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This chapter focuses on the Alien and Sedition Acts. The present chapter and the previous chapter on the Eleventh Amendment illustrate something generally missed—or misrepresented—about republican constitutional theory in the early republic. The so-called compact theory of the Constitution, the idea that the Constitution represents a compact between the states and the national government, is often presented as having emerged out of the proslavery ideology of the 1830s and viewed in opposition to the (entirely) more reasonable theories of Chief Justice John Marshall. This school of constitutional history places the initial seeds of southern secessionist theory in the naive hands of James Madison and Thomas Jefferson, who embraced the inflammatory language of states' rights and interposition in their Virginia and Kentucky Resolutions. According to this view, compact theory is a post hoc political invention that departs from the original understanding of the Constitution and that arose years after the founding as part of a political effort to displace the Federalist Party in the election of 1800.

In the wake of the 1798 United Irishmen’s uprising and the passing of the Alien and Sedition Acts, American and Irish novelists used the conventions of the Gothic to represent Irish radicals in the United States and in Ireland as uncanny—at once foreign and familiar, homeless and at home. Charles Brockden Brown’s Wieland (1798) and Edgar Huntly (1799) reveal that, in the United States, Irish radicals recalled the nation’s recent revolutionary past even while they were associated with the foreign threats of Jacobinism, Catholicism, and the European Illuminati. Maria Regina Roche’s The Munster Cottage Boy (1820) suggests that in Ireland these radicals manifested a patriotism that Britain had tried to expunge but that reappeared in ghostly, half-hidden forms to remind the Irish of their political and cultural heritage.

The narrow understanding of freedoms of press and speech, adopted by Sir William Blackstone and Lord Chief Justice Mansfield, defined those freedoms as no more than liberty from a government-issued license or other prior restraint, with no liberty from punishment of sentiments once printed or spoken. In doing that, the last volume of Blackstone’s Commentaries in 1769 summarized a narrow common law definition of freedoms of press and speech that did not exist in common law. Mansfield’s decisions introduced a similar definition into the common law for the first time the year after that. Besides describing a new definition as ancient, both Blackstone and Mansfield described the related framework for prosecuting sedition as being ancient and universally accepted, when in fact it was a collection of unique rules adopted and manufactured seventy years before and recently revised. Blackstone and Mansfield were not declaring ancient law but were creating new law.

This chapter analyses Pennsylvanian and American politics in the late 1790s, focusing particularly on the Jay Treaty debates, the Alien and Sedition Acts, the Fries Rebellion, and the Pennsylvania gubernatorial election of 1799 (a key precursor to the Adams–Jefferson election of 1800). In each episode, Pennsylvanians adopted a different set of political practices, all nevertheless predicated on some form of representative action. In all these episodes, Pennsylvanians argued the right of popular political engagement did not end at election time, but instead was a continuous factor that should shape the governmental decision-making process. The outpouring of popular political activism in a variety of forms underscored the importance of a participatory political culture that could be seen to represent the people as a whole.

Annette Gordon-Reed, Carl M. Loeb University Professor at Harvard University, writes about constitutional developments during the Jefferson and Jackson eras. Who were “the People” supposedly included in the Constitution’s soaring opening words? They obviously were not enslaved persons, largely abandoned to the caprices of the laws, courts, practices, and prejudices of Southern states and slaveholders. Nor were they Native Americans, soon to be forcibly “removed” from their ancestral homes. Nor were they women, whose “rights” depended on their fathers and husbands. Nor, as time passed, would free Blacks enjoy the privileges of citizenship. The primary source documents accompanying Chapter 3 focus pointedly on slavery-related constitutional controversies at both the national and state levels, the plight of Native Americans during the nation’s first half century, the intense partisan fights that emerged in the late 1790s over the Alien and Sedition Acts, and Tocqueville’s conception of “democracy in America.”

The United States and the United Kingdom have rich histories of panic and overreaching responses to events that appear to threaten national security. Both countries have a habit of giving the executive non-reviewable extrajudicial discretion to address perceived emergencies. Historical US examples are the Alien and Sedition Acts (1798), the Palmer Raids (1919-1920), Japanese-American World War II internments, and the Alien Registration Act of 1940(Smith Act). The UK revived executive detentions in 1915 with Regulation 14b of the Defence of the Realm Act 1914, Regulation18B of the Emergency Powers Act 1939, and the Prevention of Terrorism Act 1974. Post 9/11, the US implemented the USA PATRIOT Act and the UK implemented the Anti-Terrorism Crime and Security Act 2001. Typically these responses involve preventive detention, focus on aliens, guilt by association, and use of administrative rather than criminal procedures. This chapter discusses the emergency legislation and historical court decisions including Korematzu v United States and Liversidge v Anderson.

Spain refused Clark’s offer because they already had a Kentucky liaison, and in working with General James Wilkinson, they got a spy in the bargain. Wilkinson (Agent 13 to the Spanish), rose in military ranks through the Washington, Adams, and Jefferson administrations, although each president knew of his treason. After arriving in Kentucky with gubernatorial aspirations, Wilkinson provided Spain with suggested names of prominent Kentuckians who might accept bribes in exchange for supporting a Spanish affiliation over that of the United States. Clark’s name was not among them. With the help of his radical brother-in-law, Clark instead became a French general in command of a western army recruited to overthrow Spanish claims to Louisiana in favor of France. His French affiliation led in part to the declaration of the Neutrality Act and eventually to John Adams’s call for his arrest in Philadelphia. Clark concluded 1798 in St. Louis, estranged from the nation he helped create.

President George Washington established many enduring constitutional precedents as he guided the establishment and early operation of the executive branch. These precedents included a mostly unitary structure of the executive branch. Washington shaped the office of attorney general to provide him sympathetic legal advice. With the Neutrality Proclamation, he asserted control of foreign policy within the limits of existing treaties and statutes. He interpreted treaties, entered executive agreements, and established executive power to recognize foreign nations. He did not use the Senate to advise in advance to treaties, but took its advice for nominations. He began the practice of asserting executive privilege against congressional demands for documents. His establishment of the two-term limit held for many years. President John Adams conducted a limited war with France and sponsored the oppressive Alien and Sedition Acts. He also nominated John Marshall for chief justice, extending his constitutional legacy.

As the Constitution was drafted and ratified, many antifederalists expressly feared and opposed the narrow Blackstone-Mansfield definition and approach to freedoms of press and speech, and federalists responding to them gave repeated assurances that the federal government had no power touching press and speech. That was true in both the newspaper debates and the constitutional ratification debates. As the Bill of Rights was adopted and ratified, the preponderance of people discussing seditious libel and seditious words in essays and in legislative settings saw a need for protecting press and speech from being prosecuted as seditious, and understood that an amendment securing freedoms of press and speech would do just that. Both the Senate and the House rejected proposed amendments that would have restricted the expansive words of the First Amendment by the common law of seditious libel. From all viewpoints, there was strong support for the broad language of the First Amendment.

This chapter covers Pickens’s service in the state general assembly between 1798 and 1800, when Pickens’s fellow legislators relied on his advice as the state and the nation prepared for a possible war with France. The chapter also covers his service on another treaty commission under the Jefferson Administration in 1801 and 1802 that concluded treaties with the Chickasaws, Choctaws, and Creeks. It suggests that Pickens was disgusted with the way the Creeks were treated at the Treaty of Fort Wilkinson in 1802.