James Madison once observed that it is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad. Fear of foreign perils, Madison realized, can easily persuade a freedom-loving people to voluntarily part with liberties they would otherwise consider indispensable. In Thomas Jeffersons words, the people are made for a moment to be willing instruments in forging chains for themselves.
In making such statements on the forfeiting of precious rights during times of foreign danger, Madison and Jefferson were speaking from experience. In the 1790s, a number of Americans feared that the democratic excesses of the French Revolution would be exported to the U.S. They believed French agents were plotting to destroy the Constitution and overthrow the federal government. Wild rumors spread that Jefferson, Madison, and other members of their Republican Party planned to offer assistance to a French invasion force supposedly sailing across the Atlantic. To make matters worse, an undeclared naval war soon erupted between the U.S. and France.
This environment of fear and distrust led to the passage of the most illiberal legislation of the early national period: The Alien and Sedition Acts. Enacted by Congress in the summer of 1798, the Acts prohibited criticism of the federal government and gave President John Adams the power to deport any alien he viewed as suspicious. This legislation made a mockery of the First Amendment and deprived aliens of basic due process of law.
To combat the Acts, Jefferson and 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 the fact of their authorship because they feared prosecution under the dreaded Sedition Act. Although the American people originally applauded the Acts, in the elections of 1800 they threw out of office many of the Acts supporters. Jefferson was also elected to the presidency and he suspended all prosecutions brought under these shameful measures. This so-called Revolution of 1800 brought the crisis of the Alien and Sedition Acts to a close.
Today, similar to the 1790s, Americans sense a threat of danger from abroad. In the aftermath of the Sept. 11th attacks and the anthrax scare, Americans are concerned that terrorism will claim more innocent lives. Consequently, few voices of opposition were heard when Congress in late October passed the USA PATRIOT Act of 2001. Under this legislation, 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 is permitted use of evidence garnered by federal grand juries and criminal wiretaps. In addition, President Bush signed an Executive Order providing for secret military tribunals to try suspected foreign terrorists. These courts will not apply the principles of law and rules of evidence that are used in the trial of criminal cases in U.S. district courts.
Fortunately, these measures are rather mild when compared to the Alien and Sedition Acts of 1798. For example, nothing in the measures infringes on freedom of speech like the Sedition Act. Americans are free to applaud, criticize, or vilify government officials. Nevertheless, federal authorities have augmented their power to pry into the affairs of innocent Americans. With regard to the Internet, Big Brother will be monitoring our e-mail communications and where we surf on the Web. Moreover, under President Bushs Executive Order non-citizens suspected of terrorism are denied the safeguards of due process of lawthe very principles that form the foundation of the American justice system. Inasmuch as these tribunals are such a departure from the high standards of our system, the procedures employed by these military tribunals should concern citizen and non-citizen alike.
Without a doubt, the Sept. 11th attacks changed the U.S. forever. Terrorists cant take our freedoms away, but our politicians will continue to make America a more regimented society if we let them. Although action is required to deal with the threat of terrorism, let us not forget the lessons of the Alien and Sedition Acts and Madisons aphorism about the loss of liberty at home in the face of danger from abroad. Let us also be mindful of our freedoms, but, at the same time, take the necessary actions to vanquish this new foe. Such a balance is delicate, but also essential.
William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.
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