A Story About the Collapse of American Journalism, Part 7

Jefferson, Madison, the Resolutions, and the Long Road to NYT v. Sullivan

The year is still 1798. The Federalists are still in charge. Free speech, expression, and press are still under attack. Democratic-Republicans are still the only ones being prosecuted under the Sedition Act. And Thomas Jefferson is still willing to stick his finger in the eye of an oppressor.

He’s also, still, the sitting Vice President of the United States, and about to commit what might be considered sedition.

Jefferson is squirreled away somewhere writing — anonymously — a resolution declaring his own government's law unconstitutional and unenforceable. He will not publish it in the newspaper, but by sending it to the Kentucky legislature. He will not put his name on it. If discovered, he could be prosecuted under the very law he is attacking.

Meanwhile, James Madison is doing the same thing for the Virginia legislature.

And what better example of the Sedition Act having its intended effect than two of the most powerful and distinguished men in the country feeling the need to oppose it anonymously through a state legislature?

Think about that for a second. It wasn’t unusual in those days for political prose to find its way into newspapers under the bylines of anonymous authors. Jefferson and Madison could have simply followed that pattern to anonymously publish their opposition and attempt to rally the public.

But the Sedition Act was meant to silence dissent, to make it painful to speak out against the government, and this was true even for the very people who occupied its highest offices. The Act and the prosecutions under it had made the newspaper industry too toxic a place for dissenting voices. Jefferson and Madison understood this, and turned to the next best place to spread their word: state legislatures. It was still too fraught to put their names on it though - even with the Speech and Debate clause a part of the Constitution since 1788 - so they had to draft them anonymously and have them published by the legislative body as proposed law.

So two of the most distinguished men in America had to write in secret because the law made public dissent dangerous, then they had to publish it under the color of legislative process because the law made utilization of the free press a ticket to prison.

JEFFERSON AND MADISON RESPOND

The resolutions were in response to an attack on civil liberties, but they would not make that the focus of their argument. Instead, as in the original debates over the First Amendment, Jefferson and Madison focused on whether the states, through the Constitution, had given the federal government the powers conferred by the Sedition Act in the first place. And, because operating in the shadows meant they had no control over how their words were interpreted, this argument would prove complicated, later, when forces working in bad faith would try to use the same arguments in defense of things like school segregation and, perhaps foreseeably, the states‘ rights movement. 

Professor Douglas C. Dow with the summary:

The resolutions assert two key propositions. First, the Union is a compact among individual states that delegates specific powers to the federal government and reserves the rest for the states to exercise themselves. 

Second, it is both a right and a duty of individual states to interpose themselves between their citizens and the federal government. On these bases, Virginia’s resolution, penned by Madison, declared that the Alien and Sedition Acts were unconstitutional and that measures should be taken by all states to retain their reserved powers. Jefferson’s more strident Kentucky Resolution took Madison’s theory of interposition a step further and concluded that because the Alien and Sedition Acts were unconstitutional, they were null and void.

So, generally, Madison argues that “hey, all of the states should pass some kind of resolution like this that safeguards their rights vis-a-vis the federal government”, and Jefferson took that up a notch and said “yeah, but also we should not recognize the Alien and Sedition Acts as active law because they are not Constitutional.”

You can get a much more detailed breakdown of the Resolutions at, go figure, Monticello.org, but this is the important stuff for our purposes:

The Resolutions declared that:

1. the several states are united by compact under the Constitution,
2. that the Constitution limits federal authority to certain enumerated powers,
3. that congressional acts exceeding those powers are infractions of the Constitution,
4. and that each state has the right and duty to determine the constitutionality of federal laws and prevent application of unconstitutional federal laws in its own territory.

Madison, specifically, invoked the difference between a hereditary monarchy and a democracy, arguing that English seditious libel law was meant to protect a king. Since America is not supposed to have a king, that kind of libel law should not be controlling.

The tricky thing here is that, just like old Andrew Hamilton arguing for John Zenger in 1735, the real argument Jefferson and Madison are making is a nullification argument. They are effectively arguing that when the federal government passes an unconstitutional law, the states are obligated to ignore that law, or at least challenge it. This argument would later be used to defend things like slavery, secession, and school segregation. We saw it in the debates surrounding the Bill of Rights and the Constitution, and we see it again here: The good guys’ weapon doesn’t always stay in good-guy hands.^[1]

HOW IT ENDED

So what impact did the Resolutions have? Well, that kind of depends on how you look at it. 

The resolutions did not end up blocking the application of federal law or triggering its repeal, but it did work to rally opposition to the Alien and Sedition Acts and, indeed, the Federalists, ahead of the elections of 1800.

In most meaningful ways, the other 12 states rejected the Resolutions and many of them pushed back directly against the idea of nullification. So if the efforts by Jefferson and Madison were intended to create a legislative reaction, then they failed. The political argument, however, worked, and the Sedition Act became a huge issue for the campaign of 1800.

