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Bill of Wrongs

1.

Of the innumerable expressions of patriotism in America, “My country, right or wrong!” is surely the most succinct. Geoffrey R. Stone sets it at the head of his history of free speech in a time of war, not for the truth of it but as exemplifying a much-loved conception of patriotism. Its author was Stephen Decatur, the naval hero who, in 1805, commanded the raiding party that burned the captured American frigate Philadelphia off Tripoli. Today the United States is waging war in the same part of the world, no longer an upstart country avenging insults to its youthful national pride. But to say now that Decatur’s loyal toast scarcely rises above the level of a slogan does nothing to undermine its emotive, unifying power.

Patriotism, however defined, plays a powerful part in Geoffrey Stone’s engrossing history of the fate of civil liberties when the country goes to war. In making his points about the corrosive effects of war, or the rumor of war, upon civil liberties, Stone is far from being an absolutist. At all points he takes the hardheaded view that when a democracy such as ours is under grave threat the rights of individuals have to be balanced against the right of the nation to defend itself against subversion. What interests Stone as a legal scholar is the social pressures and processes by which that often tenuous balance is achieved or undone. Orthodox legal scholarship has seldom made good use of historical evidence or historical methods, deficiencies Martin S. Flaherty has brilliantly analyzed.* Stone gives as much attention to the changing historical settings as to the legal and constitutional developments that grew from them. High constitutional principles had to survive and find their meaning in the give and take of everyday politics.

Most of Stone’s book is devoted to modern wars. It begins, however, with the quasi war with France, our erstwhile Revolutionary ally, because the single most blatant instance of using politics as an instrument for repressing civil liberties was coeval with the birth of the American political system as we now know it. Today Americans are commonly heard to say, “I know my rights.” But the men who had taken such pains to add a Bill of Rights to the Constitution, and who had designed the Constitution to deflect the forces of faction and corruption, came to be bitterly divided over the meaning of those rights. Within a decade they had split into two factions, Federalists, led by Alexander Hamilton and John Adams, and Republicans, led by Thomas Jefferson and James Madison, with each denouncing the other for betraying the Revolution, each building a party machine, each sponsoring a party newspaper. Stone takes it for granted that when high principle is reduced to everyday politics, the result is “petty jealousies, partisan squabbling, and deep distrust.” But he notes more ominously that the Founding Fathers of the Republic “were unsure of the constitutional system they had put in place.” And their differences of opinion were unfailingly projected onto the battlefield of partisan politics.

Distrust and uncertainty could take many forms but found an especially virulent outlet in the paranoia surrounding the French Revolution. Europeans and Americans both saw “Jacobinism” as a political, economic, and religious catastrophe. England joined Prussia, Austria, Spain, and the Netherlands in a coalition to preserve monarchy and to wage war against France. The declared policy of strict American neutrality was undermined by British interference with American shipping and impressments of American sailors, and by French commerce raiding, which resulted in the capture or destruction of hundreds of American merchant vessels. John Adams, failing to distinguish himself as Washington’s chosen successor, looked on while Congress abrogated the treaties with France and began military preparations. In such an atmosphere, Stone observes, “the nation’s commitment to civil liberties was quickly rationalized out of existence.” This development he sees reenacted time and again in succeeding centuries.

The most disturbing events of the quasi war turned out to be not British and French affronts to American national pride but the partisan campaign of domestic repression and censorship for which the specter of war with France was only a pretext. In an era of political extremism hotheads and rounders of all political persuasions traded curses and blows (even in the halls of Congress), while mobs laid hands on men designated as political targets. But it was the Federalists, reaping enormous advantages from being the party in power, who passed laws in 1798 for the express purpose of suppressing individuals and institutions claiming rights of dissent under the Constitution. The Enemy Aliens Act (still in effect today), which allows the president to order the detention, confinement, or deportation of citizens of countries with which the US is at war, the Alien Friends Act (which expired after two years), and the Sedition Act (lasting only for the term of Adams’s presidency) furthered no legitimate government goals, serving only to institutionalize xenophobia and popular hysteria under the cover of national security.

While there was a measure of bipartisan support for the Enemy Aliens Act, the Sedition Act was designed to punish a different class of enemies, namely people and publications assailing President Adams and the war measures associated with his party. With respect to the targets of the Sedition Act, the Republican propagandists, of whom twenty-five were arrested and ten actually stood trial, were a truculent lot. Matthew Lyon, Thomas Cooper, and James Callender were the kind of men who could never see a hornets’ nest without prodding it with sticks. It is not disputed that they denounced the President as an ignoramus and a tyrant, complained bitterly of the costs of preparing for war, and—in common with their Federalist antagonists—engaged in wholesale character assassination. Still, given the inflammatory political culture of the time, how those commonplace activities amounted to the crime of sedition is almost unintelligible.

