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Debate over Tentherism: Some history to consider

Last week, I launched small project called Taking Tentherism Seriously. Tentherism refers to those small government conservatives who argue that the federal government has expanded way beyond its constitutional limits, which are summarized by the Tenth Amendment.

The Tenth Amendment pretty much says that the federal government can do only those things it is empowered to do, more or less explicitly, by the language of the Constitution, as that language was understood by the framers (this is a little sleight hand in which I’m linking Tentherism to “Originalism” as the proper way to interpret the Constitution).

I have in mind a couple of posts about anecdotes, from the early days of the republic, raising questions/challenges about both Tentherism and Originalism. This post is about a shameful episode from the early constitutional period when Congress passed, and President John Adams signed laws that blatantly violated the First and the Tenth Amendments.

Originalism depends on the ability of modern day justices to understand what the words in the Constitution meant to those who wrote and ratified them. Anecdote 1 is troubling for several reasons, but may be a special challenge to Tenthers and Originalists because it calls into question whether those men who participated in the drafting of the first 10 amendments (aka The Bill of Rights) were very serious about accepting the limits that they themselves have help place on federal power.

Anecdote 1:
It’s 1798. John Adams is president, having narrowly defeated Thomas Jefferson in the 1796 election. Adams and Jefferson, who had once been friends and would become pen pals after their retirement, are bitter rivals in 1798.

John Adams
Painting by Gilbert Stuart
John Adams

The framers of the Constitution, and the founders in general, had hoped that American politics could develop without political parties. No such luck.

In fact, the division of factions into the “Federalists,” starring Adams and Alexander Hamilton (although they were also political foes), and the Democratic Republicans, starring Jefferson and James Madison (the modern Democratic Party often traces itself to this faction, which is also ironic in light which party favors a bigger federal government) is quickly becoming (in the 1790s) the first U.S. version of the two-party system.

Under the quaint, curious and discombobulated Rube Goldberg contraption known as the Electoral College system, before it was substantially amended (see 12th Amendment to the U.S. Constitution), Jefferson, as the runner-up in the election, is Adams’ vice president. But the two are estranged and have no personal contact as they both prepare for a rematch in 1800.

France (during the French revolutionary period) and England, are at war. Federalists favor England, Democratic Republicans favor France. Adams hopes to stay out of the war. The United States never does enter the war fully, but real acts of naval warfare occur between French and U.S. ships. Historians sometimes refer to this as the Quasi-War.

Democratic Republicans, who like to portray Federalists as lapdogs of the Brits, are harshly critical of what they believe is the drift toward war with France. Federalists, who control Congress, pass a series of laws known as the Alien and Sedition Acts, which are hyper-partisan and are designed to hurt the Democratic Republicans.

The crackdown on aliens is substantially intended to prevent foreign-born residents from becoming citizens. This is at least in part motivated by Federalists belief that most aliens who become citizens will become Democratic Republicans. This may be in some sense a precursor to the modern immigration law issue, but let’s not go there today.

The Sedition Act, on the other hand, is among the most unconstitutional laws ever passed. It makes it a crime, punishable by imprisonment, to:

“Write, print, utter or publish, or …  cause or procure to be written, printed, uttered or published, or … 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.”

In other words, no criticizing the government (although technically the criticism has to be false, scandalous or malicious). Under this law, 25 men, many of them editors of Democratic Republican newspapers, were arrested and prosecuted. Sopme went to prison. In many instances, the newspapers were shut down.

Repeating for emphasis: In 1791, the First Amendment to the Constitution was ratified, clarifying that Congress could pass no law abridging freedom of speech or press. There have been tough questions since then on what the limits of this guarantee might be. But this is not one of them. Arresting people for criticizing the government. And shutting down opposition newspapers. In the United States of America. When there wasn’t even a real war on. Is an unconstitutional law that violates the First Amendment.

You could say it also violates the 10th Amendment, also ratified in 1791, because the Constitution did not empower Congress to regulate the press. In fact, the Constitution, as amended, ordered Congress to do no such thing. (Jefferson and Madison made exactly these arguments against the Alien and Sedition Acts. I’ll get to that in the next installment.)