And I suspect that’s exactly what Jefferson wanted. I don’t think he believed that the states would come together and pass these resolutions, but I do think he believed that with newspapers suddenly too dangerous to publicize dissent, the state legislatures were the best way to get his ideas out there and generate discussion.

Why did he want that discussion? Probably because he knew he was running for president himself in 1800 and he could see the field clearly. He would oppose the unpopular president Adams, from the unpopular Federalists, whose signature work so far had been to arrest and prosecute American citizens who had the gall to speak out against his administration. Jefferson and Madison effectively turned the Sedition Act into a discussion over the overlap in jurisdiction between the new federal government and the state governments that empowered it. While most states didn’t agree to the extent they passed legislation to denounce or reverse the power grab by the feds, they agreed enough with the spirit that the resolutions were able to unite Democratic-Republicans around the issue for the campaign of 1800 — a campaign ultimately won by Jefferson.

But remember, the Federalists knew what they were doing when they drafted the Sedition Act and built it to expire the day before Jefferson took office. So no court ever struck it down or ruled it unconstitutional, no subsequent Congress repealed it, and no politicians ever used it again. It just died, on March 3, 1801, because it had stopped being useful. Just the way the Federalists intended it. They knew exactly what kind of dirt they passed it for, and they built it to self-destruct in case it ended up in the hands of the opposition.

Is that the sort of thing you say about a good law?

THE TIME JUMP

Now, we’ve jumped decades a little bit in previous installments to move the story along and we’re going to do it again here. Two hundred twenty-nine years passed between the Zenger verdict (1735) and NYT v. Sullivan (1964), when Hamilton's argument finally became fully settled constitutional law.

So, where did I put that Time Jump Device…

Do you have any idea how much can happen in 229 years? How about just the last 229 years?

1735: John Adams is born.^[2]

1735: Also, George Washington was three years old.

1776: The colonies declared independence from England.^[3]

1789: The French Revolution begins and soon people across Europe will view the monarchy a lot as their colonial cousins do.

1855: The Bessemer Converter changed the way we mass-produced steel and poured gasoline onto the fire that was the Industrial Revolution.

1865: The US Civil War ended and four million or so people were legally freed from slavery.

1914-1918: World War I changes the world order and the League of Nations is formed.

1939-1945: World War II is fought and restructures international diplomacy forever.

1964: The Beatles make their debut in the United States, legal segregation in the US is ended^[4] by the passage of the Civil Rights Act, and Congress passes the Gulf of Tonkin Act, setting us up for a long haul in Vietnam.

Consider this: Almost the entire history of the United States, from the Revolution, the Constitution, the Civil War, Reconstruction, two World Wars, the New Deal, Korea, Vietnam, the Civil Rights Movement, the moon landing, Watergate, the fall of the Berlin Wall, September 11th, the iPhone, the election of the first Black president, a global pandemic, and whatever the hell the last decade or so has been — almost all of that happened inside the window of time between Andrew Hamilton's argument and the Supreme Court finally writing it into constitutional law in NY Times v Sullivan.

As far back as Caesar, those in power understood that to keep a citizenry docile and under control meant to keep a hand on the flow of good and reliable information. That was true when we were chiseling things into stone and remained true through the invention of the printing press and the spread of literacy and American Democracy itself. 

In 1735, Zenger sat in a New York jail and his wife, Anna, ran the newspaper through a hole in the door while Andrew Hamilton argued on behalf of Zenger and the right to tell the truth, to criticize your government, and to publish that truthful criticism without fear of being locked up or run out of business because the target of your coverage doesn’t like what you say. But it took until 1964 for the Supreme Court of the United States to make it the law of the land. 

In 1801, the Sedition Act vanished. Since it expired, it didn’t leave behind any formal precedent or protections, but did lead to a whole lot of bad habits. The country grew, the media evolved, and the temptation to use the law as a club against the press never really went away because, well, it’s the only thing that’s ever even kind of worked to slow down the truth.

Eventually, we end up in Mobile, Alabama in the 1960s. Come back next week to find out how a civil rights advertisement, a $500K jury award, and a coordinated campaign to bankrupt Northern news organizations working in the South, finally settled the notion that you cannot use defamation law to silence criticism of the government. 

Better late than never, I suppose.

FOOTNOTES:

1. So if you thought you were creating a law that you planned to weaponize, but that you don’t want weaponized against you if you lose power at some point, you might do something like build in an expiration date for right when the opposition would take power.↩︎
2. No, seriously, the same year Andrew Hamilton makes his argument in defense of John Zenger, Adams, the man who will eventually use it to make a literal federal case out of a joke about him taking a cannon shot to the ass, is born. Historical coincidences are fun.↩︎
3. By 1964, the men who signed that document had long ago turned to mythical figures. Their houses became museums. Their faces ended up on money. They were streets, and elementary schools, and parks, and bridges, and libraries.↩︎
4. Allegedly.↩︎