Above: John Adams, President of the United States from 1797 to 1801
Image in the Public Domain
The administration is not the nation-state. This is a simple fact that political dissidents keep having to repeat, even in my native land, the United States of America. To oppose the presidential administration is not to be disloyal. The Constitution of the United States even builds debate and dissent into the political system, complete with contested elections.
The failure to acknowledge the fact that the administration is not the nation-state during the Quasi-War with France during the administration of President John Adams (1797-1801) contributed to the abomination that was the Sedition Act of 1798.
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction, before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years; and further, at the discretion of the court may be ho]den to find sureties for his good behaviour in such sum, and for such time, as the said court may direct.
SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing 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, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
SEC. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in Republication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.
SEC. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, that the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.
APPROVED, July 14, 1798.
Source = The Avalon Project, Yale University
Adjusting dollar amounts for inflation is crucial. Know then, O reader, that $2000 (1798) is $39,800 (2015) and that $5000 (1798) is $99,400, according to MeasuringWorth.com.
It was a partisan law applied to opposition newspaper editors and Representative Matthew Lyon of Vermont. One might also notice that the law permitted (by omission) all manner of negative press and speech regarding the Vice President, who was Thomas Jefferson, a leader of the opposition party. Newspaper editors went to prison, newspapers closed, and Lyon became a federal inmate. Lyon was hardly the most polite of Congressmen, but all that he had uttered and published negatively regarding the Adams Administration fell within the bounds of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Federalists who supported the Sedition Act of 1798 mistook partisanship for treason and trampled upon the First Amendment. Lyon had argued in a letter to Spooner’s Vermont Journal that the allegedly power-hungry president had “swallowed up” “every consideration of public welfare.” He had written this letter prior to July 14, 1798, so the legal principle of ex post facto protected him prior to the date that Adams signed the Sedition Act into law. After the law had gone into effect, however, Lyon repeated those charges repeatedly and added more criticisms of Adams and the Federalist majorities in Congress (such as that Adams fostered “ridiculous pomp, foolish adulation, and selfish avarice” and Congress should send the President to a mad house). The federal indictment (October 5, 1798) accused Lyon of having “malicious intent to bring the President and the government of the United States into contempt.” The verdict was guilty. Lyon went on to win reelection from his prison cell.
Alas, Jefferson was not a paragon of virtue with regard to freedom of the press. Although he, as Vice President, opposed the Sedition Act of 1798, which expired in 1801, he encouraged partisans to use similar state laws against Federalist critics of himself and of his administration. There was, for example, People v. Croswell (1804), which targeted Harry Croswell (1778-1858), editor of The Wasp, a Federalist newspaper in Hudson, New York. Croswell was openly critical of President Jefferson. Croswell lost that case, in which the prosecution convicted him of having committed both libel and sedition. The editor kept losing libel lawsuits. In 1814 he left journalism for the Episcopal priesthood.
The unfortunate tendency to confuse the presidential administration for the nation-state has recurred frequently, drawing support from the “rally around the flag” mentality. Resurgence of this confusion in the form of jingoism has been especially egregious during times of war, whether declared or otherwise. During World War I, for example, the federal government sent some antiwar activists to prison not for inciting violence, but for inciting nonviolence. Associate Justice Oliver Wendell Holmes, Jr., disappointingly, compared the rhetoric of nonviolence during time of war to yelling “fire” in a crowded theater. “My country, right or wrong” has never impressed me, for as the great Voltaire wrote,
It is dangerous to be right when the government is wrong.
And, as the moralist Samuel Johnson observed,
Patriotism is the last refuge of a scoundrel.
Dissent is as American as the First Amendment. That is a patriotic statement. Those who enter public life should either have thick political skins already or grow them quickly. President Harry Truman‘s maxim that those who want a friend in Washington, D.C., should bring a dog remains true much of the time.
I am convinced that another contributing factor to the identification of the administration with the nation-state is fear. Out of fear individuals and institutions tend to trample people and ideals–even foundational principles. A time of crisis, however, is properly a time to double down on acting in accordance with those foundational principles, such as freedom of speech, freedom of the press, and the fact that dissent is patriotic. As Tom Dobbs, the character the late, great Robin Williams portrayed in Man of the Year (2006), said,
If dissent were unpatriotic, we would still be British.
I bristle whenever I read or hear someone accuse dissidents of being stupid at best or treasonous at worst. One reason for my bristling is principled; I affirm that, in the words of The Use of Force in International Affairs (1961),
If what your country is doing seems to you practically and morally wrong, dissent is the highest form of patriotism.
What I think of the content of that dissent is irrelevant with regard to my estimate of the patriotism of the dissident. Another reason is personal; I know the feeling of hearing and reading people question either my intelligence or my patriotism or both because of a political difference. Dissent, however, is as American as the First Amendment.
Administrations come and go, but the United States of America persists. The administration is not the nation-state.
As Martin Luther probably did not say,
Here I stand; I can do no other.
I will do no other.
KENNETH RANDOLPH TAYLOR
FEBRUARY 10, 2017 COMMON ERA
I derived much material for this post from Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York, NY: W. W. Norton and Company, 2004).