To his credit, President Adams did not propose this law. To his shame, he signed it and his administration enforced it, actually sending people to prison under it (although the sentences were short and the Sedition Act was adopted with an expiration date of 1801).

Many men who participated in the framing and/or ratifying of the Constitution served in the Congress that enacted this law. They voted for the First Amendment. They voted for the Tenth Amendment. And then they voted for the Alien and Sedition Acts.

John Adams was not one of the framers of the Constitution. He probably would have been, since he was one of the authors of the Declaration of Independence, an expert on constitutionalism, a top lawyer and a leading Massachusetts political figure of his time. But Adams was the U.S. ambassador to Britain at the time of the Philadelphia Constitutional Convention.

Adams was, however, back in the U.S.A. during the debates over ratification, and was around for the congressional debates over the Bill of Rights, including the 1st and 10th Amendments. As vice president, he was the presiding officer of the Senate when the amendments came through Congress. He is clearly among the group we refer to as the Founding Fathers, and his understanding the 1st and 10th Amendments would have been as good — and as relevant to the real original meaning — as anyone’s, except possibly those who participated in the writing and ratifying of the Constitution and the Bill of Rights.

But somehow, Adams and the majority of both houses of Congress, agreed that it was within the power of Congress adopt the alien and Sedition Acts, notwithstanding the lack of any explicitly enumerated power to regulate the press and notwithstanding the 1st and 10th Amendments.

Question 1 raised by Anecdote 1: In the context of understanding what the Founding Generation meant by the 10th Amendment, what are we to make of John Adams’ signature on and enforcement of the Alien and Sedition Acts or by the enactment of the Alien and Sedition Acts by a Congress full of members who participated in the creation of the Constitution and of the 1st and 10th Amendments?

It’s a tough one.

Comments (13)

  1. Submitted by Paul Landskroener on 07/07/2010 - 11:27 am.

    What you make of it is that Congress and the President each interpret the Constitution in their own time to meet present circumstances, even if in retrospect it looks plainly unconstitutional (as it did to many at the time, too). After the time you describe, the Supreme Court in Marbury v Madison assumed to itself the role as final arbiter “of what the law is”, including the meaning of the Constitution and the power to declare legislation unconstitutional.

    Mostly, the President and Congress and the nation as a whole have acquiesced to the Court’s assumption of this power fearing the consequences. To wit, the Civil War was fought because the Supreme Court declared in the Dred Scott decision that Congress had no power to prohibit slavery in the territories and that slaves were slaves even in the free states; Lincoln never accepted that decision as valid, the Southern states knew it, so they went to war rather than submit to a President who didn’t submit to the Supreme Court. (Of course, they would have left if the Court had ruled the other way, too.)

    The point is that the idea that a written Constitution has a fixed and certain meaning outside of time and space and the lives of the men and women who goven under it is incorrect and correlates to the position that Fundamentalists take with regard to the Bible. As I noted in an earlier comment, Congress and the President have sworn to support the Constitution and have as much right to determine what it means as the Supreme Court does. The Court’s word is final, however, because we are unwilling to fight another war over it. As Justice Robert Jackson sais, “We [the Court] is not final because it is infallible; it is infalliable because it is final.”

  2. Submitted by Glenn Mesaros on 07/07/2010 - 12:12 pm.

    If you want to understand the American Constitution, the most perfect document ever written, and amended, in human history, you have to read the Federalist Papers. That’s why they were written.

    The Preamble,

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    features an eternal and immutable concept, which explains by design, that there will be development.

    Abraham Lincoln never violated a Supreme Court decision, even if he disagreed with it. He achieved the Presidency by constitutional means, and did not attack the South. The South, aided by Britain, seceded from the Constitution, illegally, and attacked the North, when they denied the Northern constitutional effort to supply the Federal Fort Sumpter.

  3. Submitted by Andrew Kearney on 07/07/2010 - 12:19 pm.

    Eric, thank you for doing this series. It is one that I have been intrigued by for some time. I enjoyed your thoughts and the ensuing commentary by readers. These discussions and the discussions surrounding the Supreme court make our constitution ‘breathe’. I agree that Cong. Bachmann has a responsibility given her background to refine her theory but I doubt she will. I would be interested in Susan White commenting more on the history of the tenth amendment after its passage.