What is staggering, moreover, is the degree to which the federal judiciary exhibited the spirit of vendetta. To appreciate the effect this had upon Sedition Act prosecutions, one has to remember that all the federal judges (enjoying lifetime tenure) were Federalists. And the court system then in place had justices of the United States Supreme Court riding circuit to preside over local federal cases. Thus it was that Federalist judges punished Republican defendants for the purported crime of heaping abuse on the Federalist President. These justices virtually directed Federalist juries to render guilty verdicts, passed excessive sentences, levied ruinous fines, and relied upon Federalist United States marshals to make the conditions of imprisonment as severe and demeaning as possible.

Faced with an opposition so obdurate, Jefferson was not content to lament “the afflicting persecutions and personal indignities we had to brook.” While Republicans throughout the country organized protests, Jefferson and Madison persuaded the legislatures of Kentucky and Virginia to pass resolutions affirming state sovereignty and declaring the Alien and Sedition Acts to be unconstitutional. No other state backed these positions, and no amount of protest availed to protect Republicans against persecution. But just as the Adams administration derived its power from party ascendancy, it was a reversal of political fortune that brought the party of Jefferson into power in 1800. Determined to have an end to political bloodletting, the Republicans, Stone tells us, took to heart their president’s call for national amity (“We are all Republicans—we are all Federalists”), moving the nation into the “Era of Good Feelings.”

While the United States and France managed to compose their differences without resorting to war, war with England could not be avoided in 1812. Only now it was Mr. Madison’s War, not Mr. Adams’s, and Federalists no longer were pro-war. On the contrary, in the winter of 1814–1815 they convened at Hartford, Connecticut, in order to find a way to thwart the war effort. Despite flirting with secession, these unreconstructed Federalists were not persecuted. Thirty years later, when the United States declared war against Mexico, many Americans denounced the venture as a land grab and a subterfuge for invigorating the Slave Power. But there was no concerted campaign to silence dissenters. Although Stone does not dwell on the contrasts between the almost-war with France and these subsequent conflicts, one may well conclude that the extremes to which the Federalists had carried their assault on free speech and free association made it impossible for a political party in the early nineteenth century to exploit war for purely partisan advantage.

Stone draws unsettling conclusions from the preceding era of very bad feelings, tracing “important patterns of discourse” that came to prevail in later wars. Subversion and sabotage have been seen as ever-present threats. Suspicion and animosity have been directed against foreigners (or outsiders), who are accused of owing allegiance to enemies of the United States, whether hostile European or Asian powers or the Confederate States of America. Labeled as subversives, both aliens and citizen dissenters have suffered from organized campaigns of vilification and disinformation. Preoccupation with wartime security takes the form of equating criticism with disloyalty, while lawful acts of protest and mere association with dissenters are equated with treason. Moreover, these assumptions and attitudes have powerful effects on the government and the courts, which can be persuaded to use the language of crisis legislation, emergency executive orders, and jurisprudence adapted to the demands of the moment in order to justify sweeping denials of constitutional liberties.

2.

In Stone’s analysis of war crises after 1798, all these factors come into play. And although his book is subtitled “Free Speech in Wartime,” many such episodes concern violations of rights to free association and wrongful detentions. Indeed, the best-known cases of the Civil War and World War II concern the suspension of habeas corpus on the one hand and the internment of Japanese-Americans on the other. Each war presents a particular profile of repression or attempted repression, with no one branch of the government and no single popular institution escaping criticism.

The Civil War, which offered the most serious threat ever mounted against the nation’s unity, proved less of a threat to civil liberties than the quasi war of the 1790s had. The reason may perhaps be a more settled popular appreciation of the constitutional principles on whose behalf the war was fought; but Stone also gives credit to Abraham Lincoln. As the candidate of the newly formed Republican Party (with no connection to the Jeffersonian party of that name) he had to deal with die-hard members of the older Democratic Party, the so-called Copperheads, who opposed the war. They had outspoken and powerful leaders among elected officials and politicians, as well as newspapers given to headlining conscription riots, Union army debacles, and the “tyrannical” excesses of President Lincoln.

Lincoln “was politically committed to the basic principle of free speech,” Stone writes, pointing to the Republican Party’s embrace of free expression, a commitment based on decades of battling suppression of antislavery opinion and activities. The principal attacks on free expression during Lincoln’s administration came as much from Union generals as from legislators or judges. Ambrose Burnside, as commander of the Department of Ohio, took it upon himself to declare martial law in April 1863, issuing General Order No. 38, which prohibited “the habit of declaring sympathies for the enemy.” Accordingly, a court-martial jailed Clement Vallandigham, a leading Copperhead, and a federal judge denied his petition for a writ of habeas corpus. The reaction of many Republican newspapers was not to justify the action but to denounce it, and prominent Republican leaders condemned this departure from party and constitutional principles. Undaunted, Burnside proceeded to shut down the newspapers that sided with Vallandigham, expanding the list of actions that caused Lincoln, “vexed with Burnside for acting so imperiously,” to order his vexatious general to release Vallandigham but to expel him from the Union and send him to a Confederate state. Subsequent action by General John M. Schofield to curb the press brought further odium on Lincoln’s conduct of the war.

  1. *

    Martin S. Flaherty, “History ‘Lite’ in Modern American Constitutionalism,” Columbia Law Review, Vol. 95 (April 1995), pp. 523–608.

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