Our history leaves us well-informed
Published 12:00 am Friday, February 24, 2006
History is not much studied anymore, which is a pity, because as the writer of Ecclesiastes noted, there is little new under the sun.
It’s a good bet that the molders of the American republic had a broader grasp of history than most of us do now, and they applied that knowledge in setting the course for the nation. They grappled, not always wisely, with many issues that could be taken from current headlines.
The pictures from earlier eras are not always exact, more like a reflection in a pool of rippling water, but the experiences from an earlier time offer some insights and provoke thought.
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Warrantless searches were an issue even before the colonies became independent. Writs of Assistance were used to enforce the Navigation Acts, Britain’s efforts to regulate commerce in the colonies. The writs were warrants used by customs agents to find smuggled goods. The writs did not have to specify what was to be searched or the objects of the search. Officials could search not only shops and warehouses, but private homes as well.
The Crown obviously thought Writs of Assistance were a good idea, but the colonists hated them, and they helped turn loyal Englishmen into American rebels.
James Otis, a Massachusetts lawyer, challenged the writs on behalf of Boston merchants. “…One of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ … would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.”
He lost the case, but the writs were fresh memories when the Fourth Amendment’s ban on unreasonable searches and seizures was written into the Constitution.
By the time Federalist John Adams took office as the nation’s second president, Britain and France were at war. The United States wanted to stay out of the conflict, but when the French government demanded bribes before it would negotiate protection for American shipping, the nation was aroused.
The Federalist majority in Congress was so angered that it quickly passed the Alien and Sedition Acts to protect the national security against foreign (French) influence.
The proposed Alien Act gave the president wide authority to decide what aliens were dangerous and to deport them. Rep. Edward Livingston of New York, who argued that the proposed legislation was unconstitutional, said “… we are about to sanction a most important act; and on what ground – our individual suspicions, our private fears, our overheated imaginations.”
There were sufficient laws on the books, he argued, without the “necessity of arming the executive with the destructive power” proposed by the bill.
Livingston said of the proposed law, “…by it the president alone is empowered to make the law, to fix in his mind what acts, what words, what thoughts or look, shall constitute the crime contemplated by the bill, that is the crime of being ‘suspected to be dangerous to the peace and safety of the United States.’ …The president then, having made the law, the president having construed and applied it, the same president is by the bill authorized to execute his sentence, in case of disobedience, by imprisonment during his pleasure. This, then, comes completely within the definition of despotism – a union of legislative, executive and judicial powers.”
Livingston’s arguments failed.
The Alien Act, however, was never enforced. The companion Sedition Act was used to jail 25 men, most of them editors of newspapers that supported Thomas Jefferson’s Republicans.
Public opposition to the Alien and Sedition was widespread, and their unpopularity led, at least indirectly, to Adams’ defeat by Thomas Jefferson in the election of 1800. The Federalists lost 26 seats in the House, and the party eventually disappeared.
Of the Alien and Sedition acts, David McCullough wrote in his excellent biography of John Adams, “In two sweltering weeks, their popularity and confidence never higher, the Federalist majority passed into law extreme measures that Adams had not asked for or encouraged. But then neither did he oppose them, and their passage and his signature on them were to be rightly judged by history as the most reprehensible acts of his presidency. Still, the infamous Alien and Sedition Acts of 1798 must be seen in the context of the time, and the context was tumult and fear.”
It was not the last time that tumult and fear have gripped the republic and tested the Constitution.
As Benjamin Franklin was leaving Independence Hall on the last day of the Constitutional Convention of 1787, a woman asked, “Well, Doctor, what have we got – a Republic or a Monarchy?”
Franklin’s reply: “A Republic, if you can keep it.”
There’s some advice from Franklin that is still relevant: “This will be the best security for maintaining our liberties. A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the religion of ignorance that tyranny begins.”
We can’t be well-informed without reading our own history.
-Bill Brown can be contacted at 377 Quail Hollow Drive, Dadeville AL 36853 or by e-mail at email@example.com.