    I think also there is more to this than just the current political dialogue. For example, no one is too distressed about the federal education/disability statute (IDEA) and the havoc it is creating for local schools. Likewise I do some lobbying around mental health issues and find it troubling that our state DHS ‘makes up rules’ without going through the legally required rule making process. They do this not out of disregard for the law but because they are addressing concerns and pressure from federal employees about Minnesota implementation. So our elected reps have no role in how we do mental health because a portion of it is paid by the federal government??

    These are both examples of why tenthism is getting attention and not just from the right wing. There is a feeling out here that the ordering of our lives is too complicated, too expensive and too remote from accountability.

  4. Submitted by Barbara & Jon Scoll on 07/07/2010 - 01:12 pm.

    What, indeed, are we to make of Adams, and the Alien and Sedition Acts?

    The best face that can be put on it was that the United States, technically neutral, was highly vulnerable, having no army or navy, awash in scurrilous pamphleteering (sorry, Eric!) and crawling with foreign spies, real or imagined — vide the XYZ Affair. Adams may have succumbed to a spasm of “national security” jitters. And as Paul Landskroener rightly observes, the tradition of constitutionalism grounded on Marbury v Madison had not yet taken root. Still, all in all, a stain on Adams’ reputation.

    But a Tenth Amendment issue? I wonder. When I was in law school, in the late 1960s, the Tenth was not a subject of study; it was regarded at most as a kind of constitutional flourish. I still regard it that way. “Tenthers” (a word I first read in this column) seem to me people in search of a text to validate what they already believe: that any role of the federal government (actually, to them, all government) should be eliminated if at all possible, or sharply curtailed, if not.

  5. Submitted by Ray Schoch on 07/07/2010 - 06:09 pm.

    Interesting post and comments. Alas, I have neither a Juris Doctorate or a Ph.D. in constitutional law, either of which might shed some additional light on what it all REALLY means.

    The “sedition” part of the Alien and Sedition Acts is something I usually discussed with my students when we dealt with that early, pre-Marbury period of American history. As has been said, “sedition” is defined in the law as, essentially, any criticism of the government. When the law is based on a term like “malicious,” then the definition of “malicious” is entirely up to the powers-that-be. Especially when the folks in Washington believe they (maybe not us, here in the hinterlands, but inside the infamous Beltway) have a war on their hands, the inclination seems to be to stifle any and all opposition.

    John Adams, in signing the law, was playing Dick Cheney, or perhaps more accurately, providing an unfortunate precedent that future administrations might use to suppress a rambunctious public or press. It’s not just a recent phenomenon. Schools stopped teaching German, and several German foods were renamed (my personal favorite being “Victory Cabbage” instead of sauerkraut) during WW 1, and while those provide a certain rueful amusement, there were threats to newspapers, and people jailed for being “seditious” during our involvement as well, and those instances are less amusing.

    News outlets and their bosses, whether electronic or otherwise, are apparently exquisitely sensitive to political winds. I don’t recall any shortage of criticism of the war in Vietnam, though Spiro Agnew – before he was sent off to prison for being even more obviously a crook than his boss – did his best to categorize war critics as “aiding the enemy.” That, of course, was the stock in trade of the Bush 43 administration after 9/11. You were either with ‘em or agin’ ’em, and if you were agin’ ’em, then Mr. Cheney did his best to tar you with the traitor’s brush. There’s considerable irony in that, but that’s a discussion for some other day.

    Basically, I side with Paul Landskroener, especially his third paragraph. The idea that the Constitution has some fixed and certain meaning – and that somehow, “Tenthers” are able to magically divine this meaning when the rest of us have apparently been clueless for two centuries – is of a piece with the religious fundamentalist interpretation of the Bible, and the fundamentalist’s own unique ability to divine its “true” meaning when the rest of us obviously are reading some heretical version.

    I’m also inclined to agree with the Scolls’ suggestion that much of this is a case of “Tenthers” searching for constitutional chapter and verse to provide justification for an anti-government ideology in which they already believe.

  6. Submitted by John Heintz on 07/07/2010 - 09:48 pm.

    “what are we to make of John Adams’ signature on and enforcement of the Alien and Sedition Acts or by the enactment of the Alien and Sedition Acts by a Congress full of members who participated in the creation of the Constitution and of the 1st and 10th Amendments?”

