and awaken a popular response to the acts. Secrecy was essential because both men could have been charged under the very acts they were opposing. It was also critical that their actions be recognized as the official statements of state legislatures. It would be far more difficult to prosecute the states of Virginia and Kentucky than particular government officials. Madison prepared the Virginia Resolution while Jefferson worked on Kentucky’s protest. Both statements argued in favor of the mediating role of states in the partly federal structure of the union, and reminded Congress that powers not delegated to it were reserved to the states. The Kentucky Resolution was the most radical, actually negating the acts, or declaring them to be “unauthoritative, void, and of no force.” The general government was explicitly denied the power to legislate on freedom of speech, press, or religion. Such matters were explicitly left to the states “to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged.”
The resolutions incurred their own strong opposition, and it appears that popularly, people were just as much troubled by the prospects of disunion as they were of oppression by the general government. The Federalists were able to rescue the alien and sedition laws from two nearly successful Republican campaigns to repeal them. In the end, however, the controversial laws were simply allowed to expire after Jefferson’s assumption of the presidency in 1800.
Though some historians consider the acts to have been relatively mild, especially by comparison with later wartime measures (only ten convictions were brought under the Sedition Act and only one deportation under the Alien Act), these laws marked the first time the federal government attempted to craft and implement legislation for managing a national security emergency. As such, the acts raised fundamental questions about the nature of the U.S. Constitution and the role of the states in defending the rights and liberties of their inhabitants. The political and popular reaction was owing to their innovation and obvious tension with the First Amendment to the Constitution.
Ultimately, the acts did not serve Federalist ambitions very well. Rather than quelling debate, the Republican papers were emboldened to make harsher attacks on Federalists. Popular opinion eventually tipped just enough to ensure a Republican Congress and Jefferson’s election to the presidency.
Lance Banning, The Sacred Fire of Liberty (Ithaca, NY: Cornell University Press, 1995), 387–95; Bruce Frohnen, ed., The American Republic: Primary Sources (Indianapolis: Liberty Fund, 2002); David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994); John C. Miller, Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown and Company, 1952); and James Morton Smith, Freedom’s Fetters (Ithaca, NY: Cornell University Press, 1966).