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Care About Civil Liberties this Election? You're in Trouble

by William J. Watkins, Jr.

Mr. Watkins is Research fellow at the Independent Institute in Oakland, Calif., and the author of the new book, RECLAIMING THE AMERICAN REVOLUTION: THE KENTUCKY AND VIRGINIA RESOLUTIONS AND THEIR LEGACY (Palgrave MacMillan).

In this election year, there are significant parallels between the USA Patriot Act of 2001 and the Alien and Sedition Acts of 1798. Enacted in the aftermath of the September 11th attacks, the Patriot Act has augmented the power of federal authorities to pry into the affairs of innocent Americans. In the summer of 1798, the United States Congress passed and President John Adams signed similar legislation. At base, the Alien and Sedition Acts prohibited criticism of the federal government and gave President Adams the power to deport any alien he viewed as suspicious. Americans found guilty of sedition faced prison terms of up to five years and hefty fines. In certain circumstances, aliens remaining in the United States could be imprisoned “so long as, in the opinion of the President, the public safety may require.”

This legislation made a mockery of the First Amendment and deprived aliens of basic due process of law. The Alien and Sedition Acts were the federal government’s first direct assault on American civil liberties. From this assault and the response, we can learn lessons relevant to our own time.

As is often the case with illiberal legislation, the Acts were a product of temporary Strum und Drang. In the 1790s, a number of Americans feared the democratic excesses of the French Revolution would be exported to the United States. They believed that French agents were plotting the destruction of the Constitution and the overthrow of the Adams administration. Rumors abounded in Philadelphia that Thomas Jefferson and James Madison planned to assist a French invasion force that was sailing across the Atlantic. Some expected a guillotine would be set up to deal with patriotic Americans. In this environment, Adams and the Federalists pushed for legislation that would secure the home front in the face of invasion and that would also, they hoped, secure Federalist political hegemony.

Fearing revolutionary France, many Americans at first supported the Alien and Sedition Acts. In Thomas Jefferson’s words, the people were “made for a moment to be willing instruments in forging chains for themselves.” But the Federalists' attacks on civil liberties were soon met with opposition. Local meetings were held throughout the union and the people affixed their signatures to sundry petitions. These public meetings were well attended and sparked much interest. In Lexington, Kentucky, for example, a meeting scheduled at a local church to consider the Acts had to be moved to the town square because 5,000 citizens -- twice Lexington’s population -- assembled.

To combat the Acts, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions. In these Resolutions, Madison and Jefferson accused Congress of exceeding its powers and declared the Alien and Sedition Acts void. Times were so tense that Madison and Jefferson hid their authorship because they feared prosecutions under the dreaded Sedition Act. The Acts were seen as such a danger to liberty that there was also some discussion of resisting the measures by force and secession.

Fortunately, drastic measures were not needed because the people had a very powerful weapon at their disposal: the ballot box. In addition, Jefferson and the Republican Party posed quite a contrast to Adams and the Federalist Party. In the so-called “Revolution of 1800," the Republicans won a 24-seat majority in the House of Representatives and Jefferson was elected to the presidency. Upon taking office, Jefferson suspended all pending prosecutions under the Sedition Act and pardoned those convicted under the unconstitutional Act. Jefferson would later boast how this revolution was brought about not by the sword, “but by the rational and peaceable instrument of reform, the suffrage of the people.”

Under today’s Patriot Act, government investigators can more easily eavesdrop on Internet activity, FBI agents are charged with gathering domestic intelligence, Treasury Department officials are charged with creating a financial intelligence-gathering system for use by the CIA, and the CIA, banished from the field of domestic intelligence because of abuses in the Vietnam era, is permitted to resume domestic operations. Separate from the Patriot Act, the Bush administration unsuccessfully argued to the Supreme Court that it could detain American citizens and foreign nationals on U.S. soil indefinitely and without access to legal counsel -- all when the writ of habeas corpus has not even been suspended. Even John Adams only claimed such a power over aliens, not citizens.

Civil libertarians have been very critical of the Patriot Act, believing that the balance between liberty and power has tipped too far toward the latter. But, with an election around the corner, the American people can have the final say on this question. Well, not quite.

Unlike 1800, the people are given no meaningful choice. Senator John Kerry, the president’s only real challenger, voted in favor of the Patriot Act and authored some of its provisions. According to the Kerry campaign, the problem is not with the Patriot Act itself, but with those enforcing it, i.e., Attorney General John Ashcroft. His message for Americans is to keep the powers in place and to trust him with these powers that he admits have been abused.

The ballot box is a powerful weapon in the people’s hands when they have real choices. With the franchise the people can defend their liberties and reform the government. To paraphrase Jefferson, they can effect a bloodless revolution. However, when both parties offer the people candidates with indistinguishable views on issues relating to fundamental liberties, the franchise is an impotent weapon. And if democracy so falters, the people are left with few attractive options in defense of their freedoms.