    I don’t think it’s a tough one. We tend to revere the founders so much that we don’t want to ascribe political motives to their actions. Adams was a politician. So were Hamilton, Jefferson, and Madison. Partisan posturing affecting legislative (and executive) outcomes is something we are all painfully aware of–and why not: after all, the founders did it…

  7. Submitted by John E Iacono on 07/08/2010 - 01:41 pm.

    To be fair,you should also note the outcry at the time which raised the same objections you do, EB, and that the law was soon repealed under pressure.

    To me, it illustrates how Congress and the Executive ever since the beginning have been shoddy in their respect for the Constitution, illustrating the need for the Supreme Court’s assumption of the role of compliance agent.

    Things are not different today, except that
    “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” has become commonplace in the press, the media, bloggers, and in political speech by all candidates for office.

    I guess we like it that way.

  8. Submitted by Bernice Vetsch on 07/08/2010 - 02:16 pm.

    Regarding Supreme Court being the “final” word on an issue, WikiAnswers says this in response to a question asking if the Congress can ever change a decision they don’t like —

    There are only two ways to change a decision:
    “1) The court can overturn its own decision
    2) Congress and the States can ratify a Constitutional Amendmend that eradicates the decision and/or protects an entity from future action.”

    The President and Congress “may circumvent the decision by passing legislation that addresses the Constitutional challenge while still accomplishing their goal. Congress also has the right to prevent the Supreme Court from hearing certain types of cases under their appellate jurisdiction (called jurisdiction stripping) to reduce the possibility of certain controversites being declared unconstitutional in the future. Neither of these acts would overturn or change the court’s decision; they are simply political maneuvers used to check the federal judiciary.”
    —-

    My question for Congress: Why are you not busy passing Alan Grayson’s set of eight or nine pieces of legislation that address each abuse made possible by the Citizens United decision???

  9. Submitted by Bernice Vetsch on 07/08/2010 - 02:56 pm.

    Mr. Iacano: Making public the misdeeds of our government is THE civic duty of a free press.

  10. Submitted by Colin Lee on 07/08/2010 - 03:23 pm.

    I do not have a degree in Constitutional law, but I have always read the Tenth Amendment as meaning that executive agencies are strictly limited to their roles as defined by Congress. It’s against executive overreach, not legislative expansion. Otherwise, the Tenth Amendment would also strike out the Supremacy Clause, which specifically bans states from violating laws passed by Congress even when the state’s own Constitution and laws conflict with them.

    I should ask my uncle who is a Constitutional scholar.

  11. Submitted by John E Iacono on 07/09/2010 - 09:51 am.

    Berneece:

    Really? Even if untrue and KNOWN by the accusers to be untrue.

    Colin:

    Yes, you should.

  12. Submitted by Bernice Vetsch on 07/09/2010 - 01:52 pm.

    Mr. Iacono: Asking the question “Really? Even if untrue and known by the accusers to be untrue” seems a bit silly. Why would you assume that I would approve that?

    Thomas Jefferson said that if he had to do without either government or a free press, he’d give up government. Without a free press we are puppets taking direction from whatever ideologues have the power to publicize their agenda and beliefs and no other.

    All members of government are our employees and are responsible to us. We have a right to know when they are acting in ways that harm us and our democracy.

  13. Submitted by John E Iacono on 07/10/2010 - 11:38 am.

    Objective, carefully researched,impartial reporting of factual misdeeds has been found in the press from the beginning.

    Unfortunately, slanted, half-true, cheap shots amounting to no more than partisan gossip and muck racking have also been there, and of late seem even more prevalent than ever as the “sound bites” clip relevant facts.

    Any attempt to use the first amendment to put the ugly press on a pedestal is far off the mark.

    The first amendment authors were as aware of this as objective observers are today, and STILL wrote the first amendment, believing that in the end it was better to suffer the bad to obtain the good.

    It means they trusted us to discount the garbage gleefuly put upon us daily, and to see the truth through the deliberately induced fog of deception.

    It is in this way that we avoid being “puppets taking direction from whatever ideologues [in the media] have the power to publicize their agenda and beliefs…”

    I trust you agree with me in this?

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