The Alien and Sedition Acts and the Kentucky and Virginia resolutions, taken together, show bad policy engendering a cure worse than the disease. The immediate effect was nil, or next to nil. The longer term consequences included civil war. That isn’t what anyone had in mind in 1798, but men like Washington could see it coming. What’s odd is that men like Jefferson did not.
President John Adams signed the Alien and Sedition Acts into law in 1798, and so he got the blame for them, but – as with most of the mistaken policies pursued during his term of office – they originated with the high Federalists in Congress and in the Cabinet he inherited from Washington (and mistakenly kept). As usual with bad policy measures, they stemmed from fear.
The French Revolution broke out at the commencement of Washington’s first term, and by his second term progressed to war between France and England. Washington worked hard to keep his small country out of a war that could only bring harm, but, in Adams’ term, as we shall see, France and the United States had drifted into a state of quasi-war.
But the Alien and Sedition Acts stemmed less from fear of the French than from fear of French sympathizers. The bills were the product of the first variant of what would later become “red scares”: American citizens, seduced by a foreign ideology, were no longer to be trusted! Indeed, they were to be feared! The government would have to do something!
What it did was to pass four laws attacking the presumed danger on two fronts. First, aliens. The time required for naturalization should be changed from five years to 14, because clearly five years was too little time to turn them into trustworthy citizens (i.e. the kind who wouldn’t vote for Jefferson’s party). And the president must be given the right to imprison or deport any aliens dangerous to the country’s “peace and safety”– and guess who would get to define whether a given alien was dangerous?
Second, Americans. The times were too dangerous for free speech: Anyone criticizing the government or its officers could be fined and imprisoned. In other words, censorship.
And this was not an idle threat. A few examples: A newspaper editor was arrested in 1798 under the Sedition Act for having accused Washington of incompetence and financial irregularities, and Adams of nepotism and monarchical ambition. (He died of yellow fever while awaiting trial.) An English immigrant and printer who reprinted a claim that the federal government had employed Tories was found guilty of seditious libel and sentenced to a two-month imprisonment and a $200 fine. A congressman was indicted for writing an essay accusing the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. He was fined $1,000 and sentenced to four months in jail.
The acts were denounced by Democratic-Republicans, figured prominently in the elections of 1798 and 1800, and ultimately helped defeat Adams in his bid for re-election. But that’s not all they did. They led to the Kentucky and Virginia Resolutions, authored secretly by Thomas Jefferson and James Madison, which eventually produced huge calamitous consequences.
In the Kentucky Resolutions, Jefferson advocated nullification, and even drafted a threat for Kentucky to secede. Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” The theoretical damage of the Kentucky and Virginia resolutions was a recipe for disunion.
The resolutions argued that the states had the right and the duty to judge the constitutionality of federal measures, and to declare unconstitutional measures null and void. The Virginia Resolutions of 1798 say that the states have a right to “interpose” to prevent harm caused by unconstitutional laws. The Kentucky Resolution of 1799 advocated nullification. In both cases, the resolutions argued that the Constitution was a “compact” or agreement among the states, and therefore, the federal government had no right to exercise powers not specifically delegated to it, and if it did so, its acts could be declared unconstitutional by the states.
Thus, if the Compact theory were accepted, states could decide the constitutionality of laws passed by Congress. Could the mind of man have created a more perfect recipe for chaos?
The Compact theory said that the nation was formed through an agreement among the states, and that therefore the federal government is a creation of the states, and therefore states should be the final arbiters of the federal government’s authority to act in any given case. But the fact is, the government that was formed by a compact among the states was the government framed under the Articles of Confederation. The Constitution was written precisely in order to overcome the inherent weaknesses of that kind of government.
The Constitution says “we the people of the United States,” not “we the people of the various states.” It formed a government directly responsible to the people, with divided powers and a distribution of powers between the general government and the several State governments. The states as such are not parties to the Constitution. The states ratified the new form of government; they did not create it.
And this is how it was seen at the time. The resolutions were submitted to the other states for approval, with these results: Seven states rejected them, three passed resolutions expressing disapproval, and four took no action. At least six states took the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures.
Washington told Patrick Henry that if “systematically and pertinaciously pursued”, the resolutions would “dissolve the union or produce coercion,” which, long after his death, is exactly what happened. As we have seen, in the years before the Civil War, the compact theory was used by southern states to argue that they had a right to nullify federal law, and in 1861, they used it to justify secession.
Hamilton, of course, had a solution – send the army into Virginia on some “obvious pretext” and “put Virginia to the Test of resistance.” Fortunately, Adams had far too much sense to listen to that hare-brained idea. But it would have been better if he had vetoed the equally hare-brained Alien and Sedition Acts, and avoided setting into motion so many dangerous ideas.